v,> ainm^ll HauJ ^tl^xml Sibtartj Cornell Unlvsralty Library KF 1526.S65 The equitable remedies of creditors In r 3 1924 019 308 695 Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924019308695 THE Equitable Remedies OF CREDITORS IN RELATION TO FRAUDULENT CONVEYANCES, TRANSFERS. MORTGAGES, JUDGMENTS AND ASSIGNMENTS including Creditors' Bills, Bills in the Nature of Creditors' Bills, Supplementary Proceedings.'Proceedings in Aid, Proceedings Against Insolvent Corporations, Insolvent Estates, Trusts, Receivership AND the effect of the bankrupt act upon INSOLVENT LAWS, ASSIGNMENT LAWS AND THE equitable REMEDIES OF CREDITORS JOHN W. SMITH. LL.D. or THE CHICAGO BAB CHICAGO CALLAGHAN & CO. 1899 Entered according to Act of Congress, In the year 1899, By CALLAGHAN & COMPANY, In the office of the Librarian of Congresa, at Washington, D. C. PREFACE. There is no other branch of the law that better illus- trates the general growth of remedial jurisprudence and the adaptation of remedies to the ever changing conditions and new exigencies in human affairs than the equitable rights and remedies of creditors herein considered. As originally administered, the law of creditors' bills as a remedial action was confined almost exclusively to relief against fraudulent conveyances of real estate. With the genera^growth of chancery juris- diction the equitable remedies of creditors have been extended to cover almost every conceivable transaction of the debtor involving the rights of creditors where, through the medium of the common law courts, an ade- quate and complete remedy was not afforded. For want of a better designation many of these equitable proceedings have been termed bills in the nature of creditors' bills, but they have been in theory, and in fact, but the adaptation and application of an older, well known and efficacious remedy to new conditions. This extension of this branch of the law has not been confined to the courts alone, but is also to be found in the expressed legislative policy of the several states, but more particularly in regard to insolvent corpora- tions, the winding up of their affairs and the distribu- tion of their assets among creditors and stockholders, and even extending in many cases to the dissolution of the corporation and the forfeiture of its franchises. This is the first attempt, so far as the author is aware, in the preparation of a distinctive work upon this sub- iii iV PEEFACB. ject, but it is believed there is a necessity and public de- mand therefor. In the preparation of this work it has been the pur- pose of the writer to fairly and impartially state the law upon the subject in as clear and concise language as possible, and at the same time analyze and separate the distinctive features of each topic, showing the rela- tionship of each to the general subject. The general rules upon each branch of the subject which are sus- tained, at least, by the weight of authority, are given in as explicit terms as possible, and at the same time and in the same connection the exceptions and modifica- tions, rendered necessary by the qualifying facts and circumstances, are given, which to the practitioner are as important as the rules themselves. As will be ob- served, the chapter contents at the beginning of each chapter are unusually extended. The purpose of this is to facilitate the finding of any desired point and the authorities sustaining it without being required to read the entire chapter or section even. The notes in some instances are apparently out of proportion to the text, but on examination it will be observed that the inten- tion in so doing has been to more fully state the reasons and underlying principles of the text, to amplify the statement of facts, as an aid to those not having access to the reported cases, and to give all the cases of im- portance touching the principles of the text. In the text there are, designedly, no discussions of isolated cases with their accompanying facts, more or less com- plicated, thus rendering it compact, and, purposely, less voluminous. The chapter on Eeceivership has been prepared with reference to the well recognized growing importance of that subject in connection with the equitable remedies here treated. The cases cited are mainly receivership cases in equitable proceedings involving the rights of PEEFAOB. V creditors, and it is believed include all reported cases down to July 1, 1899, more than a thousand of which are not to be found in any other general work on receiv- ership. The chapter on the Effects of the Bankrupt Act of 1898 upon the equitable remedies of creditors is ex- haustive and is designed to include all reported cases down to Sept. 1, 1899, where the equitable rights and remedies of creditors are involved. Reference has been made frequently to the bankrupt act of 1867, and the decisions thereunder when the provisions of the present act are illustrated thereby. The effect of the bankrupt act upon state insolvent laws, and proceedings based thereon, the distinctions between insolvent and assign- ment laws, the exclusive jurisdiction of federal courts, the concurrent jurisdiction of federal and state courts, the equitable remedies of creditors in state courts unaf- fected by the bankrupt act, the rights and remedies of creditors in the bankrupt court, the scope and powers of the trustee as the representative of creditors, are as fully treated as the adjudicated cases thus far reported "will permit. If we have succeeded in stating the principles of law governing the equitable remedies of creditors concisely and in a logical manner so as to be serviceable to the practitioner and the court, and in some degree have been successful in gathering up from the thousands of adjudicated cases the equitable principles governing this subject and arranging them so as to form a com- pact part of the general subject of equitable jurispru- dence the purpose in view will have been realized by THE AUTHOR. Chicago, October, 1899. TABLE OF CONTENTS. (References are to Sections and Pages.) CHAPTER I. Sections, Pages. GENERAL SCOPE OF EQUITABLE REMEDIES. 1-54 1. Introductory. 2. Creditors' bills defined. 3. Equitable jurisdiction — Grounds of. 4. Classification of creditors' bills. 5-12. Fraudulent conveyances. 13. Exhaustion of legal remedies — Meaning. 14. Judgment— When not required. 15. Corporations — Fraudulent acts of. 16. Creditors' bills — When sustained. 17. Creditors' bills — ^When not sustained. 18. May reach real and personal property. 19. When pendency of suit not a bar. 20. Amount due on judgment immaterial. 21. Holder of security not barred. 22. Property applied according to equitable methods, 23. Money paid on rescinded contract recoverable. 24. Bight of recovery depends on debtor's rights. 25. Equitable assets — Power of court over. 26. Evidence, suflBeiency of — Declarations of vendor. 27. Injunctions not granted to general cfeditor. 28. Good faith required. 29. Creditors' remedies against insolvent corporations. CHAPTER II. JURISDICTION. 56-75 35. Jurisdiction defined — Of person and subject matter. 36. Jurisdiction — Territorial. 37. Jurisdiction — Statutory. 38. General rule — Residence of the grantee. 39. Co-ordinate jurisdiction in law and equity. vii -viii TABLE OF CONTENTS. SectloDS. ^"868. 40. Jurisdiction of United States circuit court. 41. Jurisdiction— Basis of, under creditors' bills. 42. Jurisdictional facts to be alleged. 43. Jurisdiction as between courts. 44. Exhaustion of legal remedies not alone sufficient. 45. Equitable jurisdiction in case of fraud, general. 46. Jurisdiction for one purpose jurisdiction for all. 47. Concurrent jurisdiction — Fraudulent conveyances. 48. Equity jurisdiction — Advantages of. 49. Equity jurisdiction — Scope of. 50. Legal remedy must be exhausted. 51. Jurisdiction to reach fraudulent incumbrance in another county. CHAPTER III. PARTIES TO THE SUIT. 76-117 '60. Necessary parties — General principles. 61. All parties in interest must be parties. 62. Where fraudulent conveyance is attacked. 63. Proceedings against corporations, corporation necessary. Proceedings against corporations, stockholders when and when not. 64. Joint judgment debtors and joint debtors. 65. General rule and illustrations of necessary parties. 66. Want of parties, how and when raised. 67. When and who are not necessary parties. 68. Who may bring suit — Plaintiff. 69. For whom filed. 70. When suit must be for all. 71. Consolidation of suits. 72. Several creditors may join as co-plaintiffs. 73. When one suit is a bar to another. 74. Several disconnected parties may be defendants. 75. When several parties may not join as plaintiffs. 76. Where suit in behalf of all who may participate. 77. When bill will be treated as in behalf of all. 78. Proceedings against administrator, etc., for all. 79. Creditors proving claims are parties and bound. 80. Plaintiff individually not bound by judgment against him as assignee. 81. Other creditors may intervene and participate in surplus. 82. Suit may be maintained by a receiver under order of court. 83. Creditors of corporation may sue, when. 84. When bill may be filed by officer of court, or master. ■85. Executor or administrator may file bill. TABLE OF CONTENTS. ix Sections. Pages. 86. A guardian for an insane person cannot sue in own name. 87. Assignee may file bill. 88. Other parties entitled to file bill. 89. Against -whom filed— Defendants. CHAPTER IV. PLEADING AND PRACTICE. 118-16& 100. Bill or Petition— Scope of. 101. General frame of bill or petition. 102. Particularity required in. 103. Special allegations required. 104. Abatement of suit. 105. Verification. 106. Prayer — Special relief and general relief. 107. Plaintiff has right to control litigation. , 108. Lis pendens — Commences when — When operates as — The- ory of. 109. Answer, frame of. 110. Answer, scope of. 111. Answer, when under oath. 112. Answer, form of — Usually in two parts. 113. Answer, insufficiency of. 114. Demurrer to bill. 115. Cross bill or petition. 116. Supplemental bill or petition. 117. Decree. 118. Appeals and writs of error. 119. Discharge in bankruptcy as a defense. 120. Limitations as a defense. 121. Lacihes as a defense. CHAPTER V. JUDGMENT, EXECUTION AND RETURN. 167-221 150. Judgment required — General rule. 151. Reason for this primary rule. 152. Rule in United States courts. 153. Practice not uniform in fraudulent conveyances. 154. Levy of execution or return not required, when. 155. Return of execution — When required. 156. Grounds of equitable relief. 157. Nature of lien required. 158. Reasons for rule requiring judgment, etc. X TABLE OS CONTENTS, Sections. ^^Sea. 159. General creditor cannot recover by joining with judgment creditor. 160. Attachment as a basis of suit. 161. Exhaustion of legal remedy must be complete. 162. There must be an existing lien. 163. General creditor has no standing. 164. A money decree sufiBcient. 165. Rule applies to suits to enjoin debtor from selling. 166. Jurisdiction not conferred by supplemental bill. 167. Exceptions to rule requiring judgment, etc. 168. Execution must issue to proper county. 169. Issuing of execution may be waived by defendant. 170. Exhaustion of legal remedy — How established. 171. A debtor of defendant paying protected. 172. Return of execution — When made. 173. Judgment need not be such that immediate levy could be made. 174. Judgment upon a judgment — Effect of. 175. Valid judgment by confession sufficient. 176. Judgment when conclusive, regularity of execution. 177. Judgment not conclusive as to other creditors. 178. Judgment in federal court basis for bill in state court and vice versa. 179. Judgment need not antedate act complained of. 180. Claim against estates must be exhibited to be basis. 181. Bill by wife against husband — Must be creditor. 182. Judgment necessary though fraud alleged. 183. Allegation as to date of judgment — Amendment. 184. Judgment based on tort sufficient. 185. Order of proceeding as between joint tenants and surety. 186. Agreement to pay debts secured by threats not enforeible. 187. One judgment creditor may attack another. OHAPTEE VI. SUPPLEMENTARY PROCEEDINGS. 222-233 200. General — Proceedings not uniform. 201. Are statutory in lieu of creditors' bills. 202. Common law remedies to be first exhausted. 203. Return of execution before return day. 204. Same — Contrary doctrine. 205. Examination of debtor— Discovery. (a) Examination of debtor when execution outstanding. (b) Examination of debtor's wife. 206. Examination— Scope of— Discretionary. (a) Examination — Power of court commissioner. (b) Examination must be in reasonable time. TABLE OF CONTENTS. XI Sections. Pages. 207. Power of court to enjoin transfers. 208. Husband not a competent witness, when. 209. Receiver in. 210. Power of receiver. 211. Proceedings are ancillary. CHAPTER VII. LIEN OP CREDITORS' BILLS. 234-241 220. General rule. 221. Effect of lien secured. 222. Effect of lien. 223. Priority of lien as between joint plaintiffs. 224. From what time lien dates — Does not abate. 225. Lien in supplementary proceedings. CHAPTER VIII. PRIORITY AMONG CREDITORS. 242-254 235. Priority defined. 236. General rule. 237. Exceptions to rule — ^Waiver. 238. Reasons for rule of priority. 239. Rule where bill filed In behalf of all. 240. Priority in relation to other liens. 241. Priority of resident over foreign creditors of insolvent cor- poration. Judgment of justice of the peace gives no priority, when. 242. Judgment need not be a lien when conveyance made. 243. Fraudulent grantee cannot question priorities. 244. Supplementary proceedings— Priorities under. 245. Discontinuance of assignment — ^No priority. 246. Statutory charge in favor of all creditors gives no priority. 247. Priority not permitted in violation of agreement. Priority where mortgage and assignment simultaneous. 248. Priority of one dealing with fraudulent grantee— When. CHAPTER IX. PREFERENCES. 255-267 260. General rule, allowed. 261. Conditions attached. Xii TABLE OF CONTENTS. Pages. Sections. 262. When prohibited by statute. 263. Attitude of creditor preferred. 264. Preferences, when valid. 265. Assignments invalid as to creditors. 266. Preferences, when invalid. 267. Statutory restrictions on preferences. 268. Transactions construed as assignments and void as prefer- ential. 269. Effect of stipulations in assignment as to preferences. OHAPTEE X. TRUST PROPERTY. 268-281 280. Rights of creditors in relation to, general. 281. Statutory provisions. 282. Public policy. 283. When neither principal nor income liable. 284. General rule—Trust property not reached. 285. Contrary rule. 286. Restrictions on estates in fee. 287. Trust created by the debtor. , 288. Trusts subject to rights of creditors. 289. Trust property converted may 'be followed. 290. Equity jurisdiction of estate in probate. 291. Equity jurisdiction of estate in foreign state. CHAPTER XI. FRAUDULENT SAL.ES OF PERSONALTY. 282-289 300. General— Statute of 13 Eliz.— Twyne's case. 301. Fraudulent transfer of stock. 302. Sale induced by fraud of vendee. 303. General assignment for the benefit of creditors. 304. Fraudulent contract not rescinded — Remedy. 305. Reassignment of notes and mortgage. 306. Conditions of rescission. 307. Representations that are fraudulent. 308. Fraudulent assignment. 309. Liability of fraudulent purchaser. 310. Rescinded contract — Resulting trust not established. 311. Proceeding in equity to recover goods or value not sustained. 312. Fraud of vendee— Attitude of third party— Title. 313. Fraudulent purchase — Proceeds reached — Assignment. 314. Deposits in an Insolvent bank. TABLE OF CONTENTS. Xlll CHAPTER XII. Sections. Pages. ESTATES, 290-296 320. Jurisdiction of equity in. 321. Interest of legatee reached in equity. (a) When legatee may demand payment. (b) When estate fully administered. (c) When removal of cloud necessary. (d) When estate not subject to control of devisees. 322. Death of debtor extinguishes old remedies. 323. Fraudulent discontinuance of assignment. 324. Scope of bill in matters of estates. CHAPTEE XIII. INJUNCTION. 297-304 330. Injunction against debtor rarely granted. (a) To prevent removal of property from jurisdiction. (b) When there has been a fraudulent purchase. (c) When a lien or trust exists, and no other remedy. 331. Injunction against conspiracy to defraud. 332. Injunction against creditors, when. CHAPTER XIV. RECEIVERSHIP. 305-345 350. Appointment of — General. 351. Appointment in discretion of court, 352. Prerequisites to appointment. 353. Statutory jurisdiction not exclusive. 354. Under -what circumstances appointed. 355. Receiver in action to rescind sale for fraud. 356. Receiver in attachment proceedings. 357. Receiver in assignments, corporations. 358. Receiver in cases of fraudulent transfers. 359. Receiver in partnership matters. 360. Receiver in supplementary proceedings. 361. Receiver in creditors' bills. 362. Receiver in building and loan associations. 363. Appeal from order appointing. 364. Powers of receiver. 365. Powers of receiver in fraudulent conveyances. 366. Powers of receiver, miscellaneous. Xiv TABLE OP CONTENTS. „ ^. Pages. Sections. 367. Powers of receiver, when lie has not. 368. Power to sue. 369. Power to sue in foreign jurisdiction. 370. Suits against receiver. 371. Liability of receiver. 372. Title of receiver in debtor's property. 373. Possession of receiver. 374. Right of creditor to collect unpaid subscription. 375. Claims against receiver and receivership funds. 376. Defense of receiver to claims. 377. Reservation of rights of creditor in presenting claim. 378. Time in which claim must be presented. 379. Validity of claims to receivership funds. 380. Claims against funds not allowed. 381. Claims entitled to preference. 382. Claims not entitled to preference. 383. Expenses against receivership funds. 384. Jurisdiction of court over property and parties. 385. Power of court over receiver and parties. 386. Receivership in bankruptcy. 387. Distribution of receivership funds. CHAPTER XV. THE BANKRUPTCY LAW IN ITS RELATIONSHIP AND EFFECTS AS TO CREDITORS. 345-395 400. General. 401. Effect of upon creditors generally. 402. Jurisdiction of bankruptcy court. 403. Liens in state court void, when. 404. Proceedings to obtain possession of property in hands Of re- ceiver of state court. 405. Power of bankruptcy court to restrain levy. 406. Lien enforced in state court, when. 407. Jurisdiction in matters of fraudulent conveyance. 408. Jurisdiction where corporation dissolved. 409. Proceedings in state court, when void. 410. Existence of bankrupt law does not suspend state law. 411. Jurisdiction of state court where assignee or trustee is a party. 412. Suspension of state laws. 413. General effects of bankrupt law and proceedings thereunder. 414. Effect of bankruptcy as to liens. 415. Effect of bankruptcy on mortgages and mortgage foreclosures. 416. Injunction in bankruptcy proceedings. 417. Effect of bankruptcy upon assignments and insolvency laws. TABLE OF CONTENTS. XV Sections. Pages. 418. Effect of bankrupt law on fraudulent conveyances. 419. Effect of bankruptcy law on preferences. 420. Insolvency as an element In bankruptcy. 421. Statute of limitations in bankruptcy. 422. Corporations may be adjudged bankrupts. 423. Effect of bankruptcy on alimony. 424. Exemptions under bankrupt law. 425. Rights of creditors. 426. What are assets. 427. Discharge of debtor. Appendix. CASES CITED. A Page Abbey v. Commercial Bank of New Orleans, 31 Miss. 434 61 Abbey v. Commercial Bank of New Orleans, 31 Miss. 434 163 Abbott V. American Co., 33 Barb. 578 - 27 Abbott V. Tenney, 18 N. H. 109 72 Abbott V. Tenney, 18 N. H. 109 , HI In re Abrabamson & Bretstein, 1 Am. B. R. 44 340 Abraham v. Mercantile T. & D. Co., 86 Md. 254 332 In re Adams, 1 N. B. N. 167 354 In re Adams, 1 Am. B. R. 94 359 In re Adams, 1 Am. B. R. 95 - 366 In re Adams, 1 Am. B. R. 94, 105 376 In re Adams, 1 Am. B. R. 94 - 384 In re Adams, 1 Am. B. R. 94 393 In re Adams, 1 Am. B. R. 94, 105. 394 In re Adams, 1 N. B. N. 167 ^ 374 Adair v. Winchester, 7 Gill. & J. 114 41 Adams v. Bowe, 12 Abb. N. Oas. 322- 227 Adams v. Cross, 27 111. App. 313 34 Adams v. Crittenden, 106 U. S. 576 64 Adler v. Fenton, 65 U. S. 407- 301 Adler v. Fenton, 65 V. S. 407 (24 How.) 52 Adler v. Milwaukee, etc., Co., 13 Wis. 63 7 Adler v. Meyer, 73 Miss. 863 _ 153 Adee v. Bigler, 81 N. T. 349 52 Adee v. Bigler, 81 N. T. 349 170 Adee v. Bigler, 81 N. Y. 349 188 Adee v. Bigler, 81 N. T. 585 - 189 Addyston Pipe & S. Co. v. City of Chicago, 170 111. 580 39 Administrators, etc. v. Wood, 42 N. J. Eq. 563 129 Administrators, etc., v. Wood, 42 N. J. Eq. 563 163 Adsit V. Butter, 87 N. T. 585 123 Adsit V. Butter, 87 N. Y. 585 _ 170 Adsit V. Butter, 87 N. Y. 585 172 Adsit V. Butter, 87 N. Y. 585 - 194 Adsit V. Butter, 87 N. Y. 585 241 Ager V. Murray, 105 U. S. 126 , 32 In re Agins, 1 N. B. N. 180, 93 Fed. 1018 374 xvii Xviii CASES CITED. Page Ahlhauser v. Doud, 74 Wis. 400 - 205 Ahlhauser v. Doud, 74 Wis. 400 216 Ainsworth v. Barry, 35 Wis. 136 230 Alabama I. & S. Co. v. McKeever, 112 Ala. 134 46 Alabama & Chatt. R. R. Co. v. Jones, 7 N. B. R. 145 Fed. Cas. 127 -■• 341 Albany City Bk. v. Dorr, Walk. Ch. 317 227 Albany City Bk. v. Schermerhom, Clark's Ch. 297 235 Albany City Bk. v. Schermerhorn, Clark's Ch. 297 238 Alberger v. Nat. Bk. 123 Mo. 313 - 261 Albion Malleable Iron Co. v. First Nat. Bank, 4 Det. L. N. 1147, 74 N. W. 515 140 Albion Malleable Invest Co. v. First Nat'l Bk.. Mich. 74 N. W. 515 .- 319 Albright v. Texas, S. F. & N. R. Co., 8 N. M. 422, reversing S. C. 8 N. M. 110 179 Albright v. Herzog, 12 111. App. 557 - 193 Alden v. Boston, H. & B. R. R. Co., 5 N. B. R. 230, Fed. Cas. 152. 344 Aldrich v. Annin, 54 Mich. 230 290 Aldridge v. Muirhead, 101 U. S. 397 _ 166 Alexander v. Tarns, 13 111. 221 40 Alexander v. Tarns, 13 111. 221 ^ 47 Alexander v. Tarns, 13 111. 221 209 Alexander v. Tams, 13 111. 221 , 287 Alexander v. Tolleston Club, 110 111. 65 » 59 Almy v. Piatt, 16 Wis. 169 226 Allen V. Buchanan, 97 Ala. 399 _ 304 Allen V. Montgomery, 10 N. B. R. 503 383 Allen V. McRae, 91 Wis. 226 _ 24 Allen V. Smith, 129 U. S. 465 ^ 17 Allen V. Watt, 79 111. 284 206 Alkire Grocery Co. v. Richesin, 91 Feb. Rep. 79 ».. 64 Alsager & Rowley, 6 Ves. 749 86 Alston V. Robinett, 9 N. B. R. 74 ^ 357 Allen V. McRae, 91 Wis. 226 193 Alterange v. Christiansen, 48 Mich. 60 36 Ambler v. Choteau, 107 U. S. 586 124 Amick V. Young, 69 111. 542 ^ 196 American Exch. Nat. Bk. v. Walker, 164 111. 135 19 American Exchange Bk. v. Walker, 164 111. 135 252 American Exchange Nat. Bk. v. Walker, 164 111. 135, affirming S. C. in 60 111. App. 510 293 American Freehold Land Mort. Co. v. Woodworth, C. C. N. D. N. Y. 82 Fed. Rep. 269 .' ...!..." 330 American Sugar R. Co. v. Fancher, 145 N. Y. 552 69 American Sugar R. Co. v. Fancher, 145 N. Y. 552 281 Am. Sugar Ref . Co. v. Fancher, 145 N. Y. 552 .' 288 CASES CITED. XIX Page American Sugar Eef. Co. v. Fancher, 145 N. Y. 552, reversing 81 Hun. 56 283 Amy V. Manning, 149 Mass. 487- 43 Amy V. Manning, 149 Mass. 487 133 Amy V. Manning, 149 Mass. 487 326 Amy V. Manning, 149 Mass. 487- 328 America, etc., Co. v. Northwestern, etc., Co., 166 Mass. 337 244 Ames V. Union P. R. Co., 74 Fed. Rep. 335 334 Anderson v. Carey, 36 Ohio St. 506 276 Anderson v. Newman, 60 Miss. 532. 147 Anderson t. Bradford, 5 J. J. Marsh 69 200 Anderson's Assignee v. Tuttle, 26 N. J. Eq. 144 112 Anderson's Assignees v. Tuttle, 26 N. J. Eq. 144 '. 52 Anderson v. Anderson, 4 Hen. & M. (Va.) 475 - 96 Andrews v. Whitney, 82 Hun. 117, 31 N. Y. Sup. 164 280 Andruss v. Doollttle, 11 Conn. 283 Ill Angell V. Draper, 1 Vem 399 171 Angell V. Draper, 1 Vern 399 172 Angell V. Draper, 1 Vern 398, 399 ^. 173 Angell V. Draper, 1 Vern 399 _ 177 Annin v. Annin, 24 N. J. Eq. 184 74 Annin v. Annin, 24 N. J. Eq. 184 , 106 Annin v. Annin, 24 N. J. Eq. 184 166 Anthracite Ins. Co. v. Sears, 109 Mass. 383 _ 34 Anthony v. Wood, 96 N. Y. 181 199 Applegate v. Applegate, (la.) 78 N. W. 34 ^ 45 Applegate v. Applegate, (la.) 78 N. W. 34 179 Applegate V. Applegate, (la.) 78 N. W. 34 254 Appleton V. Stevers, Ass., 10 N. B. R. 515 342 Avery v. Johann, 27 Wis. 246 125 Arglasse v. Muschamp, 1 Vern. 237 - 58 In re Arnold, 1 N. B. N. 334 - 385 Arbuckle Bros. Coffee Co. v. Werner, 77 Tex. 43 166 Arbuckle Bros. Coffee Co. v. Wenar, 77 Tex. 43 188 Armington v. Rau, 100 Pa. 165 188 Artman v. Giles, 155 Pa. St. 409 19 Arthur v. Willins, 44 Minn. 409 54 Arthur v. Hoysradt, 11 Paige Ch. 495 295 Armstrong v. Cooper, 11 111. 550 _ 66 Armstrong v. Cooper, 11 111. 560 218 Armstrong v. McLean, 153 N. Y. 490 , 320 Armstrong v. McLean, 153 N. Y. 490 328 Armstrong v. Rickey, 2 N. B. R. 150 364 Armstrong v. Trautman, 36 Fed. Rep. 275 64 Asheraft v. Walworth, 1 Holmes C. C. 152 33 Ashcraft v. Walworth, 1 Holmes C. C. 152 •. 41 Ashurst T. Given, 5 W. & S. 323 271 XX CASES CITED. Page Atkins V. Shepard, 43 Ch. Div. 131 205 Atkinson v. Foster, 134 111. 472 - ^^ Atkinson v. Foster, 134 III. 472 112 Atkinson v. Foster, 134 111. 472 - 1^* Atkinson v. Weidner, 79 Mich. 575 264 Atkinson v. Denby, 7 H. & N. 934 - 258 Atlantic Trust Co. v. Woodbridge Canal & I. Co., 86 Fed. Rep. 975 ' ^^^ Athey v. Knotts, 6 B. Mon. 24 31 Atbey t. Knotts, 6 B. Mon. 24 46 Atlantic Trust Co. v. Carbondale Coal Co., 99 la. 234...- 335 In re Atl. Mut. Life Ins. Co., 16 N. B. R. 541 342 Re Atty. Gen. v. Guardian Mut. L. Ins. Co.. 77 N. Y. 272 308 Re Atty. Gen. v. Guardian Mut. Life Ins. Co., 77 N. Y. 272 328 Attorney General, 9 N. B. R. 117 359 Atwater v. American Exchange 'n. Bk., 152 111. 605 70 Atwood V. Impson, 20 N. J. Bq. 156 - 125 Aultman & T. Co. v. Pikop, 56 Minn. 531 14 Austin V. Figueira, 7 Paige Ch. 56 - 115 Austin V. Figueira, 7 Paige Ch. 56 211 Austin V. Figueira, 7 Paige Ch. 56 - 312 Austin V. Bruner, 169 111. 178 174 Austin V. Bruner, 169 111. 178 - 175 Austin V. Bruner, 169 111. 178 192 Austitn V. Bruner, 169 111. 178 - 202 B Babbitt V. Dotten, 14 Fed. Rep. 19 129 Babcock V. Booth, 2 Hill 181 Ill Babcock V. Blanchard, 86 111. 165 112 Badger V. Badger, 2 Wall. 87, 94 , 165 Badger v. Sutton, 30 App. Div. 294; 52 N. Y. Supp. 16 316 Bailey v. Bidwell, 13 M. & W. 73 , 288 Bailey v. Ryder, 10 N. Y. 363 37 Bailey v. Ryder, 10 N. Y. 363 - 59 Bailey v. Wright, 2 Bond 181 143 Bailie V. McWhorter, 56 Ga. 183 , 273 Baines v. Babcock, 95 Cal. 581 83 Baines v. Babcock, 95 Cal. 581 , 98 Baines v. Babcock, 95 Cal. 581 - 178 Baines t. Babcock, 95 Cal. 581 - 213 Baines v. Babcock, 95 Cal. 581 214 Baines v. West Coast Lumber Co., 104 Cal. 1 93 Baines v. West Coast Lumber Co., 104 Cal. 1 ^ IO3 Baker v. Backus, 32 111. 79 - 82 OASES CITED. XXI Page Baker v. Bliss, 39 N. Y. 70 125 Baker v. Brown, 146 Mass. 271 34 Baker v. Brown, 146 Mass. 369 42 Baker v. Brown, 146 Mass. 369 - 279 Baker v. Dayton, 28 Wis. 367 11 Baker v. Shote, 65 Wis. 50 , 32 Ballentine v. Beal, 3 Scam. 203 81 Ballentine v. Beall, 3 Scam. 203 _ 103 Ballentine v. Beall, 3 Scam. 203 170 Ballentine v. Beall, 3 Scam. 203 , 171 Ballentine v. Beall, 3 Scam. 203 196 Ballentine v. Beall, 3 Scam. 203 245 Ballentine v. Beall, 3 Scam. 203 236 Ballin v. Loeb, 79 Wis. 404 ^ 54 Ballin v. Loeb, 78 Wis. 404 217 Ballin v. Loeb, 78 Wis. 404 ^216 Ballston Spa. Bk. v. The Marine Bk.. 18 Wis. 490» 83 Ballston Spa. Bk. v. The Marine Bk., 18 Wis. 490 ^ 230 Baltimore B. & U A. v. Alderson, 90 Fed. Rep. 142..., 310 Bank of America v. Pollock, 4 Edw. Ch. 215 92 Bank v. Dibrell, 3 Sneed. 379 31 Bank of Blount County v. Smith, Ch. App. AfE'd by Sup. Ct. Tenn. 48 S. W. 296 160 Bank of Blount County v. Smith, 48 S. W. 296 296 Bank of Rochester v. Emerson, 10 Paige Ch. 115 _ 42 Bank v. Carpenter, 101 U. S. 567 165 Bank of Commerce v. Chambers, 96 Mo. 459 291 Bank of Commerce v. Fowler, 93 Wis. 241 14 Bank of Com. v. Chambers, 96 Mo. 459 292 Bank v. Davis, 21 Pick. 42, 276 Bank, etc. v. Dodge, 8 Barb. 233 19 Bank of Georgia t. Higginbottom, 34 U. S. 48 18 Bank V. Hopkins, 111 Pa. St. 328 7 Bank v. Katz, 1 Am. B. R. 19 349 Bank T. Katz, 1 Am. B. R. 19 _ 360 Bancroft v. Fitch, 164 Mass. 401 51 Barger v. Buckland, 28 Graft. 850 153 Barker v. Dayton, 28 Wis. 367 , 226 Barker t. Dayton, 28 Wis. 367 231 Barker v. Dayton, 28 Wis. 367 , 233 Barling v. Bishop, 29 Beav. 417; 6 Jur. (N. S.) 812 220 Barne's Appeal, 9 U. S. 521 368 Barnes v. Treat, 7 Mass. 271 ., 199 Bartlett v. Drew, 57 N. Y. 587 83 Bartlett v. Drew, 57 N. Y. 587 - 98; Bartlett v. Drew, 57 N. Y. 587 179 Bartlett v. McNeil, 60 N. Y. 53; S. C. 49 How. Pr. 55 11 XXll CASES CITED. Page Bartlett v. Wilbur, 53 Md. 485 - 326 Barto's Appeal, 55 Pa. St. 386 71 Barton v. Barbour, 104 U. S. 126 - 185 Barnum v. Hempstead, 7 Paige 568 263 Barton t. Hosner, 24 Hun. 467 _ 224 Barton v. Hosner, 24 Hun. 467 317 Bartholomew v. West, 8 N. B. R. 12; 2 Dill. 290 392 Bartholomew v. Weld, 127 Mass. 210 42 Bartholomew v. Weld, 127 Mass. 210 280 Barnardt v. Campbell, 58 N. Y. 73 288 Barnardt v. Campbell, 58 N. Y. 73 289 Barnett v. East Tennessee, V. & G. R. Co., 48 S. W. 817 108 Barnes v. Dow, 59 Vt. 530 273 Barney v. Patterson, 6 Harr. & T. 182 - 217 Barry v. Abbott, 100 Mass. 396 5 Barry v. Abbot, 100 Mass. 396 105 Barry v. Abbot, 100 Mass. 396 189 Barry v. Abbot, 100 Mass. 396 190 Bartles V. Gibson, 17 Feb. Rep. 297 - 125 Bassett v. Orr, 7 Biss. 296 205 Bate V. Graham, 11 N. Y. 237 ^ 30 Bate V. Graham, 11 N. Y. 237 201 Bate V. Graham, 11 N. Y. 237 _ 287 Bates V. Great Western Tel. Co., 134 111. 536 82 Bates V. Plousky, 28 Hun. 112 299 Bates V. Lyons, 7 Paige, 85 ^ 212 Batterson v. Ferguson, 1 Barb. N. Y. 490 145 Bay V. Cook, 31 Bl. 336 -> 66 Bay V. Cook, 31 111. 336 68 Bay V. Cook, 31 111. 336 177 Bay T. Cook, 31 111. 336 193 Bay r. Cook, 31 111. 336 , 195 Bay V. Cook, 31 111. 336 _ 214 Baxter v. Allen, 77 Pa. 59 188 Bayard v. Hoffman, 4 Johns. Ch. 450 5 Bayard v. Hoffman, 4 Johns. Ch. 450 18 Bayard v. Hoffman, 4 Johns. Ch. 450 72 Bayard v. Hoffman, 4 Johns. Ch. 450 _ 192 Bayard v. Hoffman, 4 Johns. Ch. 450 113 Bayard v. Hoffman, 4 Johns. Ch. 450 236 Bayard v. Hoffman, 4 Johns. Ch. 450* 277 Bayard v. Hoffman, 4 Johns. Ch. 450 279 Bayard v. Hoffman, 4 Johns. Ch. 450 ; 328 Bayard v. Fellows, 28 Barb. 451 52 Beaucamp v. Huntley, Jac. 546 303 Beardsley v. Foster, 36 N. Y. 561 , 188 Bean v. Patterson, 122 U. S. 496 258 CASES CITED. XXUl Page Beach V. White, Walk. Ch. 495 -. 227 Beach v. Bestor, 45 111. 341 196 Beach v. Bestor, 45 111. 341 - 171 Beach v. Bestor, 45 111. 341 198 Beach v. Hodgdon, 66 Cal. 187 , 75 Beach v. Hodgdon, 66 Cal. 187 60 Beall V. Harrell, 7 N. B. R. 400 , 382 Beck V. Burdett, 1 Paige Chy. 305 12 Beck T. Burdett, 1 Paige 305 - 27 Beck V. Burdett, 1 Paige 305 , 65 Beck V. Burdett, 1 Paige Ch. 305 , 73 Beck V. Burdett, 1 Paige 305 132 Beck V. Burdett, 1 Paige 305 , 171 Beck V. Burdett, 1 Paige, 305 172 Beck V. Burdett, 1 Paige 305 ^.176 Beck V. Burdett, 1 Paige 308 182 Beck V. Burdett, 1 Paige Ch. 305 188 Beck V. Burdett, 1 Paige 505 227 Beck V. Burdett, 1 Paige 305 ^ 235 Beebe v. Saulter, 87 111. 518 213 Beck V. Cole, 4 Sandf. 79 -. 257 Beck V. Rainey, 28 Miss. Ill ^ 129 Becker v. Torrance, 31 N. Y. 631 235 Becker v. Torrance, 31 N. Y. 631 , 318 Beecher v. Clark, 10 N. B. R. 385 382 Behan v. Warfield, 90 Ky. 151 _ 176 Beidler v. Crane, 135 111. 92 32 Beidler v. Crane, 135 111. 92 _ 158 Beith V. Porter, 5 Det. L. N. 837; 78 N. W. 336 139 Belcher v. Arnold, 14 R. I. 613 5 Belcher v. Arnold, 14 R. I. 613, 113 Belden V. Smith, 16 N. B. R. 302 364 Bell y. Menifield, 109 N. Y. 202 150 Bell's Appeal, 115 Pa. St. 88 54 Bellamy v. Sabine, 1 De Gex. & J. 566 141 Belmont Branch Bk. v. Hoge, 35 N. Y. 65 .125 Belmont N. Co. v. Columbia I. & S. Co., 46 Fed. Rep. 336 312 Benham v. Ham, 5 Wash. 128 * 186 Bennett v. McGuire, 58 Barb. 625 225 Bennett v. Stout, 98 111. 47 - 251 Bennett v. Butterworth, 11 How. 669 174 Bennett v. Sweet, 171 Mass. 600 - 45 Benson v. Le Roy, 4 Johns. Ch. 651 106 Bentley v. Whittemore, 4 C. E. Green 462 303 Bergen v. Carman, 79 N. Y. 146 , 15 Bergen v. Varrelmann, 127 N. Y. 281 260 Bernard v. Myroleum, 147 Mass. 356 106 Xxiv CASES CITED. Page Bethel v. Chipman, 57 Mich. 379.., 206 Beverly v. Rhodes, 86 Va. 415 99 Beverly v. Rhodes, 86 Va. 415 - ^ff Bickerdike v. Allen, 157 111. 95 ,. . 132 Bickerdike v. Allen, 157 111. 95 139 Bickford v. McComb, 88 Fed. Rep. 428 82 Bickham v. Lake, 51 Fed. Rep. 892 263 Bidlack v. Mason, 26 N. J. Eq. 230 93 Bidle Purchasing Co. v. Port Townsend Steel Wire & Nail Co., 16 Wash. 681 , 332 Bierne v. Ray, 37 W. Va. 571 122 Bigelow V. Andress, 31 111. 322 52, 66 Bigelow V. Andress, 31111. 322.. 170 Bigelow V. Andress, 31 111. 322 174 Bigelow V. Andress, 31 111. 322 177 Bigelow V. Andress, 31 111. 322 , 180 Bigelow V. Andress, 31 111. 322 181 Bigelow V. Andress, 31 111. 322 191 Bigelow V. Andress, 31 111. 322 200 Bigelow V. Andress, 31 111. 322 -.219 Bigelow T. Andress, 31 111. 322 298 Bigelow, B. S. Co. v. Magee, 27 N. J. Bq. 697 170 Biglow V. Magee, 27 N. J. Bq. 392 _ 74 Billings V. Marsh, 153 Mass. 311 273 In re Bininger, Fed. Gas. 1420 377 Birdsall v. Dunn, 16 Wis. 235 230 Birely V. Staley, 5 Gill. & J. 432 246 Biron v. Bdwards, 77 Wis. 477 103 Bishop V. Halsey, 3 Abb. Pr. 400 96 Bishop, etc. v. Paine, 11 Ves. 194 151 Bissell V. Continental Trust Co., 25 Misc. 724; 65 N. Y. Supp. 570 277 Bissell V. Heath, 98 Mich. 472 330 Bittinger v. Kaston, 111 111. 260 » 136 Blabon v. Gilchrist, 67 Wis. 38 229 Blabon v. Gilchrist, 67 Wis. 38 ,.230 Blabon v. Gilchrist, 67 Wis. 38. ., 225 Blackburn v. Lake Shore Co., 90 Wis. 362 14 Blackburn v. Lake Shore Traffic Co., 90 Wis. 362 184 Blackstone Bank v. Davis, 21 Pick. 42. _ 275 Blackstone Bk. v. Davis, 21 Pick 42 276 Blackett v. Laimbeer, 1 Sandf. Ch. 366 95 Blackman v. Houssels, Tex. 35 S. W. 511 34 Blackhouse v. Harrison, 5 B. & Ad. 1098 _ 125 In re Black, 2 N. B. R. 65 364 In re Black, 2 N. B. R. 65 _ 365 Blair v. Illinois Steel Co., 159 111. 350 70 Blair v. 111. Steel Co., 159 111. 350 196 CASES CITED. XXV Page Blair v. Illinois Steel Co., 159 111. 350 - 202 Blair v. Finlay, 75 Tex. 210 124 Blair v. St. Louis, Hannibal, etc., R. R. Co., 22 Fed. Rep. 36... 26 Blaisdell v. Stevens, 16 Vt. 179 141 Blanchard v. Blanchard, 1 Allen 223 - 51 Blanchard v. Williamson, 70 111. 647 293 Blanc V. Paymaster M. Co., 95 Cal. 524 197 Blannerhassett v. Sherman, 105 U. S. 100 32 Blake v. Ala. & Chat. R. R. Co., 6 N. B. R. 331; Fed. Cas. 1493. 340 Blake v. Domestic Mnfg. Co., N. J. Eq. 38 Atl. 241 320 Blake v. Domestic Mnfg. Co., N. J. Eq., 41 Atl. 376 334 Blake v Valentine Co., 1 Am. B. R. 372 373 Blake V. Francis Valentine Co., 89 Fed. 691; 94 Fed. 793...- 374 Blake v. Boisjoli, 51 Minn. 296 14 Blakey v. Boomville Nat'l Bk., 1 N. B. N. 411 385 Blake v. Sawin, 10 Allen 340 - 113 Bliss V. Matteson, 45 N. Y 22 ^ 257 Block V. Jefferies, 46 La. Ann. 1104 - 98 Bloodheim v. Moore, 11 Md. 365 52 In re Bloss, 4 N. B. R. 147 375 Bloodgood V. Meissner, 84 Wis. 452 _ 73 Bloodgood T. Clark, 4 Paige 574 298 Bloodgood T. Clark, 4 Paige Ch. 574 312 Blum T. Schram, 58 Tex. 524 187 Blum V. Van Vechten, 92 Wis. 378 327 In re Blumberg, 1 Am. B. B. 633- 364 In re Blumberg, 1 N. B. N. 238 367 Board of Public Works v. Columbian College, 84 U. S. 521 6 Board of Public Works v. Columbia College, 84 U. S. 521 69 Board of Freeholders v. Henry, 41 N. J. Eq. 388 271 In re Boansteel, 3 N. B. R. 517 351 Bodine v. Edwards, 10 Paige 504» 200 Bodine V. Edwards, 10 Paige 504 280 Boese v. King, 108 U. S. 379 379 Boid V. Dean, 3 Dick. Ch. 193 ^ 220 Boltz V. Stolz, 41 Ohio St. 540 35 Bomar v. Means, 37 S. C. 520 _. . 102 Bomar v. Means, 31 S. E. 234 -160 Bomar v. Means, 53 S. C. 232 316 Bond V. Sejrmore, 2 Pin. 105 14 Bonnell v. Gray, 36 Wis. 574 215 Bonslough V. Bonslough, 68 Pa. St. 495 110 Bonte V. Cooper, 90 111. 440 - 240 Bonte V. Cooper, 90 111. 440 -. . 43 Booth V. Clark, 17 How. 322 43 Booth V. Clark, 17 How. 322 326 Booth V. Clark, 58 U. S. 322 223 XXvi CASES CITED. Page Booth V. Nickerson, 1 N. B. N. 476 359 Boothe V. Brooks, 12 N. B. R. 398 -. . 369 Bornesly v. Powell, 1 Ves. Sr. 120 18 In re Borst, 11 N. B. R. 96 395 Boston Bk. v. Minot, 3 Mete. 507 42 Botsford V. Bun, 2 Johns. Ch. 405 - 277 Bostsford V. Bun, 2 Johns. Ch. 405 279 Bostwick V. Menck, 40 N. Y. 383 317 Bostwick V. Menck, 40 N. Y. 383. 224 Bostwick V. Menck, 40 N. Y. 383 328 Bostwick V. Menck, 40 N. Y. 383 232 Boston Invest. Co. v. Pacific Short Line Bridge Co., 104 la. 311. 315 Bosworth V. Terminal R. A., 53 U. S. App. 302; 80 Fed. Rep. 969. 319 Bottsford V. Beers, 11 Conn. 369 5 Boulton V. Dement, 123 III. 142 .,. . 174 Boughton V. Smith, 26 Barb. (N. Y.) 635 99 Bouton V. Dement, 123 111. 142 160 Bouton V. Smith, 113 111. 481 105 Bowen v. Parkhurst, 24 111. 257 208 Bowen v. Parkhurst, 24 111. 257 , 209 Bowen v. Parkhurst, 24 111. 257 227 Bowen v. Gent, 54 Md. 555 80 Bownes v. Weld, 3 Daly 253 221 Boyd V. Dunlap, 1 Johns. Ch. 478 ^ 159 Boyd V. Dunlap, 1 Johns. Ch. 478 257 Boyd V. Hoyt, 5 Paige Ch. 65 105 Boyd V. Hoyt, 5 Paige Ch. 65 115 Re Boyse, L. R., 15 Ch. Dlv. 591 304 Boyne v. Brewer Pottery Co., 90 Fed. Rep. 754 322 Boynton v. Rowson, Clark's Ch. 584 244 In re Bozeman, IN. B. N. 479 359 In re Bozeman, 1 N. B. N. 479 360 Brabrook, etc., Co. v. Belding Bros., 40 111. App. 326 139 Bracken v. Johnston, 15 N. B. R. 106 _ 357 Bradley v. Plexoto, 3 Ves. Jr. 324 275 Braden v. Grady, 37 Ga. 660 _ 29 Braem v. Merchants' Nat. Bank, 127 N. Y. 508 28 Bragg V. Gaynor, 85 Wis. 468 206 Bragg V. Gaynor, 85 Wis. 468 239 Bragg V. Gaynor, 85 Wis. 468 250 Bragg V. Gaynor, 85 Wis. 468 312 Brahman v. Stiles, 2 Pick. 460 42 Brahman t. Stitles, 2 Pick. 460 271 Brainard v. Van Kuran, 22 la. 261 171 Brainard V. Van Kuran, 22 111. 261 176 Brainard v. Dunning, 30 N. Y. 211 263 Bramhall v. Ferris, 14 N. Y. 41 '..!...! 270 CASES CITED. XXVU Page In re Brand, 3 N. B. R. 85 388 Brandirfl v. Harrison Co., 50 la. 164 102 Brandon v. Robinson, 18 Ves. Jr. 429 271 Brandon v. Robinson, 18 Ves. Jr. 429 275 Brashear T. West, 7 Pet. 608 - 256 Bray v. Cobb, 1 Am. B. R. 153 379^ Brernihan v. Sbeehan, 125 Mass. 11 - 33 Breit v. Yeaton, 101 111. 242 164 Bridgman v. McKissiek, 15 la. 260 236 Bridgman v. McKissiek, 15 la. 260 238 Bridgman V. McKissiek, 15 la. 260 247 In re Bridgman, 2 N. B. R. 284, ; 357 The Bridgeport Bank v. Eldredge, 28 Conn. 556 18 Briggs V. Penniman, 8 Cow. 387 55 Brigham v. Luddington, 12 Blatch. 237 43 Brigbam v. Luddington, 12 Blatchf. 237 326 Brinckerhoft v. Brown, 4 Johns. Ch. 671.- 279 BrinkerhofE v. Brown, 6 Johns. Ch. 139 96 BrinkerhofE v. Brown, 6 Johns. (N. Y.)139 97 Brinkerhoft V. Brown, 6 Johns. Ch. 139, 151 100 BrinkerhofE V. Brown, 6 Johns. Ch. 139 , 103 BrinkerhofE v. Brown, 4 Johns. Ch. R. 671 172 BrinkerhofE v. Brown, 4 Johns. Ch. 671 _ 188 BrinkerhofE v. Brown, 4 Johns. Ch. 671 195 Brinkerhoff v. Brown, 4 Johns. Ch. 671 196 Brinkerhoff v. Brown, 4 Johns. Ch. 671 237 Brlnkman v. Jones, 44 Wis. 498 126 in re Brinkman, 7 N. B. R. 21. 353 Bristol V. Sanford, 12 Blatchf. 341 _ 55 Broadway Nat. Bk. v. Adams, 133 Mass. 170 _. . 3S Broadway Nat. Bk. v. Adams, 133 Mass. 170 42 Broadway Nat. Bk. v. Adams, 133 Mass. 170 271 Broadway Nat. Bk. v. Adams, 133 Mass. 170. 273 Brock V. Rich, 76 Mich. 644 44 Brock V. Rich, 76 Mich. 644 176 Bronson v. Wilmington, etc., Ins. Co., 85 N. C. 411 54 In re Brooks, 1 Am. B. R. 531 _ 371 Brooks V. Cook, 8 Mass. 247 199 Brooks V. Gibbons, 4 Paige Ch. 374 104 Brooks T. Gibbons, 4 Paige Ch. 374 107 Brooks V. Reynolds, 1 Bro. C. C. 183, 107 Brooks V. Wilson, 53 Hun. 173 177 In re Brown, 1 Am. B. R. 107 , 351 In re Brown, 1 Am. B. R. 107 384 In re Brown, 1 Am. B. R. 107 385 Brown v. Bates, 10 Ala. 432 102 Brown V. Bates, 10 Ala. 432 135 XXviii CASES CITED. Page Brown v. Campbell, 100 Cal. 635 94 Brown v. Chubb, 135 N. Y. 174 ~ 29 Brown V. Chubb, 135 N. Y. 174 253 Brown v. County of Buena Vista, 95 U. S. 157 -.... 165 Brown v. Edmonds, 9 S. D. 273 i 27 Brown v. Farwell, 74 Fed. Hep. 764 140 Brown v. Fisk, 23 Fed. Rep. 228 7 Brown v. Fuller, 13 N. J. Eq. 271 74 Brown v. Gibbons, 14 N. B. R. 407 -370 Brown V. Lake Superior Iron Co., 134 IT. S. 530 204 Brown v. Maryland Freestone Mining, etc., Co., 55 Md. 547 156 Brown v. Morgan, 3 Edw. Ch. 278 145 Brown V. Niles, 16 111. 385 62 Brown v. Nichols, 42 N. Y. 26 9 Brown v. Nichols, 42 N. Y. 26 181 Brown v< Nichols, 42 N. Y. 26 ".235 Brown v. Nichols, 42 N. Y. 26 241 Brown v. Parker, 28 Wis. 21 215 Brown v. Ricketts, 3 John. Ch. 553 80 Brown v. Stanley, 105 Ga. 469 316 Brown v. Vandermeulen, 44 Mich. 522 22 Brown v. Williamson, 36 Penn. St. 338 271 Brownell v. Curtis, 10 Paige Ch. 210 18 Brownell'v. Curtis, 10 Paige Ch.' 210 112 Brownell V. Curtis, 10 Paige N. Y. 210 145 Brundage v. Mining Co., 12 Or. 322 83 Browning v. Hart, 6 Barb. 91 112 Browning v. Bettis, 8 Paige 568 31 Browning v. Bettis, 8 Paige Ch. 568 , 154 Brum V. Merchants Co., 16 Fed. Rep. 140 , 27 Brunner, Mounds & Co. v. Central Glass Co., 18 Ind. App. 174. 323 In re Bruss Ritter Co., 90 Fed. 651 377 Bryan v. Knickerbocker, 1 Barb. Ch. 409_ 274 Bryan v. May, 9 App. Cases D. C. 383 25 Bryan v. May, 9 App. Cases D. C. 383 _ 292 Buchanan v. Hunt, 98 N. Y. 560 233 Buchannan v. Smith, S3 U. S. 277 363 Buchanan v. Smith, 83 U. S. 277 378 Buckmaster v. Carlin, 3 Scam. 104 154 Buckner v. Gordy, 28 L,a. Ann. 596 80 Budd V. Atkinson, 50 N. J. Eq. 630 21 Buehler v. Gloninger, 2 Watts. 226 110 Buffington v. Harvey, 95 U. S. 99 82 Bugby V. Atlantic, M. & O. R., 86 Pa. St. 291 302 Bullard v. Kenyon, 49 N. Y. S. R. 132; 21 N. Y. Supp. 32 ,221 Bullitt V. Taylor, 34 Miss. 708 216 Bulkly V. Eckert, 3 Bau. 368 31 CASES CITED. XXIX Page Bull V. Bank, 90 Ky. 452 271 Bull V. Ford, 66 Cal. 176 128 Bunce v. Bailey, 39 Mich. 192 * 133 Bunn V. Fonda, 2 N. Y. Code Rep. 70 328 In re Buntrock Clothing Co., 1 Am. B. R. 454 _. . 366 In re Buntrock Clothing Co., IN. B. N. 291 371 Burgess v. Simonson, 45 N. Y. 225 , 215 In re Burk, 3 N. B. R. 76 , 390 Burlock v. Taylor, 16 Pick. 335 303 Burne v. Kunzman, N. J. 19 Atlantic 667 , 25 Burnett v. Morris Mercantile Co., 1 Am. B. R. 229.- 351 Burnett v. Morris Mercantile Co., 1 Am. B. R. 229 381 Burney v. Morgan, 1 Sim. & Stu. 358 97 Bumham v. <3ity of Fond du Lac, 15 Wis. 193 40 Burnham v. The City, &c., 15 Wis. 193 31 Burnham v. Haskins, 79 Mich. 35 , 253 Burnham v. Lamar Ins. Co. 79 111. 160 162 Burns v. Mose, 6 Paige €h. 108 18 Burrell v. Leslie, 6 Paige 445 238 Burrell V. Leslie, 6 Paige Ch. 445 244 Burroughs v. Elton, 11 Ves. 29 73 Burt V. Keyes, 1 Flipp. 61 71 Burton v. Smith, 38 U S. 461- 237 Bush V. Hanson, 70 111. 480 153 Bush V. Roberts, 111 N. Y. 278 50 Bush V. Roberts, 111 KT. Y. 278 51 Bussing T. Rice, 2 CuSh. 48 ^ 288 Bussing T. Rice, 2 Cush. 48 289 Buswell V. Order of Iron Hall, 161 Mass. 224 244 Buswell V. Supreme Sitting, etc., 161 Mass. 224 250 Buswell T. Lincks, S Daly 518 ~ 150 Butcher v. Harrison, 4 B. & A. 129 - 113 Butchers, etc., Bk. v. Willis, 1 Edw. Ch. 645 149 Butler V. Stoddard, 7 Paige Ch. 163 18 Butler Paper Co. v. Bobbins, 151 111. 588 70 Butts V. I^ewton, 29 Wis. 632, 640, 230 Cahn V. Person, 56 Miss. 360 - 47 Cahn V. American Looking Glass Mfg. Co. (111. C. C.) 12 Nat. Corp. Rep. 462 - 202 Cairns v. Ingram, 8 Pa. Sup. Ct. 514 _ 195 Caldwell V. Montgomery, 8 Ga. 106- 291 Cameron v. Savage, 37 111. 172 134 Cameron v. Groveland Improv. Co., Wash. 54 Pac. 1128 319 In re Camerontown M. F. L. & W. S. Ins. Co., 1 N. B. N. 383,. . 391 XXX CASES CITED. Page In re Camp, 1 Am. B. R. 165 39S In re Camp, 1 N. B. N. 142 - 392 Campbell V. Foster, 35 N. Y. 361 271 Campbell v. Foster, 35 N. Y. 361 ~ 273 Campbell v. Foster, 35 N. Y. 361 .' 328 Campbell v. Colorado Coal & Iron Co., 9 Col. 60 ~ 256 Campbell v. Campbell, 70 Wis. 311 183 Campbell v. Jones, 25 Minn. 155 ^. . 82 Campbell v. Powers, 139 111. 128 128 Campbell v. Wbitson, 68 111. 240 213 Candler v. Pettit, 1 Paige Ch. 168 20 Candee v. Lord, 2 N. Y. 269 ~ 215 Cane v. Dernberg, (111. C. C.) 12 Nat. Corp. Rep. 260 140 Capital City Bk. v. Parent, 134 N. Y. 527 - 187 Cape May, etc., R. Co. v. Johnson, 53 N. J. Eq. 422 154 Carbiener v. Montgomery, 97 la. 659 93 Carlisle v. Tindall, 49 Miss. 229, 72 Carlisle v. Rich, 8 N. H. 44 136 Carlton v. Felder, 6 Rich. S. C. Eq. 58 147 Carlton v. Felder, 6 Rich. Eq. 58 295 Carney v. Gleissner, 58 Wis. 674 230 Carpenter v. Osborn, 102 N. Y. 552 , 20 Carpenter v. Osborne, 102 N. Y. 552 123 Carpenter v. Osborn, 102 N. Y. 552 213 Carpenter v. Osborn, 102 N. Y. 552 , 215 Carpenter v. O'Connor, 1 Am. B. R. 383 341 Carr V. Fearington, 63 N. C. 560 236 Carr v. Gale, 3 Wood. C. & M. 38 112 Carrington v. Didier, 8 Gratt. 260 294 Carrow Iron Co. v. Maclaren, 5 H. L. Gas. 416 59 Carrow Iron Co. v. Maclaren, 5 H. L. Gas. 416 304 Carson v. Dunham, 149 Mass. 52 302 Carter v. Hobbs, 1 Am. B. R. 215 351 Carter v. Hobbs, 1 N. B. Ni 191 354 Carter v. Hobbs, In re, 1 Am. B. R. 215, note 360 Carter v. Hobbs, 1 Am. B. R. 215 361 Carter V. Hobbs, 1 Am. B. R. 215 368 Carter v. Hobbs, 1 Am. B. R. 215 381 Carter v. U. S. Ins. Co., 1 Johns. Ch. 463 41 Carter v. Hightower, 79 Tex. 135 , 170 Carter V. Wyrick, (Tenn.) 42 S. W. 159 33 Carter v. New Orleans, 19 Fed. Rep. 659 304 In re Carter, 1 Am. B. R. 160 355, Cartney v. Bostwick, 52 N. Y. 53 Igg, Carteret v. Petty, 2 Swanst. 323 N.; 2 Ch. Gas. 214 59 Carver v. Barker, 73 Hun. 416 28 Carver v. Peck, 131 Mass. 291, 3a CASES CITED, XXXI Page Carver v. Peck, 131 Mass. 291 33 Carver v. Peck, 131 Mass. 291 41 Carver v. Peck, 131 Mass. 291 170 Carver v. Peck, 131 Mass. 291 176 Carver v. Peck, 131 Mass. 291, 303 Case v. Beauregard, 99 U. S. 119 172 Case V. Beauregard, 101 U. S. 688 195 Case v. Beauregard, 101 U. S. 688 198 Case V. Gerrish, 15 Pick. 49 258 Case V. rredrickson, 63 Wis. 501 335 Case Mfg. Co. v. Perkins, 2 Det. L. N. 457 25 J. I. Cas. T. M. Co. V. Miracle. 54 Wis. 295 199 Case V. Phelps, 39 N. Y. 164 27 Castle V. Lewis, 78 N. Y. 131 199 Cassidy v. Meacham, 3 Paige Ch. 311 , 208 Cassidy v. Meacham, 3 Paige Ch. 311 131 Cassidy v. Meacham, 3 Paige 311 170 Cassidy v. Meacham, 3 Paige Ch. 311 210 Cassidy v. Meacham, 3 Paige 311 , 227 Cass V. Manchester Co., 9 Fed. Rep. 640 27 Caswell V. Caswell, 28 Me. 232 Ill Cassady v. Grimmelman, 77 N. W. 1067 36 Casto V. Greer, 44 W. Va. 332 221 Gates V. Allen, 149 U. S. 451 ,. 52 Gates V. Allen, 149 U. S. 451 66 Gates V. Allen, 149 U. S. 451 172 Gates V. Allen, 149 TJ. S. 451, 173 Gates V. Allen, 149 U. S. 451 185 Gates V. Allen, 149 U. S. 451 _ 195 Catlin V. Hoffman, 9 N. B. R. 342 362 Catlett y. McDonald, 13 La. 45 , 139 Gator V. Burke, 1 Bro. Ch. 434 41 Cauffman v. VanBuren, 136 N. Y. 252 299 Cavaroc v. Fournet, 28 La. Ann. 587, 221 Central Tr. Go. v. Utah C. Ry. Co., 16 Utah 12 338 Central T. Co. v. Thurman, 94 Ga. 735 338 Central Nat'l Bank v. Graham, (Mich.) 76 N. W. 1042, 318 Central Nat'l Bank v. Graham, (Mich.) 76 K. W. 1042 319 In re Central Bk., 6 N. B. B. 207 , 359 Central Nat. Bk. v. Seligman, 138 N. Y. 435 263 Cerney v. Pawlot, 66 Wis. 262 183 Chaffee v. Quidnick Co., 13 R. I. 442 37 Chaffee v. Quidnick Co., 13 R. L 442 , 59 Chamberlain v. Gaillard, 26 Ala. 504 39 Chamberlain v. O'Brien, 46 Minn. 80 52 Chambers v. Smith, 3 App. Cas. H. of L. 795 42 Chambers v. Smith, 38 N. Y. St. Rep. 213 » 262 XXxii CASES CITED. Page Chandler v. Siddle, 10 N. B. R. 236; 3 Dill. 477 354 Chandler, Receiver et al. v. Siddle, 10 N. B. R. 236; 3 Dill. 477; 1 Cent. 10.W J. 341; Fed. Cas. 2, 594 343 Chandler V. Simmons, 97 Mass. 508 Ill Chapman v. Bank of Cal., 97 Cal. 155 165 Chapman t. Bk. of Cal., 97 Cal. 155 166 Chapman v. Banker, etc., 128 Mass. 478 , ., 102 Chapman V. Banker, 128 Mass. 478 105 Chase v. Hinckley, 74 Me. 181 285 Chase v. Walter?, 28 la. 460^ ^ 248 Chase v. Redding, 13 Gray 418 ,.., 110 Chatfield V. Boyle, 105 U. S. 231 161 Chautauqua Co. Bk. v. White, 6 N. Y. 236 192 Chautauqua Co. Bk, v. White, 6 N. Y. 236 280 Chautauqua Co. Bk. v. White, 2 Geld. 236 *.. 200 Chautauqua Co. Bant v. Risley, 19 N. Y. 369 ... , 15 Chautauqua Co. Bk. v. Risley, 19 N. Y. 369 240 Chautauqua Co. Bk. v. Risley, 19 N. Y. 369 ~ 328 Chealy v. Brewer, 7 Mass. 260 31 Chestnut v. ChampipA, 2 Hill S. C. Ch. 72 107 Chemical Nat'l Bk. v. Meyer, 1 Am. B. R. 565 390 Chittenden v. Brewster, 69 U. S. 191 -., 19 Chillingworth v. Freeman, 67 Barb. N. Y. 379 23 Child V, Brace, 4 Paige Ch, 309...,., 84 Child V. Brace, 4 Paige 309................... ,...,. -.... 170 Child V. Brace, 4 Paige Ch. 3.0,9,.......,..,.., ,.,. 203 Child V. Brace, 4 Paige Ch. 3,09.,....,,.. 204 Child V. Brace, 4 Paige 309.. . .,..".....,, .^ , 205 Child V. Brace, 4 Paige 309,,......,:- 209 Child V. Brace, .4 Paige Ch- .309 , 210 Childs V, N. B. Carlstein Co., 76 Fed. Rep. 86... 186 Chicago & .A. ,B. Cp. V. Fowler, 55 Kan. 17 216 The Chicago D. &. V. R. Co. v. Town of St. Anne, 101 111. 151.. 128 Chica,go, D. & V. R. Co. v. Town of St. Anne, 101 111. 151 170 Chicago, D. & V. R. Co. v. Town of St. Anne, 101 111. 151 174 Chica,go, D. & V. R. Co. v. Town of St. Anne, 101 111. 151 177 Chicago, D. & V. R. Co. v Town of St. Anne, 101 111. 151 193 Chicago Milwaukee R. R. Co. v. Keokuk Northern Line Packet Co., 108 111. 317. .,. ., , 326 Chicago, M. & .N. R. Co. v. Nat. E. & D. Co., 153 111. 70 91 Chicago V. Hall, 103 111. 342, , 55 Chipman v. Stern,, 89 Ala. 207 261 Choteau v. Jones, 11 111. 300 136 Choteau v. Jones, 11 111. 300 -. 213 Christmas v. Russell, 5 Wall. 290 215 Chrlslip V. Teter, 43 W. Va. 356 .,157 In re Christy, 3 How. 292 * 366 CASES CITED. XXXlll Page Christman v. Haner, 8 N. B. R. 528 387 Christian v. Atlantic, etc., R. Co., 133 tJ. S. 233 80 Cincinnati v. Hafer, 49 Ohio St. 60; 27 Ohio L. J. 151 237 Cipperly v. Rhodes, 53 111. 346 14 Citizens Bank v. Buddig, 65 Miss. 284 130 Citizens' Bank v. Williams, 128 N. Y. 77 -. . 256 City of Memphis v. Laske, 65 Tenn. 511 .- 39' City of Peoria v. Kidder, 26 111. 351 181 Clark V. Anthony, 31 Ark. 546 213 Clark V. Raymond, 84 la. 251 52 Clark V. Raymond,. 84 la. 251 67 Clark V. Raymond, 84 la. 257 ,. 169' Clark V. Raymond, 86 la, 661 195 Clark V. Raymond, 84 la. 251 199 Clark V. Bergenthal, 52 Wis. 103 205 Clark V, Bergenthal, 52 Wis. 103,. . 231 Clarke v. Bert, 2 Kan. App. 407 40' Clark V. Binninger, 3 N. B. R. 528; S. C. 38 How. Pi-. 341 341 Clark V. Davis, Han. Ch. 227 133 Clarke v. Earl,, etc., Jac. 108 107 Clark v. Bever, 139 U. S. 96 179 Clark V. Krause, 2 Mackey, 559., ...» 151 Clark V. Shelton, 16 Ark. 474 ,. , 19 Clarke v. Johnson, 2 Stock. 287 107 Clarke V. Webh, 2 Hen. & M. (Va.) 8 92 Clark V. Wilson, 127 111, 449,,,. . .-,,, , 132 Clarkson V. De Peyster, 3 Paige 320.., 27 Clarkson v. De Peyster, 3 Paige Ch. 320. . , 74 Clarkson v. De Peyster, 3- Paige Ch. 320 102 Clarkson v. De Peyster, 3 Paige Ch. 320. , 103 Clarkson v. De Peyster, 3 Paige 320 172 Clarkson V. De Peyster, 3 Paige Ch. 326 * 188' Clarkson v. De Peyster, 3 Paige Ch. 320 206 Clapp V. Peterson,. 104 111. 26 164 Claflin V. Hamlin, 62 How, Pr. 284 59 Claflin V, Mess, 30 N. J. Eq. 211. 114 Claflin T, Claflin, 149- Mass. 19. . .^... 273 Claflin v.. French, 28 N. J, Eq. 383.-..,„. 153 Clement v. Hawkins, 16 Miss. 339 - 85 Ctements. v. Moore, 73. U. S. 6 Wall, 299, 315 143 Clements, v. Moore, 6 Wall, 299. 152 Clements, v. Moore, 6 Wall, 299.- ~ 159 Clements- v. Waters, 90. Ky, 96 , 24 Clough V. ThMnpson,. 7 &ratt. 26 113 Clute V. Bool, 8 Paige (N. Y.) 83 270 Clute V. Bool, 8 Paige (N. Y.) 83, 273 Clute V. Bool, 8 Paige Ch. 83 279 XXxiy OASES CITED. ■Clymer v. Patterson, 52 N. J. Eq. 188 - 324 •Coale V. Moline Plow Co., 134 111. 350 137 Coale V. Moline Plow Co., 134 111. 350 152 Coale V. Moline Plow Co., 134 111. 350 - 154 Coale V. Moline Plow Co., 134 111. 350 251 Cocks V. Vamey, 45 N. J. Eq. 72 199 Cochran v. Fitch, 1 Sandf. Ch. 142 - 206 Cobb V. Cook, 49 Mich. 11 - 277 Codwise v. Gelston, 10 Johns. 507 240 €oddington v. Bispham, 36 N. J. Eq. 574 12 Coddington v. Executors, etc., 36 N. J. Eq. 574 107 Coddington v. Elxecutors, etc., 36 N. J. Eq. 574 248 Coe V. Whitbeck, 11 Paige Ch. 42 187 Coe V. Whitbeck, 11 Paige Ch. 42 188 Cohn V. Goldman, 76 N. Y. 284 124 Cohen v. Meyers, 42 Ga. 46 298 Cohen v. Meyers, 42 Ga. 46 300 Colby V. Coates, 6 Cush. 558 , 199 Colburn v. Shay, 17 111. App. 289 ^ 18 Colburn v. Shay, 17 111. App. 289 68 Colburn v. Shay, 17 111. App. 289 - 213 Cole V. Marple, 98 111. 58 244 Cole V. Marple, 98 111. 58 ..245 Cole V. Cunningham, 133 U. S. 107 _. . 37 Cole V. Tyler, 65 N. Y. 73 154 Cole V. Butler, 43 Me. 401 55 Cole V. Lee, 45 N. J. Eq. 779 44 Cole V. Young, 24 Kan. 435 59 Coleman v. Howe, 154 111. 458 83 Coleman v. Burr, 93 N. Y. 17 262 Coleman v. Franklin, 26 Ga. 368 _ 294 Coleman v. Roff, 45 N. J. L. 7 322 Columbus Watch Co. v. Hodenpyle, 135 N. Y. 430 34 Columbus Watch Co. v. Hodenpyl, 135 N. Y. 430 173 Columbus Watch Co. v. Hodenpyl, 135 N. Y. 430 215 In re Collins, 2 Am. B. R. 1 363 In re Collins, 2 Am. B. R. 1 361 In re Collins, 2 Am. B. R. 1 363 Collins V. Angell, 72 Cal. 513 .228 Collins V. Angell, 72 Cal. 513 .233 Collins V. Hydorn, 135 N. Y. 320 108 In re Collsi, 1 Am. B. R. 625 394 Coley V. Coley, 1 McCarter Ch. 350 , 159 Colton V. Bigelow, 41 N. J. L. 266 318 Commercial Bk. v. Meach, 7 Paige Ch. 448 84 Comstock V. Ragford, 9 Miss. 423 96 OASES CITED. XXXV Page Conant v. Sparks, 3 Edw. Ch. 104 131 Congdon v. Lee, 3 Edw. Ch. 304 33 -Conkey v. Hawthorne, 69 Wis. 199 - 135 Conkey v. Knight, 104 111. 337 59 Conroy v. Woods, 13 Cal. 626 199 Consolidated Tankline Co. v. Kansas City, etc., Co., 45 Fet». Rep. 7 ; _ 55 Consolidated T. L. Co. v. Kansas C. V. Co., 45 Feb. Rep. 7 185 Continental Nat'l Bank v. Myerle, 24 App. Div. 154; 48 N. Y. Supp. 718 - 308 Conover v. Conover, 1 N. J. Eq. 403 103 Conover v. Dumahant, 17 N. B. R. 558 343 Conover v. Jeffrey, 26 N. J. Eq. 36 213 Conro V. Port Henry Iron Co., 12 Barb. 27 102 Conro V. Port Henry Iron Co., 12 Barb. 27 103 Conway v. Ellison, 14 Ark. 360 129 Cook V. Waters, 9 N. B. R. 155 357 Cook V. Johnson, 12 N. J. Eq. 51 ^ 196 Cook T. Smith, 3 Sandf. Ch. 334 35 Cook V. New York Condensed Milk Co., 100 Ala. 580 105 Cook V. Ligon, 54 Miss. 652 112 Cooke V. Chase, 37 N. Y. Supp. 124 , 106 Cooney v. Cooney, 65 Barb. 524 _. 329 Copous V. KaufCman, 8 Paige Ch. 583 116 Copous V. KaufEman, 8 Paige Ch. 583 117 Copous V. KaufEman, 8 Paige Ch. 583 229 Corbett v. Nutt, 10 Wall. 464 37 Corey v. Greene, 51 Me. 114 130 Corning v. White, 2 Paige Ch. 567 ^ 235 Corning v. White, 2 Paige Ch. 567 _ 236 Corning v. White, 2 Paige 567 246 Corning v. White, 2 Paige 567 328 Cornell v. Radway, 22 Wis. 260 '. 80 Cornman v. Sidle, 65 Minn. 84 » 178 Cornell v. McCann, 37 Md. 89 103 Cornell v. Radway, 22 Wis. 260 171 Cornell v. Radway, 22 Wis. 260 196 In re Cornwell, 6 N. B. R. 305 , 390 Cowing V. Green, 45 Barb. (N. Y.) 585 280 Cox V. Dunham, 8 N. J. Eq. 594 ^ 129 Cox v. Hale, 8 N. B. R. 562 386 Coyne v. Sayre, 54 N. J. Eq. 720 166 Coursey v. Morton, 132 N. Y. 556 262 County of Morgan v. Allen, 103 U. S. 498 179 Coughron v. Swift, 18 111. 414 , 181 In reCozart, 3 N. B. R. 126 363 Crabb v. Curtis, 6 N. B. R. 139 382 XXXvi OASEa CITED. Page Cragie v. Hadley, 99 N. Y. 369 289 Lord Cranstown v. Johnston, 3 Ves. Jr. 170 59 Grain v. Kennedy, 85 111. 340... 218 Crandall v. Lincoln, 52 Conn. 73 179 Crawford v. Kirksey, 50 Ala. 590 .-. ^.' ■ 37 Crawford v. Rohrer, 59 Md. 599 54 Crawford v. Logan, 97 111. 396 ., ■•• 112 Crevar v. Williams, 145 111. 625 148 Cribbedge v. Adams, 42 Ga. 124 - 170 Crimble v. Woodhead,. 102 U. S. 647 384 Crippen v. Hudson, 3 Kernan 161 • 172 Crippen v. Hudson, 3 Kem. 161 • . 173 Crippen v. Hudson, 13 N.. Y, 161 179 Crippen v. Hudson, 13 N. Y. 161 203 Crippen V. Hudson, 13 N.. Y. 161 216 Crippen v. Hudson, 13 N. Y. Ml , 217 Crippen v. Hudson, 13 N. Y. 161 239 Crocker v. Craig, 46 Me. 327 Ill Crompton v. Anthony, 13 Allen 33 106 Cromptbn v. Anthony, 13 Allen 33 ». . 189 Crompton v. McDonald, 105 Mass. 423. 190 Crook V. Jadis, 5 B. & Ad. 909 125 Cross V. Brown, 51 N. H. 486. Ill In re Cronsin, 1 N. B. N. 474. - 368 Crosby v. Lumberman's Bk., Clark's Chy, 234 74 Crosby v. Morristown, & G. G. R. Co., Tenn. 42 S. W. 507 335 Crosby v. Morristown, etc., R. Co., 42 S. W. 507 337 Grossley v. Elworthy, L. R. la Bq. Cas. 15a; 40 L. J. Ch. 480 220 Grouch V. First Nat. Bk., 166 111. 342 162 Crowell V. Cape Cod Ship Canal Co., 164 Mass. 235 38 Growell v. Gape God Ship Canal Co., 164 Mass. 235. 80 Growninshield v. Kittridge, 7 Mete. 520. ^ 257 Crump V. IngersoU, 47 Minn. 179 , 75 Cunningham v. Williams, 42 Ark. 170. 135 Curtis V. Fox, 47 N. Y. 299 ^ 40 In re Curtis,. 1 N. B. N. 163 378 In re Curtis, 1 N. B. N. 357 394 Curlee v. Rembert, 37 S. G. 214. . . i 265 Curling v. Hyde, 10 Mo. 374 199 Cutter V. Evans, UN. B. R. 448. .^ 372 Cutter V. Pollock, 4 N. Dak. 205 261 Cutter v. Perkins, 47 Me. 557 ' 199 Cunningham v. Butler, 142 Mass. 47 301 Cunningham v-. Butler, 142 Mass. 47 303 Cunningham v. Freeborn, 11 Wend. 240 , 262 Cunningham v. Pell, 6 Paige 655 96 Curran v. Olmstead, 101 Ala. 692 124 OASES CITED. XXXVa Page Curry v. Glass, 25 N. J. Eq. 108 137 Cuyler v. Ensworth, 6 Paige Ch. 32 95 Cuyler v. Morland, 6 Paige Ch. 273, 28 Cuyler v. Moreland, 6 Paige Ch. 273 73 Cuyler v. Moreland. 6 Paige Ch. 273 74 Cuyler v. Moreland, 6 Paige Ch. 273 203 D In re Daggett, 8 N. B. R. 433 359 Dale V. Roosevelt, 5 Johns. Ch. 174. 59 Dambmann v. White, 12 N. B. R. 438 357 Dambmann v. White, 12 N. B. R. 438 382 Damon v. Damon, 28 Wis. 510 299 Dana v. Haskell, 41 Me. 25 - 170 Dana v. Stanford, 10 Cal. 269 261 Danforth v. Dast, 4 Duer 101. 125 Danforth v. National Chemical Co., 68 Minn. 308 331 Dansby v. Freiberg, 76 Tex. 463 - 267 Darrington v. Borland, 3 Port. Ala. 9. 116 Darrington v. Borland, 3 Porter 9, 31 200 Darrington v. Borland, 3 Porter (Ala.) 9, 31 280 Dargan v. Waring, 11 Ala. 988 - 5 Darst V. Murphy, 119 111. 343 164 Daskam v. Neff, 79 Wis. 161 131 Davenport v. Kelly, 42 N. Y. 193 235 Davenport v. Kelly, 42 N. Y. 193 238 David V. Birchard, 53 Wis. 492 125 David V. Birchard, 53 Wis. 492 126 David V. Birchard, 53 Wis. 492. 257 David V. Prowd, 1 Mlln. & K. 200 101 Davidson v. Burke, 143 111. 139 146 Davidson v. Burke, 143 111. 139 163^ Davidson v. Burke, 143 111. 139 239 Davidson v. Burke, 143 111. 139 241 Davison v. Davis, 125 U. S. 908 165 Davison v. Whittlesey, 1 MacArthur 163 35 Davis T. Anderson, 6 N. B. R. 154 364 Davis V. Bohle, 92 Fed. 325 .- 374 Davis V. Bohle, 1 N. B. N; 216 378 Davis V. Bonney, 89 Va. 755 .- » - 236 Davis V. Bonney, 89 Va. 755 ^ 238 Davis V. Lepold, 87 N. Y. 620 257 In re Davis, 1 Saw. 260 351 Davis V. Sheaver, 90 Wis. 250 308 Davis V. Warden, 13 Gray 305 42; xxxviii CASES cited. Page Davis V. Whipp, 48 S. W. 984 36 Dawson v. Holcomb, 1 Ohio, 135 ». . . 199 Dawson v. Sims, 14 Or. 561 199 Dawson v. Vickery, 150 111. 398 164 Day V. Washburn, 65 U. S. 352 50 Day V. Washburn, 65 U. S. 352 (24 How.) 52 Day V. Washburn, 65 U. S. 352 ~ 180 Day V. Washburn, 65 U. S. 352 - 19T Day V. Washburn, 65 U. S. 352 - 240 Day V. Postal Tel. Co., 66 Md. 354 326 Dearborn v. Kemble, 5 Allen 372 41 Decker v. Wilson, 45 N. J. Eq. 772 262 Decker v. Decker, 108 N. Y. 128 20 Decker v. Decker, 108 N. Y. 128 - 213 Deering v. Tucker, 55 Me. 284 276 Degraw v. Clason, 11 Paige Ch. 136 42 Degraw v. Clason, 11 Paige Ch. 136. . .^ 44 Degraw t. Clason, 11 Paige (N. Y.) 136 273 Degraw v. Clason, 11 Paige (N. Y.) 136 ,. . 274 Degraw v. Clason, 11 Paige Ch. 136 277 Degraw v. Clason, 11 Paige Ch. 136 279 Degrauw v. Mechan, 48 N. J. Bq. 219 166. Dehon v. Foster, 4 Allen 545 37 Dehon v. Foster, 4 Allen 545 59 Dehon v. Foster, 4 Allen 545 60 Dehon v. Foster, 4 Allen 545 303 Demarest v. Terhune, 3 C. E. Green 532 159 Denton v. Noyes, 6 Johns. 296 _ ISO Des Moines, etc., R. Co. v. Alley, 16 Fed. Rep. 732 126 De Louis v. Meek, 2 G. Green 55 102 De Klyn v. Watkins, 3 Sandf. Ch. 185 59 Deimel v. Brown, 35 111. App. 303 139 Derrick v. Lamar Ins. Co., 74 111. 404 161 Detroit Copper & B. R. M. Co. v. Ledwidge, 162 111. 305 177 Detroit Copper & B. R. M. Co. v. Ledwidge, 162 111. 305 181 Detroit Copper & B. R. M. Co. v. Ledwidge, 162 111. 305 185 Detroit Copper & B. R. M. Co. v. Ledwidge, 162 111. 305 199 Detroit Copper & B. R. M. Co. v. Ledwidge, 162 111. 305 219 Delta Bank v. Olive Finnic Grocery Co., 70 Miss. 868 92 Dewey v. Moyer, 72 N. Y. 70 30 Dewey v. Moyer, 72 N. Y. 70 102 Dewey v. Moyer, 72 N. Y. 70 201 Dewey v. Finn, 18 N. Y. Weekly Dig. 558 _ 322 Dewey v. Long, 25 Vt. 564 72 Dexter v. McAfee, 163 111. 508 124 Dewey v. West Fairmont Gas-Coal Co., 123 U. S. 329 64 Dewey v. Eckert, 62 111. 218 m OASES CITED. XXxix Page Dewey v. Eckert, 62 111. 218 181 Dewey v. Eckert, 62 111. 218 200 Dewey v. Eckert, 62 111. 218 219 De Clerq v. Jackson, 103 111. 658 , 291 In re De Long, 1 Am. B. R. 66 376 In re De Lue, 1 Am. B. R, 387 367 De Peyster v. Michael, 6 N. Y. 467 275 In re De Vore, 16 N. B. R. 56 , 353 De Witt V. Van Sickle, 29 N. J. Eq. 209, 215 126 Dhegetoft v. London Assurance Co., Mosely's Rept. 83 41 Dick y. Pitchford, 1 Dev. & Bat. Eq. 480 271 Dick V. Pitchford, 1 Dev. & Bat. Eq. 480 276 Dietz v. Atwood, 19 111. App. 96 31 Dillingham v. Kelly, 8 Tex. Cir. App. 113 332 Dilworth v. Curtis, 139 111. 508 -. . 29 Dilworth v. Curts, 139 111. 508 151 Dilworth v. Curts, 139 111. 508 152 Dilworth v. Curts, 139 111. 508 153 Dilworth v. Curts, 139 111. 508 , 158 Dillworth v. Curts, 139 111. 508 216 Dillworth v. Curts, 139 111. 508 ,247 Dillman v. Nadelhoffer, 162 111. 625 196 Dlmmick v. W. Fred Quimby Co., N. J. Eq. 41 Atl. 101 333 Dingee v. Becker, 9 N. B. R. 508 356 Dinsmore T. Neresheimer, 32 Hun, 204 59 Disborough v. Outcalt, 1 N. J. Eq. 298 12 Disborough v. Outcalt, 1 N. J. Eq. 298 68 Disborough v. Outoalt, 1 N. J. Eq. 298 73 Disborough v. Outcalt, 1 N. J. Eq. 298 -. 157 Disborough \. Outcalt, 1 N. J. Eq. 298 177 Disborough v. Outcalt, IN. J. Eq. 298 249 Disborough v. Outoalt, 1 N. J. Eq. 298 280 Dittman v. Weiss, Tex. Civ. App. Tex. 31 S. W. 67 19 Dittman v. Weiss Bros., 87 Tex. 614. .- 195 Dix V. Briggs, 9 Paige Ch. 595 188 Dobson V. Pierce, 12 N. Y. 156 18 Doekray v. Mason, 48 Me. 178 73 Dodd V. Levy, 10 Mo. App. 121 5 Dodge V. Pyrolusite, M. Co., 69 Ga. 665 , 53 Dodge V. Griswold, 8 N. H. 425 5 Doerfler v. Schmidt, 64 Cal. 265 123 Doe Grimsby v. Ball, 11 M. & W. 531 113 Doggett V. Dill, 108 111. 560 248 Doherty v. Holiday, 137 Ind. 282 156 Dollard v. Taylor, 1 Jones & S. 496 317 Dollard v. Taylor, 1 Jones & S. 496 224 Dolson V. Kerr, 16 N. B. R. 405 362 Xl CASES CITED. Page Dolton, etc., R. Co. v. McDaniel, 56 Ga. 191 • ■ • 54 Donovan v. Finn, Hopk. Ch. 59 34 Donovan v. Finn, Hopk. Ch. 59 • • • • 12 Donovan v. Finn, Hopk. Ch. 59 277 Donley v. McKiernan, 62 Ala. 34 ^ 123 Dormueil v. Ward, 108 111. 216 171 Dormueil v. Ward, 108 111. 216 - 177 Dormueil v. Ward, 108 111. 216 181 Dormueil v. Ward, 108 111. 216 175 Dormueil V. Ward, 108 111. 216 193 Dormueil v. Ward, 108 111. 216. 199 Dormueil v. Ward, 108 111. 216 202 Doolittle v. Bridgeman, 1 G. Greene 265 _ 202 Doskam v. Neft, 79 Wis. 161 136 Doskam v. NefE, 79 Wis. 161 171 Doud V. Bonta Plate Glass Co., 28 Pitts. 6 L. J 33 Dowbiggin v. Bourn, Young's Ex'c Rep. Ill 95 Dows V. McMichael, 2 Paige 345 298 Dowden v. Wilson, 108 111. 257 141 Doyle V. Peckham, 9 R. I. 21 4 113 Drake v. Rice, 130 Mass. 410 ...* 72 Draper v. Hollings, 163 Mass. 127 105 Dreutzer v. Bell, 11 Wis. 119 , 14 Drewey v. Thacker, 3 Swanst. 529 ; .■ 107 Dreyfuss v. Charles Deale & Co., N. Y. 18 Misc. 551; 41 N. Y. Supp. 873 .' 310 Drinkwater v. Drinkwater, 4 Mass. 354 * Ill Dudley v. Danforth, 61 N. Y. 626 267 Duerson v. Alsop, 27 Gratt. Va. 229 ^ 107 Dugan V. Cureton, 1 Ark. 31 69 Dummer v. Smedley, 110 Mich. 466 338 In re Duncan, 1 N. B. N. 340 ^. - 385 Dunfee v. Childs, 30 S. E. 102 99 Dunham v. Cox, 10 N. J. Eq. 437 13a Dunham v. Cox, 10 N. J. Eq. 437 178 Dunham v. Cox, 2 Stock. 437. .. : 182 Dunham v. Cox, 2 Stock. 437 * 211 Dunham v. Byrnes, 36 Minn. 106 224 Dunham v. Byrnes, 36 Minn. 106 317 Dunham v. Byrnes, 36 Minn. 106 321 Dunham v. Hyde Park, 75 111. 371 149 In re Dunkle, 7 N. B. R. 72 386 Dunlop V. Byers, 110 Mich. 109 ,. . 322 Dunlevy v. Tallmadge, 32 N. Y. 457 170 Dunlevy v. Tallmadge, 32 N. Y. 457 igg Dunlevy v. Tallmadge, 32 N. Y. 457 189 Dunlevy v. Tallmadge, 32 N. Y. 457 195 OASES CITED. xli Page Dunlevy v. Tallmadge, 32 N. Y. 457 205 Dunlevy v. Tallmadge, 32 N. Y. 457 216 Dunlevy v. Tallmadge, 32 N. Y. 457. . , . , , , 239 Dunphy v. Kleinsmith, 78 U. S. 610 , 73 Dunphy v. Klelnsmith 78 U. S..,.. .^ , 5 Dunphy V. Kleinsmith, 78 U. S. 610 ^ 159 Dunton v. McCooi, 93 Iowa 258, 46 Durand v. Gray, 129 111. 9......... 65 Durand t. Gray, 129 111. 9. . , 66 Durand y. Gray, 129 111. 9 131 Durand v. Gray, 129 111. 9 170 Durand V. Gray, 129 III 9 185 Durand v. Gray, 129 111. 9 , 203 Durand T. Gray, 129 111. 9 205 Durand v. Gray, 129 111. 9 209 Durand v. Gray, 129 111. 9 228 Dutton V. Thomas, 97 Mich. 93 ,,.., 133 Dutton v. Thomas, 97 Mich. 93 - 308 Dutcher v. Marine Nat Bk., 12 Blatchf. 435 55 Dutcher v. Wright, 16 N. B. R. 331 389 Duval V. Duval, 153 111. 49 218 Duval T. Marshall, 30 Ark. 230„., 312 Dyger.t T. Eemerschnider, 32 N. Y. 629...., ,.. 126 E Eades y. Mason, 16 111. App. 545 , 202 Eager y, FxK^, 2 Paige Ch. 334 34 Eager v. Price. 2 Paige Ch. 333 , - 43 Eager v. Price, 2 Paige Ch. 333, 241 Eames v. Doris, 102 111. 350 7 Eameston v. Lyde, 1 Paige Ch. 637 , 95 Eameston v. Lyde, 1 Paige Ch. 637 235 Earl of Chesterfield v. Janssen, 2 Ves. Sr. 125 200 Earl of Chesterfield v. Janssen, 2 Ves. Sr. 125 280 Earl of Derby y. Duke of Athol, 1 Ves. Sr. 202 59 Earl V. Grove, 92 Mich. 285 200 Earl of Kildare v. Eustace, 1 Vem. 419 59 Early Times Dist. Co. v. Zeiger, N. M. 49 Pac. 723 25 Early Times Distilling Co. v. Zeiger, 49 Pac. Rep. 723 185 Eastman v. Foster, 8 Mete. 19 - 244 Eastern Electric Cable Co, v. Great Western Mfg. Co., 164 Mass. 274, 41 N. B. 595 33 In re Easley, 1 Am. B. R. 175 362 In re Easley, 1 N. B. N. 230 .365 In re Easley, 93 Fed. 419 374 xlii OASES CITED. Page ' Eaton V. Patterson, 2 S. & P. (Ala.) 9 238 Edgar v. Clevenger, 2 N. J. Eq. 258 170 Edgar v. Clevenger, 2 N. J. Eq. 258 192 Edgar v. Clevenger, 2 N. J. Eq. 258 215 Bdgell V. Haywood, 3 Atk. 352 73 Edgell V. Haywood, 3 Atk. 352 328 Bdgell V. Hart, 9 N. Y. 213 ~ 262 Edmeston v. Lyde, 1 Paige Ch. 637, 640 50 Edmeston v. Lyde, 1 Paige Ch. 637 73 Edmeston v. Lyde, 1 Paige Ch. 637 88 Edmeston v. Lyde, 1 Paige Ch. 637 157 Edmeston v. Lyde, 1 Paige Ch. 637 236 Edmeston v. Lyde, 1 Paige 637 23S Edmeston v. Lyde, 1 Paige Ch. 637 244 Edmeston v. Lyde, 1 Paige Ch. 637 246 Edmondson v. Hyde, 7 N. B. R. 1 370 Edmonston v. McLoud, 16 N. Y. 543 241 Edmonston v. McLoud, 16 N. Y. 544 251 Edwards v. WoodrufC, 90 N. Y. 396 81 Eikenberry v. Edwards, 67 la. 619 225 Elfelt V. Hart, 1 McCrary C. Ct. 11. ., 285 Eliott V. Merchants' Exch'g, 14 Mo. App. 234 5 Ellsworth V. Cuyler, 9 Paige 418 35 Ellsworth V. Cook, 8 Paige Ch. 643 274 Elliot V. Pontius, 136 Ind. 64 102 Ellington V. Moore, 4 Va. Law. Reg. 608 105 Elmore v. Spear, 27 Ga. 193 106 Elwell V. Johnson, 3 Hun. 558 , 123 In re Empire Metallic Bedstead Co., 1 Am. B. R. 136 342 In re Empire Metallic Bedstead Co., 1 Am. B. R. 136 379 In re Empire Metallic Bedstead Co., 1 Am. B. R. 136 390 Emmons v. Barton, 109 Cal. 662 112 Emmons v. Cummings, 7 Humph. 279 110 Emery v. Bidwell, 140 Mass. 271 ^ 42 Embry v. Palmer, 107 U. S. 3 217 Emery v. Cochran, 82 111. 65 129 Engel v. Scheuerman, 40 Ga. 206 59 Englebert v. Blanyot, 2 Whart. 240 113 England v. Russell C. C. S. D. Ohio 71 Fed. Rep. 818 -. . 186 England v. Russell, 71 Fed. Rep. 818 265 Eno v. Colder, 14 Rich. Eq. S. C. 154 290 Enos V. Hunter, 4 Glim. 211 60 Erb V. Popritz, 59 Kan. 264 , 333 Erdall v. Atwood, 79 "Wis. 1 32i Ernst V. Shinkle, 95 Ky. 608 273 Essex Co. v. Lawrence, Etc., 10 Allen 352 54 Estey V. Fuller, 82 la. 678 !"!!."!!!! 224 CASES CITED, xliii Page Estey V. Fuller Imp. Co., 82 la. 678. .- 225 Estey V. Fuller, 82 la. 678 226 Estes V. Wilcox, 67 N. Y. 264 172 Estes V. Wilcox, 67 N. Y. 264 183 Estes V. Wilcox, 67 N. Y. 264 188 Estes V. Wilcox, 67 N. Y. 264 194 Estes V. Gunter, 122 XJ. S. 450 259 Estabrook v. Messersmith, 18 Wis. 545 112 In re Etheridge Fum. Co., 1 Am. B. R. 112 340 Eustace v. Lloyd, 25 Week. Rep. 211 303 Evans v. Laughton, 69 Wis. 138 18T Evans v. Virgin, 69 Wis. 148 19S Everett v. Read, 3 N. H. 55 Ill Everett v. Everett, 48 N. Y. 218 183 Everett v. Peyton (App. Div.) 55 N. Y. Supp. 464 277 Ewing V. Ainsworth, 53 111. 464 189 Exchange Bk. of Macon v. H. B. Claflin & Co., 100 Ga. 640 314 Exchange Bk. v. Macon Construction Co., 97 Ga. 1 334 Byster v. Gaff, 13 N. B. R. 546, 91 U. S. 521 356 Faber v. Matz, 86 Wis. 370 213 Faber v. Matz, 86 Wis. 370 217 Faber v. Matz, 86 Wis. 370 225 Fairbalrn v. Middlemiss, 47 Mich. 372 176 Fairbairn v. Middlemiss, 47 Mich. 372 270 Faivre v. Gillman, 84 la. 573 96 Falconer v. Freeman, 4 Sandf. Ch. 565 299 Falmouth Nat'l Bank v. Cape Cod Ship Canal Co., 166 Mass. 550^ 309 Fall V. Chambers, Mosely's Rept. 193. ._ , 41 Farmers' & Merchants' Nat'l Bk. v. Waco Blec. R. & L. Co., Tex. Civ. App. 36 S. W. 131 333 Farmers', Etc., v. Needles, 52 Mo. 17 326 Farmers' & C, N. & B. v. Noxon, 45 N. Y. 762 288 Farmers' Nat. Bk. v. Sperling, 113 111. 273 89 Farmers' Loan & Trust Co. v. Waterman, 106 U. S. 265 64 Farmers' L. & T. Co. v. Baker, 20 Misc. N. Y. 387 322 Farmer v. Yates, 23 Gratt. 145 , 155 Farrar v. Haselden, 9 Rich. (S. C.) Eq. 331 88 Farrar v. Haselden, 9 Rich. (S. C.) Eq. 331 93 Farrar v. Haselden, 9 Rich. Eq. 331 200 Farley v. Carpenter, 27 Hun. 359 , 126 Farley v. Shippen, 1 Wythe, 254 59 Farnham v. Campbell, 10 Paige Ch. 598 33 Xliv CASES CITED. Farnham v. Campbell, 10 Paige Oh. 598 236 Farnsworth v. Strasler, 12 111. 482 5 Farnsworth v. Strasler, 12 -111. 482 21 Farnsworth v. Strasler, 12 III. 482 190 Farnsworth v. Strasler, 12 111. 482 196 Farnsworth v. Strasler, 12 111. 482 201 Farned v. Harris, 11 S. & M. 366, 871 195 Farquaharson v. Kimball, -9 Abb. Pr. 385 n 227 Farquaharson v. Kimball, 18 How. Pr. 33 228 Farwell v. Hilbert, 91 Wis. 437 215 John V. Farwell & Oo. v. Norton, 77 111. App. 685 25 Farwell v. Importers' Nat. Bk., 90 N. Y. 483 320 Farwell v. Nilsson, 133 111. 45 256 Farwell v. Nilsson, 133 111. 45 261 Farrell v. Ledwell, 21 Wis. 182 , .230 Fawcettv. Supreme Sitting O. of I. H., 64 Conn. 170 250 Feldenheimer v. Tressel, 6 Dak. 265 73 Fellows 'V. Fellows, 4 Cow. -682 82 Fellows V. Fellows, 4 Cow. 682 104 Fellows V. Fellows, 4 Cow. 682 143 Fellows V. Stevens, 24 Wend. 294 257 In re Fellerath, 1 N. B. N. 292 , , 363 In re Fellerath, 2 Am. B. E. 40 366 In re Fellerath, 2 Am. B. R. 40 , 378 Fenn v. Holme, 21 How. 481 174 Fennerman v. Leonard, 7 Allen 54 ISO Fenton v. Flagg, 24 How. Pr. 499. 227 Ferguson v. Peckham, 6 N. B. R. 569 351 Fichout V. Cilley, 3 Vt. 415 ISO Fidelity Ins. Go. v. Huntington, 117 U. S. 280 , 116 Field V. Andrader, 106 Cal. 107 39 Field V. Chapman, 15 Abb. Pr. 434 227 Field V. Gibbs, Peters C. C. R. 155 180 Field v. Mayor, 6 N. Y. 179 Ig. Filkins v. Nunnemacher, 81 Wis. 91 323 Filkins t. Nunnemacher, 81 Wis. 91 326 Filki-ns v. Nunnemacher, 81 Wis. 91 328 Filkins t. Nunnemacher, 81 Wis. 91 329 Finley v. Bank of U. S., 24 U. S. 304 lOi First Nat. Bk. v. Gage, 79 111. 207 208 F. N. Bank v. -Gage, 79 111. 207 227 First N. Bk. v. Gage, 79 111. 207 298 First Nat. Bk. v. Gage, 93 111. 172 241 First Nat. Bk. v. Gibson, Neb. 77 N. W. 662 152 First Nat. Bk. of Marshall v. Hosmer, 48 Mich. 200 29 First Nat. Bk. of Marshall v. Hosmer, 48 Mich. 200 219 First Nat. Bank v. Randall, 38 Atl. 1055 2U OASES CITED. xlv Page First Nat. Bank v. Steinway (C. C. W. D. Pa.) 77 Fed. Rep. 661. 216 First Nat. Bk. v. Shuler, 153 N. Y. 163 *. . . . 82 First Nat Bk. v. Shuler, 153 N. Y. 163 90 First Nat. Bk. v. Shuler, 153 N. Y. 163 235 First Nat. Bk. v. Peoria Watcli Co., 77 111. App. 663 203 In re Fisher, 1 Am. B. R. 557 394 Fisher v. Boody, 1 Curtis C. C. 206 - 151 Fisher v. Herron, 22 Neb. 183 19 Fisher v. Herron, 22 Neb. 183 107 Fisher v. Taylor, 2 Rawle 33 , 271 Fisher v. Worth, 1 Busb. (N. C.) Bq. 63 88 Fitzburgh V. Everingham, 6 Paige Ch. 29 144 Fitzgerald v. Forristal, 48 111. 228 213 Fitzpatrick v. Beatty, 1 Gilm. 454 128 Flagler v. Blunt, .32 N. J. Eq. 518 - Ill Flaherty v. McCormick, 113 111. 538 195 Flash T. Wilkerson, 22 Fed. Rep. 689 101 Fleming t. Grafton, 54 Miss. 79 170 Fleming V. Grafton, 54 Miss. 79 171 Fletcher t. Holmes, 40 Me. 364 Ill Flower V. Cornish, 25 Min. 473 112 Fogg V. Blair. 139 U. S. 118 179 Fogg V. United Order ot Golden Lion, 159 Mass. 9 244 Fogarty v. Burke, 2 Drury & Warren 580 66 In re Folf, 1 Am. B. R. 22 381 Forbes v. Lathrop, 137 Mass. 523 _. 35 Forbes v. Smith, 8 Ired, (N. C.) Eq. 30 274 Forbes v. WaUer, 25 N. Y. 430 208 Forbes v. Waller, 25 N. Y. 430.... , _ 210 Ford V. Williams, 24 N. Y. 359 262 Ford V. Holbrook, 50 111. App. 547 250 In re Forsythe, 7 N, B. R. 174..., 386 Fort Payne Bank v. Alabama, Etc., Co., 103 Ala. 358 179 Fort Stanwix Bk. y. Leggett, 51 N. Y. 552. ., 27 Fort Stanwjx Bk. v. Leggett, 51 N. Y. 552 30 Fort Stanwix Bk. v. I^eggett, 51 N. Y. 552 117 Fort Stanwix Bk. v. Leggett, 51 N. Y. 552 201 Foster y. Bank of Abingdon, 88 Fed. Rep. 604 30 Foster V. Bank of Abingdon (C. C. W. D. Va.) 68 Fed. Rep. 723. . 98 Foster y. Foster, 133 Mass. 179 _ 33 Foster y. Foster, S6 Vt. 540 71 Foster y. Mott, 34 N. Y. 253 198 Foster y. Varsall, 3 Atk. 589 59 Fourth Nat. Bank y. Stout, 113 U. S. 684 64 In re Fowler, 1 Am. B. R. 637. .- 351 Fowler's Appeal, 87 Pa. 449 6 Fowler's Appeal, 87 Pa. 449 62 xlvi CASES CITED. Page Fox V. Moyer, 54 N. Y. 125 ^''^ Fox V. Moyer, 54 N. Y. 125 170 Fox V. Moyer, 54 N. Y. 125 !'?& Fox V. Moyer, 54 N. Y. 125 203 Fox V. Curtis, 176 Pa. 52 — • 317 Fox V. Heath, 16 Abb. N. Y. Pr. 163 130 Francis v. Lawrence, 48 N. J. Bq. 508 198, 199 Francis v. New York Commercial Co., 54 U. S. App. 663, 83 Fed. Rep. 769 - 300 Franklin Co. Nat. Bk. v. First Nat. Bk. 138 Mass. 518 244 Franklin Nat'l Bank v. Whitehead, 149 Ind. 560 321 Frank v. Robinson, 96 N. C. 28 263 Frazier v. McWllliams, 19 N. J. Eq. 316 274 Frazier v. Barnum, 19 N. J. Bq. 316 273 Freedman's Sav. & T. Co. v. Earle, 110 U. S. 710 50 Freedmans, Etc., Co. v. Earle, 110 U. S. 710 68 Freedman's Sav. & T. Co. v. Earle, 110 U. S. 710 73 Freedman's Sav. & T. Co. v. Earle, 110 U. S. 710 201 Freedman's Sav. & T. Co. v. Earle, 110 U. S. 710 240 Freeholders v. Henry, 41 N. J. Bq. 388. ., 274 In re Freund, 1 Am. B. R. 25 394 Freeland v. Dazey, 25 111. 294 S Freeland v. Dazey, 25 111. 294 218 Freeland v. Freeland, 102 Mass. 475 , 113 Freeman v. Howe, 65 U. S. 450 64 Freeman v. Pullen, 24 So. 57 (Ala.) 85 Freeman v. Pullen, 24 So. 57 203 Freeman v. Stuart, 24 So. 31 (Ala.) 91 Freeman v. Stuart, 24 So. 31 Ala 316 French v. Motley, 63 Me. 326 261 French v. Marshall, 136 Mass. 564 ^ Ill In re Friedman, 1 Am. B. R. 510 367 Friend v. Powers, 93 Ala. 114 54 Frisbey v. Thayer, 25 W. R. 396 ,. . 170 Fryrear y. Lawrence, 5 Gil. 325 144 Frost V. Mott, 34 N. Y. 253 299 Frothingham v. Hodenpyl, 48 N. Y. S. R. 449 170 Frothingham v. Hodenpyl, 135 N. Y. 630 _. . 216 Fry V. Kruse, 43 Ark. 142 102 Fry V. Kruse, 43 Ark. 142 103 Ex parte Fryer, L. R. 17 Q. B. Div. 718 331 Fuller V. Taylor, 6 N. J. Eq. 301 145 Fuller V. Taylor, 6 N. J. Bq. 301 ,. . 29» Fuller V. Taylor, 6 N. J. Eq. 301 ,. . 312 In re Fuller, 1 Saw. 143 351 In re Fuller, 4 N. B. R. 29 355, In re Fuller, 4 N. B. R. 29 ^ 375 CASES CITED. xlvii Page Fumin v. Malloy, 1 Jones & S. 382 329 Funk V. Lawson, 12 111. App. 229 278 Furbush v. Colllngwood, 13 R. I. 720 17 Fusze V. Stern, 17 111. App. 429 196 Gaffray v. Rabb, 72 la. 335 , 339 Galusha v. Galusha, 138 N. Y. 272 90 Galatlan v. Erwln, Hopk. Ch. 48 18 Galatian v. Erwin, Hopk. Ch. 48 148 Galloway v. Hamilton, 68 Wis. 651 171 Galiher v. Cadwell, 145 U. S. 368; 12 Sup. Ct. 873 165 Gallagher v. Goldfrank, 75 Tex. 562 263 Gallman v. Perrie, 47 Miss. 131 71 In re Garson, 1 N. B. N. 315 368 Garland v. Garland, 87 Va. 758 273 Garretson v. Brown, 26 N. J. L. 425 _ 112 Garrison v. Texas & Pac. R. Co., 10 Tex. Civil App. 136 331 Garrett v. Plow Co., 70 la. 697 249 In re Garett, 11 N. B. R. 493 355. In re Garrett, Fed. Cas: No. 5252 391 Garvin v. Squires, 9 Ark. 533 _. . 62 Garvin v. Stewart's Heirs, 59 111. 229 13S Gardner v. Gardner, 22 Wend. 526 34 Gardner v. Gardner, 17 R. I. 751 192 Gardner v. Caldwell, 16 Mont. 221. ._ 339 Gardner v. Smith, 29 Barb. 68 329 Garfield v. Hatmaker, 15 N. Y. 475 72 Garfield v. Hatmaker, 15 N. Y. 475 183 Garfield v. Hatmaker, 15 N. Y. 475 253 Gates V. Young, 17 N. Y. Week. Dig. 551 225 Gassaway v. Heidenheimer, Tex. 37 S. W. 343 314 Gates V. Boomer, 17 Wis. 470 27 Gates V. Boomer, 17 Wis. 456 102 Gates V. Boomer, 17 Wis. 455 171 Gauler v. Wohlers, 12 111. App. 594 132 Gaylords v. Kelshaw, 68 TJ. S. 81 81 Gedge v. Traill, 1 Rubs & M. 281 n 86 Geery v. Geery, 63 N. Y. 252 , 170 Geery v. Geery, 63 N. Y. 252 178 Genesee River Bk. v. Mead, 92 N. Y. 637 126 Geny's Appeal, 17 N. B. R. 196 _ 377 George M. West Co. v. Lea Bros., 1 N. B. N. 409 379 George v. Williamson, 26 Mo. 190 177 George v. Williamson, 26 Mo. 190 236 xlviii CASES CITED. Page George v. St. Louis, Etc. Co., 44 Fed. Rep. 117 97 George T. St. Louis Cable & W. B. Co. C. C. E. D. Mo. 44 Fed, Rep. 117 156 German- American Seminary v. Saenger, 66 Mich. 249 236 Gere v. Dibble, 17 How. Pr. 31 ~ , 102 Geringer v. Heinlein (Ohio C. P.) 29 Ohio L. J. 339 (Week. L. Bui.) 45 Getzler v. Saroni, 18 111. 511 ~ 52 Getzler v. Saroni, 18 111. 511 66 Getzler V. Saroni, 18 111. 511 181 Getzler v. Saroni, 18 111. 511 199 Getzler v. Saroni, 18 111. 511 201 Gettleman v. Gitz, 78 Wis. 439 184 Gibson v. Gibson, 82 111. 61 - 218 Gibson v. Gibson, 46 Wis. 449 299 Gibson v. Shufeldt, 122 U. S. 27 161 Gibbs V. David, L. R. 20 Equity, 373 314 Gibbs V. Thayer, 6 Cush. 30 , 113 Giddings v. Sears, ll5 Mass. 505 260 Gilbert V. Stockman, 81 Wis. 602 170 Gilbert v. Stockton, 81 Wis. 602 , 171 Gilbert v. Stockman, 81 Wis. 602 183 Gilbert v. Stockman, 81 Wis. 602 204 Gilbert v. Stockman, 81 Wis. 602 216 Gilbert v. Lewis, 1 De G. J. & S. 38 123 Gilbert v. Lewis, 1 De G. J. & S. 38 128 Gilbert v. Washington Beneficial Endowment Assn., 10 App. Cas. D. C. 316 103 Gill V. Weston, 110 Pa. St. 305 , 299 Gillett V. Moody, 3 Comst. 479 323 Gillett V. Bate, 86 N. T. 87 ,. . 32 Gillespie v. Alexander, 3 Russ. 130 101 Oilman v. Ketcham, 84 Wis. 60 326 Ginn v. Brown, 14 R. I. 524 133 Gladwin v. Garrison, 13 Cal. 330 261 Gleason v. Gage, 7 Paige Chy. 121 112 Gleason v. Gage, 7 Paige 121 178 Gleason v. Gage, 7 Paige Ch. 121 204 Gleason v. Fayerweather, 4 Gray. 348 , 276 Glenn v. Williams, 60 Md. 93 _ 54 Glenn v. Williams, 60 Md. 93 214 Glenn v. Semple, 80 Ala. 159 54 Glenny v. Langdon, 98 U. S. 20 ,. . ig Glenny v. Langdon, 98 U. S. 20 321 Glenny v. Langdon, 98 U. S. 20 384 Globe Phosphate Co. v. Plnson, 52 S. C. 185 324 In re Globe Cycle Works, 1 N. B. N. 421 _ 373 CASES CITED. Xlix Page Globe Cycle Works, 1 N. B. N. 421 374 In re Globe Cycle Works, 1 N. B. N. 421 376 Glover v. Lee, 140 111. 102 260 Glover v. St. Louis Mutual Bond Invest. Co., 138 Mo. 408 310 Goddard v. Weaver, 6 N. B. R. 440. ._ 355 Godden v. Klmmell, 99 U. S. 201 165 Godfrey v. Terry, 97 U. S. 171 54 Goembel v. Arnett, 100 111. 34 180 Gogebic Inv. Co. v. Iron Chief, Etc., Co., 8 Wis. 427 179 In re GoUison, 5 N. B. R. 353 395 Golson v. NiehefC, 5 N. B. R. 56 363 Goldberg v. Cohen, 119 N. C. 68 106 In re Goldstein, 1 N. B. N. 422 387 Goncelier v. Forst, 4 Minn. 1 _ 180 Goodier v. Barnes, 1 N. B. N. 383 356 Goodman v. Kopperl, 67 111. App. 42 218 Goodman v. Harvey, 4 Ad. & Ellis, 870 125 Goodall V. Tuthill, 7 N. B. R. 193; 3 Biss. 219 _ 356 Goodwin v. Wertheimer, 99 N. Y. 149 288 Goodwin v. Wertheimer, SS N. Y. 149 289 Goodwin v. Einstein, 51 How. Pr. 9 34 Gore V. Kramer, 117 111. 176 174 Gore V. Kramer, 117 111. 176 181 Gore V. Kramer, 117 111. 176 185 Gore V. Kramer, 117 111. 176 199 Gore V. Kramer, 117 111. 176, 182 219 Gordon v. Lowell, 21 Me. 251 238 Gordon v. Lowell, 21 Me. 251 244 Gordon v. Lowell, 21 Me. 251..., 246 Gordon v. Worthley, 48 la. 429 169 Gordon v. Worthley, 48 la. 429 195 Gordon v. Worthley, 48 la. 76 199 Gordon v. Anthony, 16 Blatchf. C. C. 234 41 Gorham v. Mutual Aid Soc, 161 Mass. 357 244 Gorham v. Gorham, 3 Barb. Ch. 24 Ill Gorton v. Massey, 12 Minn. 145 - 180 Gormerly v. Chapman, 51 Ga. 421 238 Gould V. Cayuga County Bank, 99 N. Y. 333 285 Gould V. Dodge, 30 Wis. 621. 229 Gould V. Steinburg, 84 111. 170 - 63 Gould V. Tryon, Walk. Chy. 353 66 Gowell T. Gates, 79 la. 632 102 Gracey v. Davis^ 3 Strobh. Bq. 55 240 Graft V. Bonnett, 31 N. Y. 9 270 Graff v. Bonnett, 31 N. Y. 9 273 Graff v. Bonnett, 31 N. Y. 9 329 Graham v. La Crosse & M. E. Co., 10 Wis. 459 226 I CASES CITED. Page Graham v. Maxwell, 1 MacN. & G. 71 303 Grampton v. Anthony, 13 Allen 33 105 Granby v. Amherst, 7 Mass. 1 • HI Grant v. Walsh, 145 N. Y. 502 288 Grant v. Southern Contract Co. Ky. 47 S. W. 1091 31 Grand Trunk R. Co. v. Vermont R. Co., C. C. D. Vt. S5 Fed. Rep. 87 ^6 Grand Trunk R. Co. v. Central Vt. R. Co., 88 Fed. Rep. 636 334 Grand Trunk R. Co. v. Central Vt. R. Co., 88 Fed. Rep. 636 335 In re Grahs, 1 Am. B. R. 465 - 351 In re Grahs, 1 Am. B. R. 465 381 Gray v. Blum, 55 N. J. Eq. 553 330 Gray v. Corbit, 4 Del. Ch. 135 273 Gray v. Galpin, 98 Cal. 633 129 Gray v. May, 16 Ohio 66 86 Gray v. Reynolds, 55 N. J. Eq. 501 332 Graves v. Dugan, 6 Dana 331 47 Gray V. Schenck, 4 N. T. 460 ! 81 Graydon v. Church, 7 Mich. 36 32ff Great Falls Mfg. Co. v. Worster, 23 N. H. 462 59 Great Western Tel. Co. v. Gray, 122 111. 630 54 Green's Administratrix v. Creighton, 64 U. S. 90 63 Greens Admx. v. Creighton, 64 U. S. 90 291 Green v. Hicks, 1 Barb. Ch. 309 81 Greene v. Keene, 14 R. I. 388 34 Green v. Spicer, 1 R. & M. 395 271 Green v. Tantum, 19 N. J. Bq. 105 34 Green v. Van Buskirk, 5 Wall. 307; 7 Wall. 139 301 Green v. Tantum, 19 N. J. Eq. 105 178 Green v. Tantum, 19 N. J. Eq. 105 274 Greene v. Staines, 1 Heisk 582 203 Gregory v. Rosenkrans, 78 Wis. 451 216 Greenway v. Thomas, 14 111. 271 52 Greenway v. Thomas, 14 111. 271 66 Greenway v. Thomas, 14 111. 271 174 Greenway v. Thomas, 14 111. 271 175 Greenway v. Thomas, 14 111. 271 177 Greenway v. Thomas, 14 111. 271 180 Greenway v. Thomas, 14 III. 271 181 Greenway v. Thomas, 14 111. 271 195 Greenway v. Thomas, 14 111. 271 197 Greenway v. Thomas, 14 111. 271 199 Greenway v. Thomas, 14 111. 271 200 Greenway v. Thomas, 14 111. 271 201 Greenway v. Thomas, 14 111. 271 219 In re Greenville, 9 N. B. R. 29 360 Grelg V. Somerville, 1 Russ. & M. 338 lOi CASES CITED, li Greig V. Russell, 115 111. 483 148 Griffith V. Lansdale, 53 Ark. 71 304 Grifflth V. Griffith, 9 Paige 315 140 Griffith V. Griffith, 9 Paige Ch. 315. ., 237 Griffin v. Mitcher, 57 Me. 270 130 Griffin v. Mitcher, 57 Me. 270 184 In re Grimes, 1 N. B. N. 339 392 In re Grimes, 1 N. B. N. 426 - 393 Griswold v. Sundback, 4 S. D. 441 - 189 Grosvenor v. Allen, 9 Paige Ch. 74 36 Grover v. Wakeman, 11 Wend. 187 263 Guerrant v. Towler, 1 H. & M. 5 59 GuUickson v. Madsen, 87 Wis. 19 _ 25 Gullickson v. Madsen, 87 Wis. 19 36 GuUickson v. Madsen, 87 Wis. 19 _ 74 Guiliander v. Howell, 35 N. Y. 657 206 Gurkill V. Durdin, 2 Ball & Beatty, 167 141 Gutch V. Fitch, 34 Fed. Rep. 566 55 In re Gutwillig, 90 Fed. Rep. 481 374 In re Gutwillig, 1 Am. B. R. 388 376 In re Gutwilling, 1 Am. B. R. 388 380 In re Gutwilling, 1 Am. B. R. 78 , 381 Gwyer v. Figgins, 37 la. 517 169 Gwyer v. Figgins, 37 la. 517 195 Gwyer v. Figgens, 37 la. 517 199 H Haak's Appeal, 100 Pa. 59 ,188 Hackley v. Muskegon Cir. J., 58 Mich. 854 391 Hadden v. Spader, 20 Johns. 554 72 Hadden v. Spader, 20 Johns. 554 170 Hadden v. Spader, 20 Johns. 554 175 Hadden v. Spader, 20 Johns. 554 208 Hadden v. Spader, 20 Johns. 554 277 Haddon v. Haddon, L.. R. 18 Q. B. Diy. 778 391 In re Haefer, 1 N. B. R. 163 353 Hagan v. Walker, 55 U. S. 29 5 Hagan v. Walker, 55 U. S. 29 21 Hagan v. Walker, 55 U. S. 29 86 Hagan v. Walker, 55 U. S. 29 91 Hagan v. Walker, 55 U. S. 29 193 Hagan v. Walker, 55 U. S. 29 200 Hagan y. Walker, 55 U. S. 29 212 Hagan y. Walker, 55 TJ. S. 29 280 Haggarty Y. Pittman, 1 Paige Ch. 298, 312 Haggerty v. Nixon, 26 N. J. Bq. 42 72 Haggerty y. Nixon, 26 N. J. Eq. 42 186 Hager v. Adams, 70 la. 746 ^ 304 Hi OASES CITED. Page Hager v. Shindler, 29 Cal. 47 H!* Haines v. Hollister, 64 N. Y. 1 _ 117 Hale V. Danforth, 40 Wis. 382 230 Hall V. Black, 21 111. App. 293 - 8S Hall V. Brewer, 40 Ark. 433 291 Hall V. Stryker, 27 N. Y. 596 -.. 198 Hall V. Stryker, 27 N. Y. 596..., 299 Hall V. Green, 60 Miss. 47 188 Hall V. Hoxsey, 84 111. 616 - 112 Hall V. Joiner, 1 S. C. 186, (N. S.) ~ 5 Hall V. Joiner, 1 S. C. 186 30O Hall V. Tufts, 18 Pick. 455 - 276 Hall V. Wager, 5 N. B. R. 181 - 370 Hall V. Wager, 5 N. B. R. 181 389 Hall V. Williams, 120 Mass. 344. 42 Hall V. Williams, 126 Mass. 344 271 Re Hallett, 13 Ch. Div. 696 230, 281 Hallett V. Hallett, 2 Paige 15 , 80 Hallett V. Hallett, 2 Paige 15 89 Hallett V. Hallett, 2 Paige 15 90 Hallett V. Hallett, 2 Paige Ch. 15 - 91 Hallett V. Thompson, 5 Paige 583 270 Hallett V. Thompson, 5 Paige 583 271 Hallett V. Thompson, 5 Paige 583. .„ 291 Hallorn v. Trum, 125 111. 247 , 81 Hallorn v. Trum, 125 111. 247 , 89 Hallorn v. Trum, 125 111. 247 140 Hallorn v. Trum, 125 111. 247 , 177 Hallorn v. Trum, 125 111. 247, 239 Hallorn v. Trum, 125 111. 247 241 Hallowell v. Bayliss, 10 Ohio St. 536 ,113 Haleys v. Williams, 1 Leigh, 140 240 Halstead v. Westervelt, 41 N. J. Eq. 100 271 In re Hambright, 2 N. B. R. 157 362 Hamilton v. Mississippi College, 52 Miss. 65 26 Hamilton v. Russell, 1 Cranch. 309, 316 72 Hamilton t. Railroad Co., 144 Pa. St. 34 83 Hamilton V. Barricklow, 96 Ind. 398 , 277 Hamilton Nat. Bank v. Halsted, 56 Hun. 530; 31 N. Y. S. R. 809; 9 N. Y. Supp. 852 , 85 Hamor v. Taylor Rice Engineering Co., 84 Fed. Rep. 392 331 Hamlen v. Bennett, 52 N. J. Eq. 70 Ig Hamlen v. Bennett, 52 N. J. Eq. 70 19 Hamlen v. Bennett, 52 N. J. Eq. 70 109 Hamlin v. Wright, 23 Wis. 492 , 102 Hamlin v. Wright, 23 Wis. 491 224 Hamlin v. Wright, 23 Wis. 491 317 CASES CITED. Hii Page Hamlin v. WrlgM, 23 Wis. 491 321 Hammond v. Messenger, 9 Sim. 327 - 41 Hammond v. Hudson River Iron & Machine Co., 20 Barb. 378.. 89 Hanchett v. Waterbury, 115 111. 227 37S Hancock v. Sears, 93 N. Y. 79 * 328 Handler v. Stutz, 137 U. S. 366 98 Hanford v. First Nat. Bk., 126 111. 584 266 Hanford v. Prouty, 133 111. 339 18 Hanford v. Prouty, 133 111. 339 - 265 Hanf erd Oil Co. v. First N. Bk.. 126 111. 584 174 Hannibal, etc. v. Crane, 102 III. 249 - 206 Hanover Nat. Bk. v. Blake, 142 N. Y. 404 257 In re Hansell, 1 Am. B. R. 286 , 394 Hanson v. Tripler, 3 Sandf. Super. Ct. 733 318 Hardman v. Sage, 124 N. Y. 25 - 194 Hardenburgh v. Blair, 30 N. J. Eq. 42 270 Hardenburgh V. Blair, 30 N. J. Bq. 645 * 272 Hardenburgh v. Blair, 30 N. J. Eq. 42 274 Hardenburgh V. Blair, 30 N. J. Eq. 645 ~ 277 Hardenburgh V. Blair, 30 N. J. Eq. 645 , 279 Harding v. Handy, 24 IT. S. 103, (11 Wheat.) 85 Harding V. Handy, 11 Wheat. 103... 124 Harloe v. Foster, 53 N. Y. 385 257 Harmon v. Page, 62 Cal. 448 - 98 Harmon v. Page, 62 Cal. 448 159 Harmon v. Harmon, 63 111. 512 213 Harrington v. La Rocque, 13 Ore. 344 199 Harper v. Carroll, 66 Minn. 487 330 Harris v. Cornell. 80 111. 54 - 149 Harris v. Douglas, 64 III. 466 - 218 Harris v. Douglas, 64 111. 466 ~ 293 Harris v. Hillengass, 66 Cal. 79 165 Harrison v. Union Pacific, etc., R. Co., 13 Fed. Rep. 522,. 27 Harrison v. Battle, 1 Dev. Eq, 537 172 Harrison v. Hallum, 5 Coldw. (Tenn.) 525 91 Harrison V. Kramer, 3 la. 543 - 128 Harrison v. Kramer, 3 Iowa 543, 561 , 175 Harrison v. Kramer, 3 la. 543 176 Harrison v. McLaren, 10 N. B. R. 244 389 Hartley v. Bloodgood. 16 Ala. 233 - 97 Hartshorn v. Eames, 31 Me. 93 184 Harton v. Cartner, 31 N. J. Eq. 697 170 Harton v. Cartner, 31 N. J. Eq, 697 197 Hart V. Ten Eyck, 2 Johns. Ch. 62, 89 143 Hartley v. Atkins, 64 111. App. 502 - 209 Harvey v. McDonnell, 113 N. Y. 526 30 Harvey v. McDonnell, 113 N. W. 526 , ISO IIv OASES CITED. Page Harvey v. McDonnell, 113 N. W. 526 - • • • 201 Harvey V. Varney, 104 Mass. 436 43 Harvey v. Varney, 104 Mass. 436 326 Harwood v. Railroad Co., 17 Wall. 78 165 Harvey v. State, Rogers, 123 Ind. 260 ~ 95 Hastings v. Thurston, 10 Abb. N. Y. Pr. 418; S. C. 18 How. Pr. 530 ~ 129 Haskell v. Ingall, 5 N. B. R. 205 - 373 Harton v. Gartner, 31 N. J. Eq. 697 95 Hastings v. Belknap, 1 Denio, 190 170 Haswell V. Lincks, 87 N. Y. 637 203 Hatch V. Dana, 101 U. S. 205 7 Hatch V. Dana, 101 TJ. S. 205 , 54 Hatch V. Dana, 101 U. S. 205 - 83 Hatch V. Dana, 101 TJ. S. 205 , 179 Hatch V. Dana, 101 U. S. 205 _ 217 Hatch V. Darr, 4 McLean. 112 61 Hatcher v. Jones, 14 N. B. R. 387 ^ 370 In re Hathorn, Fed. Gas. No. 6214 377 Hatfield V. Gummings, (Ind.) 50 N. E. 817 319 Hathaway v. Scott, 11 Paige N. Y. 173 148 In re Hauck, 17 N. B. R. 158 389 Hauer's Appeal, 5 W. & S. 473 ^ 180 Havens v. Exstein, (Sup. Ct.) 31 N. Y. S. R. 43; 9 N. Y. Supp 605 261 Haw V. Burch, (la.) 77 N. W. 461 335 Hawkins v. Glenn, 131 U. S. 819 _ 54 Hawkins v. Glenn, 131 U. S. 319, 334 , 195 Hawthorn V. St. Louis, 11 Mo. 59 ^ 31 Hawman v. Tegg, 2 Russ. 385 33 Hawley V. Fairbanks, 108 U. S. 543 64 Hays V. Dickinson, 15 N. B. R. 350 ^ 342 Hays V. Hostetter, 125 Ind. 60 261 Hayes v. Moore, 5 Ohio N. P. 220 316 Haynes v. Brooks, 116 N. Y. 487 318 Haynes v. Brooks, 116 N. Y. 487 232 Hayden v. Buoklin, 9 Paige 513 _ 141 Hayden v. Bucklin, 9 Paige Gh. 512 244 Hayden v. Bucklin, 9 Paige 512 _ 246 Hayward v. Bank, 96 U. S. 611 165 Hazard v. Durant, 19 Fed. Rep. 471 326 Hazen v. Durling, 2 N. J. Eq. 133 ,. . 210 Heacock v. Durand, 42 111. 230 _. 187 Heacock v. Durand, 42 111. 230 209 Heacock v. Durand, 42 111. 230. 298 Heacock v. Hosmer, 109 111. 245 195 Heard v. Jones, 15 N. B. R. 402 ,. . . 354 Heard v. Murray, 93 Ala. 127 3I8 CASES CITED. Iv Page Healy v. Root, 11 Pick. 390 215 Heath v. Bishop, 4 Rich. Eq. 46 271 Heath v. Bishop, 4 Rich. Eq. 46 » 273 Heath v. Shaffer, 93 Fed. 647 374 Heath V. Shaffer, 1 N. B. N. 291 356 Heath v. Shaffer, 2 Am. B. R. 98 358 Heath v. Shaffer, 1 N. B. N. 399 371 Hehard v. Ashland Co., 55 Wis. 145 75 Hecht V. Koegel, 25 N. J. Eq. 135 21 Hedges v. Polhemus, 9 Misc. 680; 62 N. T. S. R. 267 16 Hedges V. Polhemus, 30 N. Y. S. 556 322 Heffron v. Knickerbocker, 57 111. App. 339 191 Heffron V. Gage, 149 111. 182 80 Heffron v. Rice, 40 111. App. 244. ._ 139 Heilhronner v. Levy, 64 Wis. 636 229 Hellhronner V. Posey, (Ky.) 45 S. W. 505 32 In re Heinsfurter, IN. B. N. 467 384 Heisler v. Dickinson, 17 111. App. 193 144 Heidritter v. Elizabeth Oil Cloth Co., 112 U. S. 294 312 Heineman v. Hart, 55 Mich. 64 - 321 Helms v. Chadbourne, 45 Wis. 60 126 Helden V. Hellen, 80 Md. 616 _ 114 Henderson v. Brooks, 3 Thomp. 445 25 Henderson T. Harness, 176 111. 302 275 Henderson V. Harness, 176 111. 302 276 Henderson v. Schaas, 35 111. App. 155 250 Hendricks v. Robinson, 2 Johns. Ch. 283 176 Hendricks V. Robinson, 2 Johns. Ch. 283 73 Hendricks v. Robinson, 2 Johns. Ch. 283 96 Hendricks v. Robinson, 2 Johns. Ch. 283 , 172 Hendricks v. Rooinson, 2 Johns. Ch. 296. 180 Hendricks t. Robinson, 2 Johns. Ch. 283 238 Henlich v. Kauffman, 99 Cal. 271 170 Henlich V. Kaufmann, 99 Cal. 271 - 286 Henry v. Elder, 63 Ga. 347 - 214 Henry V. Hinman, 25 Minn. 199 _.. 71 Henry v. Vermilion, etc., R. Co., 17 Ohio 187 179 Herrington v. Hubbart, 1 Scam. 569 _ 89 Herrington V. Hubbart, 1 Scam. 569 ^ 90 Herrington v. Hubbart, 1 Scam. 569 91 Hess V. Horton, 2 App. Cases D. C. 81 _ 170 Hesse v. Stevenson, 3 B. & P. 565 33 In re Hester, 5 N. B. R. 285 _ 392 Heustis V. Johnson, 84 111. .61 218 Hewett V. Norton, 13 N. B. R. 276 372 Heyer v. Alexander, 108 111. 385 250 Heyneman v. Dannenberg, 6 Cal. 376 ,299 Ivi CASES CITED. Page Hibernia Ins. Co. v. St. Louis, etc., 13 Fed. Rep. 516 27 Hibernia Ins. Co. v. St. Louis, etc., Co., 13 Fed. Rep 516 179 Hibben V. Sozer, 33 Wis. 319 - 14 Hickling V. Wilson, 104 111. 54 103. Hlckling V. Wilson, 104 111. 54 - 177 Hicks V. Chapman, 10 Allen 463 Ill Hicks V. Knost, IN. B. N. 336 - 357 Hightower V. Slaton, 54 Ga. 108 39 High V. Bank of Commerce, 103 Cal. 525 - 318 Higgins V. Curtiss, 82 111. 28 149 Higgins V. Gillesheimer, 26 N. J. Eq. 308 - 317 Higgins V. Gillesheimer, 26 N. J. Bq. 308 , 32L Hill V. Fogg, 41 Mo. 563 * 55 In re Hill, 2 N. B. R. 53 - 372 Hill V. La Crosse, etc., R. Co., 14 Wis. 291 199 Hill T. Denney, 106 la. 726 187 Hills V. Sherwood, 48 Cal. 386 218 Hinsdale Doyle Granite Co. v. Tilley, 10 Biss. C. Ct. 572 40 Hinckley v. Pfister, 83 Wis. 64 _ 13S Hinckley v. Kreitz, 58 N. Y. 583 95 Hipskind V. Murphy, 1 N. B. N. 310 369 Hirsch v. Israel, 106 la. 498 ~ 316 Hitt V. Ormsbee, 14 111. 233 , 144 Hoagland v. Lee, 40 N. J. Eq. 469 , 18 Hoagland v. Wilson, 15 Neb. 320 23 Hobbs V. Smith, 15 Ohio St. 419 _ 273 Hobby V. Wis. Bank, 17 Wis. 167 230 Hoboken Bk. v. Beckman, 33 N. J. Eq. 53 _ 21 Hoboken Bk. v. Beckman, 33 N. J. Eq. 53 143 Hoekaday v. Drye, Ok. 54 Pac. 475 314 Hoffman's Appeal, 44 Pa. St. 95 240 Hogan V. Walker, 65 U. S. 29 6 Hogan V. Walker, 55 U. S. 29 , 12 Holand v. Cruft, 20 Pick. 321 ,111 Holbert v. Montgomery's Ex'rs, 6 Dana 11 181 Holbrook v. Orgler, 40 N. T. Super. Ct. 33; 49 Howard's Prac- tice 289 318 Holdbrook v. Ford, 153 111. 633. 240 Holden v. Burnham, 63 N. Y. 74- 126 Holden v. Upton, 134 Mass. 177 326 Holdrege v. Gwynne, 3 C. E. Green 26. _ 52 Holdship V. Patterson, 7 Watts. 547 271 Holdship V. Patterson, 7 Watts. 547 273 Holgate V. Eaton, 116 U. S. 33, 6 Sup. Ct. 224 , 165 In re HoUoway, 1 N. B. N. 264 370 In re Holloway, 93 Fed. 638 _ 374 In re Holloway, 1 Am. B. R. 659 377 CASES CITED. Ivii Page Holmes T. Gilman, 138 N. T. 369 , 281 Holmes v. GUman, 138 N. Y, 369, 289 Holmes V. Penney, 3 K. & J. 90 113 Holt T. Brancroft, 30 Ala. 193. -180 Holton V. Burton, 78 Wis. 321 231 Holton V. Railway Co., 138 Pa. St. HI - 134 Hollins V. Brierfleld, C. & I. Co., 150 U. S. 371 52 Hollins T. Brierfleld Coal & Iron Co., 150 U. S. 371 66 Hollins V. Brierfleld C. Co., 150 U. S. 371 173 Hollins V. Brierfleld C. & I. Co., 150 U. S. 371. . ., 179 Hollins V. Brierfleld C. Co., 150 U. S. 371 195 Home Bank v. J. B. Brewster & Co., 53 N. Y. Supp. 867 330 Home Nat. Bk. v. Sanchez, 131 111. 330- 266 Hooberry v. Harding, 10 Lea 392 274 Hooser V. Hunt, 65 Wis. 71 _ 126 Hood V. Saunders, 11 Cole 106 192 Hopkins v. Joyce, 78 Wis. 443 135 Hopkins v. Joyce, 78 Wis. 443 170 In re Hopkins, 1 Am. B. R. 210 - 393 Hope T. BrinckerhofE, 4 Edw. Ch. 348 , 149 Hope V. Brinkerhoff, 3 Edw. Ch. 445 203 Hope V. Carnegie, L. R., 1 Ch. 320 303 Horton v. Harlan, 7 N. B. R. 238 , 372 Horn V. HorUj 1 Ambler's Rep. 79 .- 42 Horn V. Horn, 1 Amb. 79 72 Horner V. Zimmerman, 45 111. 14 51 Horner v. Zimmerman, 45 111. 14 96 Horner v. Zimmerman, 45 111. 14 , 191 Horner V. Zimmerman, 45 111. 14 213 Horner v. Zimmerman, 45 111. 14 _ 298 Horning v. B. Griesbach Brew. Co., 84 Wis. 71-., 215 In re Houston, 1 N. B. N. 305 - 351 In re Houston, 94 Fed. 119 , 374 Houston V. Levy, 44 N. J. Eq. 6 - 12 J. M. Houston Grocer Co. v. McGinnis, (Ky.) 45 S. W. 514... 16 Houseman v. Grossman, 177 Pa. St. 453 '. 62 Houseman v. Grossman, 177 Pa. St. 453 - 114 Houseman v. Grossman, 177 Pa. St. 455 156 Hovey V. Elliott, 118 N. Y. 124 140 Hovey t. Holcomb, 11 111. 660 .- 129 Hovey v. Hill, 3 Lans. 167 141 Howe V. Warren, 154 111. 227 293 Howe V. Babcock, 72 111. App. 68- 209 Howe V. Babcock, 72 111. App. 68 210 Howard v. Sheldon, 11 Paige Ch. 558 210 Howard v. Glenn, 85 Ga. 238 - 54 Howe v. Ward, 4 Greenleaf 195 136 Iviii CASES CITED. Page Howe V. Whitney, 66 Me. 17 130 Howe V. Warren, 154 111. 227 - 252 Howe V. Henriquez, 13 Wend. 240 267 Howden v. Haigh, 11 Ad. & Ellis, 1033 , 257 Howland v. Knox, 59 la. 46 - 188. Hoyt V. Christie, 51 Vt. 48 199 Hubbard v. McNaughton, 43 Mich. 220 146 Hubbell V. Grant, 39 Mich. 641 146 Hudson V. Plets, 11 Paige Ch. 180 43 Hudson V. Schwab, 18 N. B. R. 480 372 Hudson V. Adams, 18 N. B. R. 102 367 Hudson Ass. v. Adams, 18 N. B. R. 102; 3 Cin. Law Bui. 1,066; Fed. Cas. 6,832 - 368 Hudlun V. Blakeslee, 70 111. App. 664 315 In re Hughs, 11 N. B. R. 542 364 Hughes V. Hall, 5 Munf. 431 59 Hughes v. Noyes, 171 111. 575 178 In re Huffman, 1 Am. B. R. 587 387 In re Hull, 18 N. B. R. 1 364 Hulme V. Tenant, 1 Bro. C. C. 16 34 Hulse V. Wright, Wright 61 52 Hulbert v. Detroit Cycle Co., 107 Mich. 81 82 Hume V. Condon, 44 W. Va. 553 _ 203 Humphreys v. Hopkins, 81 Cal. 551 326 In re Hunt, 2 N. B. R. 540 351 In re Hunt, 5 N. B. R. 493 372 Hunt V. Field, 1 Stock 36 101 Hunt V. Field, 1 Stock 36 _. . 170 Hunt V. Field, 9 N. J. Eq. 36 198 Hunt V. Field, 9 N. J. Eq. 36 199 Hunt V. Gilbert, 54 111. App. 491 , 250 Hunt V. Hunt, 72 N. Y. 217 57 Hunt V. Johnston, 105 la. 311 137 Hunt V. Mann, 132 Mass. 53 113 Hunter v. Field, 9 N. J. Eq. 36 97 Huntington v. Blun, 143 N. Y. 511 194 Huntington v. Metzger, 158 111. 272 210 Huntley v. Kingman, 152 U. S. 527- 260 Hurd V. Ascherman, 117 111. 501 105 Hurlbsrt v. Dean, 2 Abb. (N. Y.) App. Dec. 428 90 Hurd V. Ascherman, 117 111. 501 32 Hutchinson V. Brand, 9 N. Y. 208 ^ 227 Hutchinson v. Howe, 100 111. 11 59 Hutchins v. Sprague, 4 N. H. 469 257 Hutchings v. Muzzy Iron Works, 8 N. B. R. 458 371 Hyde v. Chapman, 33 Wis. 42- 171 Hyde V. Chapman, 33 Wis. 391 183 CASES CITED. lix. Page Hyde v. Lynde, 4 N. Y. 387 323 Hyde v. "Woods, 94 U. S. 523 - 272 I lauch V. Socanas, 56 N. J. Eq. 524 99 lauch V. Socanas, 56 N. J. Eq. 524, 531 100 Illinois Tr. & S. Bk. v. Pacific R. Co., 115 Cal. 285^ 338 Illinois Central R. Co. V. Smith, 70 Miss. 344 304 Illinois Bldg. & L. Asso. v. People, 173 111. 638 319 Illinois Furnace Co. v. Vlnnedge, 106 111. 650 59 Importers' Nat. Bank v. Quackenbush, 143 N. Y. 567 226 In re Ind. Ins. Co., 6 N. B. R. 260; Holmes, 103; Fed. Cas. 7,017. 341 Ingram v. Osborn, 70 Wis. 184 18 Ingalls V. Cole, 47 Me. 530 55 Innes v. Lansing, 7 Paige 583 104 Innes v. Lansing, 7 Paige 583 138 Innes v. Lansing, 7 Paige 583 200 Innes v. Lansing, 7 Paige 583 280 Re International Pulp & Paper Co., L. R., 3 Ch. Div. 594; (Ex parte Talt, L. R., 13 Eq. 311) 303 Irving V. Hughes, 2 N. B. R. 61 375 Irving V. Hess, 16 Lane. L. Rev. 17 85 In re Irving, 14 N. B. R. 289 356 In re Irving, 14 N. B. R. 289 370 Irons V. Manufacture's Nat. Bk., 17 Fed. Rep. 308 54 Irwin V. Keen, 3 Whart. 347 113 Isee V. Stuart, 16 N. B. R. 191 , 358 Iselin V. Henlein, 16 Ahb. N. C. 73 262 Ishmael v. Parker, 13 111. 324 52 Ishmael v. Parker, 13 111. 324 , 66 Ishmael v. Parker, 13 111. 327- 131 Ishmael v. Parker, 13 111. 324 171 Ishmael v. Parker, 13 111. 324 177 Ishmael v. Parker, 13 111. 324 196 Ishmael v. Parker, 13 111. 324 _ 201 Isham V. Schaffer, 60 Barb. 317 31 J Jackson v. Benedict, 13 Johns. 534 42 Jackson v. Forest, 2 Barb. Ch. 576 94 Jackson V. Forest, 2 Barb. Ch. 576 116 Jackson T. Forrest, 2 Barb. Ch. 576 295 Jackson v. Holbrook, 36 Minn. 494 240 Jackson v. Hart, 11 Wend. 343 143 Jackson v. Lahee, 114 111. 287_ 249 Jackson v. McCulloch, 13 N. B. R. 283 389 Ix CASES CITED. Pago Jackson V. Miner, 101 111. 550 128 Jackson v. Moore, 6 Cow. 706 - 277 Jackson v. Petrle, 10 Ves. 164 59 Jackson v. Sloan, 76 N. C. 306 155 Jackson v. Seelye, 16 Johns. 197 - 277 In re Jacobs, 1 N. B. N. 232 393 Jacoby's Appeal, 67 Pa. St. 434 240 James v. Wortham, 88 111. 69 189 Jamison v. King, 50 Oal. 132 _ 261' Jamison v. Chestnut, 8 Md. 34 ~ 86 Jacobson v. Allen, 20 Blatchf. 525 55 Jarboe v. Hey, 122 Mo. 341 273 In re Jefferson, 1 N. B. N. 288 ~ 368 Jennings v. Collins, 99 Mass. 29 Ill Jenks V. Horton, 4 Det. L. N. 481 ~ 170 Jenks V. Horton, (Mich.) 4 Det. L. N. 481..- 201 Jerome v. McCarter, 94 U. S. 734 355 Jessup V. Hulse, 29 Barb. N. Y. 539 129 Jewell V. Knight, 123 U. S. 426. . .^ 260 In re Johann, 4 N. B. R. 143 355 Johnson v. Bonfield, 19 Ky. L. Rep. 300; 40 S. W. 697 170 Johnson v. Blell, 1 Mo. App. Rep. 291 147 Johnson v. Gibson, 116 111. 294 57 Johnson v. Gibson, 116 111. 294. 59 Johnson V. Huber, 134 111. 511 a 81 Johnson V. Huber, 134 111. 511 86 Johnson V. Huber, 134 111. 511 90 Johnson v. Huber, 134 111. 511 114 Johnson v. Farnum, 56 Ga. 144 52 Johnson V. Helmstaedter, 30 N. J. Eq. 124 112 Johnson v. Helmsteae, 19 N. B. R. 71 382 Johnson v. Parrotte, 46 Neb. 51 182 'Johnson V. Roberts, 102 111. 655 148 Johnson v. Rogers, 15 N. B. R. 1 _ 343 Johnson v. Rogers, 15 N. B. R. 1 366 Johnson v. Wald, 2 Am. B. R. 84 383 Johnson v. Wald, 2 Am. B. B. 84 385 Johnson v. Wald, 2 Am. B. R. 84 390 Johnson v. Waters, 111 U. S. 640. 36 Johnson v. Waters, 111 U. S. 640.. 63 Johnson V. Waters, 111 U. S. 640 98 Johnson v. Waters, 111 U. S. 640 lOi Johnson v. Waters, 111 U. S. 640 160 Johnston V. Straus, 26 Fed. Rep. 57 31 Jones V. Arena Pub. Co., 171 Mass. 22 332 Jones V. Arena Pub. Co., 171 Mass. 22 388 Jones V. Davenport, 45 N. J. Eq. 77_ 103 CASES CITED. Ixi Page Jones V. Davenport, 45 N. J. Eq. 77 215 Jones V. Fayerweather, 46 N. J. Eq. 237 102 Jones V. Green, 68 U. S. 330 50 Jones V. Green, 68 U. S. 330 55 Jones v. Green, 68 U. S. 330 65 Jones V. Green, 68 U. S. 330 74 Johns V. Green, 68 U. S. 330 170 Jones V. Green, 68 U. S. 330 171 Jones V. Green, 68 U. S. 330 172 Jones V. Green, 68 U. S. 330 173 Jones V. Green, 68 tJ. S. 330 178 Jones V. Green, 68 TJ. S. 330 214 Jones V. Garcia Del Rio, Turn. & Russ. 297...- 105 Johns V. Graham, 77 N. Y. 628 172 Jones v. Port Huron Engine Co., 171 111. 502 275 Jones V. Jones, 64 Wis. 301 218 Jones V. Lloyd, 117 111. 597 - 164 Jones V. Perkins, 76 Fed. Rep. 82 166 Jones V. Perkins, 76 Fed. Rep. 84 164 Jones V. Porter, 59 Miss. 628 153 Jones V. Smith, Walk Ch. 115 236 Jones T. Warden, 1 Mackey D. C. 476 _ 133 Jordon t. Westerman, 62 Mich. 170 391 Jourolmon v. Massenglll, 86 Tenn. 81 271 Jourolmon v. Massenglll, 86 Tenn. 81 - 273 Judson V. Lyle, 28 Leg. Int. 140 188 Judson V. Lyford, 84 Gal. 505 238 Judge V. Herbert, 124 Mass. 330 » 33 Juilliard V. May, 130 111. 87 260 Juilliard v. May, 130 111. 87 264 Justice V. Scott, 4 Ired. Eq. N. C. 108 , 198 Justice v. Scott, 4 Ired. Eq. 108 281 K Kalmus v. Ballin, 52 N. J. Eq. 290 109 Kalmus V. Ballin, 52 N. J. Eq. 290 195 Kane v. Bloodgood, 7 Johns. Ch. 90 62 Kane v. Bloodgood, 7 Johns. Ch. 90 _ 70 Kane t. Bloodgood, 7 Johns. Ch. 90 163 Kane v. Lador, 56 N. J. Eq. 268 331 Kain v. Larkin, 131 N. Y. 300 15 Kain v. Larkin, 131 N. Y. 300 41 Kain v. Larkin, 141 N. Y. 144 _ 124 Kain V. Larkin, 131 N. Y. 300, 307 126 Kaiser v. Waggoner, 59 la. 40 278 Karst V. Gone, 136 N. Y. 316 324 Ixii CASES CITED. Page Keam t. Conkwright, 78 Mich. 58 - 21 Keen v. Kleckner, 42 Pa. St. 529 261 In re Keller et al., 18 N. B. R. 10; I'ed. Cas. 7,647 355 Keller v. Payne, 16 N. Y. S. R. 245 187 Keller V. Payne, 22 Abb. N. C. 352, 299 Kelley V. Lelth, 176 111. 311 252 Kellogg T. Hamilton, 43 Mich. 269 177 Kendell V. Bishop, 76 Mich. 634 266 Kennedy v. Creswell, 101 U. S. 641 ~ 12 Kennedy V. Creswell, 101 U. S. 641 193 Kennedy V. Creswell, 101 U. S. 641 296 Kennedy v. Greene, 3 Myl. & K. 699, 722 , 125 Kennedy v. Thorp, 51 N. T. 174 318 Kennedy v. Thorp, 51 N. Y. 174 321 Kennedy t. Thorp, 51 N. Y. 174 233 In re Kenney, 1 N. B. N. 401 354 In re Kenney, 1 N. B. N. 401 365 In re Kerby Dennis Co., 1 N. B. N. 337 369 Kerby Dennis Co., IN. B. N. 399 38R In re Kerosene Oil Co., 2 N. B. R. 164 , 372 In re Kerosene Oil Co., 2 N. B. R. 164 375 In re Kerr, 2 N. B. R. 124 355 In re Kerr, 2 N. B. R. 388 361 In re Keski, 2 Am. B. R. 79 383 Keyser's Appeal, 57 Pa. St. 236 .276 Keyser v. Rice, 47 Md. 203 59 Keyser v. Rice, 47 Md. 203 , 304 Kllbourne v. Fay, 29 Ohio St. 536 ^ 113 Kimberly v. Sells, 3 Johns. Ch. 467 18 Kimberling v. Hartley, 1 McCrary, 136; 1 Fed. Rep. 571 101 In re Kinkead, 7 N. B. R. 439 387 Kincaid v. Dwinelle, 59 N. Y. 548 194 Kincaid v. Dwinelle, 59 N. Y. 548 202 Kinder v. Macy, 7 Cal. 206 , 129 King V. Dupine, 2 Atk. 603 n 72 King T. Goodwin, 130 111. 102 241 King V. Goodwin, 130 111. 102 244 King V. Wilcox, 11 Paige Ch. 589 41 In re Kingsley, 1 N. B. R. 66 390 Kinney V. Harvey, 2 Leigh. (Va.) 70 lOO Kipper v. Glancey, 2 Blackf. 356 97 Kipper v. Glancey, 2 Blackf. 356 20O Kipper v. Glancey, 2 Blackf. 356 , 202 Kirkpatrick v. Buford, 21 Ark. 268 g& Kittredge v. Osgood, 161 Mass. 384 244 Kittel V. Augusta Y. & G. R. Co., 78 Fed. Rep. 855...!!!.!... 310 Kitchen t. Lowery, 37 N. Y. S. R. 327 17 CASES CITED. Ixiil Page Kitchen v. Lowery, 127 N. T. 53 238 In re Kletchka, 92 Fed. 90U 374 In re Kletchka, 1 Am. B. R. 479 376 Kluender v. Fenske, 53 Wis. 118 183 In re Klingman, 2 Am. B. R. 44 388 Knapp V. City of Brooklyn, 97 N. Y. 520 124 Knapp V. Beattie, 70 Me. 410 _ 44 Knight V. Hunt, 5 Bing. 432 257 Knight V. Cunningham, 160 Mass. 580 166 Knowlton v. Massachusetts B. L. A., (Mass.) 50 N. E. 520 334 Knowlton v. Massachusetts B. L. A., 50 N. E. 520 338 Knower v. Central Nat. Bank, 124 N. Y. 552 238 Knower v. Central Nat. Bk., etc., 124 N. Y. 552 267 In re Knost, IN. B. N. 403 _ 385 Knox V. Smith, 45 U. S. 298 74 Koechl V. Leibinger & Oehm Co., 26 App. Div. 573; 50 N. Y. Supp. 568 ^ 19 Koechl V. Leibinger & O. Brew. Co., 52 N. Y. Supp. 982 99 Koechl V. Leibinger & 0. Brew. Co. 52 N. Y. Supp. 982; 24 Misc. 298 _ 265 Koster V. Hiller, 4 111. App. 21 123 Koster v. Hiller, 4 111. App. 21 _ 134 Kratz V. Buck, 111 111. 40 92 Krippendorf v. Hyde, 110 U. S. 276 64 Kronskop v. Kronskop, t»5 Wis. 296 170 Kuhl V. Martin, 11 C. E. Green, 60, 65 100 Kuhl V. Martin, 26 N. J. Eq. 60 103 Kuser v. Wright, 52 N. J. Eq. 825 322 L L'Amorneux v. Van Renselaer, 1 Barb. Ch. 34 279 In re Lachemeyer, Fed. Cas. No. 7,966 391 La Crosse Nat. Bank v. Wilson, 74 Wis. 391 73 La Crosse Nat. Bank v. Wilson, 74 Wis. 391 206 In re Lady B. M. Co., 6 N. B. R. 252; Fed. Cas. 7,980 353 In re Lady Byrn Mining Co., 6 N. B. R. 252 373 Ladd V. Judson, 71 111. App. 283; 174 111. 344 171 Ladd V. Judson, 174 111. 344 200 Ladd V. Smith, 107 Ala. 506 283 Laidley v. Laidley, 25 W. Va. 525 285 Lakenan v. Robards, 9 Mo. App. 179 188 Lallman v. Hovey, 92 Hun. 419; 36 N. Y. Supp. 662 97 Lamar Ins. Co. t. Moore, 84 111. 575 54 Lamar V. Scott, 4 Rich. 516 35 Lamb v. Damrou, 7 N. B. R. 509 381 Lambert v. Miller, 37 N. J. Eq. 344 40 Ixiv CASES CITED, Page Lamberton V. Pereles, 87 Wis. 449 -273 Lampert v. Haydel, 20 Mo. App. 616 42 Lament v. Cheshire, 65 N. Y. 30 140 Lamonte v. Pierce, 34 Wis. 483 228 Lamonte v. Pierce, 34 Wis. 483 229 Lane v. Lane, 8 Allen, 350 '. 276 Lane's Appeal, 105 Pa. St. 49 - 7 Lander v. Arno, 65 Me. 26 108 Lang V. Brown, 21 Ala. 179 - 291 Lange v. Benedict, 73 N. Y. 12, 27 57 Lange v. Braynard, 104" Cal. 156 89 Langford v. Langford, 5 L. J. (N. S.) Ch. 60 - 37 Langford v. Langford, 8 L. J. (N. S.) Ch. 60 59 Langley v. Perry, 2 N B. R. 180 -379 Lansing v. Easton, 7 Paige Ch. 364 238 Lansing v. Easton, 7 Paige 364 - 235 Lansing v. Manton, 14 N. B. R. 127; 3 N. Y. Wkly. Dig. 112; Fed. Cas. 8,079 - 340 Lansing v. Manton, 14 N. B. R. 127; 3 N. Y. Wkly. Dig. 112; Fed. Cas. 8,079 343 Lannon v. Clark, 4 McLean 18- 63 Laswell v. Robbins, 39 111. 209 287 Lathrop v. McBurney, 71 Ga. 815 277 Lave V. Bowen, 2 Jones' Eq. (N. C.) 49 37 Lawrence v. Bank of Republic, 35 N. Y. 320 - 88 Lawrence V. Bank, etc., 35 N. Y. 320 114 Lawrence v. Traner, 136 111. 474 148 Lawrence v. Neff, 41 Cal. 566 .- 261 Lawrence v. Batcheller, 131 Mass. 504 301 Lea Bros. v. West, 1 Am. B. R. 261 376 Lea V. West, 1 Am. B. R. 261 379 Lea V. George M. West Co., 91 Fed. 237 T 377 Lea V. Iron Belt Mercantile Co., (Ala.) 24 S. 28 330 Leach v. Kelsey, 7 Barb. 466 112 Leary v. Columbia River & P. S. N. Co., 82 Fed. Rep. 775, 309 Leake v. Benson, 29 Gratt. 153 292 Leasure v. Farquer, 27 Ore. 334 124 Leavett v. Palmer, 3 Comst. 19 323 Leavitt v. Blatchford, 17 N. Y. 621 260 Leavitt v. Beirne, 31 Conn. 1. . .- 271 Leaycraft v. Hedden, 4 N. J. Eq. 512 34 Le Due V. Brandt, 110 N. C. 289 50 Le Due V. Brandt, 110 N. C. 289 203 The Lediegh Carriage Co. v. Stengel, 1 N. B. N. 387 -. . 348 In re Lediegh Carriage Co., 1 N. B. N. 387 374 The Lediegh Carriage Co. v. Stengel, 1 N. B. N. 387 380 The Lediegh Carriage Co. v. Stengel, 1 N. B. N. 387 387 CASES CITED. Ixv Page Lee V. Hunter, 1 Paige Ch. 519 18 In re Leeman, 2 Am. B. R. 52 369 In re Leeman, 1 N. B. N. 331 370 Leggett V. Hopkins, 7 Paige 149 203 Leggett V. G. N. R. Co. L. R., 1 Q. B. Div. 599 108 Lehman v. Meyer, 67 Ala. 396 37 Lehman v. Glenn, 87 Ala. 618 214 Leigh V. Harrison, 69 Miss. 923 273 Leighton v. Harwood, 12 N. B. R. 360 -. — Leicester v. Rose, 4 Bast 372, 381 257 Leitch V. Wells, 48 N. Y. 385 140 Le Moyne v. Quimby, 70 111. 399 67 Le Moyne v. Quimby, 70 111. 399 68 Le Moyne v. Quimby, 70 111. 399 , 218 Lentilhon v. Moffat, 1 Bdw. Ch. 451 95 Leopold V. The People, 140 111. 552 154 Le Roy v. Matthewson, 47 N. Y. Super. Ct. 389 46 In re Levy, 1 N. B. R. 66 , 395 Levy V. Marx, Miss. 1880 238 Lewis V. Chamberlain, 108 Cal. 525 286 Lewis V. Lanphere, 79 111. 187 _ 145 Lewis V. Lanphere, 79 111. 187 174 Lewis V. Lanphere, 79 111. 187 189 Lewis V. Palmer, 28 N. Y. 271 ~ 95 Lewis V. Smith, 2 S. & R. 142 180 Lewis V. Glenn, 84 Va. 947 54 Libby v. Norris, 142 Mass. 246 80 Lichtenberg v. Herdtfelder, 33 Hun. 57 , 170 Lichtenberg V. Herdtfelder, 103 N. Y. 302 183 Life Association v. Fassett, 102 111. 315 55 Ligett V. Glenn, 51 Fed. Rep. 381 _ 339 Lillard v. MoGee, 4 Bibb. 165 5 Lilienthal v. Druoklieb, (C. C. S. D. N. Y.) 84 Fed. Rep. 918... 45 Lilliendahl v. Fellerman, 11 How. Pr. 528 228 Lindsay v. Harrison, 8 Ark. 302 274 Linton V. Linton, L. R., 15 Q. B. Div. 239 , 391 Linville v. Hadden, (Md.) 41 Atl. 1097 332 Lippincott v. Evans, 35 N. J. Eq. 553 271 Lippincott V. Evans, 35 N. J. Bq. 553 274 Liverpool Ins. Co. V. Mass, 77 U. S. 566 280 Livingston v. Cleaveland, 5 How. Pr. 396 227 Livingston v. Swift, 23 How. Pr. 1 _ 230 Lobstein v. Lehn, 120 111. 548 32 Logan V. McCall Pub. Co., 140 N. Y. 447 231 Lombard v. Morse, 155 Mass. 136 Ill London & S. F. Bk. v. Willamette Steam Mill L. & Mnfg. Co., 80 Fed. Rep. 226 - 332 Ixvi CASES CITED. Page London & S. F. Bk. v. Willamette Steam Mill L. & Mnfg. Co., 80 Fed. Rep. 226 333 Long V. Barker, 85 111. 431 181 Long V. Meyestre, 1 Johns. Ch. 306 - 86 Long V. McConnell, 158 Pa. 573 188 Long V. Page, 10 Humph. (Tenn.) 541 36 Long V. Yanceyville Bk., 85 N. C. 354 96 Longman v. Tripp, 2 B. & P. N. S. 67 33 Loomis V. TifEt, 16 Barb. 541 184 Loomis V. Tifft, 16 Barb. 541 200 Loomis V. TifEt, 16 Barb. 541 280 Lopez V. Merchants & F. N. Bk., 18 App. Div. 427; 46 N. T. Supp. 91 17 Lopez V. Merchants & Farmers Nat. Bk., 18 App. Div. 427, 46 N. Y. Supp. 91 186 In re Lord, 5 N. B. R. 318 388 Lore V. Getsinger, 7 N. J. Eq. 191 103 Lord Portarlington v. Soulby, 3 M. & K. 104 59 Loud V. Sergeant, 1 Edw. Ch. 164 12 Love V. Bret Harte, 118 Mass. 271 34 Lovett V. Gillender, 35 N. Y. 617 275 Lovett V. Gillender, 35 N. Y. 617 276 Love V. Teter, 24 W. Va., 741 286 Loving V. Pairs, 10 la. 282 176 Lowry v. Morrison, 11 Paige Ch. 327 88 Lowry V. Morrison, 11 Paige Ch. 327 , 163 Low V. Marco, 33 Me. 45 72 Low V. Pratt, 53 111. 438 81 Low V. Mortman, 44 N. J. Eq. 193 261 Lloyd V. Passingham, 16 Ves. Jr. 59 313 Luck V. Tiedway, 45 Mo. App. 507 54 Ludington v. Thompson, 153 N. Y. 499 , 325 Ludington v. Thompson, 153 N. Y. 499 331 Lund V. Tyngsborough, 9 Cush. 36 51 Lund V. Tyngsborough, 9 Cush. 36 125 Lyle V. Com. Nat'l Bank, 93 "Va. 487 316 Lyman v. Place, 26 N. J. Eq. 30 158 Lynde v. McGregor, 13 Allen, 182 31 Lynde v. McGregor, 13 Allen 172 113 Lynch v. Johnson, 48 N. Y. 27 9 Lynch v. Johnson, 48 N. Y. 27 11 Lynch v. Johnson, 48 N. Y. 27 224 Lyon v. Robbins, 46 111. 276 177, 213, 239 Lyon V. Robbins, 46 111. 276 244 Lyons v. Robbins, 46 111. 276 245 Lyons v. Robbins, 46 111. 276 246 Lyons V. Houston, 2 Harr. Del. 349 , 199 OASES CITED. Ixvii Page Lyon V. Boiling, 9 Ala. 463 95 Lynci v. Johnson, 48 N. Y. 27 235 Lynch V. Johnson, 48 N. Y. 27 241 Lynch v. Utlca Ins. Co., 18 Wend. 236 _ 272 M McArthur v. Hoysradt, 11 Paige (N. Y.) 495 ... , 92 McArthur v. Hoysradt, 11 Paige Ch. 495 , 116 McArthur v. Hoysradt, 11 Paige Ch. 495 313 McAuinch v. Dennis, 123 Ind. 21 126 McCahe v. Cooney, 2 Sandf. N. Y. Ch. 314 ^ 16a McCabe v. Sumner, 40 Wis. 386 215 McCalmont v. Lawrence, 1 Blatchf. 232 21 McCalmont v. Lawrence, 1 Blatchf. 232 47 McCauley v. Hargroves, 48 Ga. 50 217 McCanless V. Smith, 51 N. J. Eq. 505 214 McCanless v. Smith, 51 N. J. Eq. 505 215 McConihay v. Wright, 121 U. S. 201 ^ 64 McCartney v. Bostwick, 31 Barb. 390 94 McCartney v. Bostwick, 32 N. Y. 53. 183 McCartney V. Bostwick, 32 N. Y. 53 194 McCartney v. Bostwick, 32 N. Y. 53 , 200 McCartney v. Bostwick, 32 N. Y. 53 ,253 McCartney v. Bostwick, 32 N. Y. 53 280 Com. ex rel. McCormick v. Pennsylvania Bldg. & L. Asso., C. P., 20 Pa. Co. Ct. 589 - 319 McCormick Harvester Mach. Co. v. Gates, 75 la. 343 276 McCleary v. Ellis, 54 la. 311 275 McCleary v. Ellis, 54 la. ZIU. 276 McCole V. Loehr, 78 Ind. 430 ,126 McConnell v. Dickson, 43 111. S9 113 McConnell v. Dickson, 43 111. 99 177 McConnell v. Dickson, 43 111. 99 180 McConnell v. Dickson, 43 111. 99 181 McConnell v. Dickson, 43 111. 99 , 185 McConnel V. Dickson, 43 111. 100 191 McConnel v. Dickson, 43 111. 99 298 McCoun T. Dorsheimer, Clark. Ch. 144 31 McCreery v. Cobb, 93 Mich. 463 14B McCreery V. Berney Nat. Bk. (Ala.) 22 So. 577 189 McCreery v. Berney (Ala.) Nat. Bank, 22 So. 577 221 McCullough V. Colby, 5 Bosw. 477 176 McCullough V. Colby, 5 Bosw. 477 170 McDermott v. Strong, 4 Johns. Ch. 688 32 Ixviii CASES CITED. Page McDermott V. Strong, 4 Johns. Ch. 687 -, 50 McDermott v. Strong, 4 Johns. Ch. 687 170 McDermott V. Strong, 4 Johns. Ch. 687 , 175 McDermott v. Strong, 4 Johns. Ch. 687 182 McDermott T. Strong, 4 Johns. Ch. 687 188 McDermott V. Strong, 4 Johns. Ch. 687 235 McDermott V. Strong, 4 Johns. Ch. 687 236 McDermott V. Strong, 4 Johns. Ch. 687 238 McDermott V. Strong, 4 Johns. Ch. 687 277 McDermott T. Strong, 4 i'ohns. Ch. 687_ 279 McDowell V. Brown, 21 Mo. 57 275 McDowell V. Cochran, 11 111. 31 66 McDowell V. Cochran, 11 111. 31 68 McDowell V. Cochran, 11 111. 31 92 McDowell Y. Cochrane, 11 111. 31 171 McDowell V. Cochrane, 11 111. 31 -. . 177 McDowell V. Cochran, 11 111. 31 193 McDowell V. Cochran, 11 111. 31 195 McDowell V. Cochran, 11 111. 300 218 McDowell V. Read, 3 La. Ann. 391 59 McDermott v. Bborn, 90 Ala. 258_ 238 McDonogh v. Murdock, 15 How. 367 275 McDougall V. Board, etc., 4 Minn. 184 31 McDougal V. Board of Sup., 4 Minn. 184 40 McDougald v. Dougherty, 11 Ga. 570 180 McDowell V. Bell, 86 Cal. 625 225 McDonald v. McDonald, 16 Vt. 630 14S McElwaln v. Willis, 3 Paige 505 _ 170 McElwain v. "Willis, 9 Wend. 548 .* 171 McElwain v. Willis, 9 Wend. 548 172 McElwain v. Willis, 9 Wend. 548 173 McElwain v. Willis, 9 Wend. 549 182 McElwain v. Willis, 9 Wend. 548 188 McElwain v. Willis, 9 Wend. 548 20O McElwain v. Willis, 9 Wend. 548 227 McElwain v. Willis, 9 Wend. 548 , 280 McElroy v. Hiner, 133 III. 156 69 McGough V. Insurance Bank, 2 Ga. 151 129 McGoldrick V. Slevin, 43 Ind. 522 52 McGoldrick v. Slevin, 43 Ind. 522 67 McGaughey v. Brown, 46 Ark. 25 160 McGaughey v. Brown, 46 Ark. 25. ., 163 Mcllvain v. Smith, 42 Mo. 45. 271 In re McKay, 1 Am. B. R. 292 360 McKay v. Funk, 13 N. B. R. 334 370 McKay v. Funk, 13 N. B. R. 324 ^. . 375 McKay v. Green, 3 John. Ch. 56 295 CASES CITED. . Ixix. Page McKibben v. Barton, 1 Mich. 213 182 McKinney v. Farmers' Nat. Bk., 104 111. 180 249 McKusick V. Seymour, 48 Minn. 158-172 31 McLaughlin v. Bank of Potomac, 48 U. S. 220 136 McLean v. Weeks, 61 Me. 277 ,. . Ill McLean v. Gary, 88 N. Y. 391 316 McLure v. Benceni, 2 Ired. Eq. 513, 519 195 McMahon v. Allen, 35 N. Y. 403. 112 McMahon v. Gray, 150 Mass. 289 35 McMannomy t. Chicago, D. & 0. R. Co., 167 111. 497. .- 34 McMannomy v. Chicago, D. & V. R. Co., 167 111. 497; 47 N. E. 712, Revg. 63 111., App. 259 164 McMeekin v. Evans, 1 Hill Ch. 288 240 McMillan v. Reynolds, 11 Cal. 373 18 McHenry v. Lasoclete & C, 95 U. S. 58 355 McMullen v. Ritchie C. C. N. D. Ohio, 64 Feb. Rep. 253 147 McNab V. Heald, 41 111. 326 - 86 McNab V. Heald, 41 111. 326 191 McNab V. Heald, 41 111. 326 298 McNairy v. Eastland, 10 Yerg. 310^ 172 McRea v. Branch Bank of Alabama, 19 How. 376 91 Macgill V. Hyatt, 80 Md. 253 94 Maass v. Falk, 146 N. Y. 34 260 Mablock V. Babb, 31 Or. 516 - 25 Mabon v. Onzley Blec. Co., 156 N. Y. 196 329 In re Mackintosh, 2 N. B. R. 158 365 Macey v. Childress, 2 Tenn. Ch. 23 138 Maders v. Whallon, 74 Hun. 372 15 Magill V. Hyatt, 80 Md. 253 37 Magill V. Hyatt, 80 Md. 253 , 39 Macgill V. Hyatt, 80 Md. 253 291 Magee v. Badger, 34 N. Y. 247 125 MahafEy v. Mahaffy, 63 la. 55 129 Mahoney v. McWalters, 3 App. Div. 248; 38 N. Y. Supp. 256 93 Malders v. Culver, 1 Duv. Ky. 164 , 112 Mallow V. Hinde, 12 Wheat. 193 91 Mallows V. Hinde, 12 Wheat. 193 _ 89 Mallows V. Hinde, 12 Wheat. 193 90 Mallory v. Vanderbilt, 4 Abb. N. C. 127 •. 192 Mallory v. Craige, 15 N. J. Eq. 73 12 Mallory v. Vanderheyden, 3 Barb, Ch. 9 279 In re Mallory, 6 N. B. R. 22 372 In re Mallory, 1 Saw. 88 351 In re Mallory, Fed. Cas. No. 8991. 375 In re Mallory, 6 N. B. R. 22 352 Maltbie v. Hotchkiss, 5 N. B. R. 485 355 Mallalieu v. Hodgson, 16 Ad. & Ellis, N. S. 689 257 Ixx CASES CITED. Page Mann v. Pentz, 3 Comst. 415 *•• '^ Mann v. Ruby, 102 111. 348 9S Mann v. Huby, 102 111. 348 112 Mann v. Ruby, 102 111. 348 177 Mandeville v. Avery, 124 N. Y. 376' (reversing 57 Hun. 78) 232 Mandeville v. Avery, 124 N. Y. 376 318 Mandeville v. Avery, 124 N. Y. 376 321 Mandeville v. Avery, 124 N. Y. 376 322 Mandlebaum v. McDonell, 29 Mich. 78 276 Manson v. Felton, 13 Pick. 206 Ill Manson v. Phoenix Ins. Co., 64 Wis. 26 216 Manchester v. McKee, 4 Glim. 511 132 Manchester v. McKee, 4 Gilm. 511 187 Manchester v. McKee's Ex'rs, 4 Gilm. 511 196 In re Manchester v. M. R. Co., L. R. 14 Chancery D., 645 311 Manning v. Beck, 129 N. Y. 1 260 Manning v. Merritt, Clark's Chy. 98 74 Mansur & T. I. Co. v. Jones, 143 Mo. 253 25 Mansur & T. Imp. Co. v. Jones, 143 Mo. 253 187 Manufacturing Co. v Hamilton, Mass., 51 N. E. 529 377 Marriage v. Woodruff, 77 la. 291 225 Marriage v. Woodruff, 77 la. 291 229 Marsh v. Burroughs, 1 Woods 463 55 Marsh v. Burroughs, 1 Wood 463 . .» 159 Marsh v. Burroughs, 1 Woods 463 213 Marsh v. Burroughs, 1 Woods 463 214 Marsh v. Whittmore, 21 Wall. 178 165 Marsh v. Pike, 10 Paige Ch. 595 187 Marshall v. Milwaukee, etc.. Mills, 84 Wis. 23 , 215 In re Marshall Paper Co., 1 N. B. N. 407 391 Marston v. Dresen, 76 Wis. 418 124 Marz V. Spaulding, 35 Hun. 478 227 Marrow Shoe Mfg. Co. v. New England Shoe Co., 57 Feb. Rep.685. 125 Mason v. Pierson, 69 Wis. 585 , 95 Mason v. Worthen, 14 N. B. R. 346 356 Mason v. Pomeroy, 151 Mass. 164 ^ 244 Massie v. Watts, 6 Cranch. 148 37 Massie v. Watts, 6 Cranch. 148 _ 59 Massie v. Watts, 6 Cranch. 148 _ 303 Matin v. Judd, 60 111. 78 .180 Mather v. Coe, 1 Am. B. R. 504 341 Mather v. Coe, 1 Am. B. R. 504 380 Mattingly v. Nye, 75 U. S. 370 213 Mattingly v. Nye, 75 U. S. 370 215 Matthews v. Lloyd, 89 Ky. 625 18 Mathews v. Mobile Mut. Ins. Co., 75 Ala. 85 106 Mattison v. Demarest, 1 Robt. (N. Y.) 717 99 OASES CITED. Ixxi Page Marshall v. Knox, 8 N. B. R. 97 351 Marshall v. Knox, 8 N. B. R. 97 355 Marshall Bank v. Hosmer, 48 Mich. 200 147 Marshall v. Blass, 82 Mich. 518 17 Martin v. Davis, 82 Ind. 38 273 Martin v. Rainwater, 56 Fed. Rep. 7 19 Martin v. Rainwater, 56 Fed. Rep. 7 101 Martin v. Warner, 34 W. Va. 182 157 Mare v. Malachy, 1 Myl. & Cr. 559 223 Markson v. Heney, 4 N. B. R. 165 351 Markson t. Heney, 4 N. B. R. 165 375 Markson v. Haney, 12 N. B. R. 484 -. . . 370 Marlatt v. Warwick, 19 N. J. Eq. 439 '. 287 Marvin v. Hawley, 9 Mo. 378 199 Maxwell v. Faxton, 4 N. B. R. 60 377 May V. First Nat. Bk., 122 111. 551 250 May V. Greenhill, 80 Ind. 124 52 May V. Greenhill, 80 Ind. 124 67 Mays V. Rose Freeman's Chy. Miss. 703, 313 Mayo V. Moritz, 151 Mass. 481 45 Mayer B. & S. Co. v. Falk, 89 Wis. 216 215 Mayer v. Hellman, 91 U. S. 496 _ 379 Mayor, etc., v. Alyea, 53 N. J. Eq. 580 218 Mayor, etc., v. Conover, 5 Ahb. Pr. 244 154 Mayor v. Rowland, 26 Ala. 498 _ 31 Mayor v. Root, 8 Md. 95 31 Mayorowicz v. Payson, 153 111. 484 39 Maynard v. Cleaves, 149 Mass. 307 33 Maynard v. Cleaves, 149 Mass. 307 273 Mean's Appeal, 85 Pa. St. 75 54 Mead v. Phillips, 1 Sandf. Ch. 83 19 Mead v. Merritt, 2 Paige 403 59 Mehane v. Mebane, 4 Ired. Eq. 181 271 Mechanics', etc., Bk. v. Dakin, 28 How. Pr. 502 94 Mechanics' and Traders' Bank v. Dakin, 51 N. Y. 519 198 Mechanics' Bk. v. Dakin, 51 N. Y. 519 199 Mechanics' and Traders' Bank v. Dakin, 51 N. Y. 519 299 Meding v. Todd, N. J. Eq. 41 Atl. 222 334 Meek v. Pierce, 19 Wis. 300 230 Meier v. Waco, St. Bk., 27 S. W. 881 25 Meissner v. Meissner, 68 Wis. 336 170 Meissner v. Meissner, 68 Wis. 336 171 Meissner v. Meissner, 68 Wis. 336 186 Meissner v. Meissner, 68 Wis. 336 216 Meinhard v. Strickland, 29 S. C. 491 52 Melville v. Brown, 16 N. J. L. 363 198 Mellen v. Mollne, etc., Wks., 131 U. S. 330 , 170 Ixxii OASES CITED. Pag© Menk v. Steinfort, 39 Wis. 370 231 Menton v. Adams, 49 Cal. 620 257 ' Menken v. Binkley, 94 Tenn. 721 275 Menzesheimer v. Kennedy, 75 Wis. 411 261 Merchants, etc., Borland, 53 N. J. Eq. 282 21& Merchants' Nat. Bk. v. Chattanooga C. Co., 53 Fed. Rep. 314 217 Merchants' Bank v. Chandler, 19 Wis. 434 214 Merchants', etc. Bk. v. Griffith, 10 Paige Ch. 519 74 Merchants', etc. Bk. v. Griffith, 10 Paige Ch. 519 170 Merchants', etc. Bk. v. Griffith, 10 Paige Ch. 519 203 Merchants' Bank v. Griffith, 10 Paige 519 209 Merchants' N. Bk. v. Hogle, 25 111. App. 543 16 Merchants' Nat. Bk. v. McGee, 108 Ala. 304 196 Merchants' & Planters' Bank v. Masonic Hall Trustees, 65 Ga. 603 24 Merchants' Nat. Bk. v. Northwestern, etc., Co., 48 Minn. 361 55 Merchants' Nat'l Bk. v. Pennsylvania S. Co. 57 N. J. Eq. 336 329 Merchants' Bk. v. Paine, 13 R. I. 592 200 Merchants' Bk. v. Spalding, 9 N. Y. 53 19 In re Mer. Ins. Co., 6 N. B. R. 43 342 In re Merchants' Ins. Co., 6 N. B. R. 43 378 In re Mer. Ins. Co., 6 N. B. R. 441 377 Mercantile Trust Co. v. Southern States Land & T. Co., 52 U. S. App. 675, 86 Fed. Rep. 711 - 336 Mercantile Nat. Bk. v. McFarlane, 71 Minn. 497 337 Mercier v. Lewis, 39 Cal. 532 128 Merrell v. Johnson, 96 111. 224 123 Merrell v. Johnson, 96 111. 224 134 Merrell v. Com. Ins. Co., 166 Mass. 238 _ 244 Merrill v. First Nat'l Bk., 75 Fed. Rep. 148 335 Merriam v. Sewell, 8 Gray (Mass.) 316 94 Merry v. Freeman, 44 Mo. 518 — 195 Merwin v. City of Chicago, 45 111. 133 40 Messersmith v. Bank, 15 N. W. 440 7 Messersmith v. Sharon S. Bk., 96 Pa. St. 440 179 Merriman v. Chicago & E. I. R. Co., 66 Fed. Rep. 663, 64 Fed! Rep. 535 33 Metcalf V Moses, 55 N. Y. Supp. 179 18 Metcalf V. Del Valle, 64 Hun. 245, 137 N. Y. 545. .^ 318 Metcalf V. Del Valle, 137 N. Y. 545 (affirming 64 Hun. 245) 232 Metropolitan Bk. v. Godfrey, 23 111. 579 32 Metropolitan Nat. Bk. v. Loyd, 90 N. Y. 530 289 Meux V. Anthony, 11 Ark. 411 170 In re Meyers, 1 Am. B. R. 347 343 In re Meyers, IN. B. N. 293 374 In re Meyers, 1 N. B. N. 207 386 In re Moyer, 1 Am. B. R. 577.. 386 OASES CITED. Ixxiii Page Meyerv. Hileman, 71 U. S. 329 378 Meyers v. Fenn, 5 Wall. 205 , 102 Meyers v. Seeley, 10 Nat. Bk. Reg. 411 7 Michigan C. R. Co. v. Keohane, 31 111. 144 209 Michaels v. Post, 21 Wall. 398 363 Miers v. Zanesville Co., 11 Ohio 273 ^ 54 Miers v. Zanesville Ele. Co., 11 Ohio 273 179 Miers v. Zenesville & Co., 13 Ohio 197 238 In re MUler, 1 N. B. N. 263 392 Miller v. Bowles, et al., 10 N. B. R. 515 342 Miller V. Sherry, 69 U. S. 237 59 Miller v. Sherry, 69 U. S. 237 177 Miller v. Sherry, 69 U. S. 237 235 Miller V. Sherry, 69 U. S. 237 237 Miller v. Sherry, 69 U. a 237 239 Miller v. Sherry, 69 U. a 237 241 Miller v. Sherry, 69 U. S. 237 246 Miller v. Sherry, 69 U. S., 10 Wall. 237 328 Miller v. Dayton, 47 la. 312 - 170 Miller v. Dayton, 47 la. 312 , 195 Miller v. Dayton, 47 la. 312 199 Miller v. Davidson, 3 Gilm. 518 9 Miller v. Davidson, 3 Gilm. 518 , 69 Miller v. Davidson, 3 Gilm. 518 149 Miller v. Davidson, 3 Gilm. 518 171 Miller v. Davidson, 5 Gilm. 518 - 175 Miller v. Davidson, 3 Gilm. 518 177 Miller v. Davidson, 3 Gilm. 518. , 196, Miller v. Davidson, 3 Gilm. 518 197 Miller v. Davidson, 3 Gilm. 518 201 Miller v. Kehoe, 107 Cal. 340 113 Miller v. Kehoe, 107 Cal. 340 157 Miller v. Matthews, 87 Md. 464 166 Miller v. Ball, 70 N. Y. 250 84 Miller v. Jamison, 24 N. J. Eq. 41 140 Miller v. Mackenzie, 29 N. J. Bq. 291 - 109 Miller v. Mackenzie, 29 N. J. Eq. 291 » 224 Miller v. Mackenzie, 29 N. J. Bq. 291 - 232 Miller v. Mackenzie, 29 N. J. Eq. 291 , 317 Miller v. Mackenzie, 29 N. J. Bq. 291 , 321 Miller Nixon & Co. v. Southern Land & L. Co., 53 S. C. 364 ... 311 Millard v. Parsell, 77 N. W. 390 36 Millison V. Fisk, 43 111. 112 199 Mills V. Kierman, 1 N. B. N. 410 371 Mill River L. T. Asso. v. Claflin, 9 Allen 101 74 In re Mills, 17 N. B. R. 472; Fed. Cas. 9, 612 -. 343. Mineral Point R. Co. v. Barron, 83 111. 365 304 Ixxiv CASES CITED. Page Miner v. Lane, 87 Wis. 348 184 Minn. Thresher etc., Co. v. Langdon, 44 Minn. 37 54 Minneapolis Base Ball Co. v. City Bank, Minn., 76 N. W. 1024. . 327 Mississippi Mills v. Cohn, 150 TJ. S. 202 64 Mississippi Mills v. Cohn, 150 U. S. 202 73 Missouri L. M. & S. Co. v. Reinhard, 114 Mo. 218 179 Miner v. Liane, 87 Wis. 348 253 In re Mitchell, 8 N. B. R. 47 369 Mitchell V. Bunch, 2 Paige 606 59 Mitchell V. Byrns, 67 111. 522 129 Mitchell V. Byrns, 67 111. 522 130 Mitchell V. Byrns, 67 111. 522 131 Mitchell V. Byrnes, 67 111. 522 209 Mitchell V. McKibben, 8 N. B. R. 548 381 Mitchell V. McClure, 1 Am. B. R. 53. .^ 383 Mitchell V. Sawyer, 115 111. 650 158 Mitchell V. Shook, 72 111. 492 304 Mitchell V. Milhoan, 11 Kan. 617 44 Mlzell V. Herbert, 12 S. & M. 547 180 Morrow Shoe Mfg. Co. v. New England Shoe Co., 57 Fed. Rep. 685, 60 Fed. Rep. 341 52 Morrell v. First Nat. Bk., 91 U. S. 357 - 50 Montgomery Web Co. v. Dienelt, 133 Pa. St. 585 179 Montgomery v. McGee, 7 Humph. 234 171 Montagu V. Horton, 12 Wis. 391 171 Moncure v. Hanson, 15 Pa. St. 385 112 Moncure v. Hanson, 15 Pa. St. 385 113 Monroe v. Trenholm, 112 N. C. 634 273 M. V. Monarch Co. v. Bank of Hardinsburg, Ky., 44 S. W. 956 309 Monroe Bk. v. Schermerhom, Clark's Ch. 214 _ 312 Montague v. Horton, 12 Wis. 599 299 Moog V. Talcott, 72 Ala. 210 157 Moody V. Gay, 15 Gray 457 35 Moody V. Gay, 15 Gray 457 - 190 Moore v. Francis, 17 Tex. 28 103 Moore v. Holt, 3 Tenn. Ch. 141 138 Moore v. Wood, 100 111. 451 32 Moore v. Hoisington, 31 111. 243 149 Moore v. Flynn, 135 111. 74. 14 Moores v. White, 3 Gratt. 139 291 Moore v. Lopliff, 107 111. 241 112 Moor V. Anglo-Italian Bank, L. R., 10 Ch. Div. 681 303 Moore v. Los Angeles Iron & S. Co., 89 Fed. Rep. 73 _ 318 Moore v. Caldwell, 8 Rich. Eq. 22 295 Moore v. Kidder, 55 N. H. 488 298 Morrison v. Shuster, 1 Mackey D. C. 190 191 Morrison v. Shuster, 1 Mackey (D. C.) 190 287 OASES CITED. Ixxv Page Mortland v. Mortland, 151 Pa. St. 595 62 Morton v. Hull, 77 Tex. 80 - 304 Moritz V. Miller, 87 Ala. 331 318 Morgan v. Neville, 74 Pa. St. 52 206 Moritz V. Hoffman, 35 111. 553 20 Moritz V. Hoffman, 35 111. 553 ,. . 123 Moritz V. Hoffman, 35 111. 553 134 Moritz V. Hoffman, 35 111. 553 136 Moseley v. Boush, 4 Rand 392 41 Moses V. Micou, 79 Ala. 564 273 Moshier v. Meek, 80 111. 79 177 Motteux V. London Assurance Co., 1 Atk. 545 41 Moulton V. Cornish, 138 N. Y. 133 90 Mountain v. Fisher, 22 Wis. 93 -.. . 230 Mountain v. Fisher, 22 Wis. 93 _. . 231 In re Moyer, 1 N. B. N. 260 - 363 Moyer v. Dewey, 103 U. S. 301 321 Moyer v. Dewey, 103 U. S. 301 384 Mulford V. Peterson, 6 Vr. 127, 133 62 Mulford V. Peterson, 35 N. J. L. 127 70- Mulford V. Peterson, 35 N. J. L. 127 72 Mulcahey v. Strauss, 151 111. 70 -. 312 Muller V. Inderreiden, 79 111. 382 14 Mulhall V. Quinn, 1 Gray 105 18 Mumper v. Wilson, 72 la. 163 304 Murray v. Hay, 1 Barb. Ch. 59 96 Murray v. Hay, 1 Barh. Ch. 59 102 Mugge V. Bwing, 54 111. 236 20 Mugge V. Ewlng, 54 111. 236 » 177 Munger v. Jacohson, 99 U. S. 349 54 Munn V. Marsh, 38 N. J. Eq. 410 92 Murray v. Drake, 46 Cal. 644 18 Murray v. Ager, 20 Pat. Off. Gaz., 1311 N. S. 358 33 Murray v. Lylburn, 2 Johns. Ch. 441 141 Murtha v. Curley, 90 N. Y. 372 , 150 Murphy v. Briggs, 89 N. Y. 446 261 Myers v. Amey, 21 Md. 302 33 Myers v. Fenn, 72 U. S. 205 97 Myers v. Myers, 15 App. Div. 448, 44 N. Y. Supp. 513 322 Myer et al. v. Crystal Lake P. & P. Works, 14 N. B. R. 9 341 Myer v. Tighe, 151 Mass. 354 ^ Ill M. & N. Nat'I Bk. v. Brady's Bend Iron Co., 5 N. B. R. 419 383 N Nagle V. James, 7 Abb. Pr. 234 ^ 227 Nassauer v. Techner, 65 Wis. 388 2ie Ixxvi CASES CITED. Page In re Nathan, 92 Fed. Rep., 590 374 National T. W. Co. v. Ballou, 146 U. S. 517 52 National T. Wks. v. Ballou, 146 U. S. 517 66 National Tube Works Co. v. Ballou, 146 U. S. 517 131 National Tube Works Co. v. Ballou, 146 U. S. 517 172 National Tube Works Co. v. Ballou, 146 IT. S. 517 192 National Tube Works Co. v. Ballou, 146 U. S. 517 194 Nat. Union Bk. v. Reed, 27 Abb. N. C. 5 124 Nat. Mechanics' B. A. v. Mariposa Co, 60 Barb. 423 66 Nat. Tradesman's Bank v. Wetmore, 124 N. T. 241 108 Nat. Tradesmen's Bk. v. Wetmore, 124 N. Y. 241 172 Nat. Tradesman's Bk. v. Wetmore, 124 N. Y. 241 192 Nat. Tradesmen's Bk. v. Wetmore, 124 N. Y. 241 194 National Tradesmen's Bk. v. Wetmore, 124 N. Y. 241 298 Neal V. Poster, 13 Sawy. 236; 34 Fed. Rep. 496 247 Neator v. Bveret, 10 N. B. R. 421 368 Nelson v. Hill, 46 U. S. 127 102 Nelson v. Hill, 46 V. S. 127 103 Neusbaum t. Keim, 24 N. Y. 325 213 Neustadt v. Joel, 2 Duer 530 170 Nevers v. Hack, 138 Ind. 260 _ 126 Newton v. Porter, 69 N. Y. 133 289 Newdigate v. Jacobs, 9 Dana 18 237 Newland v. Reilley, 85 Mich. 151 206 Newton v. Bronson, 3 Kern. 587 59 Newell V. Supervisors, 37 111. 253 149 In re N. Y. Kerosene Oil Co., 3 N. B. R. 125 351 N. J. Lumber Co. v.Ryan, 41 Atl. 839 81 New York Life Ins. Co. v. Davis, 94 Va. 427 319 New York Security & T. Co. v. Lombard Invest. Co., 75 Fed. Rep. 172 333 New V. Bass, 92 Va. 383 295 Newman v. Willetts, 52 111. 101 5 Newman v. Willetts, 52 111. 98 9 Newman v. Willetts, 52 111. 98 10 Newman v. Willetts, 52 111. 98 20 Newman v. Willetts, 52 111. 98 52 Newman v. Willetts, 52 III. 98 66 Newman v. Willetts, 52 111. 98 171 Newman v. Willetts, 52 111. 98 196 Newman v. Willetts, 52 111. 98 198 Newman v. Willetts, 52 111. 98 209 Newman v. Willetts, 52 111. 98 251 Newman v. Willetts, 60 111. 519 „ . 279 Newman v. Van Duyne, 42 N. J. Eq. 485 123 Newman v. Van Duyne, 42 N. J. Eq. 485 211 Nlckerson v. Ruger, 76 N. Y. 279 288 OASES CITED. Ixxvii Page Nlckell V. Hundley, 10 Gratt. 336 271 Nichols V. Levy, 72 U. S. 433 36 Nicholson v. Leavitt, 4 Sandf. N. Y. 252 28 Nicholson v. Leavitt, 4 Sandf. N. Y. 252 37 Nichols V. Eaton, 91 U. S. 716 271 Nichols V. Eaton, 91 U. S. 716. .- 272 Nil! V. Phelps, 46 N. Y. Supp. 662 22 Niver v. Crane, 98 N. Y. 40 23 Niver v. Crane et al., 98 N. Y. 40 277 Niver v. Crane et al., 98 N. Y. 40 279 Nienwankamp v. Ullman, 47 Wis. 168 229 Nicols v. Eton, 91 U. S. 716 277 Norton v. Clark, 18 Nev. 247 , 199 Norcutt V. Dodd, 1 Cr. & Ph. 100 113 Norton v. Norton, 5 Cush. 524 Ill The North Hudson M. B. & L. As. v. Childs, 86 Wis. 292 189 North Hudson B. & L. AsBO. v. Childs, 86 Wis. 292 216 North Hudson B. & L. As. v. Childs, 8'6 Wis. 292. ._ 299 North American F. Ins. Co. v. Graham, 5 Sandf. 197 170 North Am. F. Ins. Co. v. Graham, 5 Sandf. 197 171 N. A. Fire Ins. Co. v. Graham, 5 Sandf. 197 176 Northern Ind. R. R. Co. v. the Mich. Central R. R. Co., 15 Howard 233 - 60 Northern Pacific R. Co. v. Amato, 144 TJ. S. 465 160 Norton v. Boyd, 3 How. 426 366 Norris v. Hensley, 27 Cal. 439 276 In re Northrup, 1 Am. B. R. 427 373 Northwestern Iron Co. v. Land & River Imp. Co., 92 Wis. 487.. 312 Northwestern Iron Co. v. Central Tr. Co., 90 Wis. 570 205 Noyes v. Huhbard, 64 Vt. 302 391 InreNunn, 1 N. B, N. 427 393 Nusbaum v. Stein, 12 Md. 315 52 Nugent V. Nugent, 70 Mich. 52 18? Oakley v. Pound, 14 N. J. Eq. 178 34 Oakley v. Pound, 14 N. J. Eq. 178 170 Oakley v. Pound, 14 N. J. Eq. 178 299 O'Brien v. Coulter, 2 Blackf. 421 193 O'Brien v. Coulter, 2 Blackf. 421 200 O'Brien v. Coulter, 2 Blackf. 421 202 O'Brien v. Stambach, 101 la. 40 _ 24 O'Brien, Mary J., 24 Wis. 547 229 Ocean Nat. Bk. v. Olcott, 46 N. Y. 12 183 Ixxviii CASES CITED. Page Ocean Nat. Bk. v. Olcott, 46 N. T. 12 '. 18S Ocean Nat. Bk. v. Olcott, 46 N. Y. 12 253 Ocean National Bank v. Carll, 55 N. T. 440 288 Offutt V. King, 1 MacArthur 312 191 Ogilvie V. Knox Ins. Co. 22 How. 380 7 Ogilvie V. Knox Ins. Co., 63 U. S. 380 83 Ogilvie V. Knox Ins. Co., 63 U. S. 380 179^ Oglesby v. Gilmore, 5 Ga. 56 Ill In re Ogles, 1 N. B. N. 400 394 In re Ohio Co-operative Shear Co., 1 N. B. N. 477 .. 368 Oliphant v. Hartley, 32 Ark. 465 18» Oleson V. Bank of Tacoma, 15 Wash. 148 310 Olney v. Tanner, 10 Fed. Rep. 101; 18 Do. 636 232 Olney v. Tanner, 10 Fed. Rep. 101; 18 Do. 636 318 Olney v. Tanner, 10 Fed. Rep. 101; 18 Do. 636 321 Olney v. Tanner, 10 Fed. Rep. 101; 21 Blatchf. 540 326 Olney v. Tanner, 22 Blatchf. 540 383 Olney v. Tanner, 22 Blatchf. 540 384 O'Neil v. Birmingham Brew. Co., 101 Ala. 383 114 Ontario Bk. v. Mumford, 2 Barb. Ch, 596 41 Ortley v. Messere, 7 Johns. Ch. 139 Ill Osgood V. Laytin, 48 Barb. 463; S. C. AfBrm. in 5 Abb. Pr. N. S. 9. 224 Osgood V. Laytin, 48 Barb. 463; 5 Abb. Pr. U. S. 1 ^ 317 Osterhoudt v. Rigney, 98 N. T. 222 90 In re Otawa, 58 L. T. N. S. 85 391 Owen V. Dupignac, 9 Abb. Pr. 180. 230 Oxley V. Lane, 35 N. Y. 340 , 276- Pacific Bk. v. Robinson, 57 Cal. 520 32; Palmer v. Bank of Zumbrota, Minn. 75 N. W. 380 322 Palmer v. Thayer, 28 Conn. 237 _. . 113 Palmer v. Colville, 63 Hun, 536 227 Palo Alto Banking, etc., Co. v. Mahar, 65 la. 74 102 Pardee v. De Gala, 7 Paige Ch. 132 210 Parker v. Flagg, 127 Mass. 28 110 Parker v. Smith, 12 N. B. R. 474 382 Parker v. Harrison, 42 N. Y. Supr. Ct. 150 271 Parker v. Stoughton Mill Co., 91 Wis. 174 326 Parker v. Conner, 93 N. Y. 118 50 Parker v. Conner, 93 N. Y. 118 126 In re Parker, 54 L. J. Chancery, 694 310 Parker v. Conner, 93 N. Y. 278, 282 125 Parmelee v. Egan, 7 Paige Ch. 610 8& OASES CITED. Ixxix Page Parmelee v. Egan, 7 Paige Ch. 610 97 Parsons v. Bowne, 7 Paige Ch. 354 81 Parsons v. Bowne, 7 Paige Ch. 354 95 Parkman v. Welch, 19 Picls. 231 143 Parr v. Fumbanks, 11 Lea 391 155 Partridge v. Cavender, 96 Mo. 452 273 Partridge v. Gopp, 1 Eden Ch. 163 72 Parmelee v. Egan, 7 Paige Ch. 610 177 Parkinson v. Truesdale, 3 Scam. 369 143 Partee v. Kartrecht, 54 Miss. 66 ; 25 Partee v. Matthews, 53 Miss. 140 71 Partee v. Matthews, 53 Miss. 140 170 Parmenter Co. v. Warren, 1 Am. B. R. 39 377 Parish v. Lewis, Freeman's Chy. 299 195 Paschal v. Acklin, 27 Tex. 173 59 Paschall v. Hailman, 4 Gilm. 285 _ 293 Paste V. Love, 19 Fla. 634 199 Pattherg v. Louis Pattberg & Bros., 55 N. J. Ea. 604 332 Patterson v. Lynde, 106 U. S. 519 7 Patterson v. Lynde, 112 111. 196 54 Patterson v. Lynde, 112 111. 196 59 Patterson v. Lynde, 106 TJ. S. 519 ,, 98 Patterson v. Lynde, 112 111. 196 174 Patterson v. Lynde, 112 111. 196 195 Patterson v. Lynde, 112 111. 196 197 Patchen v. Rofkar, 12 App. Div. 475, 42 N. T. Supp. 35 194 Pavey v. Am. Ins. Co., 56 Wis. 221 183 Payne v. Becker, 87 N. Y, 153 35 Payne v. Hook, 74 U. S. 425 ^ 64 Payne v. Sheldon, 63 Barb. 169 196 Pearce v. Jennings, 94 Ala. 524 314 Pearce v. Olney, 20 Conn. 544 6» Pearson v. Maxteld, 51 la. 76 - 169 Pearson v. Maxfield, 51 la. 76 199 Pease v. Guenther, 61 111. App. 345 , 18 Peay v. Morrison's Ex'r's, 10 Gratt. 149 200 Peck Lumber Mnfg. Co. v. Mitchell, 1 Am. B. R. 701 367 Peck V. School Dist., 21 Wis. 516 75 Peck V. Burdett, 1 Paige 305 328 Pecos Irrigation & Improvement Co. v. Olson, 63 111. App. 313 . . 209 In re Peebles, 13 N. B, R. 149 - 368 Pelzer v. Hughes, 27 S. C. 408 52 Pelletire v. Greenville Lumber Co., 123 N. C. 596 329 Pennell v. Lamar Ins. Co., 73 111. 303 98 Pennell v. Lamar Ins. Co., 73 111. 303 106 Pennell v. Lamar Ins. Co., 73 111. 303 247 Penny v. Taylor, 10 N. B. R. 200 377 IXXX CASES CITED. Page Pennell v. DefCell, 4 De G. M. & G. 372. ., -. 281 Pennell v. DefEell, 4 De G. M. & G. 372. .- 289 Pennington v. Sole, 1 N. B. R. 157 364 Penniman v. Norton, 1 Barb. Ch. 246 89 Pennlman v. Norton, 1 Barb. Ch. 246 116 Penniman v. Norton, 1 Barb. Ch. 246 163 Penn v. Lord Baltimore, 1 Ves. Sr. 444 ~ 37 Penn v. Lord Baltimore, 1 Ves. Sr. 444 - 59 Penn v. Lord Baltimore, 2 Lead. Cas. in Bq. 1806 (4th Am. Ed. from 4th London Ed.) 60 Pennoyer v. Neft, 95 U. S. 714 37 Pennoyer v. NefC, 95 U. S. 714 250 Pennimon v. Norton, 1 Barb. Ch. 246 88 Pendleton v. Perkins, 49 Mo. 565 200 Pence v. Croan, 51 Ind. 336 126 People's etc., Bk. v. Bates, 120 U. S. 556 260 People V. Van Buren, 136 N. Y. 252 187 People, etc., v. Van Buren, 136 N. Y. 252 198 People ex rel. v. Omaha, 2 Neb. 166 39 People's Nat. Bank v. LoefCert, C. P. 28 Pitts. L. J. N. S. 22 31 People V. Ridgley, 21 111. 65 55 People V. Weigley, 155 111. 491 _ 154 People V. Globe Sav. Bk., 14 Nat'l Corp. Rep. 723 311 Perry v. Sharpe, 8 Feb. Rep. 15 187 Perry, Re B. T., 30 Wis. 268 230 Perkins v. Hays, 3 Gray 405 42 Perkins v. Hays, 3 Gray 405 271 Peters v. Bain, 133 U. S. 670 19 Peters v. Bain, 133 U. S. 670 185 Petree v. Brotherton, 133 Ind. 692 27 Petree v. Brotherton, 133 Ind. 692 220 Peterson v. Gittings, 77 N. W. 1056 (la.) 25 Peterson v. Gittings, 77 N. W. 1056 74 In re Peterson, 1 Am. B. R. 254 392 Petway v. Hoskins, 12 Lea 107 177 Petway v. Hoskins, 12 la. 107 244 Petefish V. Buck, 56 111. App. 149 35 Pettit V. Candler, 3 Wend. 618 _ 143 Pettit V. Shepherd, 5 Paige Ch. 493 18 Peyton v. Lamar, 42 Ga. 131 170 Pharis v. Leachman, 20 Ala. 662 281 Phelps V. Bowdoin, 14 N. B. R. 43 365 Phelps V. Curts, 80 111. 109 32 Phelps V. Curts, 38 111. App. 93 152 Phelps V. Curts, 80 111. 109 159 Phelps V. Curts, 80 111. 109 263 Phelps V. Foster, 18 111. 309 ^ 191 CASES CITED. Ixxxi Page Phelps V. Foster, 18 111. 309 51 Phelps V. Foster, 18 111. 309 52 Phelps V. Foster, 18 111. 309 298 Phelps V. McDonald, 99 U. S. 298 37 Phelps V. McDonald, 99 U. S. 298 59 Phelps V. Sellick, 8 N. B. R. 390 370 Phenix Ins. Co. v. Abbott, 127 Mass. 558 43 Phillips T. Ash, 63 Ala. 414 38 Phillips V. Demoss, 14 111. 410 180 Phillips T. Overton, 4 Hey. 291 141 Phoenix Ins. Co. v. Abbott, 127 Mass. 558 105 Pierstoff v. Jorges, 86 Wis. 128 25 Pierstofe v. Jorges, 86 Wis. 128 32 Pierstoff v. Jorges, 86 Wis. 128 68 Pierstoff v. Jorges, 86 Wis. 128 75 Pierstoff v. Jorges, 86 Wis. 128 131 Pierstoff v. Jorges, 86 Wis. 128 218 Pierstoff v. Jorges, 86 Wis. 128 220 Pirie v. Hughes, 43 Wis. 531 215 Pierce v. Milwaukee Cons. Co., 38 Wis. 253 , 10 Pierce v. the Milwaukee Cons. Co., 38 Wis. 253 83 Pierce v. Milwaukee C. Co., 38 Wis. 253 179 Pierce v. Rich, 76 Mich. 648. .* 44 Pierce t. Rich, 76 Mich. 648 176 Pike V. Miles, 23 Wis. 164 14 Pillsbury v. Klngon, 31 N. J. Eq. 619 112 Pillsbury v. Kingon, 33 N. J. Eq. 287 110 Pillsbury v. Klngon, 33 N. J. Eq. 287 113 Pillsbury v. Dugan, 9 Ohio 117 181 Pilling V. Otis, 13 Wis. 495 ,. . 257 Pinnock v. Clough, 16 Vermont 500 47 Pinneo v. Goodspeed, 104 111. 184 128 Pinneo v. Goodspeed, 104 111. 184 151 Piper V. Piper, 2 N. H. 439 ^. . 199 Pittsburgh Carbon Co. v. McMillin, 119 N. Y. 46 , 321 In re Pitlekow, 1 N. B. N. 234 353 In re Pitlekow, 92 Fed. 901 374 Piatt V. Archer, 6 N. B. R. 465; 9 Blatchf. 559; Fed. Cas. 11,213. 342 Piatt V. Archer, 6 N. B. R. 465 354 Piatt V. Cadwell, 9 Paige Ch. 386 210 Piatt v. Cadwell, 9 Paige Ch. 386 214 Piatt V. Cadwell, 9 Paige Ch. 386 227 Piatt V. Muroe, 34 Barb. 291 229 Piatt V. Preston, 19 N. B. R. 241 35g Plume V. Caldwell, 136 111. 163 245 Plume & A. Mfg. Co. v. Baldwin, 87 Fed. Rep. 785 195 Postlewait t. Howes, 3 la. 365 , 176 Ixxxii CASES CITED. Page Postlewait v. Howes, 3 la. 365 - 195 Poling V. Huffman, 39 W. Va. 320 138 Porter v. Williams, 9 N. Y. 142 224 Porter v. Williams, 9 N. Y. 142 317 Porter v. Williams, 9 N. Y. 142 318 Porter v. Williams, 9 N. Y. 142 321 Poineer v. Bagnall, 49 N. J. L. 226 211 Post V. Rouch, 26 Fla. 442 - 170 Post V. Roach, 26 Fla. 442 252 Post V. Mackall, 3 Bland Md. 486 158 Pope's Exrs. v. Elliott, 8 B. Mon. 56 271 Pope's Exrs. v. Elliott, 8 B. Mon. 56 273 Pope V. Solomons, 36 Ga. 541 200 Pope V. Mead, Q9 N. Y. 201 35 Poole V. Daly, 1 Mackey 460 156 Potter V. Everitt, 7 Ired. Bq. 152 35 Potter V. Dear, 95 Cal. 578 _ 71 Potter V. Dear, 95 Cal. 578 83 Potter V. Phillips, 44 la. 353 82 Potter V. Couch, 141 U. S. 296 275 Powers V. Blue Grass Bldg. & L. Asso., C. C. D. Ky. 86 Fed. Rep. 705 _ 319 Powell V. Spaulding, 3 G. Green 443 102 Pratt V. Babcock, 10 Paige N. Y. 295 163 Preston v. Spaulding, 120 111. 208 180 Preston v. Spaulding, 120 111. 208 266 Preston v. Colby, 117 111. 477 67 Preston v. Colby, 117 111. 477 , 170 Prest. etc., v. Trenton City Bridge, 13 N. J. Eq. 46 95 Price V. Pi;ice, 21 App. Div. 597 317 In re Price, 1 Am. B. R. 606 341 In re Price, 1 Am. B. R. 606 352 Price V. Abbott, 17 Fed. Rep. 506 64 Pringle v. Phillips, 5 Sandf. 157 125 Prout V. Vaughn, 52 Vt. 451 14 Produce Bank, etc., v. Morton, 40 N. Y. Supr. Ct. 328 25 Produce Bk. v. Morton, 67 N. Y. 199 188 Pudey V. Gardner, 21 W. Va. 469 122 Pudney v. Griffiths, 6 Abb. Pr. 211 227 Pullman v. Stebbins, 51 Fed. Rep. 10 106 Pullman Palace Car Co. v. American Loan & T. Co., 55 U. S. App. 170; 84 Fed. Rep. 18 335 Putney v. Fletcher, 148 Mass. 247 I05 Putney v. Freisleben, 32 S. C. 492 266 Putney v. Whitmire, 66 Fed. Rep. 385 189 Puterbaugh v. Elliott, 22 111. 157 .'.".*.'.'."..".*.'.".' 181 Pullis V. Robison, 73 Mo. 201 244 OASES CITED. Ixxxiii Q Page <3uarles v. Grigsby, 31 Ala. 172 96 Quinn v. People, 146 111. 275. 81 Qulnn V. People, 146 111. 275 130 Qulnn V. People, 146 111. 275 131 Quinn v. People, 146 111. 275 155 Quinnipiac Brew. Co. v. Fitzgibbons, 71 Conn. 80. 16 R Kagsdole v. Holmes, 1 S. C. 91 25 Randolph v. Farmers' L. & T. Co., 91 Tex. 605 338 Eand, McNally & Co. v. Mutual Fire Ins. Co., 58 111. App. 528 312 Randall v. Sunderland, 4 N. B. R. 4 388 Randall v. Sunderland, 4 N. B. R. 4 389 Ransom v. Jones, 1 Scam. 291 180 Randolph v. Daly, 16 N. J. Eq. 313 28 Randolph v. Daly, 16 N. J. Eq. 313 34 Randolph v. Daly, 16 N. J. Eq. 313 74 Randolph v. Daley, 16 N. J. Eq. 313 86 Randolph v. Daly, 16 N. J. Eq. 313 92 Randolph v. Daly, 16 N. J. Eq. 313 211 Rankine v. Elliott, 16 N, Y. 377 55 Rankin -v. Rothschild, 78 Mich. 10 84 Rankin v. Rothschild, 78 Mich. 10 95 Rankin v. Rothschild, 78 Mich. 10 144 Rankin v. Rothschild, 78 Mich. 10 178 Rankin v. Rothschild, 78 Mich. 10 308 Rankin v. Wilsey, 17 la. 463 46 Rapp V. Whittier, 113 Cal. 429 , 286 Rappleye v. International Bk., 93 111. 396 177 Rappleye v. International Bk., 93 111. 396 213 Rappleye v. International Bk., 93 111. 396 244 Rappleye v. International Bk., 93 111. 396 245 Ratcliffe v. Sangston, 18 Md. 383 _ 288 Ratcliffe v. Sangston, 18 Md. 383 _ 289 Rau V. Von Zedlitz, 132 Mass. 164 220 Rawdon v. Benedict, 1 Ch. Sent. 48 211 Raynor v. Mintzer, 67 Cal. 159 87 Reardon v. Henry, 82 la. 134 226 Reboul's Heirs v. Behrens, 5 La. 79 _ 139 Redmond v. Wemple, 4 Edw. Chy. 221 164 Redden v. Potter, 16 111. App. 265 196 Reddington v. Lanahan, 59 Md. 429 281 Reel V. Livingston, 34 Fla. 377 23 Reed v. Bott, 100 Mo. 62 124 Reed v. Bullington, 11 N. B. R. 408 360 Ixxxiv CASES CITED. Page Eeeder v. Speake, 4 S. C. 293 192 Reed v. Wheaton, 7 Paige Ch. 663 - 74 Reed v. Wheaton, 7 Paige Ch. 663 ~ 203 Reed v. Wheaton, 7 Paige Ch. 663 - 209 Reed v. Mclntyre, 98 U. S. 507 256 Reed V. Mclntyre, 98 U. S. 507 379 Regenstein v. Pearlstein, 30 S. C. 192 52 Reid V. Southworth, 71 Wis. 288 - 216 Reid M. & Co. v. Cross, 41 Ohio L. J. 135; 31 Chicago Legal News 216 , 236 Reid V. ShefCy, 75 111. App. 136 88 Reitzell V. Miller, 25 111. 53 293 Reinhardt v. Gartsell, 33 Ark. 727 67 Remington v. Samana Bay Co., 140 Mass. 394 55 Re Remington, 7 Wis. 643 205 Re Mary J. O'Brien, 24 Wis. 547 229 Re B. F. Perry, 30 Wis. 268 230 Re Hallett, 13 Ch. Div. 696 281 Re Hallett, 13 Ch. Div. 696 289 Renaud v. O'Brien, 35 N. Y. 99 - 208 Renaud v. O'Brien, 35 N. T. 99 ^ 227 In re Republican Ins. Co., 8 N. B. R. 197 342 Reubens v. Joel, 13 N. Y. 488 189 Reubens v. Joel, 13 N. Y. 488 170 Reubens v. Joel, 13 N. Y. 488 299 In re Reynolds, 9 N. B. R. 50; Fed. Cas. 11,723 378 Rhodes v. Cousins, 6 Rand. 188 52 Rice V. Stone, 1 Allen 566 35 Rice V. Barnard, 20 Vt. 479 - 170 Rice V. Perry, 61 Me. 145 126 Rice V. Rice, 108 111. 199 112 Rich V. Levy, 16 Md. 74 52 Richards v. Griggs, 16 Mo. 416 199 In re Richard IN. B. N. 487... , 359 Richards v. People, 81 111. 551 59 Richards v. People, 81 111. 551 327 Richardson v. Lester, 83 111. 55 » 199 Richeson v. Crawford, 94 111. 165 112 Richmond v. Irons, 121 TJ. S. 27 80 Richter v. Leiby. 75 N. W. 82 296 In re Richardson, 2 N. B. R. 74 372 Rider v. Mason, 4 Sandf. Ch. 351 270 Rider v. Mason, 4 Sandf. Ch. 351 279 Rife v. Geyer, 59 Pa. St. 393 273 Rinchey v. Stryker, 28 N. Y. 45 189 Rinchey v. Stryker, 28 N. Y. 45 198 Rinchey v. Stryker, 28 N. Y. 45 299 CASES CITED. Ixxxv Page Riopelle V. Doellner, 26 Mich. 102 146 Rippon V. Norton, 2 Beav. 63 271 Rison V. Knapp, 4 N. B. R. 144 389 Rison V. Powell, 28 Ark. 427. 64 Rltterband v. Maryatt, 12 N. Y. Leg. Ob. 158 227 Rives V. Walthall, 38 Ala. 329. 135 Roane v. Pickett, 7 Ark. 510 87 Robbing v. "Wells, 26 How. N. Y. Pr. 15; 18 Abb. Pr. 191 205 Roberts v. Albany, etc., R. Co., 25 Barb. 662 235 Roberts v. Albany, etc., 25 Barber 662 241 Roberts v. Stevens, 84 Me. 325 273 Robertson v. Parks, 3 Md. Ch. 65 138 In re Robinson, L. R. 27 Chy. Div. 160 391 Robinson v. Trofitter, 109 Mass. 478 34 Robert v. Hodges", 16 N. J. Eq. 299 17 Robert v. Hodges, 16 N. J. Eq. 299 74 Robert v. Hodges, 16 N. J. Eq. 299 87 Robert v. Hodges, 16 N. J. Eq. 299 94 Robert v. Hodges, 16 N. J. Eq. 299 199 Robie V. Flanders, 33 N. H. 524 35 Robinson v. Campbell, 3 "Wheat. 212 174 Robinson v. Davis, 11 N. J. Eq. 302 102 Robinson v. Smith, 3 Paige Ch. 222 89 Robinson v. Stewart, 10 N. Y. 189 143 Robinson v. Stewart, 10 N. Y. 189 ^ 189 Roby V. Cossitt, 78 111. 638 _ 149 In re Rockwood, 1 N. B. N. 134 382 Rockford v. Hackman, 9 Hare 475 271 Rockwell v. Portland Sav. Bk. 31 Ore. 431 336 Rodman v. Harvey, 102 N. C. 1 318 Rogers v. Cherrier, 75 "Wis. 54 215 Rogan V. "Williams, 63 Tex. 123 _ 220 Rogers v. Murray, 3 Paige, 390, 391 277 Rogers v. Murray, 3 Paige, 390, 391 279 Rogers v. King, 8 Paige Ch. 210 138 Rollins V. Staver "Wagon Co., 80 la. 380 249 Rolfe V. Burnham, 110 Mich. 660 317 Romaine v. Chauncey, 129 N. Y. 566 391 Romaine v. Hendrickson, 24 N. J. Eq. 231 88 In re Romanow, 1 Am. B. R. 461 381 Rome Bank v. Haselton, 15 Lea. 216 ^ 102 Roosevelt v. Thurman, 1 Johns. Ch. 220 276 Root V. "Woolworth, 150 U. S. 401 44 Rorback v. Dorsheimer, 25 N. J. Eq. 516 122 Rorback v. Dorsheimer, 25 N. J. Eq. 516 128 Rose V. Choteau, 11 111. 167 59 Roseboom v. "Whittaker, 132 111. 81 237 Ixxxvi CASES CITED. Page Roserifleld v. Goldsmith (Ky), 11 Ky. L.. Rep. 662 263 Ross-Mehan Brake Shoe Foundry Co. v. Southern Malleable Iron Co., 72 Fed. Rep 957 Rossman v. Mitchell, Minn. 75 N. W. 1053 323 Hothchild T. Hoge, 43 Fed. Rep. 97 266 Rounds V. McCormlck, 114 111. 252 7 Rountree v. McKay, 6 Jones (N. C.) Eq. 87 84 Rouse V. Letcher, 156 U. S. 401 64 Rowand v. Finney, 96 Pa. St. 192 129 Rozek V. Redzinskl, 87 Wis. 525 9 Rozek V. Redzinski, 87 Wis. 525 14 Ruhlender v. Chesapeake, etc. R. Co., 91 Fed. Rep. 5 337 Xr. S. Rubber Co. v. American Oak Leather Co., 82 Fed. Rep. 248 . 315 Ruckman v. Conover, 37 N. J. Eq. 583 - 44 Runals v. Harding, 83 111. 75 298 Runals v. Harding, 83 111. 75 319 In re Rupp, 4 N. B. R. 25 392 Russell V. Milton, 133 Mass. 180 292 Russell V. Rogers, 10 Wend. 474, 479 257 Russell V. Grinnell, 105 Mass. 425 271 Russell V. Allen, 10 Paige 249 277 Russell V. Grinnell, 105 Mass. 425 42 Russell V. Clark's Ex., IITJ. S. 69 80 Russell V. Clark, 11 U. S. 69 198 Russell V. Clark, 7 Cranch. 69 201 Russell V. Clark, 11 U. S. 69 202 Russell V. Chi. Trust & Savings Bank, 139 111. 538 70 Russell V. Chicago T. & S. Bk. 139 111. 538 101 Russell V. Chicago Trust & Sav. Bank, 139 111. 538, 17 L. R. A. 345. 103 Russell T. Chicago T. & S. Bk., 139 111. 538 108 Russell V. Chicago Tr. & S. Bk., 139 111. 538 138 Russell V. Chicago T. & S. Bk., 139 111. 538 174 Russell V. Chicago T. & T. Bk., 139 111. 538 177 Russell V. Chi. T. & S. Bk., 139 111. 538 185 Russell V. CM. Trust & Savings Bk., 139 111. 538 _ 196 Russell V. Chicago T. & T. Co., 139 111. 538 224 Russell V. Chicago T. & S. Bk., 139 111. 538 _ 237 Russell v. Chicago T. & S. Bk., 139 111. 538 244 Ryall V. Rolle, 1 Atk. 165 72 Ryan v. Krise, 89 Va. 728 36 , Ryttenberg v. Keesl, 39 S. C. 203 156 S Sackhoff V. Vandegrift, 98 Ala. 192 314 SafEord v. Douglas, 4 Edw. Ch. 537 244 Sage V. Memphis, etc., R. Co., 125 U. S. 361 204 OASES CITED. Ixxxvii Page V. Mosher, 28 Barb. 287 102 Sagory v. Dobis, 3 Sandf. Ch. 466 .^ 7 Sale V. Lawson, 4 Sandf. 718 , 228 Sale y. McLean, 29 Ark. 612 ^ 74 In re Salmons, 2 N. B. R. 19 368 Salter v. Williamson, 1 Green Ch. 480 107 Salter v. Hilgen, 40 Wis. 363 229 Sampson v. Taylor, 1 Ch. Sent. 89 43 Sanger v. TJpton, 91 U. S. 56 _ 7 Sanger v. Upton, 91 U. S. 56 , 54 Sanger v. Upton, 91 U. S. 56 _ 98 Sanger v. Upton, 91 U. S. 56 ., 179 Sangerv. Bancroft, 12 Gray 365 35 Sanger v. Bancroft, 12 Gray 365 190 Sands v. E. S. Greeley Co., 83 Fed. Rep. 772 338 Sands v. E. S. Greeley & Co., 80 Fed. Rep. 195 344 Sanderson v. Snow, 68 UL App. 384 214 Sanderson v. Stockdale, 11 Md. 563... 196 Sanderson v. Bradford, 10 N. H. 260 _ 303 San Antonio & G. S. R. Co. v. Davis, 2 Am. & Eng. Corp. Gas. N. S. 374 52 Sanderson v. Broadwell, 82 Cal. 132 261 Sanderson v. Broadwell, 82 Cal. 132 265 Sargent v. Salmond, 27 Me. 539 72 Savage v. Murphy, 34 N. T. 508 27 Savage v. Murphy, 34 N. Y. 508 233 Savage v. Murphy, 34'N. Y. 508 257 Savery v. Browning, 18 la. 246. 176 Savings & T. Co. v. Bear Valley T. Co., 89 Fed. Rep. 32 337 Sawyer V. Bradshaw, 125 111. 440 ,137 Sawyer v. Hoag, 84 U. S. 610 7 Sawyer v. Hoag, 84 U. S. 610 98 Sawyer v. Hoag, 84 U. S. 610 179 Sawyer v. Levy, 162 Mass. 190 ,260 Sawyer v. Birchmore, 1 Keen 391 101 Sawyer v. Moyer, 105 HI. 192 59 Sawyer v. Moyer, 105 111. 192 162 Sayre v. Fredericks, 16 N. J. Eq. 205 143 Sayre v. Fredericks, 16 N. J. Eq. 205 .„ 148 Scanlan v. Murphy, 51 Minn. 536 178 Scheubert v. Honel, 152 111. 313 210 Scheubert v. Honel, 50 111. App. 597; 152 111. 313 , 227 Scheubert v. Honel, 152 111. 313 228 Schlesinger v. Sherman, 127 Mass. 206 42 Schlesinger v. Sherman, 127 Mass. 206 46 Schlesinger v. Sherman, 127 Mass. 206 ; 74 Schuerman v. Matthews, 78 Wis. 309 137 IxXXviii CASES CITED. Page Schnell v. Clements, 73 111. 613 -103 School Dist. V. Gage, 39 Mich. 484 39 Schroetter v. Brown, 59 111. App. 24 lu Schrotter v. Brown, 59 111. App. 24 298 Schroeder v. Babbitt, 108 Mo. 289 261 ScWuter v. Harvey, 65 Cal. 158 261 Schreek, 1 Am. B. R. 366 384 In re Schnepf, 1 N. B. R. 190 373 In re Schnepf, Fed. Gas. No. 12,471 375 Schermerhorn v. Negas, 1 Denio 448 276 Schultz V. Blackford, 9 Lea. 431 278 Schwed V. Smith, 106 U. S. 188 64 Scoville T. Thayer, 105 U. S. 143 7 Scoville V. Thayer, 105 U. S. 143 54 Scott V. Neeley, 140 U. S. 106 ^ 52 Scott V. Neeley, 140 U. S. 106 ^ 66 Scott V. Neeley, 140 U. S. 106 ^ 74 Scott V. Neeley, 140 U. S. 106 , 173 Scott V. Neeley, 140 U. S. 106 174 Scott V. Neeley, 140 U. S. 106 , 185 Sconton v. Benders, 3 How. Pr. 185 240 Scott V. McMlUen, 1 Little 302 192 Scott V. McMillen, 1 Little 302 200 Scott V. Gheatham, 78 Va. 82 -.. . 155 Scott V. Grant, 10 Paige N. Y. 485 162 Scott V. Scholey, 8 East. 467 279 Scott V. Indianapolis, etc., 48 Ind. 75 - 71 Scott V. Kelley, 12 N. B. R. 96 358 Scott V. Nevins, 6 Duer 672 270 Scott V. Nevins, 6 Duer 672 _ 329 Scott V. Bennett, 1 Gilm. 646 89 Scott V. Bennett, 1 Gilm. 646 90 Scott V. Bennett, 1 Gilm. 646 - 91 Scripps V. King, 103 111. 469 52 Sorlpps V. King, 103 111. 469 66 Scripps V. King, 103 111. 469 177 Scripps V. King, 103 111. 469 193 Seaver v. Bigelows, 72 U. S. 208 64 Seaver v. Bigelows, 72 TJ. S. 208 , 161 Sears v. Choate, 146 Mass. 395 33 Sears v. Choate, 146 Mass. 395 ^ 42 Sears v. Starbird, 78 Cal. 225 164 Searing v. Berry, B8 la. 20 158 Security Sav. & L. Ass'n v. Moore, 151 Ind. 174 310 Security Sav. & L. A. v. Moore, 151 Ind. 174 323 Second Nat'l Bk. v. National S. Bk., 11 N. B. R. 49 355 Second Ward Sav. Bk. v. Schranek, 100 Wis. 480 327 CASES CITED. Ixxxix Page Second Ward Bk. v. Upmann, 12 Wis. 499 227 Second Ward Bk. V. Upmann, 12 Wis. 499 231 Sedgwick v. Place, 3 N. B. R. 35 ., 340 Sedgwick v. Cleveland, 7 Paige Ch. 287 113 Sedgwick v. Menck, 6 Blatchf. 156 _ 236 Sedgwick v. Menck, 1 B. R. 675 341 Sellman v. Sellman, 63 Ind. 520 85 Sewall V. Russell, 2 Paige Ch. 175 18 Sere v. Pilot, 6 Cranch. 332 112 Sercomb v. Catlin, 128 111. 556 , 37 Sercomb v. Catlin, 128 111. 556 59 Sercomb v. Catlin, 128 111. 556 281 Sercomb v. Catlin, 128 111. 556 303 Servis v. Nelson, 14 N. J. Eq. 94 , 281 Serra v. Hoffman, 17 N. B. R. 124 356 Serra v. HofiEman, 17 N. B. R. 124 358 Sexton V. Crockett, 23 Gratt. 857 86 Sexton V. Wheaton, 8 Wheat. 229 180 Seymour v. Briggs, 11 Wis. 196 226 Seymour v. McAvoy, 121 Cal. 438 87 Shaw v. Manchester, 84 la. 246 213 Shaw V. Dwight, 27 N. Y. 244 18 Shaw V. Dwight, 27 N. T. 244 ^ 94 Shaw V. Dwight, 27 N. Y. 244 170 Shaw V. Dwight, 27 N. Y. 244 176 Shaw V. Dwight, 27 N. Y. 244 188 Shaw V. Dwight, 27 N. Y. 244 ,196 Shaw V. Dwight, 27 N. Y. 244 203 Shafeer v. Frltchery, 4 N. B. R. 179 363 Shaffer v. Frltchery, 4 N. B. R. 179 389 Sharp T. Teese, 9 N. J. L. 352 258 Shankland's Appeal, 47 Penn. St. 113 271 Shankland's Appea,!, 47 Pa. St. 113 273 Shattuck V. Cassidy, 3 Edw. Ch. 152. 59 Shawano Co. Bk. v. Koeppen, 78 Wis. 533 ,. . 14 Shawano Co. Bank v. Koeppen, 78 Wis. 533 139 Shackleford v. Todhunter, 4 111. App. 271 134 Sharpe v. Earl of Scarborough, 4 Ves. 538. 50 Sharpe v. Earl of Scarborough, 4 Ves. 538 73 Shand v. Hanley, 71 N. Y. 319 27 Shaw V. Hanley. 71 N. Y. 319 257 Shand v. Hanley, 71 N. Y. 319 315 Shawer v. Alterton, 151 TJ. S. 607, 622 125 Sheafe v. Sheafe, 40 N. H. 516 94 Shearman V. Bingham, 7 N. B. R. 49 356 Sherry v. Smith, 72 Wis. 339 75 Sherman v. Hogland, 54 Ind, 578 , 126 XC CASES CITED. Page Shellington V. Howland, 53 N. T. 371, 375 ~ 184 Shellington v. Howland, 53 N. Y. 371 194 Shellington v. Howland, 53 N. Y. 371 202 Shenandoah V. Bk. v. Bates, 20 W. Va. 210 105 Shepherd v. Woodfolk, 10 Lea 593 237 Sheldon v. Dodge, 4 Denio 217 263 Sheldon v. Walbridge, 44 Mich. 251 146 Shephard v. Walker, 7 How. Pr. (N. Y.) 46 61 Shiner v. Huber, 19 N. B. R. 414 355 Shields v. Thomas, 59 U. S. 18 How. 253 185 Shlpman t. Aetna Ins. Co., 29 Conn. 245 113 Shirley v. Long, 6 Rand. 735 113 In re Shilliday, 1 N. B. N. 475 - 368 Shipe V. Repass, 28 Gratt. (Va.) 716 240 Shirley V. Watts, 3 Atk. 200 171 Shirley v. Watts, 3 Atk. 200 172 Shirley v. Watts, 3 Atk. 200 173 Shirley v. Watts, 3 Atk. 200 182 Showalter v. Laredo Imp. Co., 83 Tex. 162 54 Shurts V. Howell, 30 N. J. Eq. 418 113 Shultz V. Hoagland, 85 N. Y. 464 262 Shubrick v. Shubrick, 1 McCord. (S. C.) Ch. 406, 100 Shure v. Gough, 1 Ball. & B. 436 101 Shutts V. Fingar, 100 N. Y. 539 95 Shufeldt V. Boehm, 86 111. 560 51 Shufeldt V. Boehm, 96 111. 560 175 Shufeldt T. Boehm, 96 111. 560- 177 Shufeldt V. Boehm, 96 111. 560 181 Shufeldt V. Boehm, 96 111. 560 190 Shufeldt V. Boehm, 96 111. 560 193 Shufeldt V. Boehm, 96 III. 560 200 Shufeldt V. Boehm, 96 111. 560 202 Shufeldt V. Boehm, 96 111. 560- 219 Shufeldt V. Boehm, 96 111. 560 298 In re Sievers, 1 Am. B. R. 117 350 In re Sievers, 1 Am. B. R. 117 378 Siegel V. Andrews, 78 111. App. 611 '. _ 31 Siegmund v. Ascher, 37 111. App. 122 139 In re Silverman, 1 N. B. N. 286 395 Silliek V. Mason, 2 Barb. (N. Y.) Ch. 79 270 SlUick V. Mason, 2 Barb. Ch. 79 279 Sllloway V. Columbia Ins. Co., 8 Gray (Mass.) 199 , 61 Silloway V. Columbia Ins. Co., 8 Gray 199 105 Sllloway V. Columbia Ins. Co., 8 Gray 199 190 Simpson v. Warren, 55 Me. 18 - 113 Sims V. Alfea, 72 Ga. 751 155 In re Sims, 16 N. B. R. 251 369 CASES CITED. XCl Page Simar v. Canady, B3 N. Y. 298 - 102. Simms v. Tidwell, 98 Ga. 686 23 Simon V. Simon, 163 Pa. St 292 22 .Singer & Talcott Stone Co. v. Wheeler, 6 111. App. 225 31 Skeele v. Stanwood, 33 Me. 307 170 Skele V. Stanwood, 33 Me. 307 180' Skinner T. Terhune, 45 N. J. Eq. 565 328 Skinner v. James, 69 Wis. 605 183 Skinner v. Stuart, 15 Abb. Pr. 391; 13 Id. 442 129 Slattery v. Wason, 151 Mass. 266 279' Sloane V. Anderson, 57 Wis. 123 216 Sligb V. Shelton S. W. R. Co., 54 Pac. 763 ^ 27 Sligh V. Shelton S. W. R. Co., (Wash) 54 Pae. 763 325 Small v. Altwood, Tounge 407 288 Small V. Bordlnot, 9 N. J. Eq. 381 123 In re Smith, 2 Am B. R. 9 340 In re Smith, 2 Am. B. R. 9 350 In re Smith, 2 Am. B. R. 9- 359 In re Smith, 2 Am. B. R. 9 377 In re Smith, 2 Am. B. R. 9 380 In re Smith, 1 N. B. R. 169 360 In re Smith, 1 N. B. N. 471 _ 391 Smith's Adm. v. Wood, 42 N. J. Eq. 563 62 Smith's Adm. V. Wood, 42 N. J. Eq. 563 , 70 Smith's Adm. v. Wood, 42 N. J. Eq. 563 128 Smith V. Bromley, 2 Douglas 696 258 Smiley v. Bell, Mart. & Yerg. 378 - 41 Small V. Bondinot, 9 N. J. Eq. 381 128- Smith V. Ballantyne, 10 Paige Ch. 101 117 Smith V. Clay, 2 Amb. 645; S. C. 3 Bro. C. C. 693 note 62 Smith V. Clay, 2 Amb. 645 70 Smith V. Clay, 2 Amb. 646 164 Smith V. Craft, 17 Fed. Rep. 705 258 Smith T. Clark, 10 Md. 186 ^ 276 Smith V. Cuff, 6 M. & S. 160 25& Smith V. Crocheron, 2 Edw. Ch. 501 , 148 Smith Dimmlck Lumber Co. v. Teague, (Ala.) 24 So. 4 309 Smith Dimmlck Lumber Co. v. Teague, (Ala.) 24 So. 4 311 Smith V. Espy, 9 N. J. Eq. 160 lia Smith V. Ft. Scott H., & W. R. Co., 99 U. S. 398 52 Smith V. Ft. Scott, etc., R. Co., 99 U. S. 398 66 Smith V. F. Scott H., etc., R. Co., 99 U. S. 398 170 Smith V. Fitch, Clark's Ch. 265 209 Smith V. Grim, 26 Pa. St. 95 -...' 80 Smith V. Hardy, 36 Wis. 417 257 Smith V. Hurst, 10 Hare 30 170 Smith V. Ingles, 2 Ore. 43 18& Xcii CASES CITED. Page Smith V. Kearney, 2 Barb. Ch. 533 _ 43 Smith V. Kearney, 2 Barb. N. Y. Ch. 533 292 Smith V. Lind, 29 III. 24 244 Smith V. Lind, 29 111. 24 246 Smith V. Los Angeles Co. Sup. Ct. 97 Cal. 348 67 Smith V. Moore, 37 Ala. 330 271 Smith V. Moore, 37 Ala. 327 291 Smith V. Mason, 6 N. B. R. 1 351 Smith V. Muisheid, 34 N. J. Bq. 4 198 Smalley v. Moss, 72 la. 171 - 196 Smith Middlings Purifier Co. v. McGroarty, 136 U. S. 237 161 Smith V. Mahony, 3 Daly 285 228 Smyth V. New Orleans C. & B. Co., 141 U. S. 656 66 Smith V. R. R. Co.. 99 U. S. 398 180 Smith V. Reid, 134 N. Y. 568 15 Smith V. Railroad Co., 99 U. S. 399, 401 170 Smith V. Railroad Co., 99 U. S. 398 172 Smith V. Railroad Co., 99 U. S. 398, 401 173 Smith V. Railroad Co., 99 U. S. 398, 401 195 Smith V. Schwed, 9 Fed. Rep. 483 257 Smith V. Sheppar's heirs, 2 Hay 163, 349 193 Smith V. Superior Court, 97 Cal. 348 52 Smith V. Towers, 69 Md. 77 273 Smith V. Thompson, Walk. Ch. 1 ,. . 227 Smith V. U. S. Express Co., 135 111. 279 324 Smith V. Vreeland, 16 N. J. Eq. 198 159 ' Smith V. Williams, 116 Mass. 510* SO Smith v. Weeks, 60 Wis. 94 11 Smith V. Weeks, 60 Wis. 94 226 Smith V. Weeks, 60 Wis. 94 228 Smith V. Wood, 42 N. J. Eq. 563 122 Smith V. Wood, 42 N. J. Eq. 563, 123 Smith V. Wood, 42 N. J. Eq. 563 124 Snowden v. Dales, 6 Sim. 524 271 In re Snedaker, 3 N. B. R. 155 370 Snook V. Snetzer, 25 Ohio St. 516 59 Snook V. Snetzer, 25 Ohio St. 516 , 304 Sjoberg v. Security Sav. & L. Asso., 75 N. W. (Minn.) 1116 319 Societe Fonciere et Agrlcole des Etats Unis v. Milliken, 135 U. S. 304; 10 Sup. Ct. 823 165 Solinger v. Earle, 82 N. Y. 393 257 Solinger v. Earle, 82 N. Y. 393 258 Southard v. Benner, 72 N. Y. 424 112 Southard v. Benner, 72 N. Y. 424 170 Southard V. Benner, 72 N. Y. 424 178 Southern Bk. & T. Co. v. Folsom, 75 Fed. Rep. 929 .339 CASES CITED. XCIU Page Southern v. Fisher, 16 N. B. R. 414 - 353 South Bend Toy Mfg. Co. v. Pierce F. & M. Ins. Co., 4 S. D. 173 113 South Carolina v. Port Royal & A. Ry. Co., 89 Fed. Rep. 565.. 334 South Carolina v. Port Royal, etc., R. Co., 89 Fed. Rep. 565 338 Somes V. Skinner, 16 Mass. 348. . .- Ill Pet. of Somler, 41 Wis. 517 229 Somerset Bk. v. Veghte, 42 N. J. Eq. 39 62 Somerset Bk. v. Veghte, 42 N. J. Eq. 39 , 70 Somerset Bk. v. Veghte, 42 N. J. Eq. 39 163 Sparhawk v. Cloon, 125 Mass. 263 42 Sparhawk v. Cloon, 125 Mass. 263 _ 271 Spader v. Mural Decoration Co., 47 N. J. Eq. 18 337 Spader v. Davis, 5 Johns. Ch. 280; 20 Johns. 554. 5 Spader v. Davis, 5 Johns. Ch. 280 32 Spader v. Davis, 5 Johns. Ch. 280 188 Spader V. Davis, 5 Johns. Ch. 280 236 In re Spencer, 1 N. B. N. 154 374 Spencer v. Cuyler, 17 How. Pr. 157 227 Sperling v. Levy, 10 Abb. Pr. 426 227 Spencer v. Brockway, 1 Ohio 122 215 Speiglemyer v. Crawford, 6 Paige Ch. 254 94 Spear v. Campbell, 4 Scam. 424 80 Spear v. Campbell, 4 Scam. 424 81 Spear V. Campbell, 4 Scam. 424 » 84 Spear v. Campbell, 4 Scam. 424 89 Spear v. Campbell, 4 Scam. 424 91 Spear v. Grant, 16 Mass. 9 7 Spear v. Wardell, 2 Barb. Ch. 291 177 Spelman v. Freedman, 130 N. T. 421 189 Spelman v. Freedman, 130 N. Y. 421 180 Spencer v. Armstrong, 12 Heisk. 707 192 Spicer v. Ayres, 2 Thomp. & C. (N. Y.) 626 192 Spilman v. Johnson, 16 N. B. R. 145 369 Spindle V. Shreve, 111 U. S. 542 , 72 Sprague v. Noble, 3 111. App. 521 215 Spring V. Short, 90 N. Y. 538 178 Springer v. Vanderpool, 4 Edw. Ch. 362 112 Spokane v. Amsterdamsch, Trustees Kantoor, 18 Wash. 81... 316 Spring V. Randall, 107 Mich. 103 269 Springer V. Savage, 143 111. 301 271 Springer v. Savage, 143 111. 301 273 Stacy V. Randall, 17 111. 467 143 St. Albans v. Bush, 4 Vt. 58 217 Stamets v. Quinn, 27 N. J. Eq. 383 34 State V. Bowen, 38 W. Va. 91 .- 114 State V. Bowen, 38 W. Va. 91 235 Xciv CASES CITED. Page State Bk. v. Chatten, 59 Kan. 303 298 State Bank v. Ellis, 30 Ala. 478 96 State Bank v. Marsh, 1 N. J. Eq. 288 249 State V. Georgia Co., 112 N. C. 34 4S State Nat. Bk. v. Monroe Cotton P. Co., 39 La. Ann. 834 106 State ex rel. Strohl v. Superior Court, 2 Am. B. R. 92 343 State V. Union Nat'l Bk, 145 Ind. 537 311 Staton V. Pittman, 11 Gratt. 99 113 Staver Wagon, etc., Co. v. Halsted, 78 la. 730 - 248 Stephens v. Cady, 14 How. 528 32 Stephens v. Cady, 14 How. 528 33 Stephens v. Fox, 83 N. Y. 313 - 214 Stephens V. Harris, 6 Ired. Eq. 57 292 Stephens v. Perrine, 143 N. Y. 476 232 Stephens v. Perrine, 143 N. Y. 476 321 Stephens v. Perrine, 143 N. Y. 476 324 Stern V. Anstern, 120 N. C. 107 322 Steifel V. Berlin, 51 N. Y. Supp. 147 322 Stedman v. Davis, 93 N. Y. 32 19 Stearns v. Gage, 79 N. Y. 102 126- Stein V. Levy, 29 N. Y. S. R. 87, 264 Steiner Land & L. Co. v. King, 24 So. 35 103 Steiner Land & L. Co. v. King, 24 So. 35 ,..127 Sterlen v. Neustadt, 50 111. App. 378 139 Steele V. Sturges, 5 Abb. Pr. 442 _ 328 Steib V. Whitehead, 111 111. 247 _ 42 Steib V. Whitehead, 111 111. 247 271 Steib V. Whitehead, 111 111. 247 273 Steib V. Whitehead, 111 111. 247 275 Steib V. Whitehead, 111 111. 247 276 Steere V. Bigelow (Hoagland), 50 111. 377, 287 Steere v. Hoagland, 39 111. 264 174 Steere v. Hoagland, 39 111. 264 177 Steere v. Hoagland, 39 111. 264 187 Steere v. Hoagland, 39 111. 264; S. C. 50 111. 377 193 Steere v. Hoagland, 39 111. 264 202 Steere v. Hoagland, 39 111. 264 216 Steere v. Steere, 5 Johns. 1 ,. . 277 Stevens v. Breen, 75 Wis. 595 261 Stevens v. Gladding, 17 How. 447 33 Stevens v. Gladding, 17 How. 447 41 Stevens v. Mulligan, 167 Mass. 84 51 Steward v. Stevens, Harr. Ch. 169 227 Stewart v. Dunham, 115 U. S. 61 64 Stewart v. Dunham, 115 U. S. 61 161 Stewart v. Houston & Texas Central Ry. Co., 62 Tex. 246 285 Stewart v. Isidor, 5 Abb. N. Y. Pr. N. S. 68 162 CASES CITED. XCV Page Stewart v. Kearney, 6 Watts. 453 110 Stewart V. Robinson, 115 N. Y. 328 34 Stewart y. Stewart, 41 Wis. 624 , 230 Stiefel V. Berlin, 45 N. Y. Supp. 746 -. . 316 Stiefel V. Berlin, 28 App. Div. 103 325 Still V. Spear, 45 Penn. St. 168, 271 Stillwell V. Van Epps, 1 Paige Ch. 615 42 Stllwell V. "Van Epps, 1 Paige Ch. 615 236 Stilwell V. Walker, 16 N. B. R. 569 361 Stirlen v. Jewett, 165 111. 410 170 Stirlen v. Jewett, 165 111. 410 208 Stirlen v. Jewett, 63 111. App. 55 227 St. Louis, etc., Co. y. Sandoval, etc., Co., 116 111. 170 55 St. Louis, etc., R. Co. v. Johnston, 133 TJ S 566, 577 124 Stock-Growers' Bank v. Newton, 13 Colo. 245 175 Stock-Growers Bank y. Newton, 13: Colo. 245 261 Stoddard y. Lock, 9 N. B. R. 701. . . . .' 361 Stokes V. Amerman, 121 N. Y. 337; S. C. 31 N. Y. S R. 391.... 35 Stoors V. Kelsey, 2 Paige Ch. 418 211 Stone V. Chisolm, 113 U. S. 302 179 Stone V. Manning, 2 Scam. 530 12 Stone V. Manning, 2 Scam. 530 180 Stone V. Stone, 43 Ark. 160 SO Storm v. Badger, 8 Paige Ch. 130 145 Storm V. Davenport, 1 Sandf. Ch. 135 18 Storm V. Davenport, 1 Sandf. Ch. 135 112 Storm V. Waddeil, 2 Sandf. Ch. 494 148 Storm V. Waddell, 2 Sandf. Ch. 494 235 Storm V. Waddeil, 2 Sandf. Ch. 494 236 Storm V. Waddell, 2 Sandf. Ch. 494 238 Storm V. Waddeil, 2 Sandf. Ch. 494 241 Storm V. Waddell, 2 Sandf. Ch. 494 328 Storms V. Ruggles, Clark's Chy. 148 74 Storros v. Storros, 58 Mich. 55 _ 31 Stout V. La Follette, 64 Ind. 365 _ 199 Stow V. Russell, 36 III. 18 149 St. Albans v. Bush, 4 Vt. 58 181 Strang's Appeal, 10 W. N. C, 409 7 Strange v. Longley, 3 Barb. Ch. 650 84 Strange V. Longley, 3 Barb. Ch. 650 204 Strong V. Township, etc., 79 Ind. 208 102 Strong V. Lawrence, 58 la, 55 , 195 Strannahan v. Gregory, 4 N. B. R. 142 390 Straw V. Jenks, 6 Dak. 414 264 Strike v. McDonald, 2 Harr. & Gill. 191 161 Strohl V. Superior Court, 1 N. B. N. 309 341 Stutz V. Handley, 41 Fed. Rep. 531; S. C. 139 U. S. 419 217 XCvi CASES CITED. Page Stuart V. Isidor, 1 N. B. R. 129 366 Sturges V. Vanderbilt, 73 N. Y. 384 179 In re Stuyvesant Bank, 6 N. B. R. 272, 344 Suckley v. Ratchford, 12 Gratt. (Va.) 60 80 Supplee H. Co. v. Driggs, 26 Wash. L. Rep. 658 200 Sutphen V. Fowler, 9 Paige 280 59 Sutherland et al. v. Lake Sup. S. C, R. & I. Co., 9 N. B. R. 298. 341 In re Sullivan, 1 N. B. N. 380 374 Suydam v. Beals, 4 McLean, 12 -. . • 63 Suydam v. N. W. Ins. Co., 51 Pa. St. 394 172 Swayze v. Swayze, 9 N. J. Eq. 273 74 Swayze v. Swayze, 9 N. J. Eq. 273 170 Sweetser t. Silfer, 87 Wis. 102 , 73 Sweetser v. Silfer, 87 Wis. 102 215 Swope V. Arnold, 5 N. B. R. 148 364 Swift V. Arents, 4 Cal. 390 286 Swift V. Thompson, 9 Conn. 63 113 Swan L. & C. Co. v. Frank, 148 U. S. 603 52 Swan Land Co. v. Frank, 148 U. S. 603 , 66 Swan Land Co. v. Frank, 148 U. S. 603 82 Swan Lake etc., Co. v. Frank, 39 Fed. Rep. 456 55 Swan Land Co. v. Frank, 148 U. S. 603 185 Sweny v. Ferguson, 2 Blackf. 129 _ 202 Sweeny v. Grape Sugar R. Co., 30 W. Va. 443 235 Sweeney Mfg. Co. v. Goldberg, 66 111. App. 568 104 Sweeney Mfg. Co. t. Goldberg, 66 111. App. 568 13S Swain v. Lynd, (Minn.) 76 N. W. 958 - 16 Swain v. Lynd, (Minn.) 76 N. W. 958 138 Swain v. Lynd, (Minn.) 76 N. W. 958 166 Swing V. Bently & Gerwig Fum. Co., (W. V.) 31 S. B. 925 310 Taylor v. Bowker, 111 U. S. 110 ^ 130 Taylor v. Bowker, 111 XJ. S. 110 179 Taylor V. Bowker, 111 U. S. 110 .'... 195 Taylor V. Cheever, 6 Gray. 146 47 Taylor v. Jones, 2 Atk. 600 72 Taylor v. Mills, 2 Edw. Ch. 318 SO Taylor v. Robinson, 7 Allen, 253 170 Taylor v. Robinson, 7 Allen 253 186 Taylor v. Robinson, 7 Allen 253 189 Taylor v. Robinson, 7 Allen 253 191 Taylor v. Salmon, 4 Myl. & Cr. 134, 619, 635 223 Taylor v. Luther, 2 Sumner 228 143 Taylor v. Webb, 54 Miss. 36 , 80! OASES CITED. XCVir Page Talcott V. Grant, etc., Co., 131 111. 248 - 239 Talcott V. The Grant Wire S. Co., 131 111. 248 245 Talcott V. The Grant Wire S. Co., 131 111. 248 244 Talcott V. The Grant Wire Spring Co., 131 111. 248 253 Talcott V. Hess, 31 Hun, 282 262 Talcott V. Harder, 119 N. Y. 536 , 261 Tolland Co. Ins. Co. v. Underwood, 50 Conn. 493 273 Tarns V. Bullit, 35 Pa. St. 308 112 Tannenbaum v. Rosswog, 22 Abb. N. C. 346, 354 299 Tantum v. Green, 6 N. J. Eq. 364 5 Tantum V. Green, 21 N. J. Eq. 364 126 Tatum V. Rosenthal, 95 Cal. 129 103 Tatum V. Rosenthal, 95 Cal. 129 159 Teager v. Landsley, 69 la. 725.. 304 Tell Guano Co. v. Heatherly, 38 W. Va. 409 , 52 Terhune v. Kean, 155 111. 506 252 Terhune V. Kean, 155 111. 506 ,..293 Tenney v. Ballard, W. & B. Hat Co., 17 Tex. Civil App. 144 309 Tennent v. Battey, 18 Kan. 324 187 Terry v. Anderson, 95 U. S. 628 179 Terry v. Anderson, 95 U. S. 628 195 Terry v. Anderson, 95 U. S. 628 197 Terry v. Calnan, 4 S. C. 508 98 Terry v. Hatch, 93 U. S. 44. 161 Terry v. Tubman, 92 U. S. 156 194 Texas Railway Co. v. Wright, 31 L. R. A. 200 304 Thackara v. Mlntzer, 100 Pa. St. 151 42 Thayer v. Tyler, 5 Allen 94 199 Thayer v. Swift, Harr. Ch. 430 ., 227 Thatcher v. Gammon, 12 Mass. 268 215 Thielman v. Carr, 75 111. 385 103 Thompson v. Allen County, 115 U. S. 550 65 Thompson v. Bank, 19 Nev. 103 _ 83 Thompson v. Brown, 4 Johns. Ch. 619 106 Thompson v. Brown, 4 Johns. Ch. 619 193 Thompson v. Brown, 4 Johns. Ch. 619 202 Thompson v. Brown, 4 Johns. Ch. 619 296 Thompson v. Daniel, 47 La. Ann. 1401 215 Thompson v. Dougherty, 12 S. & R. 448, 113 Thompson v. Marsh, 61 111. App. 269 25 Thompson v. Marsh, 61 111. App. 269 35 Thompson v. Marsh, 61 111. App. 269 210 Thompson y. Marsh, 61 111. App. 269 , 208 Thompson v. Murphy, 10 Ind. App. 464 273 Thompson v. Nixon, 3 Edw. Ch. 457 31 Thompson v. Reno Sav., Bk., 19 Nev. 242 54 Thompson v. Railroad Co., 6 Wall. 134 174 XCviii CASES CITED. Page Thompson v. Thompson, 19 Me. 244 136 Thompson v. Tower Mnfg. Co., 87 Ala. 733 318 Thompson V. Yates, 61 111. App. 262 210 Tompkins v. Fonda, 4 Paige 448 35 In re Thomas, 3 N. B. R. 7 - 372 Thomas v. Adams, 30 111. 37 ., 86 Thomas v. Adams, 30 111. 37 88 Thomas v. Adams. 30 111. 37 295 Thomas v. Cincinnati, N. O. T. P. Ry. Co. C. C. S. D. Ohio, D. Ky. & E. D., (Tenn.) 91 Fed. Rep. 202^ 336 Thomas v. Cincinnati N. O. & T. P. Ry. Co., 91 Fed. Rep. 195.. 336 Thomas v. Goodwin, 12 Mass. 140 257 Thomson v. Lee Co., 22 la. 206 217 Thomas v. Merchants Bk., 9 Paige 216 42 Thomas v. The Merchants Bk., 9 Paige Ch. 216 _ 116 Thomas v. McEwen, 11 Paige Ch. 131 149 Thomas v. McEwen, 11 Paige Ch. 131 , . . 203 Thomas v. Railroad Co., 101 U. S. 71 - 27 Thomas v. Sterns, 33 Ala. 137 292 Thomas v. Van Meter, 153 111. 65 329 Thornhill v. Bank, Fed. Cas. 13, 992 377 Thorn v. Fellows, 5 N. Y. Weekly Dig. 473- 329 Thorp V. Leibrecht, 56 N. J. Eq. 499 211 Thorp V. Liehrecht, 56 N. J. Eq. 499 220 Thorndike v. Thorndike, 142 111. 450 304 Thornton v. Marginal Pt. R. Co., 123 Mass. 32 213 Thorn v. Woodruff, 5 Ark. 55 _ 199 Thurber v. Blanck, 50 N. Y. 80 198 Thurber v. Blanck, 50 N. Y. 80 199 Thurber v. Blanck, 50 N. Y. 80 299 Thurmond v. Reese, 3 Kelley 449 5 Tinsley v. Anderson, 171 U. S. 101 339 Tillinghast T. Bradford, 5 R. I. 205 ,271 Tillinghast V. Bradford, 5 R. I. 205 273 Tilford Y. Burnham, 7 Dana 109 328 Tillotson V. Wolcott, 48 N. Y. 188 328 Tilton V. Cofleld, 93 U. S. 163 140 Titoomb v. Bradlee, 159 Mass. 190 278 Todd V. Nelson, 109 N. Y. 316 ] 28 Toller V. Carteret, 2 Vern. 494 59 Tolles V. Wood, 99 N. Y. 616 !!!!!!!!!!!!.! 270 Tolman v. Jones, 114 111. 147 I54 Tomlinson, etc., Co. v. Sholto, 34 Fed. Rep. 380 _ 312 Tomllnson, etc., v. Sholto, 34 Fed. Rep. 380 , 227 Tompkins V. Hunter, 149 N. Y. 117 '.!!!!!". 255 Toof V. Martin, 6 N. B. R. 49 !!!!].'!!!!!! 389 Tousley v. Barry, 16 N. Y. 497 !!!!!!!!!! 51 OASES CITED. XCIX Tousley v. Barry, 16 N. Y. 497 125 Towsend v. Carpenter, 11 Ohio 21 41 Townsend v. Tuttle, 28 N. J. Eq. 449 93 Trask v. Green, 9 MicTi. 358 5 Tradesman Put). Co. V. Car Wheel Co., 95 Tenn. 634 179 Trappes v. Meredith, L. R. 9. Eq. 229 271 Tracy v. Ttiffing, 134 U. S. 206 _ 266 Tremaine V. Mortimer, 128 N. Y. 1 324 Trentman v. Nefl, 124 Ind. 503 45 Trippe v. Lowe, 2 Kelly 304 5 Tripp V. Cook, 26 Wend. 143 229 Trier v. Herman, 115 N. Y. 163 _ 215 Trimble v. Turner, 13 S. & M. 348 239 Trimble V. Williamson, 14 N. B. R. 53 361 Trimble v. Woodhead, 102 U. S. 647 321 Triebse v. Colburn, 64 111. 376 31 Truax v. Slater, 86 N. Y. 630; 5l Truax V. Slater, 86 N. Y. 630 125 Trust Nat. Bk. V. Shuler, 153 N. Y. 163 85 Trusdell v. Lehman, 47 N. J. Eq. 218 164 Truesdell v. Lehman, 47 N. J. Eq. 218 166 Tuck T. Manning, 150 Mass. 211 38 Tucker v. Drake, 11 Allen. 145 14 Tucker v. McDonald, 105 Mass. 423 47 Tufts V. Tufts, 3 Utah 361 286 TuUy V. Curtain, 54 Fed. Rep. 43 .195 Tunesma v. Schuttler, 114 111. 156 7 Tunesma V. Schuttler, 114 111. 156 ^ 54 Trustees of School v. Wright, 12 111. 432 164 Tupper v. Thompson, 26 Minn. 385 71 Turley v. Taylor, 3 Lea 171 _ 211 Turnbull v. Lumber Co., 55 Mich. 387 146 Turner v. Adaihs, 46 Mo. 95 _ 5 Turner v. Adams, 46 Mo. 95 195 Turney v. Gales, 12 111. 152 293 Turrell v. Warren, 25 Minn. 9 _ 217 Twin Lick Oil Co. v. Marbury, 91 U. S. 587 165 Tyler v. Hamblin, 11 Heisk 152 37 Tyler v. Peatt, 30 Mich. 63 25 Tyler v. Whitney, 12 Abb. Pr. 465, 227 Tyler v. Willis, 33 Barb. 327 227 V "Uhl V. Dillon, 10 Md. 500 52 TJhl V. Dillon, 10 Md. 500 298 trhre V. Melum, 17 111. App. 182 123 C CASES CITED. Page Uhre V. Melum, 17 111. App. 182 134 •Ullman v. Duncan, 78 Wis. 213 216 In re Ullrich, 8 N. B. E. 15 375 Umsted v. Buskirk, 17 Ohio St. 113 55 Underwood V. Sutcliffe, 77 N. Y. 58 183 Underwood v. Sutcliffe, 77 N. Y. 58 224 Underwood V. Sutcliffe, 77 N. Y. 58 317 Underwood V. Sutcliffe, 77 N. Y. 58 328 Union M. L. Ins. Co. V. Slee, 110 111. 35 128 Union Nat. Bk. v. Lane, 177 111. 171 239 Union Nat. Bk., etc. v. Warner, 12 Hun 306 257 Union Trust Co. v. Baker, 89 Fed. Rep. 6 _ 170 Union Trust Co. v. Baker, 89 Fed. Rep. 6 217 In re Union Pac. R. Co., 10 N. B. R. 178 390 United States V. Ingate, 48 Fed. Rep. 251 25 U. S. V. Ingate, 48 Fed Rep. 251 40 U. S. V. Ingate, 48 Fed. Rep. 251 52 United States v. Ingate, 48 Fed. Rep. 251 217 United States v. Howland, 17 U. S. 108 - 85 U. S. Ins. Co. V. Central N. Bk., 7 111. App. 426 68 United States Ins. Co. v. Central Nat. Bk., 7 111. App. 426 148 United Glass Co. v. Vage, 124 N. f. 121 194 United States Glass Co. v. Levett, 53 N. Y. Supp. 688 310 Upton V. Craig, 57 111. 257 213 Upton V. Tribilcock, 91 U. S. 45 7 Upton V. Tribilcock, 91 U. S. 45 54 Utterson v. Mair, 2 Ves. Jr. 95 86 V Vail V. Knapp, 49 Barb. 299 59 Valentine v. Richardt, 126 N. Y. 272 150 Van Alstyne v. Cook, 25 N. Y. 489 235 Van Alstyne v. Cook, 25 N. Y. 489 238 Van Alstyne v. Cook, 25 N. Y. 489 318 Vanbuskirk v. Warren, 34 Barb. 457 96 Van Cleef v. Sickles, 5 Paige Ch. 505 84 Vanderpoel v. Vanvalkenburgh, 6 N. Y. 190 , 84 Vanderveer v. Stryker, 8 N. J. Eq. 175 9 Vanderveer v. Stryker, 8 N. J. Eq. 174 202 Vanderveer v. Stryker, 8 N. J. Eq. 175 216 Vanderwerker V. Glenn, 85 Va. 9 ^ 54 Van Doren v. Stickel, 24 N. J. Eq. 331 34 Vandyke v. Christ, 7 W. & S. 373 113 Van Keuren v. McLaughlin, 21 N. J. Eq. 163 112 Van Kuren V. McLaughlin, 21 N. J. Eq. 163 , lia CASES CITED. CI Page Van Mater v. Sickler, 1 Stock. 483 107 In re Van Orden, 1 N. B. N. 475 -.. 391 Van Rensselaer v. Van Rensselaer, 113 N. Y. 207 150 Van Rensselaer v. Dennison, 35 N. Y. 393 ,.. 276 Vansickle V. Shenk, 150 Ind. 413 25 Van Sycle v. Richardson, 13 111. 174 66 Vansyckle v. Richardson, 13 111. 171 138 Vantine v. Morse, 104 Mass. 275 42 Van Weel V. Winston, 115 U. S. 228 ^ 55 Van Weel v. Winston, 115 U. S. 228, 237 124 Van Weel v. Winston, 115 U. S. 228 170 Van Wezel v. Wyckoff, 3 Sandf. Ch. 528. . .^ 104 Van Wezel v. Wychoff, 3 Sandf. (N. Y.) Ch. 528 245 Van Wezel v. Wyckoff, 3 Sandf. Ch. 528 294 Vance Shoe Co. v. Haught, 41 W. Va. 275 -,.... 157 Vanse v. Woods, 46 Miss. 120 313 Vamum v. Hart, 119 N. Y. 101 394 Venable v. Rickenberg, 152 Mass. 64 44 Venable v. Rickenberg, 152 Mass. 64 45 Venable v. President, etc.. Bank, etc., 27 U. S. 107 91 Vermont R. Co. v. Vermont R. Co., 46 Vt. 792 37 Vermont R. Co. v. Vermont R. Co., 46 Vt. 792 59 Vermont & C. R. Co. v. Vermont Cent. B. Co., 46 Vt. 792 303 Viers v. Detroit Paper Package Co., (Mich.) 77 N. W. 700 27 Victor V. Lewis, 53 N. Y. Supp. 944 189 Victor V. Lewis, 1 Am. B. R. 667 373 Victor V. Lewis, 24 Misc. N. Y. 515 374 Virginia & A. C. Co. v. Central R. Co., 66 Fed. Rep. 803 338 Virginia F. & M. Ins. Co. v. Cottrell, 85 Va. 857 122: Virginia Y. & C, S. & L Co. v. Bristol Land Co., 88 Fed. Rep. 134 329 Voories V. Crisbie, 8 N. B. R. 152..- 357 Vosburgh V. Diefendorf, 119 N. Y. 357 288 Vose v. Grant, 15 Mass. 505. ...T 7 W Wabash R. Co, V. Dougan, 142 111. 248 304 Wabash Western R. Co. v. Seifert, 41 Mo. App. 35 304 Wade V. Ringo, 62 Mo. App. 414- 25 In re Waddell Entz. Co., 67 Conn. 324 333 In re Waddell Entz. 67 Conn. 324 344 Wadworth v. Lyon, 93 N. Y. 201 95 Wadsworth v. Schisselbauer, 32 Minn. 84 205 Waite V. Osborne, 11 Me. 185- 199 Wakeman v. Grover, 4 Paige Ch. 23 81 Cii CASES CITED. Page Wakeman v. GroVer, 4 Paige Ch. 23 87 Wakeman v. Grover, 4 Paige 23 95 Wakeman V. GroVer, 4 Paige Ch. 23 143 Wakeman v. Russell, 1 Edw. Ch. 509 204 Wales V. Lawrence, 36 N. J. Bq. 207 74 Walker v. Denison, 86 111. 142. 164 Walker v. Ray, 111 111. 315 128 Walker v. Siegel, 12 N. B. R. 394 375 In re Wallace, 2 N. B. R. 52 358 In re Wallace, 2 N. B. R. 52 373 In re Wallace, Id. 17094 377 Wallace v. Hood, 89 Fed. Rep. 11 333 Wallace v. Sawyer, 54 Ind. 501 - 39 Wallace V. TreaMe, 27 Gratt. (Va.) 479 155 Wallace v. Treakle, 27 Gfatt. 479 236 Walling V. Miller, 108 N. Y. 173 394 Walsh V. Rasso, N. J. Ea. 41 Atl. 669 329 Walter v. Brooks, 125 Mass. 241. 41 W^alton V. Grand Belt Coppef Co., 56 Hun, 211 303 Wandling v. Straw, 25 W. Va. 692 217 Wanner v. Snyder, 177 Pa. St. 208 273 Wanzer v. Howland, 10 Wis. 8 131 Ward V. Arredondo, Hopk. Ch. 213 59 Ward V. Conn; Hpe Mfg. Co., 71 Conn. 345 337 Ward V. Bnders, 29 111. 519 213 Ward V. Griswoldville Mfg. Co., 16 Conn. 593 7 Ward y. Petrie, 157 N. Y. 301 322 Ward v. Petrie, 157 N. Y. 301 325 Ward V. Van Bokkelen, 2 Paige Ch. 289 91 Warder v. Rivers, 64 Iowa 412 147 Ware v. De Lahaye, 95 la. 667 190 Warfleld v. Canning Co., 72 la. 666 249 In re Warner, 5 N. B. R. 414 369 Warner Glove Co. v. Jennings, 58 Conn. 74 261 Warner v. Hoffman, 4 Edw. Ch. 381 96 Warner v. Hopkins, 111 Pa. St. 328 109 Warner v. Jaffray, 96 N. Y. 248 301 Warner v. Jaffray, 96 N. Y. 248 303 Warner v. Littlefleld, 89 Mich. 329 261 Warner v. Moran, 60 Ind. 227 5 Warner v. Paine, 3 Barls. Ch. 630 85 Warren v. Howe, 1 Chicago L. J. Weekly 177 315 Warren v. Tenth Nat'l Bk., 7 N. B. R. 481 389 In re Washington Maine Ins. Co., Fed. Cas. 17,246 377 Waters v. Bashiell, 1 Md. 455 113 Watkins v. Holman, 16 Pet. 25 37 "Watkins v. Wilhoit, 104 Cal. 395 19 OASES CITED. CUl Page Watts V. Gayle, 20 Ala. 817 87 Watts V. Gayle, 20 Ala. 817 S3 Watts V. Waddle, 6 Peters 389, 400 60 Watson V. Bettman, 88 Fed. Rep. 825 ^ 339 Watson Coal & C. Co. v. Casteel, 68 Ind. 476 285 Watson V. New York Central R. R. Co., 6 Abb. N. Y. Pr. N. S. 91. 328 Watters v. McGuigan, 72 Wis. 155 184 Waugh V. Robblns, 33 111. 181 - 128 Way V. Way, 67 Wis. 662 299 Weakley v. Cockrill, 2 Tenn. Ch. 316 114 In re Weamer, 8 N. B. R. 527 355 Weatherly v. Capital City Water Co., 115 Ala. 136. 311 Weaver v. Haviland, 142 N. Y. 534 172 Webb V. Sachs, 15 N. B. R. 168 382 Webb V. Stoves, 1 App. Div. 145; 37 N. Y. Supp. 414 _. . 46 Weber V. Weber, 90 Wis. 467 216 Weber v. Weber, 90 Wis. 46 323 Weber v. Mick, 131 111. 520. 247 Webster v. Clark, 25 Me. 313. 130 Webster v. Clark, 25 Me. 313 170 Webster v. Clark, 25 Me. 313 195 Webster V. Folson, 58 Me. 230 5 Webster v. Folsom, 58 Me. 230 23 Webster v. Folsom, 58 Me. 230 72 Webster v. Judah, 27 111. App. 294 250 Webster v. Upton, 91 U. S. 65 7 Webster v. Upton, 91 U. S. 65 54 Webster v. Webster, 55 HI. 325 128 Weed V. Pierce, 9 Cow. 722 - 5 Week V. Bosworth, 61 Wis. 78 183 In re Weeks, 4 N. B. R. 116 363 In re Weeks, 4 N. B. R. 116 364 Wehle V. Koch, 46 N. Y. S. R. 24; 19 N. Y. Supp. 189 324 Weightman V. Hatch, 17 111. 281 9 Weightman v. Hatch, 17 111. -S81 20 Weightman v. Hatch, 17 111. 281 66 Weightman v. Hatch, 17 111. 281 132 Weightman v. Hatch, 17 111. 281. 175 Weightman v. Hatch, 17 111. 281. . ! 190 Weightman v. Hatch, 17 111. 281 196 Weightman v. Hatich, 17 111. 281 198 Weil V. Raymond, 142 Mass. 206 74 Weil V. Raymond, 142 Mass. 206 176 Weir V. Tannehill, 2 Yerger 57. 180 Weis V. Tiernan, 91 111. 27 66 Weis V. Tiernan, 91 HI. 27 209 Weiser v. Weiser, 53 N. Y. Supp. 578 28 civ CASES CITED. Page "Welch V. Gurley, 2 Hayw. 334, 510 199 Welch V. Wallace, 3 Gilm. 490 193 Weld V. Sage, (N. Y.) 54 N. Y. Supp. 253; 34 App. Div. 471.... 339 Welsh V. Welsh, 105 Mass. 27 110 Wells V. Ely, 11 N. J. Eq. 172 272 Wells V. Ely, 11 N. J. Ea. 172 280 Wells V. Robb, 43 Kan. 201 - 55 Wells V. Schuster-Hax Nat. Bank, 23 Colo. 534 212 Wemyss v. White, 159 Mass. 484 273 Wendell v. Shaw, 1 Barb. N. Y. 462 145 Werborn v. Kahn, 93 Ala. 201 236 Wessel V. Brown, 10 Lea 685 33 Westbrook v. Munger, 62 Miss. 316 279 West Coast Grocery Co. t. Stenson, 13 Wash. 255 124 West V. Eraser, 5 Sandf. 653 238 Wetmore T. Wetmore, 149 N. Y. 520, 529 _ 270 In re Wheeler et al., 18 N. B. R. 385; 26 Pittsb. Leg. J. 84 Fed. Cas. 17,490 342 Wheeler V. Heermans, 3 Sandf. Ch. 597 209 Whipple V. Fairchild, 139 Mass. 262 ^ 51 White V. Cotzhausen, 29 U. S. 329 378 White V. Davis, 48 N. J. Eq. 22 19 White V. Drew, 9 W. Va. 695 156 White V. Ewing, 159 U. S. 36 64 Whitehead v. Hellen, 74 N. C. 679 227 White V. Keady, 69 111. App. 405 , 22 White V. Kuntz, 107 N. Y. 518 257 White V. Russell, 79 111. 155 67 White V. Russell, 79 111. 155 68 White V. Russell, 79 111. 155 94 White V. Russell, 79 111. 155 202 White V. Russell, 79 111. 155 213 White V. White, 30 Vt. 338 ,.273 White's Bk. v. Farthing, 101 N. Y. 344 102 White's Bank, etc., v. Farthing, 101 N. Y. 344 240 Whitesel v. Hiney, 62 Ind. 168 126 In re Whitehead, 2 N. B. R. 599 385 Whiting V. Beebe, 12 Ark. 421 133 Whitney v. Davis, 148 N. Y. 256 , 299 Whitney v. Robbins, 17 N. J. Eq. 360 61 Whitney v. Robbins, 17 N. J. Eq. 360 312 Wickersham v. Comerford, 96 Cal. 433 181 Wickham v. Morehouse, 16 Fed. Rep. 324 129 Wiggin V. Heywood, 118 Mass. 514 33 Wiggin V. Heywood, 118 Mass. 514 170 Wiggins V. Armstrong, 2 Johns. Ch. 144 52 Wiggins V. Armstrong, 2 Johns. Ch. R. 144. ., 170 CASES CITED. CV Page Wiggins v. Armstrong, 2 Johns, 144 172 Wiggins V. Armstrong, 2 Johns. Ch. 144 173 Wiggins T. Armstrong, 2 Johns. Ch. 144 180 Wiggins T. Armstrong, 2 Johns. Ch. 144 181 Wiggins T. Armstrong, 2 Johns. Ch. 144 182 Wiggins V. Armstrong, 2 Johns. Ch. 144 188 Wiggins V. Armstrong, 2 Johns. Ch. 144 198 Wiggins V. Armstrong, 2 Johns. Ch. 144 216 Wiggins V. Armstrong, 2 Johns. Ch. 144 299 Wilson V. Binkman, 2 N. B. R. 149 386 Wilson V. Binlsman, 2 N. B. R. 149 389 Wilson T. Bynum, 92 N. C. 717 30 Wilson T. Childs, 8 N. B. R. 527 365 Wilson V. City Ba,hk of St. Paul, 5 N. B. R. 270 389 Wilson V. Hooser, 72 Wis. 420 , 105 Wilson V. Joseph, 107 Ind. 490 304 Wilson V. Martin, Wilson Automatic Fire Alarm Co., 151 Mass. 515 32 Wilson T. Martin Wilson, etc., 151 Mass. 575 33 Wilson T. Roche, 58 N. Y. 642 , 288 Wilson V. Robertson, 21 N. Y. 587 262 Wilson V. Sax, 54 Pae. 46 184 Williams v. Bizzell, 11 Ark. 716. ., 113 Williams v. Bizzell, 11 Ark. 716 170 Williams v. Brown, 4 Johns. Ch. 682 172 Williams v. Brown, 4 Johns. Ch. 682 188 Williams v. Gibbes, 58 U. S. 239-255 101 Williams v. Hageboom, 8 Paige 469 148 Williams v. Hageboom, 8 Paige Ch. 469 208 Williams v. Hageboom, 8 Paige Ch. 469 227 Williams v. Hubbard, 1 Mich. 446 84 Williams v. Hubbard, 1 Mich. 446 85 Williams v. Hubbard, 1 Mich. 446 177 Williams v. Hubbard, 1 Mich. 446 214 Williams v. Hubbard, Walk. Ch. 28 227 Williams t. IngersoU, 89 N. Y. 508 206 Williams v. Ives, 49 111. 512 _ 208 Williams v. Michenor, 11 N. J. Bq. 520 21 Williams v. Michenor, 11 N. J. BJq. 520 87 Williams v. Michenor, 11 N. J. Eq. 520 94 Williams v. Michenor, 11 N. J. Bq. 520 97 Williams v. Michenor, 11 N. J. Eq. 520 101 Williams v. Michenor, 11 N. J. Eq. 520 170 Williams v. Michenor, 11 N. J. Eq. 520 198 Williams v. Michenor, 11 N. J. Bq. 520 199 Williams v. Sexton, 19 Wis. 42 27 Williams v. Sexton, 19 Wis. 42 130 cvi OASES CITED. Page Williams t. Sexton, 19 Wis. 42 171 Williams v. Spragins, 102 Ala. 424 124 Williams v. Stoutz, 92 Ala. 516 114 Williams v. Thorn, 70 N. Y. 270 270 Williams v. Tborn, 70 N. Y. 270 273 Williams v. Thorn, 70 N. Y. 270 279 Williams v. Wilkes, 14 Pa. St. 228 217 Williamson v. Brown, 15 N. Y. 354 - 125 Williamson, etc., Washington, etc., R. Co., 33 Gratt 624 224 Wiltshire v. Meerfleet, 1 Edw. Ch. 654 177 Wilkes V. Ferris, 5 Johns. 335 279 Wilkinson v. Yale, 6 McLean, 16 63 Wlllard V. Ford, 16 Neb, 543 285 Willard v. Masterson, 160 111. 443 _ 15 Willis V. Yates, 12 S. W. 232 263 Willis V. Moore, Clark's Ch. 150 203 Willard v. Briggs, 161 Mass. 58 218 Willetts V. Vandenhurgh, 34 Barb. 424 96 Willis V. Henderson, 4 Scam. 13 90 Willis y. Henderson, 4 Scam. 13 91 Wilber v. Collier, Clark's Ch. 315 131 Wilber v. Collier, 3 Barb. Ch. 427 296 Wilber v. Stockholders, 39 Leg. Int. 346 7 Wilbur V. Stockholders, 18 N. B. R. 178 391 Re Wilcox & H. Co., 70 Conn. 220 331 Wilcox V. Hawley, 31 N. Y. 648 392 Wild V. O'Brien, sheriff, 4 Alb. L. J. 364 375 Wilbur V. Fradenburgh, 52 Barb. 474 126 Wilder v. Bailey, 3 Mass. 289 199 Winslow V. Pitkin, 1 Barb. Ch. 402 150 Winslow V. Pitkin, 1 Barb. Ch. 402 210 Winslow T. Minnesota R. Co., 4 Minn. 313 93 Winslow V. Douseman, 18 Wis. 456 104 Winslow V. Winslow, 7 Mass. 96 _ Ill Winslow V. Leland, 128 111. 304 177 Winslow V. Leland, 128 111. 304, 338 , . 190 Winslow V. Leland, 128 111. 304 196 Winslow V. Leland, 128 111. 304 216 Winslow V. Leland, 128 111. 304 , 292 Winslow V. Leland, 128 111. 304, 340 293 Winchester v. Crandall, Clark's Ch. 371 89 Wincock v. Turpin, 96 111. 135 7 Winters v. Claitor, 18 N. B. R. 533 366 In re Winnie, 4 N. B. R. 5 '. 353 In re Winn, 1 N. B. R. 131 L! ... 359 Winchell v. Allen, 1 Conn. 385 199 Winans v. Graves, 43 N. J. Eq. 263 81 CASES CITED. CVll Page Wiswall V. Sampson, 55 U. S. 52, 67 101 Wise V. L. & C. "Wise Co., N. Y. 12 App. Div. 319 335 Wis. Granite Co. v. Gerrity, 144 111. 77 66 Wis. Granite Co. v. Gerrity, 144 111. 77 17a Wis. Granite Co. v. Gerrity, 144 111. 77 171 Wis. Granite Co. v. Gerrity, 144 111. 77 196 Witmer's Appeal, 45 Pa. St. 455 , 299 Witherbee v. Witherbee, 17 App. Div. 181; 45 N. Y. Supp. 297.. 322 Witt V. Hereth, 13 N. B. R. 106 365 Wolf V. Gray, 53 Ark. 75 267 In re Wood, 1 N. B. N. 430 , 387 Wood V. Amory, 105 N. Y. 278. 124 Wood v. Carpenter, 101 U. S. 135, 141 125 Wood V. Carpenter, 101 U. S. 135 165 Wood V. Dummer, 3 Mason 308 7 Wood v. Franks, 67 Cal. 32 261 Wood V. Robinson, 22 N. Y. 564 , 183 Wood V. Robinson, 22 N. Y. 564 , 253 Wood V. Robinson, 22 N. Y. 564 - 280 In re Woodard, 1 N. B. N. 385 393 Woodard & Stone Co. v. Milnes, 101 Wis. 329 308 Woodburn v. Woodburn, 23 111. App. 289 103 Woodbury v. Nevada Southern R. Co., 120 Cal. 463 75 In re Woodruff, IN. B. N. 423 393 Woodruff V. Ritter, 26 N. J. Eq. 86 ^ 21 Woods V. Morrell, 1 Johns. Ch. 103 143 Woodward v. Brooks, 128 111. 222 250 Woodward v. Hall, 75 Wis. 406 230 Woodward v. Solomon, 7 Ga. 246 20 In re Worland, 1 Am. B. R. 450 _. . 361 In re Wright & Co., 1 N. B. N. 428 -. . 358 In re Wright, 1 N. B. N. 381 369 Wright V. Nostrand, 94 N. Y. 31 227 Wright V. Nostrand, 94 N. Y. 31 225 Wright V. Nostrand, 94 N. Y. 31 318 Wright V. Nostrand, 98 N. Y. 669 324 Wright V. Stanard, 2 Brock. 311 , 159 Wright V. McCormack, 17 Ohio St. 86 55 In re Wyne, 4 N. B. R. 5 368 Wyman v. Kimberly Clark Co., 93 Wis. 554 232 Y Yates Co. Bk. v. Carpenter, 119 N. Y. 550 45 Yeager v. Wallace, 44 Pa. St. 294 43 Yeager v. Wallace, 44 Pa. St. 294 326 Tealman v. Sav. Inst. 96 U. S. 764 384 CVUl OASES CITED. Page Yeomans v. Brown, 8 Mete. 57 Ill Young V. Clapp, 147 111. 176 -^ 108 Young V. Clapp, 40 111. App. 312 244 Young V. Frier, 9 N. J. Eq. 465 ." 52 Young V. Frier, 9 N. J. Bq. 465 170 Young V. Hughes, 32 N. J. Eq. 372 286 Youngs V. Morrison, 10 Paige Ch. 325 131 Youngs V. Morrison, 10 Paige Ch. 325 203 Youngs V. Morrison, 10 Paige Ch. 325 205 Young V. Morgan, 89 111. 199 112 Young V. Stearns, 3 111. App. 498 ,. ... 134 Young V. Young, 2 Hill (S. C. L.) 425 199 In re Young, 3 N. B. R. Ill 392 In re Youkon Woollen Co., 1 N. B. N. 420 360 Z Zella Guano Co. v. Heatherly, 38 W. Va. 409 170 Zweig V. Horicon Iron & Mfg. Co., 17 Wis. 362 139 Zweig V. Horicon Iron & Mfg. Co., 17 Wis. 362 205 Zimmerman v. Franke, 34 Kan. 650 S04 THE Equitable Remedies of Creditors. CHAPTEE I. GENERAL SCOPE OF EQUITABLE REMEDIES. 1. Introductory. 2. Creditors' bills defined. 3. Equitable jurisdiction — Grounds of. 4. General classification and nature of creditors' bills. 5. Fraudulent conveyances — Statute 13 Eliz. 6. Fraudulent conveyances — Classes ot property embraced. 7. Fraudulent conveyances — Legal and equitable modes of reaeli- ing. 8. Fraudulent conveyances — (1) By the debtor to hinder, etc. (2) By taking title in another. (3) By voluntary conveyance to wife, etc. (4) By fraudulent mortgage. (5) By fraudulent judgment. (6) By fraudulent assignment. 9. Fraudulent conveyances — Form immaterial. 10. Fraudulent conveyances— Jms disporwnM — Public policy. 11. Fraudulent conveyances — ^Attitude of courts of equity. 12. Fraudulent conveyances — ^Voluntary conveyances. 13. Exhaustion of legal remedies — Meaning of. 14. Judgment — ^When not required. 15. Corporations — Fraudulent acts of. 16. Creditors' bill— When sustained. (a) To cancel fraudulent deed. (b) Effect of assignment by debtor. (c) To reach property fraudulently conveyed and other property. ■(d) Where credit obtained by apparent ownership, 1 EQUITABLE BEMEDIES. (e) Where property sold by grantee to innocent pur- chaser. (f) Where grantee has exchanged for other property. (g) Vendee not personally liable when. (h) Reversal of decree does not operate as estoppel. (i) Creditor's election to proceed against any prop- erty. (j) Where administrator refuses to disaffirm— Excep- tion in case of depositor in a bant. (k) Where a firm secretes its property. (1) Where debtor's property is put in improvements^ etc. (m) Where corporate property is distributed to stock- holders. (n) Where land has been sold under decree for alimony. (o) To reach salary of an officer — Garnishment. (p) To reach shares of stock taken for property. (q) To make effectual a remedy given by statute. (r) To reach interest of inventor or author. (s) To reach debtor's equitable interest in personal property. ■(t) To reach a surplus arising from a foreclosure sale. (u) To reach money of husband used by wife in pur- chase of land. ■(v) To reach money to become due the debtor on con- tract. (w) To reach separate estate of married women. (x) To reach interest of partner after partnership debts paid. (y) To reach money due debtor on life insurance policy. (z) To reach money due on judgment for personal in- jury. (aa) To reach proceeds of property fraudulently sold. (bb) To reach proceeds due on note fraudulently trans- ferred. (cc) To reach principal and income of legatee's interest. (dd) To reach right of widow to dower. [(ee) To reach debtor's equitable interest in land pur- chased. (ff) To reach deceased debtor's property fraudulently sold. ;(gg) To reach individual interest of debtor in judgment for death of son. (hh) To reach money paid as usury. (li) To reach a note pledged as collateral. .(3i) To reach a vested remainder of the debtor. QENEKAL SCOPE. 3 (kk) To reach money of debtor deposited in name of ■wife. § 17. Creditors' bill — When not sustained. (a) To reach property purchased by executrix with es- tate money. (b) By a creditor who has taken a deed of trust, etc. (c) By a mortgagee who has not offered to surrender security. (d) To reach indebtedness due debtor from non-resi- dent. (e) To reach land out of state — Exception. (f) Where funds deposited for benefit of all creditors. (g) Where there is no subsisting lien. (h) Where administrator dies and probate court has jurisdiction. (i) Power in administrator to sell is not power to can- cel deed. (j) Power in administrator to cancel depends on exist- ence of creditors. (k) Against a city to reach money due contractor. (1) Against surety — United States court. (m) Where the sole ground is to obtain a better price. (n) Where contract to purchase has been rescinded. (o) Where property purchased by husband in good faith, etc. > (P) Where fraud or insolvency not established. (q) Where grantee is free from fraud, and in posses- sion. (r) To reach patent. (s) To reach money due debtor as assignee. (t) Where assignee of chose in action cannot sue. (u) To recover rents due and to become due. (v) To reach debtor's distributive share of estate. (w) To reach balance due on deficiency judgment. (x) Where debtor in custody of officer under ca. sa. (y) To reach trust property rendered inalienable. (z) To reach property of foreign corporation in re- ceiver's hands. (aa) To reach promissory note of resident to non-resi- dent. (bb) To reach debts due debtor in foreign jurisdiction. (cc) To reach contingent rights in expectancy. (dd) To reach property not the debtor's when bill filed. (ee) To reach property in hands of debtor (See Statute). (ff) To reach exempt property. 4 EQUITABLE EEMEDIES. [§ 1. (gg) To reach debt due after insolvency proceedings be- gun. (hh) Where bill is filed to hinder and delay creditors. (ii) Where personal property sufficient and remedy certain, (]j) Where pledged property has been sold and proceeds applied. (kk) Where the only ground of jurisdiction is better price. (11) To reach the good will of a business transferred in fraud of creditors. (mm) To reach money on a verdict for personal injury before judgment. (nn) Where a deed is void for uncertainty. (oo) Judgment against executor to set aside conveyance of testator. (PP) Where collection of a debt prohibited at law it can- not be in equity. (qq) Where suit is against trustees for trustee indebted- ness. a 18. May reach real or personal property. 19. When pendency of suit not a bar to a subsequent suit 20. Amount due on judgment immaterial. 21. Holder of security not barred. 22. Property applied according to equitable methods. 23. Money paid by debtor on rescinded contract recoverable. 24. Right of recovery depends on debtor's right. 25. Equitable assets — Power of court over. 26. Evidence, sufficiency of — Declarations of vendor. 27. Injunction not granted to general creditor. 28. Good faith required. &9. Creditors' remedies against insolvent corporations. (a) Equitable remedy well established. (b) Statutory remedy. (c) Proceeding against corporation and stockholders. (d) Parties to. (e) Accounting and assessment. (f) Extent of liability. (g) Right of action passes to receiver, (h) Right of priority in. (i) Jurisdiction on dissolution. (j) Where property of, in hands of trustee. (k) Must be judgment creditors. Section 1. Introductory.— The Equitable Remedies of Creditors, usually denominated Creditors' Bills, § 3. J GENERAL SCOPE. 6 are traceable to early days of equitable jurisprudence, as administered in the courts of England and sub- sequently adopted in this country during the Colon- ial period, and afterwards, as part of our English legal inheritance. The history of this branch of remedial jur- isprudence, if it shall ever be written, would be a fitting illustration of the growth of the general subject of equitable jurisprudence as administered in courts of Chancery, and courts exercising chancery jurisdiction in this country and in England. It is an element in the civilization of the age, and particularly where the com- mon law prevails, that no person is left without an adequate remedy in our courts, unless, indeed, by his own acts, he has placed himself in a position where equity will refuse to interfere in his behalf. The very basis of the branch of remedial jurisprudence now under consideration is in the fact that an adequate and com- plete remedy is afforded to creditors where the common law would not do so. § 2. Creditors' Bills Defined.— Creditors' Bills may be defined to be bills filed by creditors who seek to satisfy their debts out of some equitable estate of the defendant (debtor) which is not liable to levy and sale under an execution at law, or out of some property which has been put beyond the reach of ordinary legal process.^ 1 Bispham's Principles of Bqui- Griswold, 8 N. H. 425; Barry ty, Sec. 526, citing the follow- v. Abbott, 100 Mass. 396; Lil- Ing cases: Newman v. Willetts, lard v. McGee, 4 Bibb. 165; Trip- 52 111. 101; Farnsworth v. Stras- pe v. Lowe, 2 Kelly 304; Thur- ler, 12 111. 482; Hagan v. Walter, mond v. Reese, 3 Kelly 449; 14 How. 29; Trask v. Green, 9 Eliott v. Merchants' Exch., 14 Mich. 358; Botsford v. Beers, 11 Mo. App. 234; Dodd v. Levy, 10 Conn. 369; Weed v. Pierce, 9 Mo. App. 121; Dargan v. War- Cow. 722; Spader v. Davis, 5 ing, 11 Ala. 988; Dunphy v. Johns. Ch. 280, 20 Johns. 554; Kleinsmith, 11 Wall. 610; Belcher Bayard v. Hoffman, 4 Johns, v. Arnold, 14 R. I. 613; Tantum Ch. 450; Webster v. Fol- v. Green, 6 C. E. Green 364; son, 58 Me. 230; Warner v. Hall v. Joiner, 1 S. C. 186 (N. Moran, 60 Ind. 227; Dodge v. S.); Turner v. Adams, 46 Mo, Q EQUITABLE REMEDIES. [§ 2. They are bills in equity filed by creditors for the pur- pose of collecting their debts out of the real or personal property of the debtor under circumstances in which the process of execution at common law could not aflford relief.^ Another class of bills coming under this head is where a bill is filed by one or more creditors of a deceased per- son for an account of the assets and a settlement of the estate of the decedent.* The extension of equitable relief to creditors of insolv- ent corporations has enlarged the scope of creditors' bills, or bills in the nature of creditors' bills, which has been done both by statute and as independent equitable proceedings. The basis of proceedings of this nature rests in two considerations, (1) the primary and inher- ent power of courts of equity to grant adequate and complete relief to creditors of insolvent corporations, and (2) the nature and character of corporate assets, and particularly the fact that the capital stock of a cor- poration constitutes a trust fund for the payment of its 95. The definition of Pomeroy purpose of administering upon (Pomeroy's Eq. Jur. Vol. I., Sec. the estates of deceased persons, 171) Is too restricted in that are invested with power suffi- the remedy is confined to cases clent to protect the interests of where there is a lien or charge creditors, but the equitable jur- on the property sought to be isdiction is not as a rule divest- reached. ed thereby. See Board of Pub- 2 Am. & Eng. Enc. of Law, Vol. lie Works v. Columbian College, 4, p. 573. Bills of this descrlp- 84 U. S. 521. Upon the general tion had their origin in the lim- subject of the rights of a credit- ited scope of the ordinary writs or to file a bill of this nature see of execution. These writs being Hogan v. Walker, 14 How. 29; common law writs were confined Fowler's Appeal, 6 Norris, 449; in their operation to legal inter- Freeland v. Dazey, 25 111. 294. ests. Equitable interests could It seems that bills of this nature be reached, if reached at all, in are based upon original equitable equity alone. The narrowness jurisdiction, and not upon aux- of the common law remedy nat- iliary jurisdiction to aid legal urally led to a jurisdiction in process. Hence it is not neces- equity to afford the necessary re- ■ sary that the creditor should be lief. Bisph. Eq. Sec. 526. in a position to levy an execu- » Anderson's Dictionary, p. 293; tion, if the fraudulent obstacle Blspham's Pr. of Eq., Sec. 525. should be removed. Hogap v. Usually courts organized for the Walker, supra. § 3.] GENEEAL SCOPE. 7 debts. By this proceeding the creditors are enabled to reach the unpaid subscriptions to the capital stock, enjoin the fraudulent disposition of the corporate prop- erty, and secure an equal distribution of the corporate funds.* § 3. Equitable Jurisdiction, Grounds of. — There are two principal primary grounds upon which the aid of a court of equity is invoked in behalf of a creditor in obtaining satisfaction of his debt. In one case equit- able jurisdiction is invoked upon the ground of the intervention of some fraud of the debtor which forms an impediment to plaintiff's recovery, and the fraud com- plained of, as a rule, constitutes a basis for an inde- pendent equitable suit or proceeding. In proceedings of this nature the jurisdiction does not depend upon an exhaustion of legal remedies and is not, therefore, ancil- lary in its nature; but, on the other hand, is referable rather to the primary principles of equitable jurisdic- tion, the basis of which being fraud. Courts of equity have not, however, as a rule, concerned themselves as to the particular form of action sought to be maintained, or the particular basis of the action, but rather to the adequate and effectual relief to be afforded to * Lane's Appeal, 105 Pa. St. 49; ler, 114 III. 156; V^incock v. Tur- Penn Bk. v. Hopkins, 111 Pa. pin, 96 111. 135; Eames v. Doris, St. 328; Wood v. Dummer, 3 102 111. 350. That unpaid sub- Mason 308; Sagory v. Dubois, 3 scrlptions constitute a trust fund Sandf. Ch. 466; Ward v. Grls- for the payment of corporate woldville Mfg. Co., 16 Conn. 593; debts see Lane's Appeal, supra Ogilvie V. Knox Ins. Co., 22 How. Sawyer v. Hoag, 84 U. S. 610 380; Mann v. Pentz, 3 Comst. Sanger v. Upton^ 91 U. S. 56 415; Adler v. The Milwaukee, Webster v. Upton, 91 U. S. 65 Etc., Co., 13 Wis. 63; Myers v. Hatch v. Dana, 101 U. S. 205 Seeley, 10 Nat. Bk. Reg. 411; Up- Wood v. Dummer, 3 Mason 308 ton V. Tribilcock, 91 U. S. 45; Vose v. Grant, 15 Mass. 505 Sanger v. Upton, 91 U. S. 56; Spear v. Grant, 16 Mass. 9 Webster v. Upton, 91 U. S. 65; Strang's Appeal, 10 W. N. C. 409 Wilber v. Stockholders, 39 Leg. Messersmlth v. Bank, 15 Norr. Int. 346; Scoville v. Thayer, 105 440; Brown v. Fisk, 23 Fed. Rep, U. S. 143; Patterson v. Lynde, 228; Rounds v. McCormick, 114 106 U. S. 519; Sawyer v. Hoag, 111. 252. 84 U. S. 610; Tunesma v. Schutt- 8 EQUITABLE EEMEDIBS. [§ 4. the party appearing to be entitled thereto. The other primary ground of relief in proceedings of this nature is referable more directly to the inadequacy of the com- mon law remedies, and therefore depends more directly, as a jurisdictional fact, upon the preliminary exhaustion of such legal remedies, and the proper application of the equitable principles of right and justice as between the parties. Moreover, in proceedings based upon the latter ground, the court is frequently called upon to adjust the rights and equities of the parties growing out of acts and transactions that are deemed fraudulent in law in contradistinction to those which are ipso facto fraudulent by intent of the parties. That class of equitable proceedings based upon a preliminary exhaus- tion of legal remedies may depend upon one of two con- ditions: (1) the property or effects of the debtor, which in equity ought to be applied to the plaintiff's indebtedness, may have been concealed, covered up or placed beyond the reach of legal process; or (2), it may be of such inherent character by nature as not to be subject to levy and sale. It is not designed in this volume to exhaustively treat of the various grounds upon which the equitable pro- ceedings usually designated Creditors' Bills are based, but the subjects of fraudulent conveyances, fraudulent judgments, fraudulent mortgages, and similar topics, will be discussed in general terms, in order that the scope of this remedial proceeding may be fairly under- stood, leaving for future discussion and elaboration the various acts and transactions of the debtor which form the basis of the creditor's complaint and afford a ground for his invoking the aid of a court of equity. § 4. General Classification and Nature of Credi< tor's Suits. — There are three proceedings in chancery usually termed Creditor's Suits, or Creditor's Proceed- §4.J GENEEAL SCOPE. 9 ings. The first of these is the ordinary proceeding in equity designed to set aside and cancel some alleged fraudulent transfer, alienation or incumbrance of the debtor's property, intended by him to hinder, delay and defraud his creditors in the collection of their debts.^ Where the fraudulent transfer relates to real estate, the fraud as to creditors may consist in the conveyance of the property to another person with a fraudulent in- tent to place the title beyond the reach of existing or future creditors. It may also consist in the purchase of real property by the debtor and procuring the title to be placed in the name of another for the debtor's use and benefit, or it may likewise consist in the encum- brance of the property by mortgage or judgment with a fraudulent intent to thereby cover up and conceal the property and thus prevent the appropriation thereof by creditors to the payment of debts by common law pro- ceedings. Where the fraud relates to personal prop- erty, it may consist in a colorable transfer, gift, incum- brance, or other disposition thereof, in which ca«e the common law remedies are usually resorted to and may be found generally to be adequate and complete. The right of action in a creditor to institute proceed- ings in a court of Chancery for relief where the title to real estate has been placed in the name of another for his use is inherent in a court of equity and does not depend on statutory power or authority.® 5 Newman v. Willetts, 52 111. of a court of Chancery to grant 98; Weigh tman v. Hatch, 17 111. relief where the title to real es- 281; Miller v. Davidson, 8 111. tate of a debtor has been placed 518; Lynch v. Johnson, 48 N. Y. In the name of another for his 27; Brown v. Nichols, 42 N. Y. use cannot be questioned. Van- 26. derveer v. Stryker, 8 N. J. Eq. eWhen a judgment creditor 175. This same right also ex- has obtained a lien by levy of tends to personal tangible prop- execution he has an equitable ac- erty held by another for tha tion independent of statute, Ro- creditor's use. Vanderveer v. zek v. Redzinski, 87 Wis. 525. Stryker, 8 N. J. Eq. 175. Independent of statute the right 10 EQUITABLE EBMEDIES. [§ 4. The second class partakes more of the nature of a bill of discovery, and is sometimes termed an Omnibus bill, the scope of which is not confined to any specific property, but extends to any property or class of prop- erty liable for the debts of the debtor, which he may have concealed or covered up in such manner as not to be accessible to the ordinary common law remedies, and which in equity ought to be devoted to the payment of debts. While this proceeding is not, strictly speak- ing, a bill of discovery, as known in the earlier chancery proceedings, yet it partakes of the nature of that pro- ceeding in that it seeks a discovery from the defendant of the existence and whereabouts of property and effects, the knowledge of which rests alone in the mind and con- science of the debtor. It differs, however, from that proceeding in that it does not merely lend its aid to common law courts, but furnishes a remedy enforceable through the decretal orders of a court of chancery. In effect, it is an independent chancery proceeding, though based, as a rule, upon a common law judgment, and its efficiency as a remedial proceeding lies in the inade- quacy of the common law action.'^ The third class is the statutory proceeding authorized in many States, designed to afford a remedy to the creditors usually more simplified and summary, but designed to accomplish the same end as the ordinary creditor's bill. Sometimes it is designated as a Sup- plementary Proceeding, or Proceeding in Aid, and may ' Creditors' bills are not pure a preferred creditor after exe- bllls of discovery, and are not cution returned unsatisfied, has dependent alone on discovery, an action in the nature of a though discovery may he had. creditor's bill against a judg- To such bills, though discovery ment debtor to compel a discov- is required, the answer under ery of property, etc., due the oath, though not waived, is not debtor or held in trust for him, conclusive. Schroetter v. Brown, to enjoin the transfer thereof! ■59 111. App. 24; Newman v. Wil- and obtain satisfaction out of letts, 52 111. 98. Under Ch. 303 the same. Pierce v. The Mil- Laws of 1860, of Wisconsin, waukee Cons. Co., 38 Wis. 253. §4.J GENEEAL SCOPE. 11 be, though, not always, a supplemental proceeding in the original action in which the judgment is rendered.* There are still other proceedings not ordinarily in legal parlance designated as creditor's suits, but by rea- son of their equitable nature and the inadequate and insufficient remedies at law are properly classified with the creditor's suits mentioned in the preceding section. In this class, of suits the relation of debtor and creditor exists, and the basis of jurisdiction is not in the fact of the intervention of some fraud in fact or in law, but it is the impotency of the common law writs to reach the intangible assets and effects of the debtor, by reason of their not being the subject matter of a levy and sale. Frequently the effects of a debtor may con- sist wholly of what are sometimes termed equitable assets, and which ought in justice and equity to be applied in the satisfaction of his debts, in which case the turpitude of the debtor consists not in overt acts of fraud, but in a refusal on his part to devote that which has a monetary value to the payment of his honest debts. The debtor in this state of affairs does not openly vio- late the law, but he stands in defiance of the law, and courts of equity, by compulsory process, reach beyond the limits of common law process and compel the doing of that which ought to have been done.^ 8 Smith V. Weeks, 60 Wis. 94 Barker v. Dayton, 28 Wis. 367 Lynch v. Johnson, 48 N. Y. 27 Bartlett v. McNeil, 60 N. Y. 53 bin proper still remains in full force. ^ In Massachusetts an equitable proceeding designed to reach the equitable assets of the S. C. 49 How. Pr. 55. It has debtor has been incorporated in- been observed elsewhere that in to the General Statutes, which do many of the states the Statute away with the prerequisite of a has modified the ordinary credit- judgment and execution returned or's bill or proceedings in the thereon unsatisfied as required nature of a creditor's bill and under the old chancery practice, provided a modified proceeding » At law a judgment and exe- in equity, in lieu thereof, which cution constitute no lien on mere is more or less summary in its equitable rights which are not nature, but designed to accomp- susceptible of delivery or posses- lish the same purpose, though sion. They operate on legal the practice under the creditor's rights only. The same principle 12 EQUITABLE EBMBDIES. [§ 5. Another proceeding of similar nature is where the creditor, having an established claim against an insolv- ent estate, is permitted to institute a proceeding for the discovery of assets, or proceed against heirs or devisees to subject real estate inherited or devised by the debtor.*** Similar in object and purpose is the proceeding in equity by creditors against the officers of an insolvent corporation to reach the property of the corporation which has been misappropriated by them in fraud of the rights of creditors, and also where the corporation has become insolvent from any cause and there is a contractual or statutory liability on the part of its stockholders for the payment of corporate debts and the directors or officers, through negligence or wilfulness, refuse to prosecute. § 5. Fraudulent Conveyances. Stat. 13 Eliz. — It has been sometimes supposed that the statutes of 13 Eliz. Ch. 5, and 29 Eliz. Ch. 5, and the substantial reen- actment thereof in this country, constitute the begin- is established in reference to depends on his having exhaust- mere equitable interests in per- ed his legal remedies. Stone v. sonal property; they are not sub- Manning, 2 Scam. 530; Beck v. ject to levy and sale. Disbor- Burdett, 1 Paige Chy. 305. In or- ough V. Outcalt, 1 N. J. Eq. 298. der to entitle the plaintiff to re- There are two classes of cases in cover he must show that the which a court of chancery af- debtor has made some fraudulent fords a creditor relief after he disposition of his property or has proceeded to judgment and that the case stands infected execution and failed to obtain with some trust, collusion or In- satisf action of his debt: (1) In justice against which it is the one case the creditor obtains a province of a court of equity to lien on property but is compelled grant relief. The court will not to go to a court of equity to re- therefore, aid a judgment credit- move obstructions fraudulently or after execution returned nulla or unequitably Interposed to pre- bona to reach a debt due the vent a sale on execution. (2) In debtor. Donovan v. Finn Hopk the other the creditor goes into Ch. 59; Loud v. Sergeant 1 Bdw a court of chancery to obtain Ch. 164. satisfaction of his debt from lo Kennedy v. Creswell 101 U property not subject to execu- S. 641; Hogan v. Walker 55 u" tion. In the one case he pro- S. 29; Houston v. Levy 44 N J ^^wtvi" w^®.-^*^ execution Eq. 6; Coddington v. Bisph^, when the obstruction is removed, 36 N. J. Bq. 574- Mallorv v and in the other case his right Craige, 15 N J. Eq 73 '"*'^ ^- § 6.] GENERAL SCOPE. 13 ning of the statutory law against fraudulent convey- ances in England and this country. This supposition, however, is not true, for during the reigns of Henry VII. and Edw. III. and Rich. II. statutes of similar purport had been enacted and were in force in England, and the Elizabethan statute was but the embodiment in concise and, finally, in permanent form, of previous legislation on the subject. Neither is it true as has also been sup- posed that these statutory enactments antedate the common law on this subject, for they are nothing more than declaratory of the common law as it had previously existed, with a penalty attached. The purpose of the statute was to prevent tra,nsfers of property covinous in their nature and intended to place the same beyond the reach of creditors and reserve the beneficial enjoy- ment for the use of the grantor. By it all transfers of property, whether real or personal, when made with the intention of defrauding creditors, were void as to such creditors. Transfers of this character would have been set aside at the instance of creditors in a proper proceed- ing instituted for that purpose, independent of any stat- ute, by the common law as it then existed. § 6. Classes of Property Embraced. — We shall now consider the classes of property, interests and rights which may be the subject matter of fraud- ulent transfer by the debtor and which may be reached in equity by appropriate suits instituted by creditors and appropriated for their benefit. But before doing so, it should be borne in mind that it is not every transfer, whatever may have been the purpose of the grantor, that is the subject of successful attack by creditors. Thus, if the property conveyed or assigned is such that it is by law exempt from levy and sale, and is by law placed beyond the reach of creditors, it is not in an equitable proceeding instituted by them subject to equitable process. Where it is the expressed policy 14 EQUITABLE KEMEDIES. [§ 7. Of the law-making power that certain specific property shall be exempt, or that property of a certain amount in value, or a homestead, shall not be subject to legal process and forced sale, it would be inconsistent and illogical that such property could be taken from the debtor, or his alienation thereof be the subject of suc- cessful attack in equity. It would be an anomaly in jurisprudence if creditors could be defrauded, hindered or delayed, by the conveyance of property which neither at law nor in equity is subject to legal process, and which in no event could have formed an element in the [contractual relationship of the parties." It is also to be observed that the conveyance must, in its effects, be injurious to the complaining creditor. Thus, if the remaining interest of the debtor in the property is so insignificant as to be of no practical value, or if the property alleged to have been fraudu- lently conveyed is so heavily encumbered that the equity remaining is valueless, a court of equity will not lend its aid in avoiding the transfer.^^ § 7. Procedure Legal or Equitable. — Where prop- erty of the debtor has been conveyed by the debtor for the purpose of hindering, delaying or defrauding his creditors, there are two modes of subjecting the prop- iiProut T. Vaughn, 52 Vt. 451; donment of a homestead for six Cipperly v. Rhodes, 53 111. 346 ; years it will be considered that a Tucker v. Drake, 11 Allen 145; lien of a judgment will attach Moore v. Flynn, 135 111. 74; Mul- though the debtor insisted it was ler V. Inderreiden, 79 111. 382. his intention to return. Black- The conveyance of the home- burn v. Lake Shore Co., 90 Wis. stead of a debtor cannot be 362. fraudulent as to creditors. 12 Aultman & T. Co. v. Pikop, Shawano Co. Bk. v. Koeppen, 78 56 Minn. 531; Blake v. Boisjoli' Wis. 533; Rozek v. Redzinski, 87 51 Minn. 296. The machinery of Wis. 525; Bond v. Seymour, 2 courts of equity is employed in Pin. 105; Dreutzer v. Bell, 11 ascertaining and enforcing the Wis. 119; Pike v. Miles, 23 Wis. substantial rights of parties and 164; Hibben v. Sozer, 33 Wis. not those of a mere nominal na- 319; Bank of Commerce v. Fow- ture. ler, 93 Wis. 241. After an aban- §8] GENEEAL SCOPE. 15 erty to the satisfaction of the debts of creditors: (1) The creditor, where the title was in the debtor, may,^ after a fraudulent transfer, levy his execution thereon, sell the same thereunder, and when his title is perfected by a deed at the end of the statutory period of redemp- tion, bring ejectment and therein test the fraudulent character of the transfer; or (2), he may bring an equit- able action after judgment and based thereon to remove the fraudulent conveyance or transfer out of the way of Ms execution; or (3), he may levy upon and sell the fraudulently conveyed property, and, after obtaining a deed, file a bill to quiet his title, having recovered pos- session.^^ The first of these proceedings is not generally resorted to, for the reason that, by the levy and sale, the judg- ment is satisfied, and an unsuccessful result of the ejectment suit is an end of the proceeding. Besides, while the question of fraud is cognizable in a court of law, yet there the latitude is not so adequate and com- prehensive. § 8. Fraudulent Conveyance by Debtor.— There are several kinds of transactions usually denominated fraudulent conveyances, against which a court of equity will afford relief on the application of a creditor who has exhausted his legal remedy : ( 1 ) Where the debtor, after the creation of his indebtedness, conveys his prop- 13 Smith V. Reid, 134 N. Y. 568; the lands of his debtor and he Maders v. VPhaUon, 74 Hun, 372; may sell lands that have been Kain v. Larkin, 131 N. Y. 300. fraudulently conveyed under his "Where a fraudulent conveyance execution and the purchaser at has been made, the creditor may such sale may impeach the sale levy his execution upon the in a suit at law to recover pos- property that has been so con- session or, on gaining posses- veyed, sell the same, treating the sion, defend the title thus ac- conveyance as a nullity and sub- quired against the fraudulent sequently file a bill to perfect his grantee or those claiming under title. Willard v. Masterson, 160 him. Smith v. Reid, 134 N. Y. 111. 443. A judgment creditor has 568; Chautauqua Co. Bank v. a legal right to enforce the col- Risley, 19 N. Y. 369; Bergen v. lection of his judgment against Carman, 79 N. Y. 146. 1Q EQUITABLE EBMEDIES. [§ 8. erty to another for the purpose of hindering, delaying and defrauding his creditors, the purpose in such case being to put his property and effects beyond their reach, and at the same time reserve to himself the beneficial interest therein. (2) Where the debtor has never had the title in his own name, but has purchased property and had the same conveyed to and the title taken in the name of another for his use and benefit, with a like fraudulent purpose and intent. (3) Where the debtor, being insolvent, makes a vol- untary conveyance to his wife, children, or some rela- tive, and does not retain sufficient property to pay his debts. In such case the intention of the debtor may be free from any fraudulent design, and his motives may be commendable as between the parties to the trans- action. The law of jus disponendi is limited by public policy and the just rights of creditors.^* (4) Where the debtor, with fraudulent intent and purpose, mortgages his property by a colorable instru- ment and thereby seeks to hinder, delay and defraud his creditors. The fraudulent encumbrance of property with a view of placing it beyond reach of creditors is just as obnoxious as an absolute conveyance or trans- fer.i« i*A judgment creditor is en- creditor who has perfected his titled to have a conveyance ot lien may impeach a chattel mort- real estate made by the judg- gage upon grounds rendering it ment debtor to his wife without void ab Initio as to creditors, al- consideratlon set aside, although though the mortgagee had taken it was not made with the in- possession of and disposed of the tent to defraud. Quinnlpiac property before the judgment Brew. Co. v. Fitzgibbons, 71 was recovered. Hedges v. Pol- Conn. 80. The earnings of a hemus, 9 Misc. 680, 62 N. Y. S. married woman earned before R. 267. A judgment creditor may the debt was contracted are not maintain an action to set aside a liable for the debts of her hus- mortgage foreclosure where the band. J. M. Houston Grocer Co. same was Illegal. Swain v. Lynd, V. McGinnis, (Ky.) 45 S. W. 514. (Minn.) 76 N. W. 958. Where a 15 Merchants N. Bk. v. Hogle, lien on lands which is apparently 25 111. App. 543. A judgment valid and superior to that under §8] GENEEAL SCOPE. 17 (5) When the debtor, by fraud and collusion, pro- cures a judgment to be obtained against him and suf- fers his property to be sold thereunder, and becomes divested thereby of his title, with the intent to hinder, delay and defraud his creditors. This is but using the courts, and their machinery, for the accomplishment, indirectly, of what could not be done directly.^® •which complainant claims is fraudulent and void as against creditors, complainant's bill to set aside the lien should be filed in aid of execution before sale. He cannot sell the property un- der the execution, and afterwards proceed to set the incumbrance aside as a fraud upon his rights. Marshall v. Blass, 82 Mich. 518. A creditor who has not levied on property cannot attack the valid- ity of mortgages which are void as to creditors for want of filing after an assignment for the ben- efit of creditors. Kitchen v. Lowery, 37 N. Y. S. R. 327. 16 It is not within the scope of this work to treat of the juris- diction of courts of equity In matters relating to judgments of common law courts except in so far as they may be void or void- able on the ground of fraud. For the purpose, however, of refer- ence in matters relating to equitable jurisdiction, and the power to enjoin the enforcement of judgments on grounds other than frauds an invaluable and complete collection of authori- ties will be found in volumes 30, 31, and 32, L. R. A. as follows: (1) Injunctions against execu- tion sales or other proceedings under final process. Vol. 30, p. 98. (2) Injunctions entered on confession Vol. 30, p. 235. (3) Injunctions in garnishment pro- ceedings. Vol. 30, p. 360. (4) Injunctions for matters arising subsequent to the rendition of judgment. Vol. 30, p. 560. (5) Injunctions for errors and irreg- ularities in proceedings before judgment. Vol. 30, p. 700. (6) Injunctions against judgments obtained by fraud, mistake, etc., Vol. 30, p. 786. (7) Negligence as a bar to injunction. Vol. 31, p. 33. (8) Injunctions with ref- erence to sureties, Vol. 31, p. 59. (9) Injunctions against void judgments. Vol. 31, p. 200. (10) Injunctions against judgments for defenses existing prior to rendition. Vol. 31, p. 747. (11) General equitable jurisdiction re- garding judgments. Vol. 31, p. 481. A court of equity can take jurisdiction in regard to a judg- ment only in cases of fraud, ac- cident or mistake, and the fraud must be more than mere falsity of proof or claim. There must be artifice or collusion by which the court has been deceived. Furbush v. CoUingwood, 13 R. I. 720. An adjudication that judg- ments are fraudulent as to plain- tiffs is not an adjudication that they are void as to other judg- ments. Lopez V. Merchants & F. N. Bk., 18 App. Div. 427, 46 N. T. Supp. 91. An attaching cred- itor may attack the validity of judgments against the property on which he has levied, alleging they are fraudulent as to him. id. A judgment against a debt- or will not be set aside on the application of a creditor because the debtor failed to plead the statute of limitations to a por- tion of the claim. Allen v. Smith. 129 U. S. 465. If intended to obstruct the plaintiff it is void. Robert v. Hodges, 16 N. J. Bq. 299, and the power of the court 18 EQUITABLE REMEDIES. [§8. (6) Where the debtor, under the form of an assign- ment for the benefit of creditors, with fraudulent intent and purpose, withholds property which should go to his creditors, or schedules claims which are fraudulent or fictitious, the assignment will be Toid as to creditors.^'^ in such case is unquestioned. Pease v. Guenther, 61 111. App. 345. Where a judgment by con- fession is obtained -which is not In effect to delay creditors or is a matter of public record with notice to all it will not be set aside. Bank of Georgia v. Hig- ginbottom, 34 U. S. 48. A court of equity may not vacate a judg- ment which has been obtained by fraud in the matter of pro- cess, but will interfere to pre- vent the use of it as an instru- ment of injustice by the author of the wrong. Bornesly v. Pow- ell, 1 Ves. Sr. 120; McMillan v. Reynolds, 11 Cal. 373; Galatian T. Erwin, Hopk. Ch. 48; Dobson V. Pierce, 12 N. Y. 156; The Bridgeport Bank v. Eldredge, 28 Conn. 556; Murrr.y v. Drake, 46 Cal. 644. Judgments fraudulent as to creditors should only be set aside to the extent of satisfying plaintiff's demands. Metcalf v. Moses, 55 N. Y. Supp. 179. A bill will be maintained to can- cel judgment which has been sat- isfied. Shaw V. Dwight, 27 N. Y. 244; fettit v. Shepherd, 5 Paige Ch. 493; Kimberly v. Sells, 3 Johns. Ch. 467. A judgment con- fessed on a debt not due and fully secured by mortgage but made for the purpose of putting the judgment debtor's property beyond the reach of creditors is voidable as to them. Bums v. Morse, 6 Paige Ch. 108. 1' An assignment of one part- ner to another to secure a part- nership debt Intended to keep the property under the control of the firm is void. Sewall v. Russell, 2 Paige Ch. 175. And so is an assignment in payment of a debt of property worth much more than the amount due and In view of an anticipated judgment is void. Butler v. Stoddard, 7 Paige Ch. 163; Lee v. Hunter, 1 Paige Ch. 519. Equity will not assume jurisdiction to compel an assignee to account where the orphan's court has power to compel him to do so. Hoagland v. Lee, 40 N. J. Eq. 469. And equity has no ' power except through the assignee in bank- ruptcy to reach property fraudu- lently transferred before bank- ruptcy. Glenny v. Langdon, 98 U. S. 20. Future profits to be realized on a contract may be assigned if fairly made and not against public policy. Ingram v. Osborn, 70 Wis. 184; Field v. Mayor, 6 N. Y. 179; Mulhall v. Quinn, 1 Gray 105. A creditor who seeks to set aside an assign- ment and fails does not thereby (forfeit his rights under the as- signment. Peters v. Bain, supra. A payment by an insolvent with- in a few hours of making a gen- eral assignment for the benefit of creditors is not void under Ohio Rev. Stat. 1886, Sec. 6343. Matthews v. Lloyd, 89 Ky. 625; Cf. Bayard v. Hoffman, 4 Johns. Ch. 450. The sale of property and distribution of proceeds be- fore an assignment may be at- tacked by a creditor's bill. Such property does not pass to the assignee. Colburn v. Shay, 17 111. App. 289. Cf. Brownell v. ■ Curtis, 10 Paige Ch. 210; but see Hamlen v. Bennett, 52 N. J. Eq. 70. A judgment confessed the day before an assignment where no assignment was then intend- ed is not part of the assignment. Hanford v. Prouty, 133 111. 339; Cf. Storm V. Davenport, 1 Sandf. Ch. 135. Fictitious debts sched- uled is evidence of fraud. Mead §9.] GENEBAL SCOPE. la § 9. Form of Fraud Immaterial. — It is generally of no significance what form of conveyance or transfer the fraudulent debtor may adopt, or how many per- sons may be implicated in the scheme of fraud, or into how many forms of property the original may have been converted. The tortuousness of the transaction forms no impediment to the searching and discriminating analysis of this branch of remedial jurisprudence. No fortress erected by a fraudulent debtor as a protection against creditors is invulnerable to the decree of a court of equity, however deep the foundations may be laid or of what materials made. It is of no efficacy that the debtor has his property conveyed to a third party, for in such case if the con- veyance is fraudulent it may be reached and applied to the payment of his debts. He is not permitted to do V. Phillips, 1 Sandf. Ch. 83. A creditor ■who accepts the benefit of a general assignment may at- tack a transfer of the assignor made in violation of the statute of frauds, though it may not be in violation of the assignment law. Dittman v. Weiss (Tex. Civ. App.) (Tex.) 31 S. W. 67. A cred- itor may maintain suit to reach fraudulently conveyed prop- erty where the assignee has neglected for years to do so. Hamlen v. Bennett, 52 N. J. Eg. 70. Where a trust is established and a fund secured on the appli- cation of a part of the creditors, the plaintifCs obtain no priority. Martin v. Rainwater, 56 Fed. Rep. 7; Fisher v. Herron, 22 Neb. 183; Clark v. Shelton, 16 Ark. 474. There is no presump- tion that a creditor residing in a foreign state knows the law or public acts or records of the state where his debtor's assign- ment is made and executed. Stedman v. Davis, 93 N. Y. 32; Bank etc. v. Dodge, 8 Barb. 233; Merchants Bk. v. Spalding, 9 N. Y. 53. An assignment intended to hinder, delay and defraud creditors is voidable as to them. Artman v. Giles, 155 Pa. St. 409; Koechl v. Leibinger & Oehm Co., 26 App. Div. 573, 50 N. Y. Supp. 568. In such case, it is the duty of the assignee to defend. Chittenden v. Brewster, 69 XJ. S. 191. And so also an assignment void under the stat- ute. Watkins v. Wilhoit, 104 Col. 395. After a fraudulent discon- tinuance of an assignment, a, non-assenting creditor may, by creditor's bill, assert his right to assets fraudulently trans- ferred. American Exchg. Nat. Bk. V. Walker, 164 111. 135. An assignment which is void in part, and the void part capable of sep- aration, may be sustained as to the remainder. Peters v. Bain, 133 U. S. 670. When a bill is filed to set aside an assignment for the benefit of creditors and it appears that the upholding of the assignment will be more ben- eficial to the creditors, the bill will not be maintained. White v. Davis, 48 N. J. Eq. 22. go EQUITABLE KBMEDIES. [§§ 10, II.' indirectly that which he may not do directly. The form in which the fraud is perpetrated is of no significance in equity, and the grantee participating in the fraudu- lent scheme is particeps criminis in the illegal act.^* The instrumentality by which a transfer is accom- plished is immaterial so long as the fraudulent intent and purpose exist. The fraudulent transfer may be made by means of a valid judgment lawfully enforced.^^ § 10. Jus Disponendi— Public Policy. — While it is not the policy of the law to hamper the transfer of property, or restrain, or in any manner interfere with the free and unlimited exercise of the rights of every one to deal with his own as he pleases and in his own way, due regard being had to public rights and inter- ests, yet the law will not permit transfers to be made in violation of the rights of creditors. A man must be just to his creditors before he is generous to those who are nearer to him by ties of relationship. Hence it is that the law will not permit a debtor who is insolvent to purchase property and pay for the same, and have the title conveyed to his infant son, leaving creditors unpaid, and if he does so, such property may be reached and applied to the satisfaction of debts due his creditors.^" § 11. Attitude of Courts of Equity.— It is the province of a court of equity to remove all impediments that are fraudulently placed in the way of a creditor in the collection of his just debts. A court of equity 18 The judgment creditors of i» The fact that a transfer of an insolvent dehtor may have a the debtor's property with intent decree in a court of equity to to defraud his creditors is accom- apply property belonging to the plished through the agency of a debtor, but held by a third party valid judgment lawfully enforced under a fraudulent conveyance, does not alter its fraudulent to the payment of their judg- character. Decker v. Decker, 108 ments. Woodward v. Solomon, N. Y. 128; Carpenter v. Osbom, 7 Ga. 246. May reach property 102 N. Y. 552. in the hands of a third person 20 Newman v. Willetts, 52 111. that would not be liable to exe- 98; Mugge v. Ewing, 54 111. 236; cution. Candler V. Pettit.l Paige, Montz v. Hoffman, 35 111. 553; ■Ch. 168. Weightman v. Hatch, 17 111. 281. § 12.] GENBEAL SCOPE. 21' is sometimes called a court of conscience, and will not look upon fraud, in whatsoever guise it may appear, with any degree of toleration. It will closely scan the acts of the parties and scrutinize their conduct with a view of determining the relief, if any, the plaintiflE is entitled to. It should be observed, however, that courts of equity are not to be regarded as courts for the collection of debts, that being merely an incident to the jurisdic- tion exercised.^^ § 12. Voluntary Conveyances — Remedy in Case of. — The general rule in regard to voluntary convey- ances, such as are without adequate consideration, is that they are void as to existing creditors, who are in- jured thereby, if the proper steps are taken, within a reasonable time, to have them so declared, by a court of competent jurisdiction.^^ While the law closely scrutinizes in behalf of credit- ors conveyances by parents to their children, yet, in the absence of solicitation, imposition or wrongful action on their part, such conveyances have been sus- tained by the court and a cancellation refused.^^ 21 Farnsworth v. Strasler, 12 tors to remove the difficulties 111. 482. Chancery has jurisdic- thrown around it by the debtor, tion, on a bill filed by a judgment W^illiams v. Michenor, 11 N. J. creditor for relief against a con- Eq. 520. The voluntary assign- veyance of lands by his debtor, ment of a mortgage to the mort- made with intent to defeat the gagee's wife, by substituting her judgment lien, or to hinder or name as mortgagee after the in- delay satisfaction of the judg- strument has become operative ment, whether execution has by delivery, and without cbnsid- been Issued thereon or not. Mc- eration, will not prevent the sub- Calmont v. Lawrence, 1 Blatchf. jection of the mortgage to the 232; Hagan v. Walker, 14 How. equitable remedies of a judgment 29. When a party made a creditor of the husband, in or- written contract for the purchase der to apply it In satisfaction of land, on which he made valu- of the judgment. Keam v. Conk- able improvements, and, subse- wright, 78 Mich. 58. quently, to defeat his creditors, 22 Woodruff v. Hitter, 26 N. J. he conveyed the land to another, Eq. 86; Budd v. Atkinson, 50 N. who was to hold the same in J. Eq. 530; Hoboken Bk. v. Beck- trust for him, it was held that man, 33 N. J. Eq. 53; Hecht v. the aid of the court of equity was Koegel, 25 N. J. Eq. 135. properly invoked by the credl- 23 where it appears that a con- 33 EQUITABLE KBMEDIES. [§ 13 A voluntary conveyance made long before the plain- tiff's indebtedness was created will not be set aside in the absence of proof that it was made with the intent to defraud existing or subsequent creditors. Of course, in such case, if the conveyance is made, for instance, by a husband to his wife, important elements to be con- sidered are as to the reasonableness of the provision under all the surrounding circumstances, the good faith of the parties, and whether made in anticipation of future indebtedness or reverses.^* A creditor of a deceased person could maintain a suit against his wife, under N. Y. laws, 1858, Ch. 314, § 2, where the property was conveyed to her by her husband at a time when he was mentally incapacitat- ed to transact business, but not under § 1 of this act, as amended by laws of 1894, Ch. 740.^5 The equities of a creditor are not superior to those of the debtor's wife> where she, before marriage, gave to him money, which was used in improving real estate conveyed to her by him after marriage, the property being used as a dwelling, and this though the husband did not keep the identical money separate from his own.^® And where a husband settled upon a wife property, the title to which was conveyed to her, she assuming an incumbrance thereon, the proceeds of the property will veyance alleged to be fraudulent either existing or subsequent was made by a ■ mother to her creditors. Brown v. Vandermeu- daughters without solicitation, len, 44 Mich. 522. In this case it imposition or wrongful action on appeared that a man, while in- the part of the grantees, it will solvent, made provision for his not be canceled. Simon v. Simon, wife that was not extravagant in 163 Pa. St. 292. view of existing circumstances, 2* Where a judgment creditor's and did so in good faith and not bill is filed to set aside voluntary in anticipation of reverses, conveyances made by a man to 20 njh y, phelps, 46 N. Y Supp his wife long before he became 662. indebted to complainant, the lat- 20 White v. Keady 69 111 Add ter must show that they were 405. ' " made with intent to defraud i 13.] GEKEKAL SCOPE. 23 only be subjected to the payment of the husband's debts to the extent of the money paid by him.^^ Where debts are contracted on the strength of the debtor's ownership of property, and the property is sub- sequently conveyed to the debtor's wife by a voluntary transfer, it may be reached by a creditor's bill.^* The only adequate remedy, where property has been purchased by the debtor and conveyed to his wife, is a bill in equity. An execution and levy in such a case is not an appropriate remedy.^^ Where the debtor purchases property and has the same conveyed to his wife, a suit may be maintained against the debtor's heirs at law if, at the debtor's death, he leaves no other property available to meet his obliga- tions. This principle is based upon the fact that the purchase and payment in the mode specified creates a trust in favor of creditors existing at the time.^" Where property has been fraudulently conveyed, the ' subsequent death of the fraudulent purchaser who pro- cured the property to be conveyed to another, is not a bar to recovery by the defrauded creditor.^^ 27 Property voluntarily settled Stat. 174 is intended to reach by a husband upon his wife, she property belonging to the debt- assuming payment of an incum- or, or things in action due him, brance thereon at the time she and does not apply to a case purchased it, for the purpose of -where property is paid for by the delaying, hindering and defraud- debtor and the conveyance is ing his creditors, cannot be sub- made to another. Niver v. Crane, jected to a charge for a greater 98 N. Y. 40. amount than that alleged to have 2» Where the creditor of a hus- been paid for her benefit by the band desires to hold land con- husband. Reel V. Livingston veyed to the wife, and paid for 34 Pla. 377. A creditors' bill out of the property of the hus- cannbt be maintained under band, he must do it by a bill In Ga.Code Sec. 3149 etseq., against equity, and not by a levy. The one who had previously ceased levy provided by Me. Rev. Stat. to be a trader because of a prior Ch. 76, Sec. 13, can only be made bona fide sale of all his mer- where some part of the legal chandise to his wife for a bona estate is in the debtor. Webster fide debt equal to the value of v. Polsom, 58 Me. 230. such merchandise. Simms v. Tid- so Chillingworth v. .Freeman, well, 98 Ga. 686. 67 Barb. (N. Y.) 379. 28 Hoagland v. Wilson, 15 Neb. ^i An action may be main- 320. Section 38 of 2 N. Y. Rev. 24 EQUITABLE REMEDIES. [§ 13. § 13. When Legal Remedy Exhausted. — The right to recover does not depend upon an absolute ex- haustion of all legal remedies against the debtor in another jurisdiction than that in which the judgment forming the basis of the suit is rendered. It is imma- terial that the debtor may have property in another state. It would be an unreasonable requirement if the creditor could be compelled to go into foreign jurisdic- tions for the purpose of enforcing his claim as a prelimi- nary step to his equitable proceeding. He has satisfied all legal and reasonable requirements when he has" exhausted his legal remedies in the jurisdiction where judgment is rendered and to which process may run.^^ Where a creditor's secretary committed a felony in hypothecating bonds to a bank, and a judgment is obtained against the bank for a conversion, it is not necessary, as a condition of maintaining a bill, that the creditor shall institute a prosecution on the criminal side of the eourt.^^ The fact that a garnishment proceeding might be sustained will not oust a court of equity of jurisdiction where it appears that there are several parties claiming an interest in the property, or a portion thereof, in severalty, as in such a proceeding the rights and equi- tained (Sec. 3835 Rev. Stat. Wis.) ment land situated in the county to subject to the payment of the where the judgment was obtain- debts of a deceased person lands ed. O'Brien v. Stambach, 101 purchased by him and conveyed la. 40. Under Ky. Civ. Code, to another. Allen v. McRae, 91 Sec. 439, the plaintiff may in- Wis. 226. The action in such stitute an equitable action for case may be by a creditor who discovery, after a return of "No has proved his claim in behalf property," notwithstanding the of all such creditors, id. interest of the debtor in certain 32 A creditor is not required to property was in fact liable to enforce his claims against prop- execution. Clements v. Wa.ters, erty of the judgment debtor in 90 Ky. 96. another state before proceeding 33 Merchants' & Planters' Bank against fraudulent grantees of v. Masonic Hall Trustees 65 Ga the debtor to subject to the judg- 603. ' §13.] GENERAL SCOPE. 25 ties of all parties can be adjusted and settled, and thus a multiplicity of suits be avoided.^* Nor is the creditor required to exhaust his remedy by proceedings supplemental to execution before filing his bill in equity.*^ The general rule is, however, as seen elsewhere, that as a preliminary prerequisite to the- filing of a creditor's bill all legal remedies existing in favor of the creditor against the debtor must have been exhausted.^® The defense that legal remedies have not been ex- hausted must be made in opportune time. It is too late, in an ancillary suit, to make such defense, where the original suit is nearly ended.^'^ Where the debtor has waived the rights of a trial by jury, no judgment having been rendered, an intervening mortgagee against whom, and by whom nothing is claimed, cannot object.^® 84 Mablock v. Babb, 31 Or. 516. And see Purstoff v. Jorges, 86 Wis. 128; GuUickson v. Madsen, 87 Wis. 19; Van Sickle v. Shank, 150 Ind. 413. 35 The fact that the debtor may have an equity of redemption in land encumbered for more than it is worth is not a defense. Wade V. Ringo, 62 Mo. App. 414. 36 Bryan v. May, 9 App. cases (D. C), 383; Henderson v. Brooks, 3 Thomp & C, 445; Partee v. Kartrecht, 54 Miss. 66; Case Mfg. Co. v. Perkins, 2 Det. L. N. 457; United States v. In- gate, 48 Fed. Rep. 251; Tyler v. Peatt, 30 Mich. 63; Meier v. Waco St. Bk., 27 S. W. 881; Early Times Dlst. Co. v. Zeiger (N. M.), 49 Pac. 723; John V. Far- well & Co. V. Norton, 77 111. App. 685; Burne v. Kunzman (N. J.), 19 Atlantic 667. Recourse cannot be had to a creditor's bill when the remedy at law is adequate, but when the executor has com- mitted a devastavit, or is insolv- ent and irresponsible, there is sufficient ground for the inter- ference of a court of equity. 1868, Ragsdale v. Holmes, 1 S. C. 91. Equitable proceedings under Iowa Code 1873, Sees. 3150-3154, for subjecting land to the pay- ment of a judgment, will not lie until the remedy at law has been exhausted. Peterson v. Gittings, 77 N. W. (lEt.) 1056. Personal demand for the satisfaction of a judgment need not be made upon the debtor as a foundation for a creditor's bill, under the Illinois statute. Thompson v. Marsh, 61 111. App. 269. The Mo. Rev. Stat. 1889, Sec. 571, providing for an attachment creditor's proceedings to set aside a fraudulent con- veyance, waives the exhaustion of legal remedies. Mansur & T. I. Co. V. Jones, 143 Mo. 253. A judgment against two of a firm of three is not sufficient. Prod- uce Bank, etc., v. Morton, 40 N; Y. Supr. Ch. 328. 37 Ross-Mehan Brake Shoe Foundry Co. v. Southern Malle- able Iron Co., 72 Fed. Rep. 957. 38 Grand Trunk R. Co. v. Ver- 26 EQUITABLE EEMEDIES. [§§ 14, 15, § 14. Judgment When not Required. — The rule of law requiring the exhaustion of legal remedies by the recovery of a judgment, the issuance of an execution thereon and the return thereof nulla bona, is not with- out its exceptions, as where the debtor dies insolvent and claims are probated against his estate, as required by law. In such case the claims thus probated will con- stitute a sufficient foundation for a suit in equity to subject fraudulently conveyed property to their pay- ment, for the reason that no judgment at law can be rendered. The legal procedure having advanced as far as possible, equitable procedure steps in and accom- plishes that which otherwise would have been impos- sible. The basis of action is the inadequacy of common law remedies rather than exhaustion. Under this state of case, in the absence of statute, as elsewhere observed, there is no semblance of a lien which can be made the basis of the equitable procedure.®^ § 15. Corporations — Fraudulent Acts of. — The same rules that are applicable to individuals are equally applicable to a corporation which transfers its property to another, in violation of the rights of its creditors, where the transferee has notice of the fraudu- lent purpose. Of course, for obvious reasons, in the case of the fraudulent acts of a corporation, the modes of proof are not, in all cases, identical with those appli- cable to individuals. The transfer of all the assets of one corporation to another, whereby an attempt is made to defraud creditors, or which would operate as a fraud, will not be valid as to creditors, and the transferee or grantee takes cum onere.*" mont R. Co. (C. C. D. Vt.) 85 Where the purchaser from a Fed. Rep. 87. fraudulent grantee knew of the so Hamilton v. Mississippi Col- claim of plaintiff against the lege, 52 Miss. 65. grantor, the purchaser takes 10 Blair v. St. Louis, Hannibal, the property subordinate to the ■etc., R. R. Co., 22 Fed. Rep. 36. rights of plaintiff. Thomas v. § 16.] GENEEAL SCOPE. 37 § 16. When Sustained.— (a) A creditor's bill is the proper proceeding to have a conveyance executed by the debtor in fraud of his creditors prior to judgment set aside and the property subjected to the payment of debts." And in such case it is no defense that the debt was not contracted until after the conveyance was executed, if it is shown that the credit was obtained on the strength of the apparent ownership of the property.*^ (b) It is not a valid defense to an action brought by a creditor to reach property fraudulently conveyed that the debtor has made a voluntary assignment for the ben- efit of creditors. It is the duty of the assignee to defend in such case if he has a defense.*^ (c) A bill in equity may be sustained for the double purpose of reaching property that has been fraudulently conveyed by the debtor and to reach other property that is not subject to execution.** (d) A conveyance will be held invalid where the Railroad Co., 101 TJ. S. 71; Hi- der a void contract. Viers v. De- bernia Ins. Co. v. St. Louis, etc., troit Paper-Package Co. (Mich.), 13 Fed. Rep. 516; Harrison v. 77 N. W. 700. Union Pacific, etc., R. Co., 13 *i A creditor's bill Is a proper Fed. Rep. 522; Cass v. Manches- proceeding to have a deed exe- ter Co., 9 Fed. Rep. 640; Bruifl cuted by the debtor before judg- T. Merchants' Co., 16 Fed. Rep. ment set aside and declared void 140; Abbott v. American Co., 33 on the ground that it is fraudu- Barb. 578. An action in the na- lent as to him. Gates v. Boomer, ture of a creditor's bill to subject 17 Wis. 470; Beck v. Burdett, 1 property of the defendant cor- Paige, 305; Clarkson v. DePeys- poration to the payment of a ter, 3 Paige, 320; Williams v. debt, on the ground that bonds Sexton, 19 Wis. 51; Brown v. in payment of property trans- Edmonds, 9 S. D. 273. If a con- ferred to the corporation were veyance was to defraud future Issued in a sum greatly exceed- creditors, a bill may be main- ing its value, when the cause of tained by a creditor whose debt action upon which his judgment matured thereafter. Petree v. was obtained had not accrued at Brotherton, 133 Ind. 692. the time, will not be sustained. ^2 Shand v. Hanley, 71 N. Y. Sligh V. Shelton S. W. R. Co. 319; Savage v. Murphy, 34 N. Y. 54 Pac. 763. A creditor's pro- 508; Case v. Phelps, 39 N. Y. 164. ceeding may be maintained to *3 Fort Stanwlx Bk. v. Leggett, reach personal property levied 51 N. Y. 552. by an insolvent corporation un- **A bill may be filed to set 28 EQUITABLE EEMEDIES. [§ 16. grantor is engaged in a hazardous business requiring credits and he remains in possession and apparent own- ership, and by that means and on account thereof obtains credit. Such a transaction would be inequitable and unjust, and would be impeachable at the instance of a creditor injured thereby.*' (e) The remedy of a creditor is not defeated where the fraudulent grantee has sold the property to an innocent purchaser, for in such case the proceeds of the sale are as aTailable as the property itself. The fraud- ulent grantee becomes chargeable with the proceeds derived from the innocent purchaser, but the property itself is not.*« (f ) It is not essential that the precise property fraud- ulently conveyed shall remain in the hands of the fraudulent grantee to entitle the plaintiff to a recovery. Thus, the grantee may have exchanged the fraudulently conveyed property for other property still held by him, in which case the fraud will be impressed upon the latter property in lieu of the former.*'^ (g) Where it is sought to make the vendee liable on the ground of a fraudulent sale, based on the vendor's continued possession, no decree will be rendered making the vendee personally liable, he never having possession or control of the property.*^ aside a fraudulent conveyance *b Todd v. Nelson, 109 N. Y. and at the same time to reach 316. other property not subject to ex- ^f Braem v. Merchants' Nat. ecution. Randolph v. Daly, 16 N. Bank, 127 N. Y. 508. A fraudu- J. Eq. 313. Where the judgment lent grantee cannot become the debtor has property which is assignee of a mortgage and en- fraudulently incumbered or has force it against the purchaser un- been fraudulently assigned, and der a decree in a creditor's suit, has other property which can Weiser v. Weiser, 53 N. Y. Supp. only be reached by a bill in 578. equity, the bill may be filed for *'' Carver v. Barker, 73 Hun, the double purpose of removing 416. the fraudulent obstruction and is Nicholson v. Leavitt 4 reaching both species of proper- Sandf. (N. Y.) 252. In a credi- ty. Cuyler v. Moreland, 6 Paige, tor's bill to reach property pur- Cli- 273. chased by the debtor who had I 16.] GBNEEAL SCOPE. 39 (h) Where creditors seek to follow property fraudu- lently conveyed and procure a decree against the prop- erty, which is subsequently reversed, they are not precluded from taking a different course and procuring a different decree based on the evidence on final hearing, such as a personal decree against the fraudulent grantee.** (i) The creditor has an election to proceed against any property of the debtor which has been fraudulently conveyed. It is not within the power of fraudulent grantees to force such creditor to proceed against any particular piece of property, to the exclusion of other pieces. The option is wholly with the creditor in such case as to what property he will proceed against. As to grantees equally culpable, equity knows no favorite, but the creditor is not compelled to proceed against all.^" ( j ) Where the administrator of a deceased fraudulent grantor has statutory power to disaffirm a transaction on the ground of its being a fraud upon creditors, and he refuses to do so upon the demand of a creditor and the estate in the hands of the administrator is insuffi- cient, the creditor may bring suit in behalf of himself and other creditors to reach property fraudulently con- veyed. Of course, the general rule is that an estate^ the conveyance made to his der to preserve her claim as a daughter In contemplation of in- creditor. Brown v. Chubb, 135 solvency, and with the Intent to N. Y. 174. defraud creditors, where it ap- *» Dilworth v. Curts, 139 111. peared that the grantee was free 508. from fraud or where it also ap- so When the debtor has no peared that the daughter was property of his own, the plain- the assignee of a judgment tiff can levy on any property against her father, which judg- sold by him, which may be sub- ment was prior to that of plain- ject to the lien of his judgment, tiff's. It was held that the plain- Barden v. Grady, 37 Ga. 660. A tiff was not entitled to recover judgment creditor is not obliged against the daughter, though she to follow all the fraudulent eon- had instituted no suit upon her veyances made by several execu- judgment; that she, having the tion defendants, but may allow title and possession, was not re- some to stand while he seeks to quired to bring an action in or- set aside others. First National 30 EQUITABLE EEMEDIES. [§ 16, or its management, will not be taken from the hands of those lawfully entrusted with it, but this rule has its exception where the legally authorized parties are in collusion with those holding property alleged to have been fraudulently transferred.^^ It seems that in such case that a judgment in favor of the creditor is not an essential prerequisite, for the reason that in bringing the action to reach fraudulently conveyed property of the decedent, the creditor acts as a trustee for the administrator. He does, in fact, that which the administrator should do.®^ The same rule does not apply, however, where the suit is instituted against a bank by a depositor. If the suit is instituted in the United States court by a stockholder, the 94 equity rule would require a demand on the corpo- ration to bring suit and a refusal, but a depositor does not occupy such relationship to the corporation as to require the enforcement of the rule."^^ (k) When an insolvent firm, in preparation for and in anticipation of a failure, secretes its property and uses its funds for improving the property of an employe, with whom a conspiracy is entered into to defraud creditors, equitable relief will be granted in behalf of the firm creditors. The same rule applies where the firm property has been transferred to a member of the firm at a time when the firm is insolvent.^* Bk. of Marshall v. Hosmer, 48 of the modes provided by law; Mich. 200. and if he has doubts as to the 51 Harvey v. McDonnell, 113 N. sufficiency of the evidence to set Y. 526; Wilson v. Bynum, 92 N. aside the transfer, he may re- C. 717; Dewey v. Moyer, 72 N. quire the creditor to give In- Y. 70; Bate v. Graham, 11 N. Y. demnity. Harvey v. McDonnell, 237; In re. Cornell, 110 N. Y. 351; supra. Fort Stanwlx Bk. v. Leggett, 51 02 Harvey v. McDonnell, 113 N. N. Y. 552. This is the rule In Y. 526. regard to trustees. If, in a case bs Foster v. Bank of Abingdon, of this kind, the refusal of the 88 Fed. Rep. 604. In this case administrator to act is based up- the suit was based on frauds and on what he considers the Injus- losses growing out of gross neg- tlce of the claim, he may require llgence of the directors, the creditor to establish It in one 6* People's Nat. Bank v. Loeff- 5 16.] GENEEAL SCOPE. 31 (1) The property of a debtor, though put into im- provements on another's land, may be reached if the purpose is to place it beyond the reach of creditors.^^ (m) A bill may be maintained by either prior or sub- sequent creditors against a corporation and its stock- holders to compel the latter to account for property dis- tributed among them without authority.^® (n) Under a decree for alimony in favor of the wife, the land of the husband may be levied on and sold, and a court of equity will protect the interest of the pur- chaser at such sale, as against the fraudulent transfers:; of the husband.^^ (o) The salary of a county commissioner was held to be subject to a creditor's bill in Illinois, if the salary was wholly due. And so where the debtor was a United States marshal, or a postmaster, or a custom house measurer, or a judge of a city court. But a municipal corporation cannot be garnisheed.®* (p) The shares of stock in a corporation, when taken ert (C. P.), 28 Pitts. L. J. N. S. bill may be the salary of the de- 22. And so where the firm prop- fendant as county commissioner. erty has been transferred to one The Singer & Talcott Stone Co. of the firm, at a time when the v. Wheeler, 6 111. App. 225. Cf. firm is insolvent. Johnston v. Browning v. Bettis, 8 Paige 568; Straus, 26 Fed. Rep. 57. McCoun v. Dorsheimer, Clark, 55 Dietz V. Atwood, 19 111. App. Ch. 144; Thompson v. Nixon, 3 96; Isham v. SchafCer, 60 Barb. Edw., Ch. 457; Smith v. , 317; Lynde v. McGregor, 13 Allen 4 Edw., Ch. 653. So much as is 182; Athey v. Knotts, 6 B. Mon. due when the bill is filed may 24. be reached. A municipal corpor- 5« McKusick V. Seymour, 48 ation cannot be garnisheed. Minn. 158-172. A fund lUegally Mayor v. Hoot, 8 Md. 95; Chealy distributed as a dividend to v. Brewer, 7 Mass. 260; Bulkly v. stockholders may be reached by Eckert, 3 Barr. 368; Burnham v. judgment creditors. Grant v. The City, 15 Wis. 193; McDou- Southern Contract Co. (Ky.), 47 gall v. Board, etc., 4 Minn. 184; S. W. 1091. In a proceeding Mayor v. Rowland, 26 Ala. 498; against stockholders to recover Bank v. Dibrell, 3 Sneed 379; unpaid stock, all stockholders Hawthorn v. St. Louis, 11 Mo. need not be proceeded against. 59; Triebse v. Colburn, 64 111. Siegel V. Andrews, 78 111. App. 376. The salary of a county su- 611. perintendent of common schools 57 Storrs V. Storrs, 58 Mich. 55. cannot be subjected to the pay- ee The indebtedness which may ment of a judgment against him form the basis of a creditor's in an equitable proceeding under S2 EQUITABLE EEMEDIES. [§ 16. by an assignee in exchange for property fraudulently transferred, may be reached by a creditor's bill and sub- jected to a sale for the payment of creditor's debts. It is a rule in equity that where a conveyance or transfer of property is set aside solely on the ground that it is constructively fraudulent as to creditors, it will yet be upheld to the extent of the actual consideration and be vacated only as to the excess. Not so, however, where the grantee participates in the f raud.°* (q) The plaintiffs judgment may be based upon bastardy proceedings. In such case, the equitable pow- ers of the court are exercised to make effectual the remedy given by statute.®" (r) In an equitable proceeding to reach the property and effects of the debtor and apply the same to the sat- isfaction of plaintiff's indebtedness where, owing to the nature of the thing sought to be reached, a common law writ is inadequate and ineffectual the intangible right of an inventor in a patent or of an author in a copyright may be reached.®^ Ky. Code Civ. Proc. Sec. 439. v. Aird, 6 Wall. 78; Metropolitan Heilbronner v. Posey (Ky.), 45 Bk. v. Godfrey, 23 111. 579; Moore S. W. 505. V. Wood, 100 111. 451; Hurd v. 59 Where a fraudulent transfer Ascherman, 117 111. 501; Blan- is made and the assignee trans- nerhassett v. Sherman, 105 U. S. fers the property to a corpora- 100. tion for shares of stock therein, eo PierstofE v. Jorges, 86 Wis. the court on a creditor's bill will 128; Baker v. Shote, 65 Wis. 50. subject the shares of stock to ei Ager v. Murray, 105 TJ. S. sale for the payment of creditors. 126; Gillett v. Bate, 86 N. Y. 87; Beidler v. Crane, 135 111. 92. Cf. Pacific Bk. v. Robinson, 57 Cal. Phelps V. Curts, 80 111. 109; Lob- 520; Stephens v. Cady, 14 How. stein V. Lehn, 120 111. 549. If a 528; Pacific Bk. v. Robinson; 57 transfer is for a valuable con- Cal. 520; Wilson v. Martin- sideration ample in amount, and Wilson Automatic Fire Alarm not, as a matter of fact, intended Co., 151 Mass. 515; McDermott to accomplish covinous and dis- v. Strong, 4 Johns. Ch. 688; honest purposes, yet if it in- Spader v. Davis, 5 Johns. Ch. volves trusts of a secret nature, 280. And see Carver v. Peck, 131 not disclosed by the writings, the Mass. 291, where it was held that law regards the transaction as the suit could not be maintained lacking the element of good faith under Mass. Gen. St , Ch 113 and conclusively infers fraud. Sec. 2, nor under the general Beidler v. Crane, supra; Lukins, practice without a judgment. §16.] GENEEAL SCOPE, 33 (s) The debtor's equitable interest in personal prop- erty cannot be seized on execution, but may be reached by a proceeding in equity, as when the debtor has an equity of redemption under a chattel mortgage, and there being no other property .^^ (t) Generally, recovery may be had under a credi- tor's bill to reach the surplus arising from a sale under a mortgage foreclosure.®* (u) Money of a husband taken by his wife and used in the purchase of land in her own name, or the income of a life estate devised by a husband may be reached.®* The incorporeal and intangible right of an inventor in a patent or an author in a copyright can- not be taken on execution, but a general assignment by the debt- or will pass the right to the as- signee, or, at any rate, entitle the assignee by proper proceed- ings to compel the debtor to con- vey to him for the benefit of creditors. Carver v. Peck, 131 Mass. 291; Stephens v. Cady, 14 How. 528; Stevens v. Gladding, 17 How. 447; Hesse v. Stevenson, 3 B. & P. 565; Longman v. Tripp, 2 B. & P. (N. S.) 67; Mawman v. Tegg, 2 Russ. 385; Ashcraft V. Walworth, 1 Holmes C. C. 152; Murray v. Ager, 20 Pat. Off. Gaz. 1311 (N. S. 358) ; Doud v. Bonta Plate Glass Co., 28 Pitts. 6 L. J. Letters patent owned by a for- eign corporation may be reached and applied in payment of a debt of the corporation, and in such case, if necessary, the master may be ordered to make the con- veyance. Wilson V. Martin-Wil- son, etc., Co., 151 Mass. 575. 62 A debtor's equitable estate in personal property cannot be seized and sold under an execu- tion. The judgment creditor is entitled to the aid of a court of equity to subject the debtor's equity of redemption in a chat- tel mortgage to the satisfaction of the debt, the debtor having no other property. Myers v. Amey, 21 Md. 302. The beneficial inter- est of the debtor in real estate may also be reached. Farnham V. Campbell, 10 Paige Ch. 598; Congdon v. Lee, 3 Edw., Ch. 304. 83 Wiggln V. Heywood, 118 Mass. 514. (See Statute.) Judge V. Herbert, 124 Mass. 330; Wes- sel V. Brown, 10 Lea 685. But see Eastern Electric Cable Co. v. Great Western Mfg. Co., 164 Mass. 274, 41 N. E. 295; Carter V. Wyrick (Tenn.), 42 S. W. 159. Bonds issued by a railroad com- pany, but not as a substitute for an equity of redemption pur- chased by it, are not subject to a creditor's bill filed to reach the equity of redemption. Merriman V. Chicago & E. I. R. Co. 66 Fed. Rep. 663, and 64 Fed. Rep. 535. «4 Bresnihan v. Sheehan, 125 Mass. 11. The income of an es- tate for life devised to a wife by her husband for her comfort and support is an absolute gift to the wife, and may be reached by her creditors. Maynard v. Cleaves, 149 Mass. 307. It would be otherwise if the testator gave a qualified estate instead of an absolute one, but the language of the testator must clearly show an intention not to make the de- vise liable for her debts. Broad- way Nat. Bk. V. Adams, 133 Mass. 170; Foster v. Foster, 133 Mass. 179; Sears v. Choate, 146 Mass, 34 EQUITABLE EEMEDIES. [§16. (v) Money to become due the debtor on a contract.®^ (w) The separate estate of a married woman.^® (x) The interest of a partner in a copartnership, after partnership creditors have been paid." (y) Money due the debtor on a life insurance policy.^* 395; Cf. Baker v. Brown, 146 Mass. 369. 65 Love V. Bret Harte, 118 Mass. 271. But see Donovan v. Finn Hopfe., Ch. 59. Though formerly doubted, the right of a judgment creditor to reach money due the debtor is no long- er questioned. McMannomy v. Chicago, D. & O. R. Co., 167 III. 497. To reach money due on a note see Blackman v. Houssels, (Tex.) 35 S. W. 511. Where there is no equitable ground of relief it has been doubted if the court has power to reach the choses in action of the debtor. Greene v. Keene, 14 R. I. 388. This is based upon the idea that at com- mon law a lien upon choses in action could not be acquired by a judgment and execution. Green v. Tautum, 19 N. J. Eq. 105. That they may be reached, see Adams V. Cross, 27 111. App. 313. 66 Robinson v. Trofitter, 109 Mass. 478. See Hulme v. Tenant, 1 Bro. C. C. 16; Gardner v. Gard- ner. 22 Wend. 526; Vanderhey- den v. Mallory, 1 Compst. 452; Leaycraft v. Hedden, 4 N. J. Eq. 512; Oakley v. Pound, 14 N. J. Eq. 178. 67 Eager v. Price, 2 Paige, Ch. 334. Where an action is brought by creditors to charge an estate in the hands of executors and trustees for debts created by the surviving partner after the death of his copartner where the sur- viving partner is Insolvent the action is not maintainable even though it is provided by the partnership agreement that In case of death the business is to be continued by the survivor for a term of years. Stewart v. Rob- inson, 115 N. Y. 328. When a partner died directing in his will that his executors should con- duct his interest in the business of the firm in conjunction with the personal representatives judgments were subsequently rendered in a suit which was brought, among other things, to set aside executions, it was held that the executors were co- partners in the business and the claims were against the partner- ship primarily and not upon tes- tator's general estate. Columbus Watch Co. v. Hodenpyle, 135 N. Y. 430. A bill to reach money alleged to be due under contract for labor under an assignment which is alleged to be colorable and to protect the interest of the parties against creditors where it appears that the as- signment was bona fide and ab- solutely necessary to protect the copartnership who had advanced to the debtor large sums of mon- ey was not sustained. Stamets V. Quinn, 27 N. J. Eq. 383. Cred- itors' bill may be filed to reach separate property of each part- ner on a joint execution. Ran- dolph V. Daly, 16 N. J. Eq. 313. Notes given by a purchaser of partnership property of an in- solvent firm on account of the purchase money made payable to the order of the wife of one of Its members and by her hus- band given to her are void in her hands as to creditors of the firm. Van Doren v. Stickle, 24 N. J. Eq. 331. The interest of a partner in the firm where he has . made an Individual assignment cannot be reached by firm cred- itors to the exclusion of indi- vidual creditors under the as- signment. Goodwin v. Einstein, 51 How. Pr. 9. «8 Anthracite Ins. Co. v. Sears, § 16.] GENERAL SCOPE. 35 (z) Money due on a judgment for personal injuries on an assigned claim of the debtor therefor.®^ (aa) Or the proceeds of property fraudulently sold."" (bb) Or to reach the proceeds due on a note secured by mortgage on real estate where the note has been transferred to a person beyond the jurisdiction of the court in fraud of creditors.''^ (cc) Or the principal and income of a legatee's in- terest in a trust fund in the hand of a trustee ( Mass. ) .''^ (dd) Or the right of a widow to a dower interest in land.^3 (ee) Or to reach the equitable interest of the debtor in land purchased by him.''* 109 Mass. 383. The insurance company may be a foreign corp- oration. A judgment creditor may have an interest in a con- tract for life insurance arising under a statute permitting a wife to insure her husband's life where the premiums paid by the debtor exceed $500.00 and the right of the judgment creditor may be impressed upon the con- tract in an action where the companies and all persons inter- ested are parties, though the money may not be due under the policies. Stokes v. Amer- man, 121 N. Y. 337; S. C. 31 N. Y. S. R. 391. It was also held in this case that premiums paid by the debtor from his own property on a policy for the benefit of his wife in excess of $500 could be recovered before the death of the husband and wife. 69 Where one person has ob- tained a judgment for personal injuries a bill in equity may be maintained to compel payment to a creditor out of the judg- ment, though the claim for inju- ries on which the judgment was rendered had been assigned be- fore judgment to another. Rice V. Stone, 1 Allen 566. "> Cook V. Smith, 3 Sandf . Ch. 334. 71 Moody V. Gay, 15 Gray 457. A bin cannot be maintained to obtain the benefit of a mortgage given by a person in the state to a person beyond such juris- diction as security for a note held by the latter, or some person unknown. Sanger v. Bancroft, 12 Gray 365. '2 Forbes v. Lathrop, 137 Mass. 523. '3 McMahon v. Gray, 150 Mass. 289; Payne v. Becker, 87 N. Y. 153; Tompkins v. Fonda, 4 Paige 448; Davison v. Whittlesey, 1 MacArthur 163; Boltz v. Stolz, 41 Ohio St. 540. This right is based on the principle that in equity a widow can assign her right of dower. It is a valuable right in property and is capable of being assigned. McMahon v. Gray, 150 Mass. 289; Lamar v. Scott, 4 Rich. 516; Robie v. Flan- ders, 33 N. H. 524; Potter v. Ev- eritt, 7 Ired. Eq. 152; Strong v. Clem, 12 Ind. 37; Payne v. Becker, 87 N. Y. 153; Pope v. Mead, 99 N. Y. 201; Peteflsh v. Buck, 56 111. App. 149; Thomp- son V. Marsh, 61 111. App. 269. 74 Ellsworth V. Cuyler, 9 Paige 418. But not until legal reme- 36 EQUITABLE EEMEDIES. [§ 17. (ff) A creditor of a deceased person can maintain an independent suit in equity to set aside for fraud a sale of real estate of the deceased made under the order of court, though he was a party of the proceeding, where it appears that he was not a party to the fraud and was ignorant of it until after confirmation or homologation of the sale.''^ (gg) To reach the individual interest of the judg- ment debtor in the proceeds of a judgment recovered by such judgment debtor as administrator for the negli- gent cause of the death of his son.''® (hh) Where the statute authorize® a creditor to file a bill and recover usury paid by the debtorJ''^ (ii) To reach a note pledged as collateral/* (jj) To reach a vested remainder belonging to the debtor/* (kk) To reach money of the debtor deposited in a bank in the name of his wife.^" § 17. When Not Sustained.— (a) A bill will not be sustained to reach property purchased with the money of an estate and conveyed to the executrix in a suit by the individual creditors of such executrix.^* dies are exhausted by the return sale. Johnson v. Waters, 111 U. of an execution unsatisfied. S. 640. And so where the land Grosvenor v. Allen, 9 Paige Ch. of the testator has been divided 74. And so where the interest among his representatives, it is of the debtor in land is of such subject to a judgment obtained nature as not to be liable un- against the testator in his life- der execution or where the title time. Davis v. Whipp, 48 S. W. would not pass under a sale un- 984. t!u %^''^^'Z Q^^n"^'''^ ^- ^'"" "Casady v. Grimmelman. 77 sell, 77 N. W. 390. I,j_ -^^ j^Ogy 75 A creditor of a deceased " _ „' ' ,, . „„ „ _„„ person can maintain an inde- '1?''^° ^- ^'^®- ^^ ^a. 728. pendent suit in equity to set ,rr^°,°f,7- ^^^^' ^^ Humph. aside for fraud a sale of real es- ^^^enn.) 541. tate of the deceased made un- ''^ Nichols v. Levy, 72 U. S. 433. der the order of court though he '" May be filed to reach money was a party of the proceeding of debtor deposited in a bank in where it appears that he was not name of wife. GuUickson V. a party to the fraud and was ig- Madsen, 87 Wis. 19. norant of it until after confirm- si Alterauge v. Christiansen, 48 atlon or homologation of the Mich. 60. For a case holding 117.] GENEEAL SCOPE. 37 (b) A creditor's proceeding will not be sustained in behalf of a creditor, who has taken a deed of trust upon his debtor's land and bid thereon a part of his debt, for the purpose of setting aside a prior recorded deed on the ground that it was without consideration and in fraud of creditors. In such case he occupies the posi- tion of a purchaser rather than that of a creditor.^^ (c) A mortgagee who has not offered to surrender his security or to sell the mortgaged property is not entitled to file a creditor's bill. (d) Where it is sought to reach an indebtedness due to the debtor who is a non-resident from a resident creditor of the debtor, and there is no personal service on the latter and he does not enter his appearance, the bill will not be maintained for the reason that the cred- itor would not be protected outside of the state in his payment under the decree.^* (e) The land sought to be reached and applied in that the facts were not sufiacient to warrant the relief prayed for see Lehman v. Meyer, 67 Ala. 896, overruling Crawford v. Kirksey, 50 Ala. 590. 82 Tyler v. Hamblln, 11 Helsk 152. Magill V. Hyatt, 80 Md. 253. 83 Lave V. Bowen, 2 Jones' Bq. (N. C.) 49; Nicholson v. Leavitt, 4 Sandf. N. Y. 252. This case is based upon the idea that the equitable proceeding is based upon a judgment lien rather than an exhaustion of legal rem- edies. Cf . Bailey v. Ryder, 10 N. Y. 363. In Sercomb v. Catlin, 128 111. 556, it is said that "Where a court of equity has jurisdiction over the person of a defendant, it is familiar learning that it may make decrees and orders affecting his property which is situated outside of its jurisdiction." Langford v. Lang- ford, 5 L. J. (N. S.) Ch. 60; Chaf- fee V. Quidnick Co. 13 R. I. 442; Behon v. Foster, 4 Allen 545; Vermont R. Co. v. Vermont R. Co., 46 Vt. 792. Mr. Jus- tice Story says: "But al- though the courts of one country have no authority to stay proceedings in the courts of another, they have an un- doubted authority to control all persons and things within their own territorial limits." Story Eq. Jur. Sees. 899, 900. And see Cole V. Cunningham, 133 U. S. 107; Pennoyer v. Nefl, 95 U. S. 714. Mr. Justice Swayne in Phelps V. McDonald, 99 V. S. 298, says: "Where the necessary parties are before a court of equity it is immaterial that the res of the controversy, whether it be real or personal property, is beyond the territorial juris- diction of the tribunal." And see Penn v. Lord Baltimore, 1 Ves. Sr. 444; Massie t. Watts, 6 Cranch 148; Watkins v. Holman, 16 Pet. 25; Corbett v. Nutt, 10 Wall. 464. 38 EQUITABLE EEMEDIES. [§ 17. payment of the plaintiff's debt will not, if beyond the state, be subject to the lien of the judgment, and, there- fore, though fraudulently conveyed, cannot be the basis of a creditor's suit. This doctrine, while theoretically correct, is not strictly true for the reason that the debtor may be subject to the jurisdiction of the court, and by reason of its power over him may compel a con- veyance by him to a receiver and enforce its jurisdiction in a proceeding in the nature of a personam action rather than in rem. (f ) Where a corporation deposited certain funds for the benefit of all creditors, a suit will not be maintained in behalf of an individual creditor for his personal bene- fit and to the prejudice of other creditors, unless, indeed, the funds are sufficient to pay all creditors in full, in which case the other creditors should be brought into court and their rights protected. It will be seen else- where that a trust fund for the benefit of all creditors cannot be appropriated for the individual benefit of one.^* (g) In jurisdictions where the doctrine prevails that a judgment lien is a necessary prerequisite to the filing of a creditor's bill, the lien must be a subsisting lien. iThus, where an attachment is levied and before judg- ment the debtor dies and judgment is taken against the administrator only, the bill cannot be based on the attachment, as the lien is dissolved by the debtor's death.*^ (h) The death of an administrator before the estate is administered does not entitle a creditor of the de- ceased debtor to institute a proceeding in equity where 84 Crowell V. Cape Cod Ship of nor lien on a fund in court Canal Co., 164 Mass. 235. cannot Intervene and claim such 85 Phillips V. Ash, 63 Ala. 414. fund, though he is a creditor. A person who has no assignment Tuck v. Manning, 150 Mass. 211. § 17.] GENEEAL SCOPE. 39 the probate, or orphan's court, affords an adequate remedy. A successor of the deceased executor may be appointed, usually provided for by statute.^® (i) The mere fact that an administrator has power given to him by statute to sell real estate to pay debts of the decedent does not authorize him to file a bill to cancel and set aside a fraudulent conveyance made by the intestate. There must be found some specific power to entitle him so to do.®'' (j) And where an administrator is authorized by law to set aside a conveyance made by the decedent in fraud of creditors, it is essential that there shall be a creditor of the estate whose claim has been presented. This is necessary in order to bring the case within the terms of the statute.®^ (k) A creditor's bill will not lie against a city to reach money due from it to a contractor. This doctrine is based upon the ground of public policy. To permit the great public duties of a city to be imperfectly per- formed in order that individuals may collect their pri- vate debts would be to pervert the great objects of the city's creation. Its efficiency for the purposes of government would be impaired by any other rule. A municipal corporation cannot properly be turned into an instrument or agency for the collection of private debts. It exists simply for the public welfare, and can- not be required to consume the time of its officers or the money in its treasury in defending suits in order that one private individual may the better collect a demand due from another.®' se Magill v. Hyatt, 80 Md. 253. affirming 58 111. App. 273; Cham- 87 Majorowicz v. Pay son, 153 berlain v. Gaillard, 26 Ala. 504; III. 484. City of Memphis v. Laskl, 65 88 Field V. Andrader, 106 Cal. Tenn. 511; People ex rel. v. 107. Omaha, 2 Neb. 166; Hightower soAddyston Pipe & S. Co. v. v. Slaton, 54 Ga. 108; VV^allace City of Chicago, 170 111. 580; v. Sawyer, 54 Ind. 501; School 40 EQUITABLE EEMEDIES. [§ l^. (1) A suit will not be maintained in the United States Circuit Court to set aside fraudulent conveyances made by a surety on a bond based on a judgment against the principal in another district to which the surety was not a party.®" (m) A court of equity will not assume jurisdiction of the sale of chattels for the benefit of creditors and those having legal liens merely upon the ground that a better price can be obtained for all parties than in a common law proceeding.®^ (n) Where land has been purchased under a contract and the contract has been violated and for that reason has been rescinded, it cannot be taken under a creditor's bill, though part of the purchase money was paid there- on.®^ (o) Property purchased by a husband in good faith and with no fraudulent intent may be conveyed to his wife, and such conveyance will be good and valid as to subsequent creditors where he is not indebted at the time."^ (p) In order that a recovery may be had under a bill filed to set aside a conveyance alleged to have been fraudulent as to creditors, it is incumbent on the plain- tiff to show that the property conveyed was substan- tially all of the debtor's property, or that at the time of the conveyance he was insolvent, or was rendered so Dist. V. Gage, 39 Mich. 484; Mc- warrant In the hands of a coun- Dougal V. Board of Sup., 4 Minn. ty clerk, which cannot be 184; Burnham v. City of Fond du reached by an execution or by Lac, 15 Wis. 193; and see Mer- the ordinary proceedings in aid win V. City of Chicago, 45 111. thereof. Clarke v. Bert, 2 Kan. 133. A creditor's bill can be App. 407. maintained against a municipal 9" United States v. Ingate, 48 corporation as a party defend- Fed. Rep. 251. ant. Hinsdale Doyle Granite si Lambert v. Miller, 37 N. J. Co. V. Tllley, 10 Biss. C. Ct. 572. Eq. 344. A creditors' bill may be main- »2 Alexander v. James, 13 111. tained under Kan. Civ. Code, 221. Sec. 481, to subject to the pay- 93 Curtis v. Fox, 47 N. T. 299. ment of a judgment a county §17.] GENEEAL SCOPE. 41 by the conveyance. If it does not so appear, the bill will not be sustained."* (q) Where the grantee is free from fraud on his part and enters into possession, makes improvements and pays off incumbrances upon property, the deed will not be set aside at the instance of subsequent creditors with- out compensation for his expenditures.®' (r) A patent-right is not an interest that can be reached by a bill in equity, under Gen. St. Oh. 113, § 2, CI. 11, Mass.86 (s) Nor will a creditor's bill be sustained where the money sought to be reached is for services rendered by the debtor's assignee in completion of a contract unful- filled by him.®'' ( t) Nor where the assignee of a chose in action cannot sue in his own name.®* (u) To recover rents due or to become due.®® 9*Kaiii V. Larkin, 131 N. Y. 300. 95 A creditor's biU will be sus- tained in behalf of a subsequent creditor where the debtor con- veys property to defraud cred- itors to his brother-in-law, who entered into possession, made improvements and paid off in- cumbrances thereon, but the val- ue of the improvements and the amount due on the mortgages must first be paid. King v. Wil- cox, 11 Paige Ch. 589. 96 A patent right owned by a resident of Massachusetts is not an interest which can be reached by his creditor by bill in equity under Mass. Gen. St. ch. 113, Sec. X cl. 11. Carver v. Peck, 131 Mass. 291; nor under the general prac- tice without a judgment. Cf. Stevens v. Gladding, 17 How. 447; Ashcraft v. Walworth, 1 Holmes C. C. 152; Gordon v. An- thony, 16 Blatchf. C. C. 234. 97 Dearborn v. Kemble, 5 Allen 372. 98 A bill in equity will not be maintained merely on the ground that an assignee of a legal right cannot sue in his own name. Walter v. Brooks, 125 Mass. 241; Hammond v. Messenger, 9 Sim. 327; Dheg- etoft V. London Assurance Co., Mosely's Kept. 83; Fall v. Chambers, Mosely's R-ept. 193; Motteux V. London Assurance Co., 1 Atk. 545; Cator v. Burke, 1 Bro. Ch. 434; Carter v. United States Ins. Co., 1 Johns. Ch. 463; Adair v. Winchester, 7 Gill & J. 114; Moseley v. Boush, 4 Rand 392; Smiley v. Bell, Mart & Yerg. 378; Ontario Bk. v. Mumford, 2 Barb. Ch. 596. See contra Story Eq. Jur., Sec. 1057 a; Story Eq. PI., Sec. 153; Townsend v. Car- penter, 11 Ohio 21. If this were not the law all that would be necessary to transfer a common law action to a court of chan- cery would be to make an as- signment of the legal right. 99 Rents due and to become due cannot be reached. Those due may be reached at law and 42 EQtriTABLE EEMEDIES. [§ 17. (v) To reach the debtor's distributive share of an estate in the hands of an administrator.^ (w) Nor to recover the balance due on a deficiency decree or judgment, after a foreclosure sale^ until the master's report showing a deficiency has been confirmed by the court.^ (x) Nor where the debtor is in custody of an officer under a writ of ca. sa,^ (y) Nor to reach trust property where by will the property is rendered inalienable and not subject to be- ing reached by creditors.* (z) Nor where the debtor is a foreign corporation and its property is in the hands of a receiver appointed in the state where the corporation is located before judgment rendered.^ (aa) Nor to reach a promissory note given by a resi- dent partner to his former partner, who is a non-resident of the state, in a proceeding by firm creditors.® those not due cannot be reached Pa. St. 151; Steib v. Whitehead, In equity. Schlesinger v. Sher- 111 III. 247; Lampert v. Haydel, man, 127 Mass. 206. 20 Mo. App. 616; Chambers v. 1 Emery v. Bidwell, 140 Mass. Smith, 3 App. Cas. H. of L. 795; 271; Boston Bk. v. Minot, 3 Mete. Cf. Perkins v. Hayo, 3 Gray 405; 507; Vantine v. Morse, 104 Mass. Russell v. Gruwell, 105 Mass. 275. 425; Brahman v. Stiles, 2 Pick. 2 Bank of Rochester v. Emer- 460; Hall v. Williams, 120 Mass. son, 10 Paige Ch. 115. 344; Sparhawk v. Cloon, 125 3 Stillwell V. Van Epps, 1 Mass. 263. But this doctrine is Paige Ch. 615; Horn v. Horn, 1 not applicable where there is in Ambler's Rep. 79 ; Jackson v. the will no limitation over of the Benedict, 13 John. 534. estate in any contingency to any * The founder of a trust may other person, and where there is secure the income of it to the no limitation on the power of object of his bounty by provid- disposal. Sears v. Choate, 146 ing that it shall not be alien- Mass. 395; Sparhawk v. Cloon, able by him or be taken by his 125 Mass. 263. Trust property creditors. Baker v. Brown, 146 held in trust for a debtor to re- Mass. 369; Broadway Nat. Bk. ceive the rents, profits and in- V. Adams, 133 Mass. 170. And come to be applied to the sup- it need not be in express terms port of the cestui que trust, but may be gathered from the Degraw v. Clason, 11 Paige Ch. instrument. Cf. Bartholomew v. 136. Weld, 127 Mass. 210; Baker v. b Thomas v. Merchants Bk. 9 Brown, 146 Mass. 369; Broadway Paige 216. ?in*' S?- y- ■*- Shackleford v. Todhunter, 4 shown by a preponderance of evi- 111. App. 271. It is a necessary dence. Young v. Stearns, 3 111. averment that the plaintiff was App. 498. The plaintiff assumes a creditor when the alleged the burden of proof in case where fraudulent conveyance was it is alleged that judgments and made. Merrel v. Johnson, 96 111. claims against a debtor in favor 224; Moritz v. Hoffman, 35 111. of near relatives are fraudulent. 553; Uhre v. Malum, 17 111. App. Cameron v. Savage, 37 III. 172 § 103.] PLEADING AND PEACTICE. 135 intended to contract debts and for the payment of which he had reasonable ground to believe and believed he would not be able to pay.^^ Where a person applies for credit and refers to a third person for information, and such third person makes representations concerning property owned by the ap- plicant for credit it is equivalent to a statement made by him in person. Qui facit per alium facit per se.^^ Where the grantee has made admissions that the grantor owned certain land it will not operate as an estoppel until it is made to appear that the action was brought on the faith of such alleged admissions.** ( k ) Where the statute prescribes a remedy based upon certain conditions or state of facts it is sufficient to frame the averments in the language of the statute.*^ (1) The right of recovery depends upon subsisting facts at the time of the commencement of the suit, and not upon a state of facts that may subsequently exist.*'' (m) Where a bill is filed to reach property in the 32 Cunningham v. Williams, 42 ant, in property, etc., in the gen- Ark. 170. eral terms of the statute, either 33 Hopkins v. Joyce, 78 Wis. positively or In the alternative. 443. ' Brown v. Bates, 10 Ala. 432. It 34 Where the grantee has made need not be specially alleged that admissions that hjs grantor the execution which issued on owned certain land it will not the judgment at law, directed operate as an estoppel until it the amount to be made of the Is made to appear that the ac- "land and tenements" of the tion was brought on the faith defendant; the form of such writ of such alleged admissions. Con- prescribed by the statute au- key V. Hawthorne, 69 Wis. 199. thorizing the levy on and sale of Admissions that the land be- the "lands," etc., will, in the longed to the grantor made by a absence of proof, be presumed to grantee will overcome the evi- be regular. Brown v. Bates, dence that there was a sufficient supra. consideration for the land and ss The bill is based upon a 11a- that it was taken without any bility subsisting when the suit is intention to hinder and delay commenced, and a decree can creditors. Conkey v. Hawthorne, only be had when the facts sub- supra, sisting at the commencement of 35 Under the act of 1844, of the suit make out a case for Alabama, relating to the remedy equitable cognizance, and these of judgment creditors. It is per- facts must be alleged in the bill, missible to allege in the bill the Rives v. Walthall, 38 AJa. 329. supposed interests of the defend- 136 EQUITABLE EEMEDIES. [§ 103. hands of a fraudulent grantee it is not necessary to allege a deficiency of the personal estate of the deceased debtor, if at the hearing the fraud is substantiated, and the personal assets are proven to be wasted or insuffi- cient.^^ (n) It is not essential to the sustaining of a creditor's bill as against property fraudulently conyeyed that there shall be an allegation that the defendant has no other property liable to satisfy the plaintiff's judgment.^* (o) Where it is sought to reach property given by a husband to his wife, it is necessary in order to recover to allege and prove ( 1 ) that he was insolvent at the time or (2) that the gift rendered him unable to meet his legal obligations, and in the absence of proof it will not be pre- sumed that other debts then existed.^^ (p) But where facts and circumstances are alleged they may be of such nature and character as to warrant a presumption of insolvency.*" (q) a?he relation of debtor and creditor between a principal and his surety so as to enable the latter to avoid a fraudulent conveyance of the former commences at the date of the obligation of the surety — when he her comes bound — and not when he pays the debt, and the averments should be so framed.*^ (r) The allegations of the bill and the proofs there- 37 McLaughlin v. Bank of Po- by showing that plaintiff was a tomac, 48 U. S. 220. creditor at the time, that the 38 The complaint must clearly grantor was insolvent, or such show that the plaintiff has ex- facts and circumstances as that hausted his legal remedies and insolvency would be presumed been unable to collect his judg- therefrom. Moritz v. Hoffman, 35 ment, but it need not allege in 111. 553. addition that the debtor has no "i Choteau v. Jones, 11 111. 300; other property to satisfy the Howe v. Ward, 4 Greenleaf 195; judgments than that described. Thompson v. Thompson, 19 Me. Doskam v. Neff, 79 Wis. 161. 244; Carlisle v. Rich, 8 N. H. 44. 89 Bittinger v. Kaston, 111 111. A surety cannot ask the aid of 260- a court of equity against the *o A voluntary conveyance for debtor or a creditor until his the benefit of wife or a child of debt is due. Hinckley v. Pflster, the grantor may be impeached 83 Wis. 64. § 103.] PLEADING AND PEACTICE. 137 under must correspond with each other. The case made by the evidence must sustain the case made by the bill. Where the allegation of fraud made by the bill consists in an alleged fraudulent conveyance, without considera- tion, from a husband to his wife for the purpose of de- frauding creditors, it is not sustained by proof of an un- lawful preference made in violation of a voluntary as- signment act.*^ If the plaintiff in chancery can recover at all it must be upon the case made by the bill. He will not be per- mitted to recover upon one case made by the bill and another made by the proof. This would work an injus- tice to the defendant. According to the usually prevail- ing practice the bill must be amended.** (s) T\"hether a bill contains such averments as are required by the rules of court cannot be raised for the first time on appeal.** (t) The consideration of the debt is a matter that need not be alleged in the bill. That matter became res ad- judicata with the rendition of the judgment and if it were otherwise the subject matter thereof could not be reached in a collateral proceeding as elsewhere seen.*^ ^2 Coale V. Moline Plow Co., ential as to creditors in contra- 134 111. 350. On a bill to set vention of the voluntary assign- aside a trust deed and a deed ment act. A creditors' bill made thereunder on the ground brought by an administrator will that the same was fraudulent as not be held to have been im- to creditors, the complainant properly brought because the cannot take advantage of the judgment on which the action fact that the notice of the trus- was based was entered in the tee's sale was in violation of the name of the original plaintiff at- statute in not setting forth the ter the administrator was sub- amount due, no such allegation stituted as plaintiff, where an being made in the bill. Sawyer order nunc pro tunc was made v. Bradshaw, 125 111. 440. after the commencement of the *3 Coale V. Moline Plow Co., 134 action, correcting the mistake. 111. 350. In this case the alle- Hunt v. Johnston, 105 la. 311. gation of the bill was that a con- as to creditors and the proof 108. was that this deed was prefer- 138 EQUITABLE EEMEDIES. [§ 104. (u) In order to sustain a suit against the heirs of a deceased partner to subject real estate descended to them from the father it should be averred that the sur- viving partner is insolvent and that the debt could not be made in the ordinary course of administration.*® (v) Where it is sought to reach a deceased debtor's interest in an estate devised to him which is subject to a life estate in a third person who is still alive it must be shown that his personalty is insufficient, and that he was the owner of such estate in remainder.*'^ (w) Where suit is brought to set aside a foreclosure sale under a prior mortgage it is not necessary to allege that the premises are worth more than the mortgage.** §104. Abatement. — (a) Where a suit is brought by one creditor for all creditors it cannot be pleaded in abatement or in bar of a subsequent suit by a different creditor in a different right until a decree has been ren- dered in the former suit.*^ (b) Where the suit is based upon a judgment the pay- ment of the judgment operates as an abatement of the *s Garvin v. Stewart's Heirs, discover assets and to enforce a 59 111. 229. This would not prob- claim against an estate, real and ably be the rule if it was neces- personal, in the hands of heirs sary to settle the conflicting or devisees, is not demurrable be- rights and equities of all parties cause filed within the six months and thus prevent a multiplicity after the appointment of the of suits at law. Id. Vansyckle personal representative of the V. Richardson, 13 111. 171. debtor's estate, given by W. Va. " A deceased debtor's interest Code, Ch. 86, Sec. 7. Poling v. in real estate devised to him, Huffman, 39 W. Va. 320. subject to a life estate in a third *s Swain v. Lynd, ■ (Minn.) 76 person still living, may be sold N. W. 958. for the payment of his debts, 49 Sweeney Mfg. Co. v. Gold- where his personalty is insufla- berg, 66 111. App. 568; 1 Daniel cient, and an averment of such Ch. PI. & Pr. 35, 794; Macey v. an estate, and such insufficiency Childress, 2 Tenn. Ch. 23; Moore is sufficient to entitle the com- v. Holt, 3 Tenn. Ch. 141; Innes v. plainant to a decree for the sale Lansing, 7 Paige Ch. 583; Rogers of such estate, when the indebt- v. King, 8 Paige Ch. 210. They edness to him is admitted by the may be consolidated, however, on answer. Robertson v. Parks, 3 a proper motion. Russell v. Md. Ch. 65. A creditors' bill to Chicago Tr. & S. Bk., 139 111. 538. §§ 105, 106.] PLEADING AND PKAOTICE. 139 equitable action. Payment may also be shown as a de- fense to the suit.^" (e) And so where subsequent to the filing of a cred- itors' bill to reach several pieces of land a mortgage is foreclosed against one of the pieces and the title taken in the plaintiff and subsequently conveyed to the alleged fraudulent grantee who pays therefor there must be an abatement as to such piece.^^ (d) Where no levy has been made and the property has not been taken into possession or control by the court the death of the judgment debtor has been held to be a suspension of the suit.^^ § 105. Verification. — Under a creditor's bill where an injunction is prayed for or a receiver is to be appoint- ed the bill should be sworn to. Frequently the veri- fication of the bill or petition is required by the statute or code.^^ § 106. Prayer of Bill or Petition.— The bill should pray for the specific relief which the case made by the bill entitles the plaintiff to have, but under a prayer for gen- eral relief the plaintiff may have such special relief as is consistent with the case made by the bill. If the par- 50 Zweig V. Honicon Iron & os Brabrook, etc., Co. v. Beld- Mfg. Co., 17 Wis. 362. The sat- ing Bros., 40 111. App. 326; Sieg- isfaction or discharge of a judg- mund v. Ascher, 37 111. App. 122. ment may be shown as a defense As to sufiBciency of verification against a creditors' bill to en- see Slegmund v. Ascher, 37 111. force the judgment after revival App. 122; Brabrook, etc., Co. v. on scire facias, as well as to de- Belding Bros., 40 111. App. 326; feat the revival. Bickerdike v. Deimel v. Brown, 35 111. App. 303 ; Allen, 157 111. 95. Heffron v. Rice, 40 111. App. 244; 51 Shawano Co. Bank v. Koep- Sterlen v. Neustadt, 50 111. App. pen, 78 Wis. 533. 378; Reboul's Heirs v. Behrens, B2 The right to prosecute a 5 La. 79; Catlett v. McDonald, 13 creditor's bill is suspended by La. 45; Daniel's Ch. Pr. 2170; tlie death of the judgment debt- Barbour's Ch. Pr., Vol. 1, p. 44, or, where no levy has been made 144. Unless waived the insuffi- and the property has not been ciency of the verification can be taken into possession or control raised at any time. Brabrook, by the court. Beith v. Porter, 5 etc., Co. v. Belding Bros., supra. Det. L. N. 837, 78 N. W. 336. 140 EQUITABLE EEMEDIES. [§§ 107, 108. ticular relief to be granted is doubtful it is frequently ex- pedient to ask for alternative relief.^* § 107. PlaintiflF has Right to Control Litigation. — The plaintiff who has filed a creditor's bill has a right to control the litigation as against an intervening peti- tioner who has not been made a co-complainant by leave of court, or one who has not obtained in his own behalf a special order for the examination of the defendant against whom the bill is flled.^^ § 108. Lis Pendens — When Commences, Etc., The- ory of. — The commencement of a suit by the filing of a bill does not operate as a Us pendens until service has been had upon the party in interest."® To have the effect of a lis pendens the bill must de- scribe specific property with such a degree of definite- ness and certainty that a person reading the bill will know therefrom what property is embraced in the liti- gation."^ The theory of the doctrine of Us pendens is to preserve the situation of the parties as it exists at the time the suit is begun so that the successful party may have at the end of the litigation the fruits thereof. It would be an establishment of the impotency of remedial jurispru- dence if at the end of a protracted litigation, in which the plaintiff was successful, the property sought to be reached was found to have passed to another not a party to the suit and beyond the control of the court."* 54 Miller v. Jamison, 24 N. J. Bank, 4 Det. L. N. 1147, 74 N. Bq. 41. A creditors' bill may W. 515. pray in the alternative that an bs Cane v. Dernberg (111. C. C.) instrument be deemed a com- 12 Nat. Corp. Rep. 260. mon-law assignment for all cred- bo Hallorn v. Trum, 125 111. 247. itors, or, if it be deemed a chat- bt Brown v. Farwell, 74 Fed. tel mortgage, that foreclosure Rep. 764; Griffith v. Griffith, 9 proceedings instituted by the Paige, 315; Of. Leitch v. Wells, trustee be adjudged collusive and 48 N. Y. 585. the appointment of a receiver bs Hovey v. Elliott, 118 N. T. therein be vacated. Albion Mai- 124; Tilton v. Cofield, 93 U. S. leable Iron Co. v. First Nat. 163; Lamont v. Cheshire, 65 N. §§ 109, 110.] PLEADING AND PEACTICB. 141 § 109. The Answer — Frame of, — The answer of the debtor defendant should be as specific and definite as required in the bill, and in general is shaped by the scope of the bill. A few general rules may be of interest, though they must be understood with reference to local procedure. First. The answer must be direct and without eva- sion to so much and such parts of the bill as are material and necessary to be answered. He must confess or tra- verse the substance of each charge positively and with certainty. Particular and precise charges in the bill must be followed by particular and precise answers. If particular charges of fraud are made a general answer will not be sufficient.^^ Second. The answer must be consistent in all its parts. One part must not contradict another, and where fraud is charged in the bill and denied in the answer and facts are alleged in the answer or admitted from which fraud may be presumed as a legal conclu- sion the answer will not prevail. § 110. Answer — Scope of. — Under the Chan- cery practice where unmodified by statute the answer under oath may be waived, in which case it is not to be considered as evidence even if sworn to. If the oath, however, is not waived the answer is to be taken as true unless overcome by the evidence of two witnesses, or by one witness and such corroborating circumstances as will be equal to another witness. It is not designed herein, in fact, it would serve no useful purpose, to en- ter into an examination of the practice as modified by Y. 30; Bishop, etc. v. Paine, 11 evasive it is ground of excep- Ves. 194; Bellamy v. Sabine, 1 tion but not an implicit eon- De Gex. & J. 566; Murray v. elusion against the defendant. Lylburn, 2 Johns. Ch. 441; Gur- Blaisdell v. Stevens, 16 Vt. 179; kill V. Durdin, 2 Ball & Beatty, Phillips v. Overton, 4 Hey. 291. 167; Hayden v. Bucklin, 9 Paige, The answer and proof must cor- 513; Hovey v. Hill, 3 Lans. 167. respond. Dowden v. Wilson, 108 59 If the answer is defective or 111. 257. 143 EQUITABLE BEMEDIES. • [§ 110, the statutes and codes of the several states, the inten- tion being to simply call attention to a few of the general and elementary principles which apply to this branch of equity practice in their application to the defense usually made through the instrumentality of an answer or plea. The scope and nature of the answer must, of course, in all cases, be governed by the defense sought to be interposed, and the defense by the several defend- ants will, of necessity, vary with the attitude sustained by each respectively to the allegations of the bill. The answer should, in all cases, whether sworn to or not, be directly responsive to the bill and should admit or deny the averments of fact therein stated, in so far as they are material and necessary. The defendant has a right to demand that all material averments of fact in the bill shall be clearly stated, so that a direct issue may be taken thereon, and plaintiff has an equal right to have such averments answered directly and without evasion, either by an admission or denial. Of course, an answer to be a complete defense must often embrace other mat- ters than a mere denial of the allegations of the bill. Counter facts may frequently be directly responsive to the case made by the bill and conclusively negative the plaintiff's right of recovery. Fraud may be made out by detailed facts and circumstances alleged in the bill, and as conclusively disproved by other facts and ex- planatory circumstances embraced in the answer. A perfect right of recovery may be established by proper averments as to the recovery of a judgment, execution issued and return thereof nulla bona, and a fraudulent transfer, and yet the judgment may have been paid, or the plaintiff have participated in the fraud, or the prop- erty sought to be reached taken by and absorbed un- der a prior lien.''" «o Particular and precise swered by particular and posi- charges in the bill must be an- tlve allegations In the answer. §111-] PLEADING AND PEACTICE. 143 The rules applicable to the bill in matters of fraud are as strict when applied to the answer.^^ § 111. Answer, When Under Oath. — Unless the oath to the answer is waived the answer must be under oath, and where the oath is waived the answer under oath is to be regarded simply as a pleading, and is not to be used as evidence. It is frequently expedient to file a sworn answer, even if not required, in order that it may be used in matters pertaining to interlocutory or- ders, and other proceedings pending the litigation. Woods V. Morrell, 1 Johns. Ch. 103; Stacy v. Randall, 17 111. 467; Parkinson v. Truesdale, 3 Scam. 369; Taylor v. Luther, 2 Sumner, 228. The answer must positively and directly deny all material al- legations of the bill. Taylor v. Luther, 2 Sumner 228; Pettit v. Candler, 3 Wend. 618. An an- swer not responsive to anything contained in the bill cannot ben- efit the defendant. Wakeman v. Grover, 4 Paige Ch. 23. It is an established rule in equity that where an answer which is put in issue admits a fact and in- sists on a distinct fact by way of avoidance the fact admitted is established but the fact insisted upon must be proved; otherwise the admission stands as if the fact in avoidance had not been averred. Clements v. Moore, 73 U. S. (6 Wall.) 299, 315; Mc- Donald V. McDonald, 16 Vt. 630. Where the defendant admits a fact and insists on another fact distinct from the first by way of avoidance he must prove it. Hart v. Ten Eyck, 2 Johns. Ch. 62, 89. 61 A positive denial of fraud in an answer will not prevail against admissions in the same pleading of facts which show that the transaction was fraudu- lent. Robinson v. Stewart, 10 N. Y. 189; Jackson v. Hart, 11 Wend. 343. A denial by the an- swer of the existence of fraud will not avail to disprove it when the answer admits facta from which fraud follows as a natural and legal, if not a nec- essary and unavoidable conclu- sion. Hoboken Bk. v. Beckman, 33 N. J. Eq. 53; Cf. Sayre v. Fredericks, 16 N. J. Bq. 205. In weighing the whole evidence in the case the fact that the de- fendant only answers generally denying the fraud will operate against him whenever the bill charges him with particular acts of fraud. The circumstance that the defendant omits to deny the facts in the same explicit man- ner that they are charged raises the presumption that the appeal to his conscience has been some- what effectual, and that he pro- poses shielding himself under a denial of the legal effect of his actions, rather than to deny under oath the particu- lar acts imputed to him. Park- man v. Welch, 19 Pick. 231. Al- though the answer denies the fraud it nevertheless admits facts from which the existence of fraud follows as a natural and legal conclusion. Sayre v. Fredericks, 16 N. J. Eq. 205. A general denial of fraud when particular acts are set forth in the bill Is not sufllcient. Fel- lows V. Fellows, 4 Cow. 682; Bailey v. Wright, 2 Bond 181. 144 EQUITABLE EEMEDIES. [§§ 113, 113. Where tlie oath is waived it is error to dismiss the bill for want of equity on motion of the defendant.®^ Where an answer is required to be under oath, and is sworn to, and the facts are within the knowledge of the defendant, it must be overcome by evidence equivalent to two witnesses. This rule, however, only applies to so much of the answer as is responsive to the allega- tions of the bill, and not to new matter not responsive.®* § 1 1 2. Answer Usually in Two Parts. — The answer generally admits or denies all the material allegations contained in the bill or petition whether they be facts or circumstances. Generally speaking, the answer con- sists of two parts (1), an admission or denial of the case as made by the plaintiff, and (2) alleges such additional facts and circumstances in answer to the bill or petition as will constitute a defense to the suit. Under the chancery practice certain defenses are made by way of plea, and sometimes by plea and answer. §113. InsufBciency of Answer. — (a) A gen- eral allegation in an answer that the defendant had property liable to execution and which might have been levied upon by the sheriff is not a sufficient answer to a creditor's bill. The answer must show where the prop- erty is situated and what it consists of. The prima facie case made by the officer's return nulla hona is not over- come by a general allegation of property liable to the execution. Besides, a general allegation of this nature is not good pleading in any case.®* 62Heisler v. Dickinson, 17 111. Atkinson t. Foster, 134 111. 472; App. 193. Fayrear v. Lawrence, 5 Gilm. 83 It is only when the defend- 325; Hitt v. Ormsbee, 14 111. 233. ant states facts within his 64 Rankin v. Rothschild, 78 knowledge that his sworn answer Mich. 10. An answer that the must be overcome by the evi- defendant has no property is not dence equivalent to two wit- a full defense, nor is it a rea- nesses. New matter set forth in son why a receiver should not be the answer not responsive to appointed. Fitzburgh v. Ever- the allegations of the bill is ingham, 6 Paige Ch. 29. It is not evidence for the defendant. a good defense that the defend- § 113.] PLEADING AND PEACTICE. 145 The answer of a defendant to a bill to compel discov- ery of any property of any kind to satisfy an execution and to prevent the transfer thereof, that he has no property will not prevent an order referring the cause to a master and directing the delivery of his property and effects to a receiver.®^ The sufficiency of an answer to the case made by the bill must of necessity rest upon the particular features of each individual case and no rules can be laid down that will be of general utility.®® (b) Nor will the debtor be permitted to show that he had property liable to the execution as an answer to a creditor's bill when he, on demand of the officer, for property or money to satisfy the execution, infonmed the officer that he had no money or property. The doc- trine of estoppel applies in such cases.®'' (c) It is not always easy to determine the line which marks a sufficient and insufficient answer. If an answer is not sufficiently specific it should be ex- cepted to and the insufficiencies pointed out, and if this is not done the answer will be sustained, as where prop- erty was conveyed by the debtor to his wife by several ant had property liable to execu- 3 Bdw. (N. Y.) 278; Brownell, tion which was not levied on by v. Curtis, 10 Paige (N. Y.) 210. the officer by reason of collu- A creditor's bill alleged that the sion between plaintiff and the defendant had some interest in officer. Storm t. Badger, 8 some real estate, etc. An an- Paige Ch. 130. swer alleging that the defendant 65 Fuller V. Taylor, 6 N. J. Eq. had not some interest in some (2 Hals.) 301. real estate, etc., was held to be 66 If the bill requires the de- sufficient. Batterson v. Fergu- fendant to state the situation of son, 1 Barb. (N. Y.) 490. his property and effects at the 67 A debtor who on demand of time of filing the bill, and the the officer informed him that he defendant answers that at' the had no property or money to time of the rendition of the apply on the execution, will not plaintiff's judgment, he had no be permitted on the filing of a interest in any property, and creditor's bill against him, to that he had not had at any time defeat the bill by showing that since, it is a sufficient answer. he had property. Lewis v. Wendell v. Shaw, 1 Barb. (N. Y.) Lanphere, 79 111. 187. 462. Compare Brown v. Morgan, 146 EQUITABLE REMEDIES. [§ 113. transfers and she answered under oath, denying that the transfers were made to hinder or defraud creditors of her husband, or of the firms to which he belonged, or to shield property from creditors, and averring that at the time of the several transfers she believed her hus- band and the firms to which he belonged to be solvent.®* Since parties are permitted by law to testify, the prac- tice in courts of chancery of excepting to an answer where discovery is sought has become well nigh obsoletej where the purpose is purely for discovery in aid of a suit at law. But the law permitting parties to testify does not repeal the law giving chancery courts power to compel a discovery in suit by judgment creditors.®^ (d) It is not a sufficient answer for an alleged fraud- ulent grantee to set up a defense to a creditor's suit that might have been interposed in the suit in which the judgment was rendered, which forms the basis of the creditor's bill. All matters of this nature by the judg- ment become res adjudicataJ"^ (e) And where the bill is based upon a legal de- es A judgment creditor's bill, answer of a corporation oflBcer to filed to reach property acquired a judgment creditor's bill, espe- by the debtor's wife under vari- cially when the answer con- ous transfers made by him, tains an express denial of the called for answers under oath. charges made in the bill. Mc- The wife denied that any of the Creery v. Cobb, 93 Mich. 463. transfers made were to hinder eg McCreery v. Cobb, 93 Mich, or defraud creditors of her hus- 463; Hubbard v. McNaughton, 43 band or of the firms to which Mich. 220; Turnbull v. Lumber he belonged, or to shield any of Co., 55 Mich., 387; but see Rio- hls property, and averred that pelle v. Doellner, 26 Mich. 102; at the time of the conveyances Sheldon v. Walbridge, 44 Mich, she believed her husband and 251. A complainant is not en- the firms to be solvent. The an- titled to file exceptions to the swer was held responsive, and voluntary answer of a corpora- not being excepted to was sus- tlon officer to a judgment cred- tained, though it would have itor's bill, especially when the been well to have set forth in answer contains no express de- detail all circumstances con- nial of the charges made in the nected with the transfers made. bill. McCreery v. Circuit Judge, Hubbell V. Grant, 39 Mich. 641. supra. A complainant is not entitled to to Davidson v. Burke, 143 111. file exceptions to the voluntary 139. § 113.] PLEADING AND PEACTICB. 147 maud, and the suit is properly instituted, it is not a proper or sufficient answer that the plaintifE is actuated by personal and improper motives. His motives other than shown by the bill are immaterialJ^ (f) It is not a sufficient defense to a creditor's bill that the results of replevin suits by third persons in- volving the ownership of personal property previously levied upon had not been determined; nor is the fact that a previous levy had been made upon an equity of redemption which expired before a sale could be made.'^^ (g) Nor is the pendency of another suit between the same parties where the prosecution of the two suits works no inconvenience,''^^ nor is the pending of an ac- tion at law upon the same indebtedness.''* (h) Nor is it a defense that the assignee of a debtor corporation and creditors whose claims were allowed in insolvency proceedings are entitled to priority where they were given an opportunity to join in the litigation and neglected to do so and the assignee's accounts have been settled, in a proceeding to reach a debt due the cor- poration.'^^ (i) Where proceedings in equity are instituted upon a judgment before a justice of the peace it is not a suf- ficient answer that an appeal was taken on the judg- ment and not prosecuted for four years. This evi- dently would not be so if the effect of the appeal oper- ated to dissolve the judgment. The better view would seem to be to regard the judgment as still subsisting and the appeal as only suspending all further proceed- ings.'® (j) An answer is not traversable where it fails to 71 McMullen v. Ritchie (C. C. t4 Anderson v. Newman, 60 N. D. Ohio) 64 Fed. Rep. 253. Miss. 532. 72 Marshall Bank v. Hosmer, 76 Johnson v. Blell, 1 Mo. App. 48 Mich. 200. Rep. 291. 73 Carlton V. Felder, 6 Rich, 76 Warder v. Rivers, 64 Iowa, (S. C.) Eq. 58. 412. 148 EQUITABLE EEMEDIES. [§ 114. disclose assets and denies their possession, and the court will proceed to try the traverse and grant relief in case the defendant is found in possession of assets.'^'^ (k) Mere irregularity in the return day of the exe- cution being amendable is no defense.'^* (1) Nor is a defense to the demand on which the judgment was rendered.'" (m) A denial of fraud in the answer will be of no avail where it admits facts from which fraud is to be inferred as a natural and legal, if not a necessary and unavoidable conclusion.*" (n) The defense that plaintiff assigned all his in- terest in the subject matter of the suit before the bill was filed if not raised by plea or answer will be treated as waived.®^ § 114. Demurrer. — Whenever any ground of de- fense is apparent on the face of the bill, either from matters therein stated or from defects in its frame, or in the case made by it, the proper mode of defense is by demurrer. The demurrer is in bar of the relief sought and is based upon the ground that, admitting the facts stated in the bill to be true, plaintiff is not entitled to the relief he asks, but it admits only that which is well stated or pleaded.®^ 77 The answer to a creditor's which the judgment was ren- bill is not traversable where it dered is not available in the fails to disclose assets and de- creditor's suit. Storm v. Wad- nles their possession, and the dell, 2 Sandf. Ch. 494. But it court will proceed to try the tra- may be shown that a writ of verse and grant relief in case error has been sued out on the the defendant is found in pos- judgment Smith v. Crocheron, session of assets. United States 2 Edw. Ch. BOl. Ins. Co. v. Central Nat. Bk., 7 so Sayre v. Fredericks, 16 N. 111. App. 426. J. Eq. 205. '8 Mere irregularity of the re- si Hathaway v. Scott, 11 Paige turn day is no defense, because (N. Y.) 173. It being voidable may be amend- sa Galatian v. Erwin, Hopk. ed. Williams v. Hageboom, 8 Ch. 48; Johnson v. Roberts, 102 Paige 469; Storm v. Waddell, 2 111. 655; Crerar v. Williams, 145 Sandf. Ch. 494. 111. 625; Lawrence v. Traner, 7i» A defense to the demand on 136 111. 474; Greig v. Russell, §§ 115, 116.] PLEADING AND PEACTICB. 149 If a demurrer is overruled and the defendant declines to answer over he thereby admits the allegations of the bill to be true.*^ § 115. Cross-Bill or Petition. — The general rule is that the defendant is not entitled to affirmative relief on an answer, and must obtain such relief on a cross- bill or in a cross action. The necessity for a cross-bill or a petition in a proceeding of this nature rarely occurs, but when it does the practice in relation thereto is gov- erned by the prevailing practice in other actions and proceedings. A person interested as a legatee in land sought to be reached by a creditor's bill has a right to file a cross-bill to have the judgment which forms the basis of the origi- ' nal bill set aside as fraudulent.^* § 116. Supplemental Bill or Petition. — Where the property acquired by a debtor subsequent to the fil- ing of the original bill is subject to the payment of plain- tiff's claim or the claims of creditors generally, it may be reached by a supplemental bill.** And so where a note and collateral were given after 115 111. 483; Roby Vi Cossltt, 78 veyed, the widow of the deceased 111. 638; Harris v. Cornell, 80 who is administratrix and sole lU. 54; Dunham v. Hyde Park, legatee, and who is a necessary 75 111. 371; Newell v. Supervis- party and has an interest, has ors, 37 111. 253; Stow v. Russell, a right to file a cross-bill to have 36 111. 18; Moore v. Hoisington, the judgment set aside as fraud- 31 111. 243. The practice of de- ulent. Higgins v. Curtiss, 82 111. murring to a bill or petition is 28. not commendable unless the re- ss a supplemental bill is re- sult may terminate the proceed- quired to reach property acquired ing. The liberality of courts in after the filing of the original permitting amendments renders bill. Hope v. Brinckerhoff, 4 the filing of a demurrer not only Edw. Ch. 348; Thomas v. Mc- useless, as a general rule, but Ewen, 11 Paige Ch. 131. A sup- results to the advantage of the plemental bill based on a valid plaintiff rather than defendant. judgment in a proceeding where 83 Miller V. Davidson, 3 Gilm. the original bill is based on judg- 518. ments afterwards set aside, goes 84 On a bill by a creditor based down with the original bill, on a claim allowed against an es- Butchers, etc., Bk. v. Willis, 1 tate to reach lands alleged to Edw. Ch. 645. have been fraudulently con- 3.50 EQUITABLE REMEDIES. [§ 117. the filing of the original bill, but the note was not paid and a judgment obtained thereon, these facts may prop- erly be set up in a supplemental bill.** § 117, The Decree, General Nature of Relief.— (a) The decree to be rendered must, of course, be adapted to the rights and equities of the parties as alleged and shown in each paxticular case, and no well- defined rules of general application can be laid down. A court of equity in all cases adapts its relief to the case in hand. It may restrain or compel the defendant; it may appoint a receiver or compel an accounting ; it may order a specific performance or the delivery of personal or real property, or give a personal decree or judgment in favor of the plaintiff.*'^ (b) As a general rule the decree should conform to the relief demanded or such relief as the facts and circumstances show the plaintiff to be entitled to under a general prayer. The nature of equity procedure and practice as now administered is such that relief will frequently be granted though the plaintiff may have been mistaken in the specific relief he was entitled to.^* (c) But the relief, whatever it may me, must be in harmony with the allegations of the bill, thus if the bill is based upon fraud alleged fraud must be proved in or- der to obtain relief. It would be manifestly unjust un- der an allegation fraud to permit relief to be granted under proof of facts and circumstances that might be sufficient ground for relief under another branch of equity jurisprudence; nor will a charge of actual fraud 86Winslow V. Pitkin, 1 Barb. out by the pleadings and evi- Ch. 402. dence. Van Rensselaer v. Van siMurtha v. Curley, 90 N. Y. Rensselaer, 113 N. Y. 207; Valen- 372; Valentine v. Rlchardt, 126 tine v. Richardt, 126 N. Y. 272; N. Y. 272; Bell v. Merrlfleld, 109 Murtha v. Curley, supra. N. Y. 202. A court of equity will ss Buswell v. Lincks, 8 Daly adapt the relief to case made 518. § 117.] PLEADING AND PRACTICE. 151 be supported by proof amounting to only constructive fraud.*® It is a familiar rule in chancery practice that no re- lief will be granted which is not warranted by the gen- eral scope of the pleadings.®" (d) In a decree in a case where real and personal property have been fraudulently conveyed to another with power to sell and dispose of the same, and pay such creditors as the grantee may be able to make terms with, the grantee is properly chargeable with such amounts as he may have received from the sales of property and from collections, giving him credit for such payments to creditors as he may have made, and also charge him with such encumbrances as he may have made upon the property for the purpose of paying his own debts, or otherwise converted to his own use.^^ The fraudulent grantee may be held for notes and ac- counts which came into his hands which might have been collected by ordinary diligence.®^ If a fraudulent grantee holds in his hands property or money belonging to his grantor he cannot be heard to object to a decree because it finds him liable to joint as well as individual creditors of the grantor, as he has no interest in the question whether the sum for which he is liable shall be paid to one set of creditors or an- other.®^ Where the grantee receives property knowing that the owner was intending to place it beyond the reach of creditors a court of equity will follow it into the hands 89 Clark V. Krause, 2 Mackey 92 Dilworth v. Curts, 139 111. 559; Fisher v. Boody, 1 Curtis 508. He must use due diligence C. C. 206. to collect and will be held re- 90 Pinneo v. Goodspeed, 104 111. sponsible if he does not. 184. 93 Dilworth v. Curts, 139 111. 91 Dilworth V. Curts, 139 111. 508. 508. 152 EQUITABLE EEMEDIBS. [§ 117. of such grantee, and by its decree subject the property to the payment of the grantor's debts.^* (e) The fact that the creditors in a creditor's bill seek to follow the fraudulently conveyed property in- stead of taking a personal decree against the fraudulent grantee will not preclude them after the decree has been reversed from taking a different course and taking such a decree as the facts and evidence in the case on a final hearing may warrant.®^ If a fraudulent grantee sells or mortgages the property to a hona fide purchaser or mortgagee, the grantee will be decreed to be liable for the value of the property so received and sold, or for the money received by him on the mortgage, and this without reference to the use made of the money, unless its use inured to the benefit of the creditor.^® The fraudulent grantee is not permitted to insist that priority be given to the plaintiff as a creditor by the de- cree.®''' (f ) The court has a right to render a personal decree against a fraudulent grantee where he has converted the property to his own use or encumbered the same for his own benefit. While a personal decree is proper against the debtor, it is not as to those who are not guilty of fraud.9» (g) A decree for interest is properly computed on the judgments which form the basis of a creditor's bill and not upon a former decree which has been reversed.®* 9*Coale v. Moline Plow Co., 93; Clements v. Moore, 6 Wall. 134 111. 350. 299. There is no ground for the 95 Dilworth v. Curts, 139 111. rendition of .an ordinary judg- 508. ment ^against the transferee, 30 Coale V. Moline Plow Co., where it is not averred that he 134 111. 350. has encumbered or conveyed the s" Coale V. Moline Plow Co., property. First Nat. Bk. v. Gib- 134 111. 350. son, (Neb.) 77 N. W. 662. 98 Dilworth V. Curts, 139 111. 99 Dilworth v. Curts, 139 111. 508; Phelps v. Curts, 38 111. App. 508. § 117.] PLBADINa AND PRACTICE. 153 (h.) A decree whicli finds the amount due the several judgment creditors, which is affirmed on appeal though reversed as to other matters, is conclusive on the parties as to the amounts.^ (i) Where the court acquires jurisdiction of the par- ties to a creditor's bill by service or by appearance, its decree will not be void for want of jurisdiction though based upon insufficient evidence, or upon a judgment of the federal court. At most the entry of a decree on insufficient evidence of indebtedness is but an error not affecting the jurisdiction of the court.^ (j) Where the suit is to charge lands conveyed by the defendant and held in trust for him, the decree may charge the lands with the amount of plaintiff's judg- ment, but not for the amount of promissory notes of the defendant held by the plaintiff, on which no judg- ment has been rendered.^ (k) Where the bill and proceedings specify the land a decree for the sale of the land mentioned in the bill or proceedings is sufficiently certain.* (1) Where a decree cancels a deed and a trust deed, as fraudulent as to creditors, it may direct the court to enter the facts on the margin of the proper record books.® (m) The decree should not direct a surrender of pos- session prior to a confirmation of the sale ordered by the decree in a proceeding to set aside a transfer as fraudu- lent.« (n) Where a decree is entered setting aside a sale as fraudulent as to creditors and directing a sale by the receiver, the error, if any, in directing such sale is not 1 Dilworth v. Curts, 139 111. * 1877, Barger v. Buckland, 2» 508, Gratt. 850. 2 Dilworth v. Curts, 139 III. s Jones v. Porter, 59 Miss. 628. 508; Bush v. Hanson, 70 111. 480. « Adler v. Meyer, 73 Miss. 863. 3 Claflin V. French, 28 N. J. Bq. 383. 154 EQUITABLE REMEDIES. [§11'?'. ground for appeal, but must be corrected on motion, where the matter complained of is merely of detail and not affecting the decision of the cause upon its merits/ (o) Under the original chancery practice the defend- ant was required to make an assignment to a receiver of his property, but an assignment is not considered necessary now.* (p) If the court has jurisdiction of the parties and of the subject matter, and has legal authority to make the order, it must be obeyed though improvidently or er- roneously made.® (q) A decree that is absolutely void is open to at- tack, directly or collaterally, whenever and wherever an attempt is made to set it up as a basis of a right of action.^" (r) Where by a decree against grantor and grantee the land sought to be conveyed was misdescribed and in consequence the title remained in the grantor, it will pass to an assignee for the benefit of creditors, and the decree must direct the sale subject to the assignee's rights, he not being a party to the suit." (s) Where an administrator has money in his hands due an estate on account of property purchased of the ' An error In a decree in set- with mere irregularity in the ting aside a conveyance must he exercise of power. If the court rectified on motion and is not has jurisdiction of the parties ground for appeal. Cole v. Ty- and of the subject matter and ler, 65 N. Y. 73. In this ease legal authority to make the or- the order directed the receiver der it must be obeyed though to sell where no conveyance to improvidentially or erroneously him had been made. made. Leopold v. The People, 8 Under the former practice 140 111. 552; Cape May, etc., R. the defendant was required to Co. v. Johnson, 35 N. J. Eq. 422; attend before a master and as- Mayor, etc. v. Conover, 5 Abb. sign to a receiver the property Pr. 244; Tolman v. Jones, 114 liable for the payment of the 111. 147; People v. Weigley, 155 judgment. Browning v. Bettis, 111. 491; Buckmaster v. Carlin, 3 8 Paige Ch. 568. Scam. 104. "A party cannot be guilty of lo People v. Weigley, 155 111. contempt in disobeying an order 491; Buckmaster v. Carlin, 3 the court had no authority to Scam. 104. make. Want of authority, how- n Coale v. Moline Plow Co., «ver, must not be confounded 134 111. 350. § 117.] PLEADING AND PHAOTIOE. 155 intestate in his lifetime he may be decreed to pay the money into court or to a receiver, although he may be one of the next of kin.^^ (t) Where a fraudulent conveyance includes a home- stead and the deed is declared fraudulent as to creditors and a decree of sale entered, it is proper to direct that the homestead be set off to the debtor and the decree should so order.^^ Where a homestead has been set apart and there is not sufficient unexempt property remaining to pay the debts all creditors share ratably in such property, and then such creditors to whom the homestead has been "waived must secure satisfaction, if at all, out of the homestead property for the unpaid balance.^* (u) The court will not only by its decree adjust and declare the rights of the parties as between plaintiff and defendant, but will also adjust the rights of the plaintiffs as to each other ; thus where the plaintiff has by his suit and compromise subjected part of the debtor's property to the payment of his judgment and released other property, other creditors must resort to the prop- erty released in the first instance.^^ The decree should settle the liens and priorities 12 Farmer v. Yates, 23 Gratt. the creditor. 1877, Jackson v. 145. Sloan, 76 N. C. 306. 13 Quinn V. People, 146 111. 275. i5 If a creditor by suit and a 1* Scott V. Cheatham, 78 Va. compromise verdict subjects a 82. As to the distribution of the part of the debtor's property to funds recovered by a creditor's his judgment, relinquishing the bill, in a case involving the rela- rest as a part of the compromise, tive priority of holders of judg- other creditors must look first ments recovered before and after to the part relinquished, it be- commencing suit, and creditors ing equally accessible to them, at large see Wallace v. Treakle, Sims v. Albea, 72 Ga. 751. Where 27 Gratt. (Va.) 479. The gen- a debtor conveyed two tracts of eral rule that when a debtor has land to secure two of his cred- sold a portion of his land on itors and subsequently releases which a judgment against him is his right of homestead to one a lien, the judgment creditor of them and gives him personal must exhaust the unsold portion property besides the latter must first, but this rule does not ap- first look to the personalty, ply when it will do injustice to Parr v. Fumbanks, 11 Lea. 391. 156 EQUITABLE REMEDIES. [§ m^ of all parties entitled to participate, and generally it is error to direct a sale until this has been done. But where all the debtor's property is required he is not prejudiced by the manner in which the debts and liabili- ties have been stated.^' (v) Where creditors are entitled to share pro rata in the distribution they are entitled to so share though they do not come in until after the rendition of an in- terlocutory decree establishing the right to relief.^'^ (w) If creditors do not come in in some way and es- tablish their judgments in the case they are not entitled to share in the distribution, and the proceeds may be awarded to the plaintiff or enough to satisfy his judg- ment.^* (x) The decree will sometimes be rendered on terms as where the wife has taken a deed under a contract In distributing' the assets of a corporation which had given two mortgages to secure two succes- sive issues of coupon bonds, the bonds secured by the first mort- gage and their coupons, wheth- er attached to or severed from the bonds and transferred and held bona fide, should be paid pari passu; the bonds secured by the second mortgage, with their coupons, whether attached or detached and transferred, the holders having taken them with knowledge of the prior mort- gage, should be paid pari passu. Brown v. Maryland Freestone Mining, etc., Co., 55 Md. 547. Where an executor is plaintiff in one suit and is attorney for the plaintiff in another suit and judgment was for plaintiff in both suits but rendered in the first suit first in order of time, in distributing the proceeds upon a creditor's bill the parties share pari passu. Poole v. Daly, 1 Mackey 460. The court will protect the rights of all credit- ors. Doherty v. Holiday, 137 Ind. 282. 16 If the commissioner is di- rected to settle the liens and their priorities on each parcel of the debtor's lands, and fails to do so, the report should be recommitted; and it is, general- ly, error to decree a sale before the liens are so ascertained and stated. And if in such a case, the creditors do not appeal from, or object to, a decree of sale, for any cause, the debtor has no right to complain, if it is necessary to sell all of the debt- or's land to meet his liabilities. White v. Drew, 9 W. Va. 695. 17 George v. St Louis Cable & W. R. Co. (C. C. E. D. Mo.) 44 Fed. Rep. 117. isRyttenberg v. Keels, 39 S. C. 203. In Pennsylvania a cred- itor's bill may be maintained to subject the land of the debtor, which has been conveyed away In fraud of creditors, to the claims of the latter, by setting aside the conveyance, if the debtor is dead and the creditor has a lien upon the land. Houseman v. Grossman, 177 Pa. St. 455. §117.] PLEADING AND PBACTICE. 157 of purchase by the husband, found to be void as to creditors, and part of the purchase money remains un- paid, which she has assumed and agreed to pay. The court may direct the debts to be paid, and in default of so doing in a reasonable time direct the land to be sold.^* (y) Where it appears that the purchaser of property sold under a fraudulent judgment, or a judgment fraud- ulently confessed, has participated in the fraud and has sold the property to a hona fide purchaser a personal decree may be rendered against the former, but not so if he still retains the property.^" (z) A creditor cannot ask to have a deed set aside as fraudulent or in the alternative have it enforced as a general assignments^ (aa) Under a bill filed to cancel a deed to a certain piece of land a decree should not be rendered for the sat- isfaction of the plaintiff's debt from the sale of another tract not mentioned in the pleadings.^^ (bb) A decree after finding a deed to be void as to plaintiff and decreeing such fact should cancel and set the same aside and direct the sale of the land to pay plaintiff's debt.^' (cc) A decree will not be disturbed on appeal where it appears that there is a substantial conflict in the evi- dence. A finding of the trial court under such condi- tions will be permitted to stand.^* (dd) Equitable rights, debts and choses in action may be assigned or sold under the decree.^* (ee) Where a note is taken by a fraudulent grantor 19 Martin v. Warner, 34 W. Va. of equity -will consider the con- 182. Yeyance as void and the prop- 20 Vance Shoe Co. v. Haught, erty as bound by the judgment 41 W. Va. 275. and execution, and give relief to 21 Moog V. Talcott, 72 Ala. 210. the diligent creditor. Dlsbor- 22 Chrislip v. Teter, 43 W. Va. ough v. Outcalt, 1 N. J. Eq. 298. 356. 24 Miller v. Kehoe, 107 Cal. 340. 23 Chrislip v. Teter, 43 W. Va. =5 Edmeston v. Lyde, 1 Paige 356. In cases of fraudulent Ch. 637. transfers or assignments a court 158 EQUITABLE KEMEDIES. [§ 111/, for the property conveyed by him a decree of payment out of the proceeds of the note instead of the property conveyed may be rendered.^® (ff) Where a decree is rendered setting aside a con- veyance as fraudulent it is not essential that the decree in terms shall provide for the payment of plaintiff's judgment.^^ (gg) Where several cases against the same defendant are heard together upon the same evidence, by agree- ment, but no order of consolidation was entered, cor- rect practice would be to render a separate decree in each case. If, however, the plaintiff is the owner of several judgments by assignment one decree: for all may be rendered.^^ (hh) The amount for which a decree should be ren- dered is the amount due on the respective judgments on which the bill is based, and not the amount for which a former decree may have been rendered.^® (ii) The decree should not be personal against an administrator as a general rule.^° (jj) Plaintiff in the bill having made out his case in effect becomes entitled to priority over the fraudulent grantee or alienee.^* (kk) Notwithstanding a creditor's proceeding is tried before a jury, a decree cannot be entered on the 26 Lyman v. Place, 26 N. J. 29 Dil worth v. Curts, 139 111. Bq. 30. 508. 27 Mitchell V. Sawyer, 115 111. 3 o Where plaintiffs in a cred- 650. itor's bill have obtained judg- 28 Beidler v. Crane, 135 111. 92. ments against the administrator. In this case but one decree was yet, having alleged in their bill rendered but no objection hav- an insufficiency of assets to sat- ing been interposed and no in- isfy their claims, they cannot jury being shown to result the have a decree over against the decree was sustained. Searing administrator for any balance V. Berry, 58 la. 20. It is not which may remain due them, af- necessary to provide for the pay- ter final distribution, under the ment of the severed judgments bill. Post v. Mackall, 3 Bland and directing that they be en- (Md.) 486. forced by executions. Id. ai When a creditor comes Into equity to remove a fraudulent § ll'J'-] PLEADINa AND PKACTICB. 159> verdict as a mere conclusion of law. It is tried as a chancery case by the modes and proceedings known to courts of equity. If any questions of fact are referred to a jury the chancellor must still be satisfied in his own conscience that the finding is correct, and the de- cree must be made as the result of his own judgment, aided, it is true, by the verdict of the jury.^^ ( 11 ) A decree for damages cannot be rendered against one who has co-operated with the debtor in a fraudulent conveyance. Damages are recoverable only in a court of law. In such case the proper decree is for an ac- counting.** (mm) If a fund belongs tO' a class the decree must provide for all of that class, and that they be brought in.** (nn) A conveyance that is only constructively fraud- ulent may be upheld in favor of one not guilty of actual fraud to the extent of the actual consideration and be vacated only as to the excess and the decree may so order.*' ( 00 ) On a bill filed by a part of the creditors in their own behalf alone the decree must not provide for the conveyance out of the way of a* But even in such case, the his execution the effect of the bill may be filed by one of them decree is simply to declare the in his own behalf. The decree, creditor's claim an incumbrance however, may be for the bene- in preference to the fraudulent fit of all. Tatum v. Rosenthal, Incumbrance or alienation. 95 Cal. 129; Marsh v. Burroughs, Smith V. Vreeland, 16 N. J. Bq. 1 Woods 463; Harmon v. Page, 198. 62 Cal. 448. 32 Where a case presented by 35 phelps v. Curts, 80 111. 109; a creditor's bill is tried as a Wright v. Stanard, 2 Brock. 311; common law case by a jury, and Coley v. Coley, 1 McCarter Ch. a decree is entered on the ver- 350; Demarest v. Terhune, 3 C. diet as a mere conclusion of law E. Green 532; Boyd v. Dunlap, 1 upon the facts found, and not Johns. Ch. 478; Clements v. as the result of the chancellor's Moore, 6 Wall. 299. Children to own judgment, though of his whom a debtor has transferred judgment aided by the finding, his property in fraud of cred- it is error. Dunphy v. Klein- itors are entitled in an action to smith, 78 U. S. 610. set aside the conveyance to 33 Dunphy v. Kleinsmith, su- prove a bona fide debt held by pra. 160 EQUITABLE EEMEDIES. [§ 118. payment of a larger sum than is due the creditors join- ing in the bill.^" (pp) The decree may properly provide for putting plaintiff in possession of property fraudulently con- veyed on cancellation of the deed.^'^ ( qq ) If the bill is filed in behalf of plaintiff and others it is error to render a decree in behalf of the plaintiff alone.^* (rr) Under the statute in some states the plaintiff is entitled to solicitor's fees in a suit against an insol- vent estate. This would be equitable and just in all cases where the suit is for the benefit of all creditors.'* § 118. Appeals and Writs of Error. — It would be foreign to the scope of this work to enter into an extended examination of the subject of the right of appeal and writ of error, or other appropriate procedure of a similar nature, by which a creditor's action is brought before appellate tribunals for review. This branch of the practice is largely governed by statute and the pro- cedure is so varied that but few principles of a general nature are to be found in the adjudicated cases. (a) The right of appeal to the Supreme Court of the United States is limited to matters in controversy ex- ceeding one thousand dollars, besides costs. The ap- pellate jurisdiction of the United States Court of Ap- peals has no pecuniary limit.*° them against their father. Bo- »' McGaughey v. Brown, 46 mar v. Means, 31 S. B. 234. Ark. 25. "sOn a creditors' bill by a as Johnson v. Waters, 111 U. part only of the creditors filed S. 640. for themselves alone and not in so Bank of Blount County v. behalf of creditors generally to Smith (Ch. App.),' [AfC'd by Sup. set aside a fraudulent convey- Ct.] (Tenn.) 48 S. W. 296. ance and enforce a share-hold- 4o 26 Stat at Large Ch. 517, er's liability to the corporation a Sec. 6, p. 828. See also Foster's decree must not provide for the Fed. Pr. Sec. 481. Northern Pa- payment of a larger sum than Is ciflo R. Co. v. Amato, 144 U S. due the creditors joining in the 465. bill. Bouton v. Dement, 123 III. 142. § 118.] PLEADING AND PEAOTICE. 161 An appeal in a creditor's suit from the United States Circuit Court to the Supreme Court prior to 1891 was not allowed unless the sum involved exceeded five thou- sand dollars. And where the several judgments do not individually exceed this amount the right of appeal does not exist.*^ (b) In this class of actions it is not necessary to entitle a party to the right of appeal that he be actually a party to the record, provided he has an in- terest in the question that may be affected by the de- cree.*2 Thus, where on a creditor's bill a cause is referred to a master or referee to take proof of claims against the estate of the defendant and a claim of a creditor is sought to be proved under such reference and is disal- lowed, such creditor, though not a party to the suit, is entitled to a right of appeal on the coming in of the mas- ter's or referee's report and the confirmation of bis ac- tion by the court.' us 41 On appeal by defendants 44. Where one of the creditors from a decree of a circuit court In a proceeding to set aside a on a creditors' bill In which the mortgage in the United States judgments are several for the court based his suit on a claim payment of amounts adjudged to less than $5,000 (as then fixed creditors severally the supreme by act of Congress) such credit- court has jurisdiction only over or was not entitled to appeal to such as appeal from a decree the supreme court. Smith Mid- having judgment for a sum ex- dlings Purifier Co. v. McGroar- ceeding $5,000. Stewart v. Dun- ty, 136 U. S. 237; Stewart v. ham, 115 U. S. 61. The supreme Dunham, 115 IT. S. 61; Gibson v. court of the United States has Shufeldt, 122 U. S. 27. no jurisdiction on appeal in a *2 Derrick v. Lamar Ins. Co., creditor's suit where the judg- 74 111. 404; Strike v. McDonald, 2 ment of the creditor appealing Harr. & Gill. 191; Barbour's Ch. does not exceed the statutory Pr. Vol. I., p. 382. amount entitling a party to ap- *3 When on a creditor's bill peal. Seaver v. Bigelows, 72 U. the cause is referred to a master S. 208. Where several claims of to take proofs of all claims plaintiffs in a creditors' bill are against the estate of the defend- not individually over the pecu- ant and a claim is sought to be niary limit an appeal does not proved before such master by a lie to the supreme court of the person not a party to the bill, U. S. Chatfield v. Boyle, 105 U. which is disallowed an appeal S. 231; Terry v. Hatch, 93 U. S. will lie by such claimant. Der- 162 EQUITABLE REMEDIES. [§ 119- The right of appeal in favor of a creditor exists though the case may be undisposed of as to other cred- itors. As to such creditor the order is final. The gen- eral rule is that an appeal or writ of error does not lie where the order is interlocutory. This rule, however, is frequently modified by statute, and the statute should be carefully followed.** § 119. Discharge in Bankruptcy as a Defense. — (a) It is a defense to a creditor's bill to show that since the filingof the answer the defendant has been discharged as a bankrupt, but it is competent for the plaintiff to contest the validity of the discharge by showing that it was obtained by fraud.*^ A discharge in bankruptcy may be set up in a supple- mental answer.*® (b) Where a suit is commenced before a decree in bankruptcy against the defendant so as to obtain a lien on his property the subsequent discharge in bankruptcy rick V. Lamar Ins. Co., 74 111. a matter of course to permit him 404. An appeal lies from an or- to put in answer setting up the der of court disallowing a claim. discharge, unless the plaintiff Burnham v. Lamar Ins. Co., 79 will stipulate to exempt the per- 111. 160. son and after-acquired property ** Where a suit in chancery of the bankrupt, or to dismiss was commenced against the his bill without costs, or will bank and other defendants to swear to fraud in the discharge, secure a general fund in the Scott v. Grant, 10 Paige (N. Y.) hands of receivers for the mu- 485. But where the plaintiff tual benefit of the creditors of swears that the discharge was a limited partnership by having obtained by fraud, the proper certain preferences set aside a course is to authorize the de- judgment in favor of the bank fendant to set up the discharge is appealable, though the case is by a cross bill. Scott v. Grant, undisposed of as to other de- supra. A creditor's bill will fendants. Crouch v. First Nat. not be sustained to subject prop- Bk., 156 111. 342. A creditors' erty in the possession of a bank- bill does not involve a freehold rupt, and which was acquired by so as to give an appeal directly him before bankruptcy, to the to the supreme court. (See payment of the debts of the statute.) Sawyer v. Moyer, 105 bankrupt. McCabe v. Cooney, 2 111- 192. Sandf. (N. Y.) Ch. 314. *5 If a defendant debtor Is dis- lo Stewart v. Isldor, 5 Abb. [N. charged under the act of bank- Y.) Pr. N. S. 68. ruptcy after answer filed, it Is § 120.] PLEADING AND PEACTICE. 163 is not a bar to the suit generally, but only a bar to a per- sonal decree against the bankrupt.*'' (c) Where a defendant subsequent to the filing of a bill against him obtains a discharge in bankruptcy and the plaintiff desires to contest the validity of such discharge the proper practice is to file a supplemental bill, averring the commencement of the original suit, the subsequent decree in bankruptcy, the discharge and the facts upon which it is claimed the discharge is void and inoperative, making the assignee and bankrupt parties to the bill. If he wishes to proceed against the property which has passed to the assignee subject to his prior claim thereon he must revive the suit against the assignee alone, and if the assignee has sold the property the purchaser in that case should be made a defendant.*® § 120. Limitations as a Defense. — (a) The statute of limitations has been held not to be a good defense in a suit in equity brought to set aside a fraudulent convey- ance by a judgment creditor based on a judgment in full force and unsatisfied.*^ (b) Where there is both a legal and an equitable rem- edy for a cause of action the statute of limitations ap- plies to both remedies alike, except under certain special circumstances.^" 47 Lo-Wry V. Morrison, 11 was filed Feb. 7, '83, and the Paige Ch. 327. Where a defend- summons issued was served on ant in a creditor's bill who was defendants Feb. 9, '83, and judg- a proper party at the commence- ment lien expired in September, ment of the suit, has been sub- '88, and the decree for com- sequently discharged, the plain- plainant was not rendered un- tiff will be permitted to dismiss til Dec. 16, '89, it was held that the bill, as to him, without costs. the bill was filed in due and Pratt V. Babcock, 10 Paige (N. ample time. Davidson v. Burke, Y.) 295. 143 111. 139. Courts of equity 48 Penniman v. Norton, 1 Barb, are bound by the statute of lim- Ch. 246. itations. McGaughey v. Brown, 49 Abbey v. Commercial Bk. of 46 Ark. 25. New Orleans, 31 Miss. 434. so Administrators, etc., v. Where a judgment was obtained Wood, 42 N. J. Eq. 563; Somerset Sept. 19, 1881, execution issued Bk. v. Veghte, 15 Stew. 39; Kane Nov. 3, 1881, and a creditor's bill v. Bloodgood, 7 Johns. Ch. 90; 164 EQUITABLE EEMEDIES. [§ 121. (c) The defense of the statute of limitations is op- tional with the defendant, and personal to him, and if not interposed as a defense plaintiff may recover.^^ § 121. Laches as a Defense. — (a) Laches in bring- ing suit should be set up in the answer. But laches can- not be imputed to a party from delay in regard to a fraud until the fraud is discovered or knowledge of it acquired ; nor can it be raised for the first time in the appellate court.®^ (b) While it has been held that laches as a defense should be raised by the answer, yet where the laches, as is usually the case, appears on the face of the bill, it may be taken advantage of by demurrer, or even without, on the hearing.^* Smith V. Clay, 2 Amb. 646. Af- ter dissolution one partner can- not revive a debt barred by lim- itations. Sears v. Starbird, 78 Cal. 225. 61 McMannomy v. Chicago, D. & V. R. Co. 167 111. 497, 47 N. E. 712, Rev'g 63 111. App. 259. 62 Laches should be set up by answer. Darst v. Murphy, 119 111. 343. But cannot be raised for the first time in the appel- late court. Walker v. Denison, 86 111. 142; Trustees of School V. Wright, 12 111. 432; Dawson V. Vickery, 150 111. 398. Laches will not be imputed to a party from delay in regard to a fraud until knowledge of the fraud has been acquired. Jones v. Lloyd, 117 111. 597; Clapp v. Peterson, 104 111. 26; Breit v. Yeaton, 101 111. 242. Where the legal title has become vested in a bona fide purchaser for value while the judgment creditor was sleeping on his rights a court of equity will not interfere. Trusdell v. Lehman, 47 N. J. Bq. 218. A creditor, eighteen months after obtaining judgment, filed a bill against his debtors, and their assignees, and two years after- wards filed an amendment at- tacking the assignment. The bill came up for a hearing after the property had been distrib- uted. Held, that the creditor bad been guilty of delay in filing both his bill and amendment and as the answer denied all fraudulent intent, the bill was dismissed, but without costs. Redmond v. Wemple, 4 Bdw. (N. Y.) 221. B3 In Jones v. Perkins, 76 Fed. Rep. 84, the court say: "The lapse of time where the delay has been great, and there are no excusatory circumstances to palliate it, carries with it a rea- sonable inference, if not a pre- sumption, that the parties and the court have not the light and cannot obtain the knowledge of the circumstances surrounding the transaction sought to be in- vestigated that a prompt and reasonable assertion of the claim might have afforded. The courts therefore scrutinize with jeal- ousy stale claims and demands, especially where death has re- moved those whose conduct is to be Investigated, and who nec- essarily were best cognizant of the transactions involved. Ac- cordingly, the equitable rule is § 121.] PLEADING AND PRACTICE. 165 (c) Laches is not, like limitations, a mere matter of time, but is based on the inequity of permitting claims to be enforced growing out of the changed condition of the property or parties. This principle is not based upon presumption of payment, nor upon an analogy to the law of limitations, but is based upon public policy and the difficulty of doing entire justice between the parties in consequence of the delay.^* that a tardy suitor must set forth in his bill specifically what ■were the impediments to an ear- lier prosecution of his claim, how he came to he so ignorant of his rights, and the means used by respondents to fraudu- lently keep him in ignorance, and how and when he first came to a knowledge of the matters alleged in his bill; otherwise the chancellor may justly refuse to consider his case on his own showing, without inquiring whether there is a demurrer or formal plea of the statutes of limitation contained in the an- swer." Badger v. Badger, 2 Wall. 87, 94. The same require- ments are made in Wood v. Car- penter, 101 U. S., 135; Bank v. Carpenter, 101 U. S. 567; Har- wood V. Railroad Co., 17 Wall. 78; Marsh v. Whittmore, 21 Wall. 178; Godden v. Kimmell, 99 U. S. 201. While some of these cases deal specially with the question of fraud, the prin- ciple which they apply requires the same rule of judgment where the complainant makes no charge of fraud, but has been merely negligent in prosecuting a claim for relief. Brown v. County of Buena Vista, 95 XJ. S. 157; Twin Lick Oil Co. v. Marbury, 91 TJ. S. 587; Hayward V. Bank, 96 U. S. 611; Holgate V. Eaton, 116 U. S. 33; 6 Sup. Ct. 224; Davison v. Davis, 125 XJ. S. 90; 8 Sup. Ct. 825;. So- ciete Fonciere et Agricole des Btats Unis v. Milliken, 135 XJ. S. 304; 10 Sup. Ct. 823; Galiher V. Cadwell, 145 U. S. 368; 12 Sup. Ct. 873. In the latter case Mr. Justice Brown, who deliv- ered the opinion of the court, says that the cases which deny relief where long delay has su- pervened in the assertion of rights "all proceed upon the the- ory that laches is not like limit- ation, a mere matter of time, but principally a question of the in- equity of permitting the claims to be enforced, and inequity founded upon some change in the condition or relation of the prop- erty of the parties." In the cases which he quotes as illus- trative of the doctrine of the courts of equity upon the effect of delay, complainants who had postponed action for periods ranging from two to seven years were held chargeable with laches and denied relief. Laches de- prive a party of the right to ap- ply to a court of equity for re- lief, although the defendant does not in his answer allege that the claim is stale. Harris v. Hil- lengass, 66 Cal. 79. A court of equity will refuse to entertain a suit brought after an unreason- able delay regardless of a plea of the statute of limitations. Chapman v. Bank of Cal., 97 Cal. 155. 5* Societe, etc., v. Milliken, 135 XJ. S. 304. A refusal of the court to grant relief where the plain- tiff is guilty of laches is not based upon a presumption of payment nor upon analogy to 166 EQUITABLE BEMEDIES. [§ 131. (d) If the time elapsed prior to the bringing of the suit is unreasonable the plaintiff in the bill must state specifically what were the impediments to an earlier prosecution of the suit, such as how his ignorance.of his rights occurred, or the means used by defendants to keep him in ignorance, or how and when he came to a knowl- edge of the matters alleged in the bill.®^ The matter of laches is addressed to the sound judicial discretion of the court under the facts and circum- stances disclosed in each particular case.^® the statute of limitations but up- on considerations of public pol- icy and the difficulty of doing entire justice between the par- ties in consequence of unreason- able delay. Chapman v. Bk. of Cal., 97 Cal. 155. The principle factors in determining the ques- tions of laches are acquiescence and lapse of time, change in value or character of the prop- erty, etc. Chapman v. Bk. of Cal., 97 Cal. 155. Where the legal title has become vested in a bona fide purchaser for value while a judgment creditor was sleeping on his rights, a court of equity will not interfere. Trues- dell V. Lehman, 47 N. J. Bq. 218. A creditor seeking to annul a deed of trust for creditors exe- cuted by the officers of a corpo- ration, upon the ground that they were without authority to execute the same, must begin action within a reasonable time after the execution of the deed. Miller v. Matthews, 87 Md. 464. A plea that the property has been sold under execution since plaintiff's suit was brought is not available in favor of defend- ant, but only in favor of the purchaser or his privies. Ar- buckle Bros. Coffee Co. v. Wer- ner, 77 Tex. 43. It is no ob- jection that a foreclosure, even if invalid, constitutes no obstruc- tion to the sale of the premises under execution, since the equity of redemption could be sold more advantageously if the mortgage was not foreclosed. Swain v. Lynd, (Minn.) 76 N. W. 958. 55 Jones V. Perkins, 76 Fed. Rep. 82. Where a creditor of an estate is induced to delay action on the promise that he would be paid as soon as land belonging to the estate could be sold ad- vantageously, and he does not present his claim within the time limited by law by reason of the promise made he may maintain a bill in equity to recover the balance of his claim. Knight v. Cunningham, 160 Mass. 580. Where a creditor waited seven years after a fraudulent convey- ance was made and on learning thereof instituted suit there is no ground for equitable estoppel against him. Annin v. Annin, 24 N. J. Eq. 184. When a com- plainant in a creditor's bill has by his delay, induced or suffered a defendant to incur expense or enter Into engagements of a bur- densome character, a court of equity will consider that the complainant is guilty of such laches as precludes him from ob- taining relief. Coyne v. Sayre, 54 N. J. Eq. 702; De Grauw v. Mechan, 48 N. J. Eq. 219; Ald- ridge v. Muirhead, 101 U. S. 397. 68 Chapman v. Bk. of Cal., 97 Cal. 155. OHAPTEE V. JUDGMENT, BIXECUTION AND RETURN. § 150. Judgment required — General rule. 151. Reason for this primary rule. 152. Rule In United States courts. 153. Practice not uniform in fraudulent conveyances. 154. Levy of execution or return not required, when. 155. Return of execution — ^When required. (a) To reach equitable assets. (b) Where judgment has been assigned. (c) To remove fraudulent conveyances, incumbrances, etc. (d) To recover from stockholders unpaid stock. (e) To reach partnership property, when. (f) To set aside an assignment, but not to uphold as- signment. (g) To reach money due the debtor. (h) To personal property fraudulently sold. (i) To remove a fraudulent judgment. (j) To relieve against fraud generally. (k) To administer the assets of an insolvent firm. (1) In case of a surety who has paid debt of principal. 156. Grounds of equitable relief. (a) Lien in favor of plaintiff. (b) Exhaustion of legal remedies. 157. Nature of lien required. 158. Reasons for rule requiring judgment, etc. 159. General creditor cannot recover by joining with judgment creditor. 160. Attachment as a basis of suit. 161. Exhaustion of legal remedy must be complete. 162. There must be an existing lien. 163. General creditor has no standing. 164. A money decree sufficient. 165. Rule applies to suits to enjoin debtor from selling. 166. Jurisdiction not conferred by supplemental bill. 167. Exceptions to rule requiring judgment, etc. (a) Where the debtor is dead. (b) Where an assignment by a non-resident debtor. (c) Where the debtor is insolvent. 167 168 EQUITABLE EEMEDIES. (d) Where the debtor is an insolvent corporation and defunct. (e) Where the statute creates a lien on lands of a de- cedent. (f) Where the fund to be reached is a trust fund. (g) Where attachment Is treated as sufficient, (h) Where a trust has been created. (i) Where the debtor has absconded. (i) Where an administrator refuses to sue. (k) Where the fund is accessible to a court of equitjr. (1) That debtor may dispose of property not an ex- ception. (m) Where service on corporation and stockholders im- possible. (n) Where corporation is in process of winding up — Receiver. (0) Where proceedings against an equitable estate, (p) Where statute gives right to a general creditor. 168. Execution must issue to proper county. 169. Issuing of execution may be waived by defendant. 170. Exhaustion of legal remedy — How established. 171. A debtor of defendant paying protected. 172. Return of execution — When made. (a) Return within statutory period prima facie. (b) Return within statutory period after demand, etc. (c) Return by order of plaintiff's attorney. (d) Return is jurisdictional — To what court returned. (e) Return before bill filed. (f) Return if irregular may be amended. (g) Return imports verity, but must not be collusion, (h) Return no uniform rule as to requisites. (1) Return defective may be cured on hearing, (i) Return admitted is prima facie. 173. Judgment need not be such that immediate levy could be made. 174. Judgment upon a judgment — Effect of. 175. Valid judgment by confession sufficient. 176. Judgment when conclusive, regularity of execution. 177. Judgment not conclusive as to other creditors. 178. Judgment in federal court basis for bill in state court and vice versa. 179. Judgment need not antedate act complained of. 180. Claim against estates must be exhibited to be basis. 181. Bill by wife against husband — Must be creditor. 182. Judgment necessary though fraud alleged. 183. Allegation as to date of judgment — Amendment. § 150.] JUDGMENT, EXECUTION AND HETUBN. 169- 184. Judgment based on tort sufficient. 185. Order of proceeding as between joint tenants and surety. 186. Agreement to pay debts secured by threats not enforcible. 187. One judgment creditor may attack another. Section 150. Judgment Ileq[uired. — The general rule is that a Creditors' Bill, or a bill in the nature of a Creditors' Bill, will not lie until a judgment, or a money decree, in favor of the plaintiff against the debtor has been obtained, and is thus made the foundation of the equitable proceeding. This rule is based upon the gen- eral principle lying at the foundation of all equitable proceedings that in the absence of statutory jurisdiction, or purely equitable proceedings, common law remedies must have been first exhausted before equitable proceed- ings will be entertained. A valid judgment against the debtor, the issuance of an execution thereon to the proper officer, in the proper county, and a return of such execution unsatisfied, in whole or in part, are essential prerequisites to the filing of a Creditors' Bill. This is the proper and legal method of establishing the jurisdiction of a court of equity in that it shows an exhausting of legal remedies. The exhaustion of legal remedies is required except where the plaintiff has a specific lien, by attachment or execution, upon the money or property from which it was derived. The great weight of authority both in Great Britain and in this country is that a court of equity will not interfere until plaintiff has obtained judgment if he desires to have a fraudulent obstruction removed, or if it is to subject an equitable estate, not liable to sale on execution he must exhaust his legal remedies by obtaining a judgment and a return of nulla hona before a court of equity will afford such relief.^ 1 Clark V. Raymond, 84 la. 257; Gordon v. Worthley, 48 la. 429; Gwyer v. Figgins, 37 la. 517; Pearson v. Moxfield, 51 la. 76;. 170 EQUITABLE EEMEDIES. [§ 150. Miller v. Dayton, 47 la. 312; Bigelow, B. S. Co. v. Magee, 27 N. J. Eg. 392; Hasten v. Castner, 31 N. J. Bq. 697; Swayze v. Swayze, 9 N. J. Bq. 273; Oakley V. Pound, 14 N. J. Bq. 178; Ed- gar V. Clevenger, 1 Green's Ch. 258; Hunt v. Field, 1 Stock. 36; Williams v. Michenor, 11 N. J. Eq. 520; Stirlen v. Jewett, 165 111. 410; Prothingham v. Hodenpyl, 48 N. Y. S. R. 449. Where a creditor seeks the aid of a court of equity as to real estate he must show a judgment at law creating a lien thereon and if he seeks aid in regard to personal property he must also show exe- cution. Edgar v. Clevenger, 2 N. J. Eq. 258; Swayze v. Swayze, 9 N. J. Eq. 273; Young v. Frier, 9 N. J. Bq. 465; Wiggins v. Arm- strong, 2 Johns. Ch. R. 144; Post V. Rouch, 26 Fla. 442; Crib- bedge v. Adams, 42 Ga. 124; Pey- ton V. Lamar, 42 Ga. 131; Reu- bens V. Joel, 13 N. Y. 488; Dun- levy V. Tallmadge, 32 N. Y. 457; Cassldy v. Meacham, 3 Paige 311; McBlwain v. Willis, 3 Paige 505; Child V. Brace, 4 Paige 309; Merchants' etc. Bk. v. Griffith, 10 Paige 519; Hastings v. Belk- nap, 1 Denio 190; Neustadt v. Joel, 2 Duer 530; Gilbert v. Stock- man, 81 Wis. 602; Adee v. Bigler, 81 N. Y. 349; Adsit v. Butler, 87 N. Y. 585; McCullough v. Colby, 5 Boseo 477; Geery v. Geery, 63 N. Y. 252; Fox v. Moyer, 54 N. Y. 125; Dunlevy v. Tallmadge, 32 N. Y. 457; Shaw v. Dwight, 27 N. Y. 244; North American F. Ins. Co. V. Graham, 5 Sandf. 197; Lichtenberg v. Herdttelder, 33 Hun, 57; Hadden v. Spader, 20 Johns. 554; Webster v. Clark, 25 Me. 313; Dana v. Haskell, 41 Me. 25; Rice v. Barnard, 20 Vt. 479; Jones v. Green, 68 U. S. 330; Bigelow v. Andreas, 31 111. 322; Ballentine v. Beall, 3 Scam. 203; Chicago D. & V. R. Co. V. Town of St. Anne, 101 111. 151; Wise. Granite Co. v. Gerrity, 144 111. 77; Herrlich v. Kauftman, 99 Cal. 271; Cf. Tay- lor V. Robinson, 7 Allen 253; Wiggin v. Heywood, 118 Mass. 514; Carver v. Peck, 131 Mass 291; Taylor v. Robinson, 7 Allen 253; Smith v. Hurst, 10 Hare 30; McDermott v. Strong, 4 Johns. Ch. 687; Reubens v. Joel, 13 N. Y. 488; Krouskop v. Krouskop, 95 Wis. 296; Hopkins v. Joyce, 78 Wis. 443; Melssner v. Meiss- ner, 68 Wis. 336; Adee v. Big- ler, 81 N. Y. 349; Carter v. Hightower, 79 Tex. 135; Mellen v. Moline, etc. Wks., 131 U. S. 352; Jones v. Green, 68 U. S. 330; Smith v. F. Scott H. etc. R. Co., 99 U. S. 398; Van Weel v. Winston, 115 U. S. 228; Smith v. Railroad Co., 99 XJ. S. 399, 401; Skeele v. Stanwood, 33 Me. 307; Zella Guano Co. v. Heatherly, 38 W. Va. 409; Partee v. Mat- thews, 53 Miss. 140; Fleming v. Grafton, 54 Miss. 79; Hess v. Horton, 2 App. Cases (D. C.) 81; Union Trust Co. v. Boker, 89 Fed. Rep. 6; Jenks v. Horton, 4 Det. L. N. 481; Meux v. An- thony, 11 Ark. 411; Williams v. Bizzell, 11 Ark. 716; Southard v. Benner, 72 N. Y. 424; Geery v. Geery, 63 N. Y. 252; Frisbey v. Thayer, 25 W. R. 396; Fox v. Moyer, 54 N. Y. 125. In Pennsyl- vania a contract creditor is with- in the protection of the statute against fraudulent transfers, as well as a judgment creditor; but he cannot assert his rights there- under until he has recovered a judgment or a lien, or a right to a lien, upon the specific property. Re Hogan's Estate, 181 Pa. 500. In this case the charge of fraud was against a judgment creditor. In Kentucky simple-contract creditor could not, prior to act March 16, 1896, set aside a con- veyance by the debtor as fraudu- lent in an action on the contract, without procuring an attach- ment. Johnson v. Bonfield, 19 Ky. L. Rep. 300, 40 S. W. 697. The purpose of showing a judg- ment and execution returned no property found, is to show that plaintiff has exhausted his legal remedies. Durand v. Gray, 129 111. 9; Preston v. Colby, 117 111. § 151.J 171 Or the action may be in aid of an execution outstand- ing, which for some reason cannot be enforced.^ § 151. Reason for Eule. — The necessity of these prerequisites is not in the fact that the creditor will reap a benefit, pecuniary or otherwise, from the judg- ment, execution and return. In fact it is frequently known in the very outset that they will be unavailing. The purpose, therefore, is rather to lay a foundation for 477; Dormueil v. "Ward, 108 111. 216; Balentlne v. Beall, 3 Scan. 203; Miller v. Davidson, 3 Gilm. 518; McDowell v. Cochrane, 11 111. 31; Ishmael v. Parker, 13 111. 324; Newman v. Willets, 52 111. 98; McConnel v. Dickson, 43 111. 99; Beach v. Bestor, 45 111. 341; Ladd v. Judson, 71 111. App. 283, 174 111. 344. In this case it was held that a foreign judgment could not be made the basis, of a creditor's bill. The issue and return of execution unsatisfied are not conditions precedent to the maintenance of a bill by a creditor to set aside fraudulent conveyances executed by the debtor without consideration, al- though to maintain a creditor's bill to reach equitable assets the legal remedy must be first ex- hausted. Wisconsin Granite Co. T. Gerrity, 144 111. 77. The re- turn of an execution that it is wholly unsatisfied is evidence of the exhaustion of legal remedies and a basis for a creditor's suit. Doskam v. NefE, 79 Wis. 161. To entitle a creditor to reach money in the hands of the court ap- parently belonging to another creditor of a common debtor he must show that he has exhausted his remedy at law against the debtor, or has a specific lien upon the money by attachment or execution or upon the proper- ty from which money was de- rived. Meissner v. Meissner, 68 Wis. 336. Cf. Montague v. Hor- ton, 12 Wis. 599; Hyde v. Chap- man, 33 Wis. 391; Williams v. Sexton, 19 Wis. 42; Gates v. Boomer, 17 Wis. 455; Cornell v. Radway, 22 Wis. 260. 2 Gilbert v. Stockton, 81 Wis. 602. The existence of the lien of the execution without an ade- quate remedy for enforcing it at law by reason of a fraudulent or inequitable obstruction inter- posed by the defendant, is suf- ficient to give a court of equity jurisdiction. Galloway v. Hamil- ton, 68 Wis. 651; Cornell v. Radway, 22 Wis. 260; Angell v. Draper, 1 Vern. 399; Shirley v. Watts, 3 Atk. 200. Where a judg- ment became a specific lien on property of the debtor by a levy thereon he may maintain an equitable proceeding to remove a fraudulent conveyance with- out a return of the execution. In such case relief rests upon the fact that an execution has is- sued, and a specific lien has been acquired upon the property of the debtor by its levy, but that the obstruction interposed pre- vents a sale of the property at a fair valuation. It is to re- move the obstruction and thus enable the creditor to obtain a full price for the property that the suit is brought. Galloway v. Hamilton, 68 Wis. 651; Cf. Jones V. Green, 68 U. S. 330; Gates v. Boomer, 17 Wis. 455; Cornell v. Radway, 22 Wis. 260; Beck v. Burdett, 1 Paige, 305; North Am. F. Ins. Co. v. Graham, 5 Sandf. 197; McBlwain v. Willis, 9 Wend. 548; Brainard v. Van Kuran, 22 la. 261; Fleming v. Grafton, 54 Miss. 79; Montgom- ery V. McGee, 7 Humph. 234; 173 EQUITABLE REMEDIES. [§ 152, the jurisdictional intervention of a court of equity. This being true it follows that the facts which consti- tute the exhaustion of legal remedies are jurisdictional facts and must be alleged in the bill or petition, and if not admitted must be proven on the hearing.* § 152. Rule in United States Courts. — The rule prevails in the Circuit Court of the United States sit- ting as a court of equity where the purpose of the pro- ceeding is to reach property that has been fraudulently conveyed by the debtor, though in that court, as will be seen elsewhere, there is greater latitude and liberality in allowing exceptions to the rule, where no useful end is subserved by its strict enforcement, the jurisdiction being shown by other averments. It should also be observed that the practice of this court is not modified by the statutory enactments of the State in which the court is sitting with reference to the jurisdictional standing of the plaintiff.* McNalry v. Eastland, 10 Yerg. 310. . 3 Weaver v. Haviland, 142 N. Y. 534. The general rule is that as preliminary to the filing of a creditor's bill a judgment and an execution thereon returned unsatisfied are required, as juris- dictional facts. The National Tradesmen's Bk. v. Wetmore, 124 N. Y. 241. These prerequi- sites are not dispensed ■with though no benefit results to the creditor therefrom. Id. Estes y. Wilcox, 67 N. Y. 264; Adsit v. Butler, 87 N. Y. 585. One not having a judgment and execu- tion is not a creditor within the meaning of the New York stat- ute. Sec. 1 Ch. 279 Laws 1833. Jones V. Graham, 77 N. Y. 628. A creditor's bill must contain an averment that an execution has been issued on the judgment and returned fruitless. Suydam V. N. W. Ins. Co., 51 Pa. St. 394; Hendricks v. Robinson, 2 Johns. Ch. 283; Brinkerhott v. Brown, 4 Johns. Ch. R. 671; Williams v. Brown, 4 Johns. Ch. 682; Clark- son v. De Peyster, 3 Paige, 320; Beck V. Burdett, 1 Paige, 305; Harrison v. Battle, 1 Dev. Eq. 537. A general creditor having no judgment has no standing in the circuit court of the United States sitting as a court of equity under a bill to set aside and va- cate a fraudulent conveyance. Cates v. Allen, 149 U. S. 451; National Tube Works v. Ballon. 146 U. S. 517; Smith v. Railroad Co., 99 U. S. 398; Case v. Beau- regard, 99 U. S. 119; Cf. Angell v. Draper, 1 Vern. 399; Shirley v. Watts, 3 Atk. 200; Wiggins v. Armstrong, 2 Johns. 144; McEl- wain V. Willis, 9 Wend. 548; Crippen v. Hudson, 3 Kernan 161; Jones v. Green, 68 U. S. 330. * Jurisdiction of a federal court to reach property fraudulently conveyed must be based on a judgment notwithstanding a § 152.] JUDGMENT, EXECUTION AND EBTUEN. 173 The rule in the Federal courts is the same as in most of the State courts where suit is brought in equity to subject the property of the defendant to the payment of a debt which requires as a precedent action the exhaus- tion of legal remedies. In all cases where a court of equity interferes to aid the enforcement of a remedy at law, there must be an acknowledged debt, or one es- tablished by a judgment rendered, accompanied by a right to the appropriation of the property of the debtor for its payment, or, to speak with greater accuracy, there must be, in addition to such acknowledged or es- tablished debt, an interest in the property, or a lien thereon, created by contract or by some distinct legal proceeding.^ The general proposition that new equitable rights created by the States may be enforced in the Federal courts is correct, but it is subject to the qualification that such enforcement does not impair any right con- ferred, or conflict with any prohibition imposed by the Constitution or laws of the United States. Thus where the statute of a State gives courts of equity jurisdiction of bills exhibited by creditors who have not obtained judgments at law, or having judgments have not had executions returned unsatisfied, to set aside fraudulent conveyances of property or other devices resorted to for the purpose of hindering, delaying or defrauding credit- ors, such bills cannot be exhibited in the United States courts for the reason that the Constitution in its Sev- state statute authorizing such creditor. Columbus Watch Co. suit without judgment. HoUlns v. Hodenpyl, 135 N. Y. 430. T Brierfield C. Co., 150 U. S. 371; s Scott v. Neeley, 140 U. S. 106;' Gates V. Allen, 149 U. S. 451. The Smith v. Railroad Co., 99 U. S. rule requiring judgment is ap- 398, 401; Angell v. Draper, 1 pllcable to a suit against a cor- Vern. 398, 399; Shirley v, poration to reach unpaid stock. Watts, 3 Atk. 200; Wiggins v. HoUins V. Brierfield C. Co., 150 Armstrong, 2 Johns. Ch. 144; U. S. 371. The offer of a debtor McElwain v. Willis, 9 Wend. 548; to allow a judgment does not Crippen v. Hudson, 3 Kern. 161;i render it collusive as to another Jones v. Green, 68 U. S. 330. 174 EQUITABLE EEMEDIES. [§ 152. enth Amendment declares that in suits at common law where the value in controversy shall exceed twenty dol- lars the right of trial by jury shall be preserved. This right cannot be impaired by blending with the claim cognizable at law a demand for equitable relief in aid of the legal action.® The rule is applicable to almost all classes of Credit- ors' Bills, and bills in the nature of Creditors' Bills where jurisdiction is exercised in behalf of creditors against their debtors and those in privity with them, thus in proceedings to remove fraudulent conveyances, incumbrances, mortgages, judgments, assignments and transfers of personal property, to reach the equitable assets of the debtor not subject to levy and sale, pro- ceedings against insolvent corporations and their stock- holders, trusts, etc.^ The basis for the application of e Scott V. Neeley, 140 XJ. S. 106. The blending of common law and equitable remedies Is not per- missible in the courts of the Uni- ted States. Bennett v. Butter- worth, 11 How. 669; Thompson v. Railroad Co., 6 WaU. 134; Robinson v. Campbell, 3 Wheat. 212; Fenn v. Holme, 21 How. 481. ' On a bill filed to set aside a fraudulent conveyance it must appear that plaintiff has ex- hausted his legal remedy; but this is shown by the return of an execution nulla bona. If the officer makes a demand for property or money to satisfy the execution and the debtor states that he has neither, the officer may thereupon return the execu- tion no property found. Lewis v. Lanphere, 79 111. 187; Chicago, D. & V. R. Co. V. Town of St. Anna, 101 111. 151; Russell v. Chi- cago T. & S. Bk., 139 111. 538. If the claim is a legal demand judgment and execution returned are required. Austin v. Bruner, 65 111. App. 301; Boulton v. Dement, 123 111. 142; Hanferd Oil Co. V. First N. Bk., 126 111. 584. The fact of insolvency of the debtor is not sufficient in Illinois to waive the necessity of a judgment and execution re- turned nulla bona. Greenway v. Thomas, 14 111. 271; Patterson v. Lynde, 112 111. 196; Bigelow v. Andress, 31 111. 322; Gore v. Kramer, 117 111. 176. Insolven- cy, however, if coupled with some reason why judgment can- not be obtained is sufficient. Greenway v. Thomas, 14 111. 271; Steere v. Hoagland, 39 111. 264. In order to sustain a bill in equity to set aside a fraudulent conveyance the creditor must show that he has already estab- lished his debt by a judgment of some court of competent juris- diction. This is established doc- trine In Illinois by an unbroken line of cases. Austin v. Bruner, 169 111. 178. It is not an excep- tion to this rule that the grantee would in the meantime put the property out of his possession and into the hands of an inno- §§ 153, 154.J JUDGMENT, EXECUTION AND EETUEN. 175 this rule in most of the States is uniformity, and its merit is in that it relieves the case from any uncertainty as to what might have resulted had no execution been issued, and places the jurisdiction of the equity court squarely upon an exhaustion of all legal remedies, which is the general doctrine at the foundation of equitable jurisdiction.* § 153. Practice not Uniform in Matters of Fraudulent Conveyances. — The practice is not uni- form in all jurisdictions. Where a creditor seeks the aid of a court of equity to subject property fraudulently conveyed to the payment of his debts, a judgment must first be obtained before any land so conveyed can be reached, and where the purpose is to reach personal property, an execution must have been issued first. The creditor may, however, after judgment, file his bill and have the title settled before undertaking to sell, under the judgment, but he is not bound to do so. He may sell under his execution, become the pilrchaser and have deed issued based on the judgment and file his bill to quiet his title. In this proceeding the issuance of an execution and return thereof, nulla bona, are not re- quired.^ § 154. Return of Execution— Return "When not Required. — The levy of an execution is not a pre- cent purchaser, and thereby de- to levy and sale under an execu- feat the collection of the debt. tion at law. A judgment and Austin V. Bruner, 169 111. 178; execution returned nulla bona Dormueil v. Ward, 108 111. 216; are necessary before resorting to Shufeldt V. Boehm, 96 111. 560. a court of equity. It is a juris- Nor is it an exception to the dictlonal prerequisite. Miller v. rule that a judgment is required Davidson, 5 Gilm. 518; Green- that the debtor has made an way v. Thomas, 14 111. 271; assignment and is insolvent. Weightman v. Hatch, 17 111. 281. Austin V. Bruner, 169 111. 178; a McDermott v. Strong, 4 Dormueil v. Ward, 108 111. 216; Johns. Ch. 687; Hadden v. Spa- Shufeldt V. Boehm, 96 111. 560. der, 20 Johns. 554. Where it is sought to satisfy a » Harrison v. Kramer, 3 Iowa debt out of some equitable' estate 543, 561; Stock Growers' Bank of the debtor, which is not liable v. Newton, 13 Colo. 245. 176 EQUITABLE EEMEDIES. [§ 155. requisite to the filing of a Creditors' Bill where the judg- ment debtor never had a legal title to the premises or where his interest as a vendee under the contract has terminated before judgment by virtue of the contract on both sides.^** And where a judgment is obtained, execu- tion issued, a levy made on property held by the wife in secret trust for her husband, a bill may be filed by a judgment creditor to subject the property to the pay- ment of the debt without execution returned nulla hona. The proceeding in such case is not based on the theory of reaching equitable assets on which the judg- ment is not a lien, nor upon the theory of an exhaustion of legal remedies, but to remove out of the way of the execution a pretended conveyance alleged to be void."^ The requirement of a judgment, execution and return nulla hona is necessary in all cases where the creditor's proceeding is based on the general equity powers of the court, unmodified by the statute.^^ § 155. Return of Execution — "When Required.— The general rule which has been established from the earliest times is that the return of an execution un- satisfied based on a judgment against the debtor, by the 10 Fairbairn v. Middlemiss, 47 ment, and no execution has been Mich. 372. It has been some- returned unsatisfied. Brock v. times held that the judgment Rich, 76 Mich. 644; Pierce v. alone is suflBicient where the bill Rich, 76 Mich. 648. is to reach property fraudulently n Brainard v. Van Kuran 22 conveyed, but the weight of au- 111. 261; Of. Loving v. Pairs, 10 thorlty lis that a judgment and la. 282; Postlewait v. Howes, 3 execution Issued and not re- la. 365; Harrison v. Kramer, 3 turned is sufficient. Pox v. la. 543; Savery v. Browning ' 18 Moyer, 54 N. Y. 125; Hendricks la. 246; Beck v. Burdett 1 Paige V. Robinson, 2 Johns. Ch. 283; 305. Where it is sought to set McCullough V. Colby, 5 Bosw. aside a fraudulent conveyance of 477; The N. A. Fire Ins. Co. v. real estate and the return of an Graham, 5 Sandt. 197. Though execution is a necessary pre- ^;^'if^,P^'ii° ill Shaw V. Dwight. requisite, the execution must be ll N. Y. 244 held that an execu- such that it could be levied on tion returned unsatisfied was real estate. Behan v Warfield. necessary. A creditor's bill can- 90 Ky. 151. not be sustained where there has . 12 Weil v. Raymond, 142 Mass. been a simple demand of pay- 206; Carver v. Peck, 131 Mass. 291. ? 155.] JUDGMENT, EXECUTION AND EETUEN. 177 proper officer, is a necessary prerequisite to the filing of a Creditors' Bill.is (a) Where it is sought to reach equitable assets of the creditor which cannot be reached at law, judgment and execution returned unsatisfied are necessary to give jurisdiction in equity.^* \ (b) But it is not necessary for the assigneie of a judg- es The return of an execution unsatisfied is established as a prerequisite from the earliest times. Angell v. Draper, 1 Vern. 399. Property fraudulent- ly assigned cannot be reached by a creditor's bill based on a judg- ment merely. An execution in such case so as to become a lien on the property is required. Spear v. Wardell, 2 Barb. Ch. 291; Cf. Wiltshire v. Meerfleet, 1 Edw. Ch. 654. The return of an execution on the return day is a good return for the purposes of a judgment creditor's bill under the statute. Williams v. Hubbard, 1 Mich. 446. A judg- ment creditor's bill averred that execution had been returned unsatisfied on a specified day. It was demurred to on the ground that it failed to show "that the execution was returned as required by law to entitle complainants to maintain the bill. Held that the demurrer did not suflBciently present the ob- jection that the date of the re- turn was Sunday. Kellogg v. Hamilton, 43 Mich. 269. 14 Russell V. Chicago T. & S. Bk., 139 111. 538; Dormueil v. Ward, 108 111. 216; Hickling •V. Wilson, 104 111. 54; Scripps v. King, 103 111. 469; Mann v. Ruby, 102 111. 348; Chicago D. & V. R. Co. V. St. Anne, 101 111. 151; Moshier v. Meek, 80 111. 79; Dewey v. Eckert, 62 111. 218; Mugge V. Ewing, 54 111. 236; Mc- Connell v. Dickson, 43 111. 99; Steere v. Hoagland, 39 111. 264; Bay V. Cook, 31 111. 336; Bige- low V. Andress, 31 111. 322; Greenway v. Thomas, 14 111. 271;' Ishmael v. Parker, 13 111. 324; McDowell V. Cochrane, 11 111. 31; Miller v. Davidson, 8 111. 518; Petway v. Hoskins, 12 Lea 107; Parmelee v. Egan, 7 Paige Ch. 610; Brooks v. Wilson, 53 Hun, 173; Miller v. Sherry, 69 U. S. 237; Hallorn v. Trum, 125 111. 247; Rappleye v. International Bk., 93 111. 396; Lyon v. Rob- bins, 46 111. 276; George v. Wil- liamson, 26 Mo. 190. A party by his execution at law obtains no vested interest in mere equitable rights unless there are some fraudulent or colorable transfers or some direct trust. Disbo- rough V. Outcalt, 1 N. J. Bq. 298. The general rule is subject to very few exceptions that before a bill can be filed to reach equit- able assets, the creditor must first recover a judgment at law or its equivalent, a money de- cree, and have execution issued and returned unsatisfied. Win- slow V. Leland, 128 111. 304. If a proceeding is to remove a fraud- ulent conveyance or incum- brance or other obstructions out of the way of the collection of a debt, the creditor may file his bill as soon as he obtains judg- ment; but where he seeks to reach the equitable assets of the debtor which are not liable to levy and sale under execution, he must not only obtain judgment at law, but must have execution issued and returned unsatisfied. Detroit Copper & B. R. M. Co. v. Ledwidge, 162 111. 305; Miller v. Davidson, 3 Gilm. 518; Shufeldt V. Boehm, 96 111. 560. 178 EQUITABLE EEMEDIES. [§155. ment to cause an execution to be issued and returned nulla bona after becoming such assignee of tlie judgment before be can file a Creditors' Bill, if an execution bas been issued on the judgment and return prior to the as- signment.^^ (c) And where it is sought to remove a fraudulent conveyance or incumbrance.^® But a judgment subse- quent to a general assignment for the benefit of cred- itors does not give the judgment creditor a basis for a bill to set aside a fraudulent conveyance. In such case the assignee is the proper person as plaintiff to attack the fraudulent transfer.* '^ A fraudulent recital in a deed standing on record in the name of a judgment debtor does not constitute such an obstruction to the enforce- ment of the judgment lien as will entitle the judgment creditor to file a bill for its removal.** (d) Or recover from a stockholder of a corporation his unpaid stock lia- bility.*® (e) Or to reach partnership property.*" (f) Or 15 Rankin v. Rothschild, 78 Mich. 10; Gleason t. Gage, 7 Paige, 121. i« By a judgment a creditor es- tablishes a lien upon all of the debtor's real estate and if the debtor has fraudulently con- veyed or incumbered it so as to interpose an obstacle which em- barrassed the debtor in his legal proceedings he may file his bill to remove such conveyances or Incumbrances. In such case it is not necessary that execution be issued, but is, of course, advisa- ble that execution be issued to avoid a contest with subsequent and execution creditors. Dun- ham V. Cox, 10 N. J. Bq. 437; and see Hughes v. Noyes, 171 111. 575. A fraudulent convey- ance cannot be attacked except by a judgment creditor on ex- ecution returned unsatisfied. Green v. Tantum, 19 N. J. Bq. 105; but see Scanlan v. Murphy, 51 Minn. 536. "Spring V. Short, 90 N. Y. 538. The assignee may do so. In such case the removal of the con- veyance will not subject the property to the payment of the judgment. Geery v. Geery, 63 N. Y. 252; Southard v. Benner, 72 N. Y. 424. 18 Cornman v. Sidle, 65 Minn. 84. 19 Under a creditor's bill to re- cover from stockholders their stock liability, in satisfaction of plaintiff's judgment, it is not competent for the defendant to show that the corporation had property at some other place or locality. A court of equity when its aid is invoked, looks only to the execution, and the return of the oflBcer to whom it was direct- ed. The court will not entertain inquiries as to the diligence of the oflBcer in endeavoring to find property upon which to levy. Baines v. Babcock, 95 Cal. 581; Cf. Jones V. Greene, 68 U. S. 330; § 155.] JUDGMENT, EXBCTTTION AND EETUEUT. 179 to set aside on assignment as being fraudulent,^^ but "where the bill is filed to uphold an assignment it may be Sturges V. Vanderbilt, 73 N. Y. 384. The obtaining of a judg- ment and the issuance of an ex- ecution thereon and a return thereof unsatisfied are required even though the judgment debt- or has surrendered its charter and has ceased to exist. Taylor T. Bowker, 111 U. S. 110. Where a statute provides that if an un- lawful division made by a cor- poration has been made or that it has property which cannot be attached; or is not by law at- tachable, any judgment creditor may file a bill in equity to pro- cure a decree for the satisfaction of his judgment out of the prop- erty the right of action thus conferred is an equitable right and does not accrue until the is- sue of an execution on the judg- ment and a return thereof un- satisfied. Taylor v. Bowker, 111 U. S. 110. Proof of the return nulla bona of an execution against a corporation, in an ac- tion to enforce the liability of stockholders is not obviated by a sheriff's return stating that he received notice from the presi- dent of the company that the property upon which he had levied did not belong to it, and that he had for that reason post- poned the sale, and afterwards announced that the sale would not take place, where it does not appear that the sheriff was un- able to find any other property than that levied upon. Albright V. Texas, S. F. & N. R. Co., 8 N. M. 422, reversing S. C. 8 N. M. 110. A creditor's bill is an appropriate and proper proceed- ing where it is sought to reach and appropriate the unpaid cap- ital stock of insolvent corpora- tions. As a general rule the un- paid capital stock of an insolvent corporation has been regarded as a trust fund for the payment of the corporate debts, and this in itself renders a court of equity peculiarly fitted for adjusting and settling the rights of all par- ties in interest. Hollins v. Brier- field, C. & I. Co., 150 V. S. 371; Clark V. Bever, 139 U.S. 96; Fogg V. Blair, 139 U. S. 118; Stone v. Chisolm, 113 U. S. 302; County of Morgan v. Allen, 103 U. S. 498; Hatch V. Dana, 101 U. S. 205; Terry v. Anderson, 95 XJ. S. 628; Sawyer v. Hoag, 84 XJ. S. 610; Ogilvie V. Knox Ins. Co., 63 U. S. 380; Sanger v. Upton, 61 U. S. 56; Montgomery Web Co. v. Dienelt, 133 Pa. St. 585; Mes- sersmith v. Sharon S. Bk., 96 Pa. St. 440; Crandall v. Lincoln, 52 Conn. 73; Gogebic In v. Co. v. Iron Chief, etc., Co., 78 Wis. 427; Pierce v. Milwaukee C. Co., 38 Wis. 253; Henry v. Vermilion, etc., R. Co., 17 Ohio 187; Miers V. Zanesville, etc., Co., 11 Ohio 273; Tradesman Pub. Co. v. Car Wheel Co., 95 Tenn. 634; Bart- lett V. Drew, 57 N. Y. 587; Fort Payne Bank v. Alabama, etc., Co., 103 Ala. 358; Missouri L. M. & S. Co. V. Reinhard, 114 Mo. 218; Hibernia Ins. Co. v. St. Louis, etc., Co., 13 Fed. Rep. 516. 20 A creditor has no standing in a court of equity as to part- nership property until he has ac- quired a lien, legal or equitable. Crippin v. Hudson, 13 N. Y. 161. It has been held in Iowa that a judgment rendered in an action between a firm and its individual members, fixing the amount due, ordering execution, and provid- ing for the application of the funds in the hands of a receiver and the individual partners, is a final judgment, on which an ac- tion to set aside a fraudulent conveyance may be brought. Ap- plegate v. Applegate, (la.) 78 N. W. 34. 21 Where a bill is filed by two firms of creditors against the 180 EQUITABLE REMEDIES, [§ 155. by judgment creditors and creditors at large.^^ (g) Or wliere it sought to reach money due the debtor,^^ (h) or to reach property such as a stock of goods fraudulently sold or transferred as a fraudulent preference,^* (i) or to reach and remove a fraudulent judgment, or one col- lusively confessed where no 'bona fide indebtedness ex- isted.^^ (j) Or for relief against fraud generally.^® (k) debtor and his assignee to set aside an assignment as fraudu- lent as against creditors and to apply property to the satisfaction of plaintiff's demands which ■were simple contract creditors, and their claims not reduced to judgment and subsequently other creditors applied by petition to be made parties to the bill who also charged fraud in the assign- ment praying that it might be set aside and the property and effects be equally divided among all creditors it was held that a court of equity would give no specific lien to a creditor at large against his debtor further than he has acquired at law. It is only when the plaintiff has ob- tained a judgment and execution seeking to subject the property of his debtor in the hands of third persons or to reach prop- erty not accessible to execution that a legal preference is ac- quired which a court of chancery will enforce. Day v. Washburn, 65 U. S. 352. 22 The rule requiring judgment and execution unsatisfied does not apply to a case where a bill is filed to uphold an assignment, in such case the suit may be maintained both by judgment creditors and creditors at large. Spelman v. Freedman, 130 N. Y. 421; Harvey v. McDonnell, 113 N. Y. 526; Preston v. Spaulding, 120 111. 208; Goncelier v. Foret, 4 Minn. 1; Holt v. Bancroft, 30 Ala. 193; McDougald v. Dougher- ty, 11 Ga. 570; Weir v. Tanne- hill, 2 Yerger 57. 23 Where plaintiff's claim had not been established by law filed his bill against the debtor on the ground of insolvency and praying that a debt due from a debtor of the debtor might be applied to the payment of the claim it was held that the plain- tiff could not recover in the ab- sence of an assignment of the debt to the plaintiff or a lien upon the fund. Smith v. R. R. Co., 99 U. S. 398. Such a bill must be preceded by a judg- ment at law establishing the measure and validity of the claim for which satisfaction is sought in chancery. Wiggins v. Armstrong, 2 Johns. Ch. 144; Hendricks v. Robinson, 2 Johns. Ch. 296; Green way v. Thomas, 14 111. 271; Mizell v. Herbert, 12 S. & M. 547; Gorton v. Massey, 12 Minn. 145; Skele v. Stan- wood, 33 Me. 307; Sexton v. Wheaton, 8 Wheat 229. 2*Goembel v. Arnett, 100 111. 34; Stone v. Manning, 2 Scam. 530; Bigelow v. Andress, 31 111. 322; McConnel v. Dickson, 43 lU. 99. 25 Where a judgment is coUu- sively confessed it is where no indebtedness whatever existed, it would be fraudulent, and any party whose interest might be affected could properly attack it Martin v. Judd, 60 111. 78; Phil- lips v. Demoss, 14 111. 410; Ran- som V. Jones, 1 Scam. 291; Den- ton V. Noyes, 6 Johns. 296; Hauer's Appeal, 5 W. & S. 473; Lewis V. Smith, 2 S. & R. 142; Finneran v. Leonard, 7 Allen 54; Field v. Glbbs, Peters C. C. R. 155; Tichout v. Cilley, 3 Vt § 156.] JUDGMENT, EXECUTION AND EBTUBN. 181 Before creditors are entitled to maintain a bill for the administration of assets of an insolvent firm they must acquire an equitable lien which it is said is done by ex- hausting their legal remedies, or in some other way.^^ (1) A surety having paid the debt must first reduce his claim to a judgment before coming into a court of equity to set aside a fraudulent conveyance.^* § 156. Grounds of Equitable Relief, — There are two classes of cases in which a plaintiff is permitted to come into a court of equity for relief after he has pro- ceeded to judgment and execution at law without ob- taining satisfaction of his debt. In one class the issuing of execution gives to the plaintiff a lien upon the property, but he is compelled to come into a court of equity for the purpose of removing some obstruction fraudulently or inequitably interposed to prevent a sale 415; St. Albans v. Bush, 4 Vt. 58; PlUsbury v. Dugan, 9 Ohio 117; Brown v. Nichols, 42 N. Y. 26; Holbert v. Montgomery's Ex'rs, 5 Dana 11. A creditor may maintain a bill in equity to an- nul an order fraudulently ob- tained setting apart a homestead to the debtor's wife, if he has no adequate remedy at law by ap- peal from such order. Wicker- sham V. Comerford, 96 Cal. 433. 26 Even where a bill is filed by a creditor to procure a relief against fraud, a judgment is necessary. Detroit Copper & B. R. M. Co. V. Ledwidge, 162 lU. 305; Shufeldt v. Boehm, 96 111. 560. In other words, unless the creditor has obtained judgment so as to have a certain claim upon the property of the debtor, he has no concern with such debtor's frauds. Id. Dewey v. Bckert, 62 111. 218. 27 Before creditors can main- tain a bill for the administration of the assets of an insolvent firm they must acquire an equit- able lien by exhausting their legal remedy, or in some other way. A creditor at large has no standing. Gore v. Kramer, 117 111. 176; Puterbaugh v. Elliott, 22 111. 157; Coughron v. Swift, 18 111. 414; City of Peoria v. Kid- der, 26 111. 351; Bigelow v. An- dress, 31 111. 322; Long v. Bar- ker, 85 111. 431; Shufeldt v. Boehm, 96 lU. 560; Dormueil v. Ward, 108 111. 216. Where goods are fraudulently obtained and a bill is filed to recover the debt, cancelling the contract of sale for fraud and then to obtain a decree for the payment of the value of the goods, an action at law will lie and equity will not interpose. Gore v. Kramer, supra. 28 Dewey v. EJckert, 62 111. 218 Greenway v. Thomas, 14 111. 271 Getzler v. Saroni, 18 111. 511 Wiggins V. Armstrong, 2 Johns. Ch. 144; McConnel v. Dickson, 43 111. 99. A surety who has paid a debt has no relief in a court of chancery as against a fraudu- lent conveyance. Must procure judgment exection and file a creditor's bill as any other cred- itor. McConnel t. Dickson, 43 111. 99. 183 EQUITABLE HEMBDIES. [§ 156. on execution. In the other, the plaintiff comes into an equity court to obtain satisfaction of his debt out of property of the defendant which cannot be reached by execution at law. In the first class the jurisdiction at- taches by reason of the lien or claim upon the debtor's property, and in the second class it is by reason of an exhaustion of the legal remedies as shown by the return of the execution.^^ Courts which base the equitable jurisdiction on the ground of the exhaustion of legal remedies, as shown by the rendition of a judgment, the issuance of an execution thereon, and the return thereof unsatisfied, are substantially uniform in holding these three things prerequisites to the equitable jurisdiction of the court in creditors' suits. Those, however, which base the equitable jurisdiction on the lien either of the judgment or execution waive the issuance and return of an execution, as jurisdictional prerequisites, where the purpose of the proceeding is to reach real estate only, as in such case usually the judgment alone constitutes the lien, but require the issuing of an execution where personal property is to be reached.*" 29 Beck V. Burdett, 1 Paige property of the debtor he has no 308. The reason for the rule re- concern with his frauds." See quiring execution lies in the also 1 Dev. Eq. 107; McDermott necessity of the plaintiff acquir- v. Strong, 4 Johns. Ch. 687. In ing a right or title to the debt- Michigan it was held in McKib- or's property by the common law ben v. Barton, 1 Mich. 213, that proceedings. Mr. Justice Nelson the bill could not be sustained in McElwain v. Willis, 9 Wend. for the reason that the execution 549. Mr. Chancellor Kent after had not been levied and hence no referring to Angel v. Draper, 1 lien was required as a basis for Vern. 399, and Shirley v. Watt, the bill. 3 Atk. 200, in Wiggins v. Arm- so if the creditor's bill is to strong, 2 Johns. Ch. 144, says: reach personal property the is- "The reason of the rule seems to suing of an execution on the be that until the creditor has judgment is necessary. This is established his title he has no for the reason that the execution right to intfeifere, and it would constitutes a lien on personal lead to an unnecessary and per- property and not a judgment, naps a fruitless and oppressive Dunham v. Cox, 2 Stock. 437. A interruption of the exercise of creditor's bill cannot be founded the debtor s rights. Unless he on a void judgment. Johnson v. has a certain claim upon the Parrotte, 46 Neb. 51. An action § 157.] JUDGMENT, EXECUTION AND KETUBN. 183 § 157. Nature of Lien Req^uired. — There has been much confusion on the subject of what constitutes a lien in favor of the plaintiff and against the debtor's prop- erty, such as will form the basis of an equitable pro- ceeding in the nature of a creditor's bill. The theory is advanced that by the recovery of a judgment and the issuing of an execution thereon a lien is acquired upon the debtor's property enforcible in equity. The diffi- culty in this contention is that there is no subsisting lien such as attaches in the case of an ordinary judg- ment, for in such case there could be no alienation ex- cept subject to the lien. There could be, of necessity, no lien growing out of the judgment and execution as to equitable assets, and such species of intangible prop- erty as are not subject to levy and sale. And it would seem that where neither the legal nor the equitable title to land had ever been in the debtor no lien could attach and form the basis of a creditor's bill or other equitable proceeding in the nature of a creditor's bill. The diffi- culty above indicated is obviated by basing the equitable jurisdiction upon the broad ground of an exhaustion of legal remedies, rather than the existence of a lien in favor of plaintiff.*^ based upon a judgment rendered no legal or equitable estate to against executors in their rep- -which an execution at law could resentatlve capacity cannot be attach. Gilbert y. Stockman, 81 maintained to set aside a convey- Wis. 602; Garfield v. Hatmaker, ance by the decedent debtor and 15 N. Y. 475; (overruling Wait fraudulent as to his creditors. v. Day, 4 Denio 439); Wood v. Lichtenberg v. Herdtf elder, 103 Robinson, 22 N. Y. 564: McCart- N. Y. 302. uey v. Bostwick, 32 N. Y. 53; 31 Where land is bought and Ocean Nat. Bk. v. Olcott, 46 N. paid for by the Judgment debtor Y. 12; Everett v. Everett, 48 N. and the title taken in the name Y. 218; Estes v. Wilcox, 67 N. of another with the intent to Y. 264; Underwood v. Sutcliffle, hinder, delay or defraud cred- 77 N. Y. 58; Hyde v. Chapman, itors it cannot be reached and 33 Wis. 391; Kluender v. Penske, sold on execution against the 53 Wis. 118; Pavey v. Am. Ins. debtor. This doctrine is based Co., 56 Wis. 221; Week v. Bos- on the ground that the debtor in worth, 61 Wis. 78; Cerney v. such case, in the absence of a Pawlot, 66 Wis. 262; Skinner v. statute giving such right, has James, 69 Wis. 605; Campbell 184 EQUITABLE EEMBDIES. [§ 158r Some courts have sustained the jurisdiction of courts of chancery in matters of this nature where there has been a fraudulent placing of the debtor's property be- yond the reach of creditors on the general ground of equitable jurisdiction in case of fraud.^^ § 158. Reasons for Rule Requiring Judg- ment, Etc. — Various reasons have been assigned as to the necessity of obtaining judgment as a condition pre- cedent to the filing of a creditor's suit. It has been said that the judgment is required in order to establish a lien upon the property sought to be reached, and par- ticularly so where there has been a fraudulent convey- ance or transfer, and to reach the property thus alien- ated is the purpose of the suit. This doctrine is based upon the idea that a lien is a necessary basis for equit- able jurisdiction. Another reason assigned for the rule has been that a judgment, execution and return nulla J)ona are required in order to establish the exhaustion of legal remedies, and thus lay the foundation of an equit- able proceeding. Still another view taken of this mat- ter is that the creditor's suit is, in reality, but an ancil- lary proceeding in aid of the common law action. Other courts have contended that a judgment was es- sential in order that the amount of the plaintiff's claim might thus be fixed and determined and his right to re- cover established at law. In other words, that a plain- tiff has no right of action in a court of equity unless he V. Campbell, 70 Wis. 311; Wat- is acquired upon chattels in the ters V. McGuigan, 72 Wis. 155; hands of an assignee for credit- Gettleman v. Gitz, 78 Wis. 439; ors by an attempted attachment Griffin v. Nitcher, 57 Me. 270; against the assignor or garnish- Hartshorn V. Eames, 31 Me. 93. ment of the assignee. Wilson v. Where one person pays for land Sax (Mont.), 54 Pac. 46. There and takes title in another there must be a specific lien by at- is no title to which a judgment tachment, execution or other- here can attach. Blackburn v. ■wise. Id. Lake Shore Traffic Co., 90 Wis. 82 Loomis v. TifEt,16 Barb. 541; 362; Miner v. Lane, 87 Wis. 348; Shellington y. Howland, 53 N. Y. Wilson v. Sax, 54 Pac. 46. No lien 371, 375. § 158.] JUDGMENT, EXECUTION AND EETUEN. 185. shall first establish the justice, and certainty thereof, by first recovering a judgment thereon. However much courts may have differed in their reasons assigned for the rule, the opinion is well nigh universal that a com- mon law judgment is an essential prerequisite to an equitable proceeding in matters of the nature under consideration, except where the statute has waived the necessity by changing the rule. Another ground upon which this doctrine is based is that a claim which is purely legal involves a trial at law by jury and to maintain a bill for the enforcement of such right without reducing the claim to a judgment would deprive the debtor of a trial by jury. A jury trial in an equity proceeding is not a constitutional right,, but it is in an action that is purely legal.^' A suit by a simple contract creditor under the pro- vision of the statute to have a conveyance by a debtor made in contemplation of insolvency adjudged to be an assignment for the benefit of all of the creditors of the debtor involves an element of trust which a court of equity alone can enforce, and for this reason the right of trial by jury granted by the constitution has no appli- cation to the case.^* 33 A mere contract creditor Copper & B. R. M. v. Ledwidge, cannot go into equity to en- supra; Gore v. Kramer, 117 III, force his legal demands, or 176; Scott v. Neely, 140 U. S- reach an equitable estate be- 106; Swan Land Co. v. Frank, fore he has exhausted his rem- 148 U. S. 603. edy at law. Detroit Copper 34 Early Times Distilling Co. v. & B. R. M. v. Ledwidge, 162 Zeiger, 49 Pac. Rep. 723; citing 111 305; McConnel v. Dickson, Cates v. Allen, 149 U. S. 451; 43 111. 99; Durand v. Gray, 129 Scott v. Neely, 140 TJ. S. 106; 111.9; Russell V. Chi. T. & S. Bk., Peters v. Bain, 133 U. S. 670; 139 111. 538. One of the grounds Barton v. Barbour, 104 U. S. 126; upon which this doctrine is Shields v. Thomas, 59 U. S. (18 based is that a claim which ia How.) 253; Consolidated T. L. purely legal involves a trial at Co. v. Kansas C. V. Co., 45 Fed. law by a jury and to maintain a Rep. 7. The fact that simple bill for the enforcement of such contract creditors of a corpora- right without reducing the claim tion have instituted garnishment to a judgment would deprive the proceedings under the Michigan debtor of a jury trial. Detroit statute making the garnishee- 186 EQUITABLE EEMBDIES. [§§ 159, 160. § 159. General Creditor Joining with Judgment Creditor, EiBfect of. — Where the title to the property was never in the debtor and a bill is filed by a judgment creditor and a general creditor to reach property owned by the debtor, but the title to which is in the name of his wife, to prevent his creditors from subjecting it to the payment of their claim, it has been held that the debt of the judgment creditor should be charged upon the land and that the debt of the general creditor could not be. This is by reason of the fact that rights of the joint plaintiffs are several. While the proceeding is joint the right of recovery and the evidence to sustain such right axe individual.^^ The requirement of a judgment is not obviated by an amendment to the bill adopting the amount admitted by the answer, which is less than is claimed in the bill.** § 160. Attachment as a Basis of Suit. — The courts are not entirely in harmony as to whether an attachment levied upon property forms a sufficient basis for a creditor's bill. Courts which make the juris- dictional basis depend upon the supposed lien of the judgment are pretty uniform in holding, by analogy, that the lien of the attachment forms a suflacient basis for the filing of a creditor's bill. The theory is that should the property go to sale under the attachment with the legal title clouded an advantageous sale would not be realized.^'^ personally responsible on which England v. Russell (C. C. S. D. there is no lien created upon the Ohio) 71 Fed. Rep. 818. property Is not a foundation for st Taylor v. Robinson, 7 Allen a creditor's bill. Childs v. N. B. 253; Meissner v. Meissner, 68 Carlstein Co., 76 Fed. Rep. 86. Wis. 336; Lopez v. Merchants & 36 Haggerty v. Nixon, 26 N. J. Farmers Nat. Bk., 18 App. Div. Eq. 42. 427, 46 N. Y. Supp. 91; Benham ae In addition to an acknowl- v. Ham, 5 Wash. 128. Where land edged debt there must be an in- is conveyed absolute in form, but terest in the property, or a lien is in fact security for money, it thereon, created by contract, or may be attached in a suit against some distinct legal proceeding, the grantor as mortgaged prop- § 161.] JUDGMENT, EXECUTION AND KETUBN. 187 § 161. Exhaustion of Legal Remedy Must be Complete. — Where the equitable jurisdiction is based upon the exhaustion of legal remedies and not upon the lien of a judgment or execution, it is not sufficient that execution runs only against personal property, unless it is averred that the debtor has no real estate liable to execution. If the plaintiff seeks aid as to real estate he must show a judgment creating a lien thereon, and if he seeks aid as to personal property he must show an execution giving him a legal preference or lien thereon. A judgment binding real estate only, or an execution binding personal property only, is not such an exhaus- tion of legal remedies as the law contemplates. In either case the debtor non constat might have an abundance of the other species of property.®^ erty, and under such attachment and the lien thereby secured may maintain a suit in equity to test the legality of the mortgages. But in such case a judgment and execution are not required. Ev- ans V. Laughton, 69 Wis. 138. An attaching creditor having a lien is entitled to attack the fraudu- lent transfers of his debtor. Peo- ple V. Van Buren, 136 N. Y. 252; Perry v. Sharpe, 8 Fed. Rep. 15; Mansur & T. Imp. Co. v. Jones, 143 Mo. 253. An attaching cred- itor may attack a judgment fraudulently confessed. People V. Van Buren, 136 N. Y. 252; Keller v. Payne, 16 N. Y. S. R. 245; Blum v. Schram, 58 Tex. 524. Generally a creditor's suit cannot be maintained by an attaching creditor until he has recovered judgment. Tennent v. Bat- tey, 18 Kan 324. Where after the filing of the original bill a judgment was rendered in at- tachment, and shown by an amended bill, and a decree for the payment of the judgment rendered it was held that the de- cree was wrong because no execution was issued on the judgment. Manchester v. Mc- Kee, 4 Gilm. 511; Heacock v. Du- rand, 42 111. 230; Steere v. Hoag- land, 39 111. 264. An attachment for money only against an ab- sconding debtor is not a basis for a creditors' bill for the rea- son that the judgment can be enforced only against the at- tached property. Capital City Bk. v. Parent, 134 N. Y. 527. An attaching creditor cannot maintain a proceeding in equity before judgment. In aid of at- tachment to reach property fraudulently conveyed, unless the relief which the action at law will afford is inadequate. Hill V. Denney, 106 la. 726. 3s An execution against the personal property merely is not sufllcient basis for a creditors' bill. Marsh v. Pike, 10 Paige Ch. 595. To sustain a bill where the execution runs only as to personal property there must be an averment that the judgment debtor had no real estate liable to execution at the time of issu- ing the execution or at the time of filing the bill. Coe v. Whit- beck, 11 Paige Ch. 42. If the 188 EQUITABLE REMEDIES. [§ 163- § 162. There Must be an Existing Lien. — Where the equitable jurisdiction is based upon the ground that the plaintiff has obtained a judgment which has become a lien on the debtor's property, and the lien of the judgment has expired and the debtor is dead, a purchaser of the judgment has no standing in a court of equity to attack a fraudulent conveyance of such de- ceased debtor and subject his land to the payment of the judgment. A judgment of this kind neither shows a lien nor an exhaustion of legal remedies, as a jurisdic- tional fact.^^ purpose of the plaintiff is to reach real estate he must show a judgment creating a lien there- on, and if his purpose is to reach personal property he must show an execution giving a lien thereon, and which he is at law unable to satisfy. Brinkerhoff V. Brown, 4 Johns. Ch. 671; Wil- liams V. Brown, 4 Johns. Ch. 682; McDermott, v. Strong, 4 Johns. Ch. 687; Shaw v. Dwight, 27 N. Y. 244; Spader v. Davis, 5 Johns. Ch. 280; McElwain v. Willis, 9 Wend. 548; Beck v. Burdett, 1 Paige Ch. 305; Clark- son V. De Peyster, 3 Paige Ch. 326; Dix v. Briggs, 9 Paige Ch. 595; Coe v. Whitbeck, 11 Paige Ch. 42. Legal remedy must be exhausted against an insolvent corporation before equity will entertain jurisdiction. Adee v. Bigler, 81 N. Y. 349. And the fact that an insolvent corpora- tion has conveyed Its property in contravention of this statute is not ground for equitable juris- diction until legal remedies are exhausted. Do. Of. Dunlevy v. Tallmadge, 32 N. Y. 457; Beard- sley V. Foster, 36 N. Y. 561; Ocean Nat. Bk. v. Olcott, 46 N. Y. 12; McElwain v. Willis, 9 Wend. 548. Before a creditor's bill can be sustained all legal remedies must be exhausted. Mc- Cartney V. Bostwick, 52 N. Y. 53; Beardaley, etc. v. Foster, 36 N. Y. 561; Produce Bk. v. Mor- ton, 67 N. Y. 199; Estes v. Wil- cox, 67 N. Y. 264; Wiggins v. Armstrong, 2 Johns. Ch. 144. 39 Lakenan v. Robards, 9 Mo. App. 179. If the time has elapsed within which a judgment lien would have expired if there had been any, a court of chan- cery will not enforce the judg- ment against equitable assets. Hall V. Green, 60 Miss. 47. A judgment in some states is held not to be a lien upon property purchased by the judgment debt- or and conveyed to his wife. Smith V. Ingles, 2 Ore. 43; How- land V. Knox, 59 la. 46. A judg- ment creditor who has allowed the lien of his judgment to ex- pire, upon lands conveyed by the husband to the wife, cannot question the validity of the con- veyance on the ground that it is in fraud of other creditors or was made without the interven- tion of a trustee. Long v. Mc- Connell, 158 Pa. 573; Baxter v. Allen, 77 Pa. St. 468; Judson v. Lyle, 28 Leg. Int. 140; Haak's Appeal, 100 Pa. 59; Armington v. Rau, 100 Pa. 165; but see Ar- buckle Bros. Coffee Co. v. We- nar, 77 Tex. 43. It should be noticed in this connection that the lien of a levy on an execu- tion to a foreign county will not continue beyond seven years from the last day of the term § 163.] JUDGMENT, EXECUTION AND EETUEN. 189 A discharge of the debtor in a proceeding in bank- ruptcy does not affect a lien procured on a judgment prior to the bankruptcy proceedings.*" § 163. General Creditor Has no Standing. — Only in a few exceptional cases, and those principally of statutory origin, has a general creditor the right to invoke the aid of a court of equity as against his debtor.*^ In some states, under certain conditions and circum- stances, the statute gives a creditor an equitable remedy without first having exhausted the ordinary legal rem- edies, but, most usually, in such cases the suit is main- tained in behalf of all creditors and the property or fund is to be regarded as trust property or a trust fund.*^ at which judgment is rendered. So that a creditor's bill could not be based on a judgment "When the lien had ceased to ex- ist. Weis V. Tiernan, supra; Ewing V. Alnsworth, 53 111. 464; James v. Wortham, 88 111. 69. (See Stat, of 1872 as to change in time when lien commences.) 40 Oliphant v. Hartley, 32 Ark. 465. 41 The North Hudson M. B. & li. As. V. Childs, 86 Wis. 292; Heubens v. Joel, 13 N. Y. 488; Rinchey v. Stryker, 28 N. Y. 45; Lewis V. Lanphere, 79 111. 187; Griswold v. Sundback, 4 S. D. 441; Putney v. Whitmire, 66 Fed. Rep. 385. And so a bill can- not be maintained against fraud- ulent grantees by a creditor for an account of rents and profits, or to restrain waste, or enjoin a sale, before the recovery of a judgment or making an attach- ment. Taylor v. Robinson, 7 Al- len 253. A simple contract cred- itor cannot attack a fraudulent transfer of his debtor until the recovery of judgment and the is- sue and return of execution. Spelman v. Freedman, 130 N. Y. 421; Dunlevy v. Tallmadge, 32 N. Y. 457; Adee v. Bigler, 81 N. Y. 349; Adsit v. Butler, 87 N. Y. 585; Victor v. Lewis, 53 N. Y. Supp. 944; Nugent v. Nugent, 70 Mich. 52. A creditor at large at the time of a fraudulent con- veyance who has no specific lien shares ratably with the other creditors in the proceeds of sale. Robinson v. Stewart, 10 N. Y. 189. In Alabama the general creditors of an insolvent attach- ment debtor cannot maintain a bill to have declared void a sale of attached property as perish- able, under Code, Sec. 2958, as the title to the property is in the attachment debtor if no title passed by the sale. McCreery v. Berney Nat. Bk. (Ala.) 22 So. 577. 42 When the statute gives a creditor by a suit in equity the right to lay hold of and appro- priate In payment of his debt any property title or interest of the debtor which may be of such a kind or in such condition or situation as not to be within the the reach of process at common law, a judgment is not required. Crompton v. Anthony, 13 Allen 33; Barry v. Abbot, 100 Mass. 396. Under Ch. 206 of the Stat- ute of 1851 of Massachusetts it was provided that the supreme judicial court should have juris- diction in equity upon a bill of 190 EQUITABLE EEMEDIES. [§§ 164, 165. § 164. A Money Decree SuflB.cient. — ^A decree in chancery for the payment of money is in effect the same as a judgment at law, and a creditor's bill may be based thereon.*^ § 165. Application of Rule to Injunctions Against Debtor. — The rule of law requiring a judgment at law as a foundation for a creditor's bill has also been applied to that class of proceedings in equity where it is sought by injunction to restrain one who is about to dispose of his property for the purpose of defrauding his creditors. The reason for the rule in its application to creditors' bills applies with still greater force where it is sought to restrain the alienation of property by the debtor.** any creditor to reach and apply in payment of a debt due from any debtor not residing in that state any property, right, title or Interest, legal or equitable of such debtor within the state ■which could not be attached or taken on execution in a suit at law against the debtor. In many other states a remedy in equity is given to general creditors un- der certain limitations and re- strictions as in the case of pro- ceedings against insolvent corp- orations. The provision of the Massachusetts statute for reach- ing and applying in satisfaction of a debt the equitable assets of a debtor, (Gen. Stat. Ch. 113, Sec. 2, cl. 11) is copied from Stat, of 1851, Ch. 206, and Stat. of 1858, Ch. 34, and do not re- quire a judgment at law and re- turn of an execution unsatisfied as a basis of an equitable action. Barry v. Abbot, 100 Mass. 396; Silloway v. Columbia Ins. Co., 8 Gray 199; Sanger v. Bancroft, 12 Gray 365; Moody v. Gay, 15 Gray 457; Crompton v. Anthony, 13 Allen 33; Tucker v. McDon- ald, 105 Mass. 423. A creditor without judgment cannot main- tain an equitable action to sub- ject the interest of the debtor in any property in the hands of a third person to the satisfaction of the debt, under Iowa Code, Sec. 3150, authorizing such a proceeding "at any time after the rendition of a judgment." Ware v. De Lahaye, 95 la. 667. 43 A money decree stands on the same footing as a judgment at law. Winslow v. Leland, 128 111. 304, 338; Weightman v. Hatca, 17 111. 281; Farnsworth v. Strasler, 12 111. 482. A fraudu- lent conveyance may be removed out of the way of a decree for money as well as a judgment at law. Weightman v. Hatch, 17 111. 281. Where it appeared that a decree for a certain sum of money was rendered against an insolvent and that such insolv- ent conveyed his real estate to hinder and delay creditors, the bill was held to be sufficient. Farnsworth v. Strasler, 12 111. 482. A decree for the payment of a money stands on the same footing as a payment at law. iiShufeldt V. Boehm, 96 111. 560. In this case it was alleged that the debtor had fraudulently confessed a judgment In favor of one to whom he was not In- § 166.] JUDGMENT, EXECUTION AND EETUEN. 191 A creditor of a fraudulent grantor in a deed intended to defraud creditors cannot, before judgment upon his claim, maintain a bill in equity against tbe parties to the fraudulent conveyance for the purpose of obtaining an account for rents and profits of the grantee and re- strain him from committing waste or parting with the title, or from restraining the grantor for selling or as- signing a note taken by him for the ostensible price of the land.*^ § 166. Jurisdiction not Conferred by Supple- mental Bill. — Where a court of equity has no juris- diction at the time the bill is filed by reason of the fact that the plaintiff is not a judgment creditor, jurisdiction cannot be subsequently conferred by the filing of a sup- plemental bill setting up a subsequently acquired judg- ment. The supplemental bill falls with the original bill, and the original bill stands or falls on the condition of things existing at the time it is filed.*" debted, upon whicli a levy was ish and avaricious creditors by made upon the property of the the institution of suits to ob- debtors, and that attachments tain an unjust advantage over had also been levied upon the other creditors, and oppress the same property, and that before debtor. And see also Phelps v. judgment could be obtained upon Foster, 18 lU. 309; Blgelow v. plaintiff's demands the property Andress, 31 111. 322; McNab v. of the debtor would be exhaust- Heald, 41 111. 326; McConnel v. ed under the confessed judg- Dickson, 43 111. 100; Horner v. ments and attachments, praying Zimmerman, 45 111. 14. for an injunction and restrain- ^s Taylor v. Robinson, 7 Allen, ing order. It was held that in 253. the absence of a judgment as a *« Morrison v. Shuster, 1 Mack- basis for the bill in equity the ey (D. C.) 190. On a supple- injunction should be refused. mental bill no relief can be had The decision was based upon the on a cause of action which did ground that the plaintiff's de- not exist when the original was mand was not of an equitable filed. Heffron v. Knickerbocker, nature; that the property sought 57 111. App. 339; Dan. Ch. 1515 to be reached was in no sense Notes. Where a general credit- an equitable estate; that every or had filed his bill for relief consideration of public policy re- against the judgment alleged to quired an adherence to the rule be fraudulent he was permitted requiring judgment before the to file a supplemental bill show- institution of suits of this na- ing that after the commence- ture- and that any other rule ment of the suit he had obtained would be a temptation to self- judgment and sued out execu- 193 EQUITABLE EEMEDIES. [§ 167. And so is a bill fatally defective where it shows that a part of the indebtedness upon which the bill is based has not been reduced to a judgment.*'' § 167. Exceptions to the Rule, Requiring Judg- ment, Etc. — But it must not be understood that the above rule is inexorable and has no exceptions. Thus if it appears that for any reason no judgment against the debtor can be obtained it will be excused as a pre- liminary to a creditor's suit. The reason for the en- forcement of the rule falls ex necessitate in such case. (a) An exception to the rule exists where it is im- possible by reason of the death of the debtor to obtain judgment, and the suit cannot be further prosecuted against his estate or personal representatives by reason of insolvency. The principle involved in this execption is that where a party has done all that is possible for him to do to prepare his case for equitable cognizance he is not to be denied access to the only tribunal capable of granting relief.*^ tion thereon. Edgar v. Cleven- may maintain his action in eq- ger, 2 N. J. Eq. 258. uity for relief. Spicer v. Ayrea, *7Hood V. Saunders, 11 Colo. 2 Thomp. & C. (N. Y.) 626. A 106. judgment and execution are es- *8 The national Tradesmen's sentlal precedents to a creditor's Bk. V. Wetmore, supra; Chau- bill and as a general thing the tauqua Co. Bk. v. White, 6 N. same rule applies to actions in Y. 236; Scptt v. McMillin, 1 Lit- equity where relief is in the na- tel 302; Gardner v. Gardner, 17 ture of a creditor's bill but this R. I. 751. Without judgment rule does not extend so far as a creditor may maintain a bill to deny the intervention of against the executor of an in- equity where the situation is solvent estate and devisee for an such as to render it impossible account of the assets, and to sub- to obtain judgment and execu- ject the land to the payment of tion. Nat. Tradesmen's Bk. v. the debt. 1873, Reeder v. Speake, Wetmore, 124 N. Y. 241; Natl. 4 S. C. 293. And see generally Tube Wks. v. Ballou, 146 U. S. OfEutt V. King, 1 Mac Arthur 312; 517; Spencer v. Armstrong, 12 Beverly v. Rhodes, 86 Va. 415; Heisk 707. An exception does Mallory v. Vanderbllt, 4 Abb. N. exist where the claim is against C 127. If a defendant is both the estate of a deceased insolv- the administratrix of the de- ent debtor. Austin v. Bruner, ceased, and holding the fraudu- 169 111. 178; and so also where it lent title, and the estate being is impossible to get judgment, insolvent, a creditor at large Id. § 167.] JUDGMENT, EXECUTION AND EETUEN. 193 Where the debtor is dead and his estate is insolvent of course no judgment can be obtained, and there is no legal remedy.*^ *9 As' a rule in order to file a creditor's bill there must be a judgment and execution returned nulla bona. But this, like all rules, has its exceptions, as where the proceeding is against an insolvent estate. In this case an execution is not required. Steere v. Hoagland, 39 111. 264 S. C, 50 111. 377; McDaniel v. Cochrane, 11 111. 31; Bay v. Cook, 31 111. 336. Where a fund is only accessible to a court of chancery and cannot be reached at law and the debtor is dead creditors may resort to a court of chan- cery in the first instance, with- out recovering a judgment. Steere v. Hoagland, 39 111. 264, S. C. 50 111. 377; O'Brien v. Coul- ter, 2 Blackf. 421; Smith v. Shep- par's heirs, 2 Hay 163, p. 349 Battle's Ed. In the above case (Steere v. Hoagland) the court say: "And they (the authori- ties) ^eem to as fully establish, as an exception to the rule that, in case of a deceased debtor, as a judgment and execution against th^ executor or admin- istrator would be unavailing in Buch cases, the creditor may re- sort to a court of chancery in the first Instance, and, we think, especially so when it appears that the estate is insolvent and that the debt could not be paid in the ordinary course of admin- istration." Ordinarily an execu- tion must issue on a judgment before a court of equity will en- tertain a bill to reach real es- tate in which the judgment debt- or has not such an interest as can be sold on execution. But in proceedings against intestate estates which are insolvent a re- sort to equity may be had with- out such preliminary step. Mc- Dowell v. Cochran, 11 111. 31; Welch V. Wallace, 3 Gilm. 490. A creditor in such case is not required to petition the probate court to compel the administra- trix to sell land to pay the debt. The statute only recognizes the right of an administrator to sell lands of which the intes- tate died seized. But in such a suit the administrator is a necessary party. Id. A credit- or who has proved his claim against an estate may bring an action to set aside a fraudulent conveyance of land paid for by the deceased, but conveyed to an- other, without judgment and execution. Allen v. McRae, 91 Wis. 226. Ordinarily an execu- tion must be returned unsatis- fied before a resort to a court of equity to reach real estate in which the judgment debtor has not such an interest as can be sold on execution. An exception to this rule, however, exists where the proceeding is against an intestate's estate, which is insolvent, as in such case no ex- ecution can issue. Bay v. Cook, 31 111. 336. As a general rule a judgment is a pre-requisite to the filing of a creditor's bill, but this, of course, has an exception where the claim is against an insolvent's estate. Dormueil v. Ward, 108 111. 216; Chicago D. & v. R. Co. v. Town of St. Anne, 101 111. 151; Scripps v. King, 103 111. 469; Shufeldt v. Boehm, 96 111. 560; Albright v. Herzog, 12 111. App. 557. An execution can- not run against an administrat- or. An exception to the rule re- quiring an execution issued and returned no property found is recognized where the debtor is dead. This grows out of the fact that an execution will not issue against the legal representatives of a deceased person. Kennedy V. Creswell, 101 U. S. 641; Thompson v. Brown, 4 Johns. Ch. 619{ Hagan v. Walker, 55 194 EQUITABLE EEMBDIE8. [§ 167. Under the statute in some states a creditor of a de- ceased insolvent debtor may file a bill in behalf of him- self and other creditors seeking to attack a fraudulent transfer, without having obtained judgment.^" (b) Where it appears that the debtor has made a general assignment for creditors which is fraudulent, and the assignor is a non-resident and there are no means of procuring a personal judgment against him, a bill may be maintained by a general creditor, in which it is sought to set aside the assignment. This is based on the ground that there can be no judgment obtained against the debtor by reason of his non-residence, and also that no attachment can be sustained for the reason that his property is in the hands of an assignee.®^ (c) Where it clearly appears by proper allegations and proof that a judgment would have been useless and unavailing, as where the debtor is notoriously insolvent. This exception prevails in the United States Supreme Court and in New York, though the general rule is well established and maintained in each jurisdiction.'^ TJ. S. 29. A judgment and exe- exhausted as a condition prece- cution are not required where dent to the filing of a creditor's from the nature of the case a bill while the general rule is judgment cannot be recovered as that a judgment and execution where the debtor is a corpora- returned nulla bona is the prop- tion and the corporation has er evidence of such exhaustion been dissolved. United Glass Co. of legal remedies it is not the V. Vary, 152 N. Y. 121; Hardman exclusive mode of establishing V. Sage, 124 N. Y. 25. And so that fact. Thus where it is al- also where the prosecution of leged and shown that such a the suit to recover judgments proceeding would be useless and has been enjoined. Shellington unavailing as in the case of the v. Howland, 53 N. Y. 371 ; Hunt- notorious insolvency of the debt- ington V. Blun, 143 N. Y. 511. or, the judgment may be dis- And where a judgment is pro- pensed with. National Tube hibited by law. Id. Wks. v. Ballou, 146 U. S. 517; no Cooke V. Chase (Sup. Ct.) 37 and see Adsit v. Butler, 87 N. N. Y. Supp. 124; 72 N. Y. S. R. Y. 585; Estes v. Wilcox, 67 N. 731. (See N. Y. Laws 1889, Ch. Y. 264; Shellington v. Howland, 487.) 53 N. Y. 371; Kincaid v. Dwi- 51 Patchen v. Rofkar, 12 App. nelle, 59 N. Y. 548; Terry v. Tub- Div. 475, 42 N. Y. Supp. 35. man, 92 U. S. 156; McCartney v. 02 Where the rule obtains that Bostwick, 32 N. Y. 53; National legal remedies must have been Tradesmen's Bk. v. Wetmore, § 167.] JUDGMENT, EXECUTION AND BETUEN. 195 It has also been held in a few cases, but based upon sound reasoning, that where it satisfactorily appears that the issuance of an execution and a return thereon would be an idle ceremony by reason of the insolvency of the judgment debtor it may be dispensed with.^* 124 N. Y. 241; Cairns v. Ingram, 8 Pa. Supr. Ct. 514; Case v. Beau- regard, 101 U. S. 688. A creditor ■without judgment cannot main- tain a bill to subject land con- veyed by the debtor, and for a receiver of the rents and profits thereof, although the grantees are insolvent and the land has been attached as the property of the debtor. Clark v. Ray- mond, 86 la. 661. The rule in the United States courts is stated to be as follows: "Where it is sought by equitable process to reach equitable interests of a debtor the bill, unless otherwise provided by statute must set forth a judgment in the jurisdic- tion where the suit in equity is brought, the issuing of an execu- tion thereon, and its return un- satisfied, or must make allega- tions showing that it is impos- sible to obtain such a judgment in any court within such juris- diction." National Tube Wks. v. Ballon, supra, citing Taylor v. Bowker, 111 U. S. 110; Webster V. Clark, 25 Me. 313; Parish v. Lewis, Freeman's Chy. 299; Brinkerhoff v. Brown, 4 Johns. Ch. 671; Dunlevy v. Tallmadge, 32 N. Y. 457; Terry v. Anderson, 95 U. S. 628; Smith v. Railroad Co., 99 TJ. S. 398, 401; Hawkins V. Glenn, 131 V. S. 319, 334; Mc- Lure V. Benceni, 2 Ired. Eq. 513, 519; Farned v. Harris, 11 S. & M. 366, 371; Patterson v. Lynde, 112 111. 196. The practice in the fed- eral courts is to require a judg- ment as a foundation for a pro- ceeding to set aside a fraudu- lent conveyance even though the state statute may authorize such suit without judgment. HoUins V. Brierfield C. Co., 150 U. S. 371; Cates V. Allen 149 U. S. 451. The grounds upon which the Illi- nois decisions are based are that creditors' bills are purely of equitable cognizance in which there is no right to a trial by jury (Heacock v. Hosmer, 109 111. 245; Flaherty v. MeCormick, 113 111. 538), and the establish- ment of insolvency of the debt- or, as by an assignment, with- out a judgment and execution would deprive the debtor of a trial by jury in the ascertain- ment of the amount due. In other jurisdictions, however, the insolvency of the debtor is held sufficient excuse for not doing so. TuUy V. Curtain, 54 Fed. Rep. 43; Kalmus v. Ballin, 52 N. J. Eq. 290; Dittman v. Weiss Bros., 87 Tex. 614 (see Stat). Insolvency alone is not sufficient In Illinois to excuse judgment and execution. Greenway v. Thomas, 14 111. 271; Patterson v. Lynde, 112 111. 196; but if coupled with some reason why judgment cannot be obtained it is. Id. 53 Turner v. Adams, 46 Mo. 95, citing Merry v. Fremon, 44 Mo. 518; Bay v. Cook, 31 111. 336; McDowell V. Cockran, 11 111. 31; Postlewait v. Howes, 3 la. 365; Plume & A. Mfg. Co. v. Bald- win, 87 Fed. Rep. 785. It is not necessary in Iowa to sustain a creditor's bill to subject prop- erty to the payment of creditors to show an execution returned nulla bona where the debtor is otherwise shown to be insolvent. Strong V. Lawrence, 58 la. 55 Postlewait v. Howes, 3 la. 365 Miller v. Dayton, 47 la. 312 Gwyer v. Piggins, 37 la. 517 Gordon v. Worthley, 48 la. 429. 196 EQUITABLE EBMEDIES. [§ 167. Following the same principle and based upon the same doctrine, where it appears that the judgment debtor has no property other than real estate which has been fraudulently conveyed, it has been held that an execu- tion and return need not be shown.^* In an action to set aside a con- veyance as being fraudulent as to creditors it is not necessary for an execution to be returned nulla bona where the pleadings and evidence show that the debt- or had no other property and that the issuance of an execution would have been a vain thing. The law will not recjuire parties to incur expense and delay when no benefit arises therefrom. Smalley v. Moss, 72 la. 171. 54 Cornell v. Radway, 22 Wis. 260; Sanderson v. Stockdale, 11 Md. 563; Cook v. Johnson, 12 N. J. Bq. 51; Shaw v. Dwight, 27 N. Y. 244; Payne v. Sheldon, 63 Barb. 169; Brinkerhoft v. Brown, 4 Johns. Ch. 671. Where a party seeks to remove a fraudulent conveyance out of the way of his execution he may file his bill as soon as he obtains judgment and before he has made any attempt to satisfy his judgment out of other property of the defendant. Weightman v. Hatch, 17 111. 281; Beach v. Bestor, 45 111. 341. On a creditor's bill to remove a fraudulent conveyance, execution issued and returned is not neces- sary. Fusze V. Stern, 17 111. App. 429. The Issuance of an execution is not necessary, where the proceeding is to set aside a fraudulent conveyance. Redden V. Potter, 16 111. App. 265. A bill to remove a fraudulent con- veyance out of the way of an execution may be filed as soon as judgment is rendered. Dillman V. Nadelhofter, 162 111. 625. See also, Weightman v. Hatch, 17 111. 281; Newman v. Wlllets, 52 111. 98;' Amick v. Young, 69 111. 542; Wis. Granite Co. v. Gerrity, 144 111. 77; Blair v. 111. Steel Co., 159 111. 350. Where a party desires to remove a fraudulent conveyance or incumbrance out of the way of an execution he may file his bill in equity as soon as he obtains judgment. Miller V. Davidson, 3 Gilm. 518. In Alabama a simple contract cred- itor may maintain an action to reach and subject property al- leged to have been fraudulently conveyed by his deceased debtor on an averment of deficiency of legal assets. Merchants' Nat. Bk. V. McGee, 108 Ala. 304. A creditor seeking to reach the equitable estate of his debtor which cannot be reached at law, must first recover a judgment and have execution issued and returned unsatisfied and the proof of such judgment and exe- cution must be made unless ad- mitted. Russell V. Chi. Trust & Savings Bk., 139 111. 538. If he seek to satisfy his debt out of an equitable estate not liable to an execution at law then he must exhaust his legal remedy by get- ting a judgment and an execu- tion returned, no property found, before he can resort to equity. Miller v. Davidson, 3 Gilm. 518; Manchester v. McKees Ex'rs, 4 Gilm. 511; Ballentine v. Beale, 3 Scam. 203; Farnsworth v. Stras- ler, 12 111. 482; Ishmael v. Par- ker, 13 111. 324. The general rule Is subject to a very few excep- tions, that before a bill can be filed to reach equitable assets, the creditor must first recover a judgment at law or its equiva- lent and money decree and have execution issued and returned unsatisfied. Winslow v. Ice- land, 128 111. 304. § 167.] JUDGMENT, EXECUTION AND RETURN. 197 (d) Or where the debtor is an insolvent corporation and has ceased to exist.^^ (e) Or where the statute creates a lien on the lands of a decedent and subjects them to the payment of his debts.^® (f) And so where the debtor's property is in the hands of an assignee and constitutes a fund for the bene- fit of creditors, which a court of equity only can reach, a creditor has a right to ask the aid of the court without judgment and execution. In such case, however, no preference can be given to one creditor over another. The objection that plaintiffs did not procure judgment as a foundation for the bill will be considered as waived if no objection is raised on that ground.^^ Or where property is held in trust for the payment of creditors, for in such case the suit is rather in the nature of a bill to enforce a trust than a creditor's suit.^® B5 In lUinois in a proceeding against the stockholders of an insolvent corporation that had ceased to exist and consequently no judgment could be obtained against it creditors are allowed to proceed in equity without judg- ment. It was said that the un- paid subscriptions were a trust fund for the payment of the debts of the corporation, the cor- poration being a trustee, and therefore when the corporation ceased to exist the court, upon the principle that a trust shall not fail will take jurisdiction. Patterson v. Lynde, 112 111. 196; citing Terry v. Anderson, 95 U. S. 628; see also Blanc v. Paymaster M. Co., 95 Cal. 524. 66 Haston v. Castner, 31 N. J. Eq. 697. In this case the bill ■was sustained on the ground that the indebtedness of plaintiff "was made a lien by statute upon the land of a deceased debtor, or at least a "burden" on the lands, and it appeared that the lands sought to be reached had been fraudulently conveyed by the de- ceased debtor. sTDay V. Washburn, 65 U. S. 352. In this case an assignment was made in trust for the benefit of creditors, and in such case if a bill had been filed to enforce the trust no judgment or execution would have been necessary as preliminary to the jurisdiction of the court. This would not bo true, however. If the assign- ment made a preference and if the bill Is filed to set aside the assignment and defeat preferen- ces given therein. A judgment and execution would have been required before filing the bill and not doing so would have been fatal if the objection had been taken in time. 68 Where property is held in trust for the payment of credit- ors it may be reached by such creditors without judgment and execution. Miller v. Davidson, 3 Gilm. 518; Green way v. Thomas, 14 111. 27i. In such case it Is a suit to enforce a trust rather 198 EQUITABLE EEMEDIES. [§ 167. (g) While the decisions are not uniform upon the question, it has been held that an attachment, presum- ably by reason of the lien thereof, is a suflficient founda- tion for a creditor's bill to reach property fraudulently conveyed to hinder, delay and defraud creditors, if the purpose of the transfer is to remove the attached prop- erty from the jurisdiction of the officer having it in cus- tody. This would not be so where the proceeding is to reach equitable assets.^® than a creditor's bill. Weight- man V. Hatch, 17 111. 281; New- man V. Willetts, 52 111. 98; Jus- tice V. Scott, 4 Ired. Eg. (N. C.) 108; Beach v. Bestor, 45 111. 341. Another exception Is where a creditor has a trust in his favor In which case equity has orig- inal jurisdiction independent of any legal proceedings. Case v. Beauregard, 101 U. S. 688; Rus- sell V. Clark, 11 U. S. 69. 5» An action in the nature of a creditor's bill may be brought to enforce the lien of an attach- ment, and in such case injunc- tion may issue where the debt- or's property has been sold fraudulently and there is danger of a renewal from the jurisdic- tion. People, etc. v. Van Buren, 636 N. Y. 252; Hall v. Stryker, 27 N. Y. 596; Rinchey v. Stryker, 28 N. Y. 45; Frost v. Mott, 34 N. Y. 253; and see M. & L. Bank v. Dakin, 51 N. Y. 519; "Williams V. Michenor, 11 N. J. Eq. 520; Hunt V. Field, 9 N. J. Eq. 36; but see Melville v. Brown, 16 N. J. L. 363; Wiggins v. Armstrong, 2 Johns. Ch. 144. Where an at- tachment is based upon a judg- ment obtained in another state such attachment will be a proper basis for a creditor's bill. Smith V. Muirheid, 34 N. J. Bq. 4; Francis v. Lawrence, 48 U. S. Eq. 508. An attachment creditor can- not ask the aid of a court of equity to open up a judgment on ordering an issue as to the fair- ness of it. It must be a judgment creditor. Melville v. Brown, 16 N. J. L. 363. In M. & T. Bank v. Dakin, 51 N. Y. 519, it is said that where it Is alleged that the debtor has property in the nature of equitable assets which cannot be reached on execution judg- ment and execution returned un- satisfied are required for the pur- pose of showing an exhaustion of legal remedies. But where the property in its nature is liable to seizure and sale on execution but by reason of fraudulent incum- brances the execution cannot be enforced the return of the ex- ecution unsatisfied will be dis- pensed with. In this case a judg- ment in attachment was ob- tained execution issued thereon to the sheriff and while it re- mained in his hands a bill was filed to set aside a fraudulent transfer of a bond and mortgage against which the lien of the at- tachment was obtained and the action was sustained. The case is not in conflict with Thurber v. Blanck, 50 N. Y. 80. Where at- tachment has been levied upon land alleged to have been fraud- ulently conveyed and a suit in equity is brought in aid of the attachment, and it is made to appear that the conveyance was In good faith, the suit must fail. In such case the bill cannot be retained to reach the note and mortgage for the reason that the attachment having failed there is no judgment as a foundation for the suit. Evans v. Virgin, 69 § 167.] JUDGMENT, EXECUTION AND EETUKN. 199 (li) There is another class of cases where resort to equity has been allowed in the first instance without ob- taining judgment where the claim of the plaintiff has some equitable element in it, such as a trust or matters of a similar nature.*'** Wis. 148. UntU an attachment creditor obtains judgment lie has no standing in a court of equity on a creditor's bill. Clark v. Ray- mond, 84 la. 251. An attach- ment is not sufficient ground for a creditor's bill and the appoint- ment of a receiver. A judgment must be had. Gwyer v. Fig- gens, 37 la. 517; Gordon v. Worthley, 48 la. 429; Pearson v. Maxfield, 51 la. 76; Miller v. Dayton, 47 la. 312. A judgment on attachment Is a foundation for equity interposition to set aside a conveyance as a fraud on creditors. Getzler v. Saroni, 18 111. 511; Green way v. Thomas, 14 111. 2;1. In some jurisdictions it has also been held that an execu- tion is not required where a lien is obtained on the debtor's property by attachment and the object of the suit is to remove a fraudu- lent conveyance. Francis v. Law- rence, 48 N. J. Bq. 508; Cocks v. Varney, 45 N. J. Bq. 72; Robert V. Hodges, 16 N. J. Eq. 299; Wil- liams V. Michenor, 11 N. J. Bq. 520; Hunt v. Field, 9 N. J. Bq. 36; Dawson v. Sims, 14 Or. 561; Conroy v. Woods, 13 Cal. 626. But the authorities are not uni- form on this subject. Anthony V. Wood, 96 N.Y. 181; Castle v. Lewis, 78 N. Y. 131; Mechanics Bk. V. Dakin, 51 N. Y. 519; Thurber v. Blanck, 50 N. Y. 80. The rule of law is that until dis- tributive shares are ascertained they cannot be reached by gar- nishment. Richardson v. Lester, 83 111. 55; Richards v. Griggs, 16 Mo. 416; Norton v. Clark, 18 Nev. 247; Hoyt v. Christie, 51 Vt. 48; Harrington v. La Rocque, 13 Ore. 344; Nerac's Bstate, 35 Cal. 392. The question has sometimes arisen as to the right of garnishment against an ex- ecutor or administrator to reach the distributive share of the dev- isee to an estate and the rule is generally maintained that un- til the court has decreed a dis- tribution of the proceeds the right of garnishment does not ex- ist. J. I. Case T. M. Co. v. Mira- cle, 54 Wis. 295; Hill v. La- crosse, etc., R. Co., 14 Wis. 291: Brooks V. Cook, 8 Mass. 247 Barnes v. Treat, 7 Mass. 271 Colby V. Coates, 6 Cush. 558 Thayer v. Tyler, 5 Allen 94 Wilder v. Bailey, 3 Mass. 289 Dawson v. Holcomb, 1 Ohio 135 Norton v. Clark, 18 Nev. 247 Millison v. Fisk, 43 111. 112 Curling v. Hyde, 10 Mo. 374 Marvin v. Hawley, 9 Mo. 378 Stout V. La FoUette, 64 Ind. 365 Poet V. Love, 19 Fla. 684 Thorn v. Woodruff, 5 Ark. 55 Welch V. Gurley, 2 Hayw. 334 510, Battle's Bdition; Piper v, Piper, 2 N. H. 439; Young v. Young, 2 Hill (S. C. L.) 425 Winchell v. Allen, 1 Conn. 385 Cutter V. Perkins, 47 Me. 557 Waite V. Osborne, 11 Me. 185 Lyons v. Houston, 2 Harr. (Del.) 349. 60 In all cases where resort to equity has been allowed without first obtaining judgment, the claim of the plaintiff has had some equitable element in it such as a trust or the like. Detroit Copper & B. R. M. Co. v. Led- widge, 162 111. 305; Dormueil v. Ward, 108 111. 216; Gore v. Kra- mer, 117 111. 176. In cases of pure trusts ordinarily there are no legal remedies to exhaust and result may be had to equity in 200 EQUITABLE REMEDIES. [§ 167. (i) Another exception to the general rule is where the defendant has left the state and is therefore beyond the reach of process so that judgment cannot be ren- dered.*' Nor is a judgment a prerequisite where it satisfac- torily appears that the debtor has absconded or conceals himself so that a judgment cannot be obtained against him by reason of non-service of process.®^ If it appears that the debtor has left the State after making a conveyance of his property without considera- tion and for the purpose of defrauding his creditors, the creditor in such case has a right of attachment, and he may obtain thereon a judgment under attachment, which is a judgment in rem, and a foundation for the bill.«3 The same rule applies where the property is not sub- the first instance. McCartney v. Bostwick, 32 N. Y. 53; Chautau- qua Co. Bk. V. V^Thlte, 2 Geld. 236; Hagan v. Walker, 14 How. 29; Loomis v. TifEt, 16 Barb. 541; Darrlngton v. Borland, 3 Porter 9, 31; McBlwain v. Willis, 9 Wend. 548; Innes v. Lansing, 7 Paige, 586; Bodine v. Edwards, 10 Paige 504; Earl of Chester- field V. Janssen, 2 Ves. Sr. 125. 61 Greenway v. Thomas, 14 111. 271; Merchants Bk. v. Paine, 13 R. I. 592; Pope v. Solomons, 36 Ga. 541. The doctrine laid down In Greenway v. Thomas, supra, is probably overruled in Ladd v. Judson, 174 111. 344, where it is held that the fact that defend- ants were not residents was not an excuse for not obtaining judg- ment as attachment was availa- ble. Cf. cases referred in fol- lowing note. 02 Earl V. Grove, 92 Mich. 285; Peay v. Morrison's Ex'r's, 10 Graft. 149; Pendleton v. Perkins, 49 Mo. 565; Merchants Nat. Bk. v. Paine, 13 R. I. 592; Farrar v. Haselden, 9 Rich. Eg. 331; Scott V. McMillen, 1 Litt. 302; Peay V. Morrison's Ex'r's, 10 Gratt. 149; Pope v. Solomons, 36 Ga. 541; O'Brien v. Coulter, 2 Blackf. 421; Kipper v. Glancey, 2 Blackf. 356; Anderson v. Bradford, 5 J. J. Marsh. 69; Kipper v. Glancey, 2 Blackf. 356. It is not an ex- ception to the above rule where the debtor has left the county so that process cannot be served upon him, for in such case the creditor may by attachment have a legal remedy. Greenway v. Thomas, 14 111. 271; see also Bigelow V. Andress, 31 111. 322; Cf. Ladd V. Judson, 174 111. 344; Dewey v. Eckert, 62 111. 218; Shufeldt V. Boehm, 96 111. 560. Where the facts show that no legal remedy exists a judgment is not required. McCartney v. Bostwick, 32 N. Y. 53; Supplee H. Co. V. Driggs, 26 Wash. L. Rep. 658. es Dewey v. Eckert, 62 111. 218. § 167.] JUDGMENT, EXECUTION AND BETUEN. 201 ject to attachment at law, and is an equitable interest only and process cannot be served on the debtor.®* (j) Where a creditor is given the power and right to bring suit to set aside a fraudulent conveyance on the ground that the administrator refuses to do so un- der power given him by the statute it is not necessary that the creditor shall have judgment. And this is for the reason that the creditor acts as a trustee for the ad- ministrator.^® (k) If a fund is accessible in a court of equity only, of course common law proceedings of any nature would accomplish nothing.®® (1) It is not a sufficient excuse for not recovering judgment that the debtor would in the meantime put his property out of his hands.®''^ 6* If the property Tae not sub- ject to attachment at law, being an equitable interest only, and personal service cannot be had on the debtor so that the cred- itor is without remedy at law for the •establishment of his debt he may in the first instance go into equity, establish his debt and have satisfaction out of the equitable interest. Getzler v. Saroni, 18 111. 511; Russell v. Clark, 7 Cranch 69; Ishmael v. Parker, 13 111. 324; Parnsworth V. Strasler, 12 111. 482; Miller v. Davidson, 3 Gilm. 518; Green- way V. Thomas, 14 111. 271. 65 Where a creditor is given a right to bring suit to set aside a •fraudulent conveyance on the ground that the administrator refuses to do so under power given him by the statute it is not essential that the creditor shall have judgment. In such cases he is a trustee for the ad- ministrator. Harvey v. McDon- ald, 113 N. Y. 526; 1 Story Bq. Sec. 243; Dewey v. Moyer, 72 N. Y. 70; Bate v. Graham, 11 N. Y. 237; In re Cornell, 110 N. Y. 351; Ft. Stanwix Bk. v. Leggett, 51 N. Y. 552. A judgment is not required where the duty of bring- ing suit is charged upon an ad- ministrator and he refuses to do so, and the suit is brought by a creditor in behalf of all creditors. Harvey v. McDonnell, 113 N. Y. 526. 66 If the fund is accessible only to a court of equity application may be made in the first instance to that court, and the establish- ment in a court of law is not re- quired. Russell v. Clark's Bx'rs, 6 Cranch 69. Again, if land is held by a person as trustee for creditors, and the plaintiff is one of the cestuis que trust and in- vokes the aid of a court of equity to prevent the trustee from abus- ing the trust, relief will be granted on the jurisdictional ground residing in courts of equity in such matters. Miller v. Davidson, 3 Gilm. 518; Cf. Jenks V. Horton (Mich.) 4 Det. L. N. 481; Freedman's Sav. & Tr. Co. etc. v. Earle, 110 U. S. 710. «7 It is not a sufficient excuse that the grantee in a fraudulent conveyance proceeding would in 202 EQUITABLE REMEDIES. [§ 167. (m) By analogy the same principle is applied where by statute a judgment and execution returned are re- quired as a condition precedent to the liability of a stockholder in a corporation, and where this condition precedent is rendered impossible without fault of the creditor.*^ (n) Nor is an execution necessary to be returned nulla bona in a proceeding against an insolvent corpora- tion to set aside a fraudulent deed where the corpora- tion is insolvent, and in process of winding up and all of its property is in the hands of a receiver.®^ (o) Where the proceeding is in equity by reason of an attempt to reach an equitable estate not subject to a common law judgment an execution is not a prere- quisite, unless perhaps in a case where such effects are by statute subject to levyJ" (p) In many of the States general creditors are given a right of action against the estate of an insolvent debtor, and particularly against insolvent corpora- tions.''^ the meantime put the property out of his possession and into the hands of an innocent pur- chaser. Austin V. Bruner, 169 111. 178; Dormueil v. Ward, 108 111. 216; Shufeldt v. Boehm, 96 111. 560. Nor that the debtor has made an assignment and is in- solvent. Do. 68 Shellington v. Howland, 53 N. T. 371; Kincaid v. Dwinelle, 59 N. Y. 548. 69 Blair v. Illinois Steel Co., 159 111. 350. '0 Where a proceeding is in equity and it is sought to reach an equitable estate not subject to a common law judgment an execution on a judgment at law, of course, is not a prerequisite. Steere v. Hoagland, 39 111. 264; White V. Russell, 79 lU. 155; Eads V. Mason, 16 111. App. 545; Sweny v. Ferguson, 2 Blackf. 129; O'Brien v. Coulter, 2 Blackf. 421; Kipper v. Glancey, 2 Blackf. 356; Doolittle v. Bridgeman, 1 G. Greene 265; Russell v. Clark, 11 U. S. 69 (7 Cranch); Thomp- son V. Brown, 4 Johns. Ch. 619. If the bill seeks to subject an equitable interest in real estate to the payment of judgment ex- ecution is not required. Vander- veer v. Stryker, 8 N. J. Eq. 174. 71 A general creditor, in a suit under the Illinois corporation act. Sec. 25, may attack fraudu- lent transfers by the corporation, if the facts are such that a joint decree as to all the defendants, including the corporation, for a conspiracy or common design participated in by all, could be rendered. Cahn v. American Looking Glass Mfg. Co. (111. C. C.) 12 Nat. Corp. Rep. 462; First Nat. Bk. V. Peoria Watch Co., 77 § 168.] JUDGMENT, EXECUTION AND EETUEN. 303 § 168. Execution Must Issue to Proper County. — For the purpose of showing that the legel reme- dies are exhausted, it is not sufficient to show the issu- ance of an execution, and a return thereon unsatisfied, but is must be shown to have been issued to the county where the judgment debtor resided at the time the exe- cution was issued, or a sufficient and legal excuse for not doing so shownJ^ in. App. 663; Le Due v. Brandt, 110 N. C. 289; Greene v. Starnes, 1 Heisk. 582; Freeman v. Pullen, 24 So. 57; Hume v. Condon, 44 W. Va. 553. 72 Merchants, etc., Bk. v. Grif- fith, 10 Paige 519. It must ap- pear that the judgment debtor resided in the county at the time when and to which the execution issued. Hope v. Brinkerhoff, 3 Edw. Ch. 445. Thus if it appears that an execution has been •is- sued and returned unsatisfied in the county in which the judg- ment was rendered, it would be an insufficient foundation for a creditor's bill if the judgment debtor had property in another county at his domicile which might have been reached by an execution to that county. Du- rand v. Gray, 129 111. 9. If plain- tiff recovers judgment in one court of record and has execu- tion issued and returned unsat- isfied, he is not required to bring another suit in another county where the defendant has property and where he resides, in order to file a bill. Leggett v. Hop- kins, 7 Paige 149. If the de- fendant has removed from the state the execution must issue to the county where his last known place of residence was at, or where he resided when suit was commenced. Reed v. Wheaton, 7 Paige Ch. 663. If the execution may run to any county it need not be docketed in the county to which it is issued. Youngs v. Morrison, 10 Paige Ch. 325. The execution must be issued to the county where the defendant re- sides if the judgment is in a court where the execution may Issue to such county. Child v. Brace, 4 Paige Ch. 309; Reed v. Wheaton, 7 Paige Ch. 663; Mer- chants, etc., Bk. V. Griffith, 10 Paige Ch. 519. Or there must be averred in the bill a sufficient legal excuse for issuing to an- other county. When two execu- tions are issued, one to the coun- ty where the defendant resides and one to another county, the bill must show a return of both unsatisfied, or a fraudulent ob- struction of one shown. Willis V. Moore, Clark's Ch. 150; but see Cuyler v. Moreland, 6 Paige Ch. 273. But where an execu- tion has issued and been re- turned unsatisfied and an alias has issued but is not returned it will not bar the filing of a bill unless it shall appear that the officer has levied on or can levy on sufficient property to satisfy it. Thomas v. McEwen, 11 Paige Ch. 131. It is sufficient to issue execution to the county where the judgment debtor resides. Shaw V. Dwight, 27 N. Y. 244. An outstanding execution is not required, if one has been re- turned unsatisfied. Haswell v. Lincks, 87 N. Y. 637; Shaw v. Dwight, 27 N. Y. 244; Fox v. Moyer, 54 N. Y. 125; Crippen v. Hudson, 13 N. Y. 161. Where execution is not issued to the county where the defendant has a fixed place of residence and he has sufficient visible property in that county to satisfy the ex- 804 EQUITABLE EEMEDIES. [§§ 169, 170. Where a judgment has been assigned and the bill is filed by the assignee it is not necessary to aver and prove the issuing of an execution after the assignments* § 169. Execution May be Waived by Defendant. ■ — It is competent for the defendant to waive the issuing of an execution particularly if it appears that there is no property liable to execution J* And waiver may be inferred by the debtor's acquies- cence in the proceedings for a considerable length of time without making objection.''' §' 170. Exhaustion of Legal Remedy, How Es- tablished. — The jurisdictional element which forms the basis of a creditor's bill is that there has been an entire exhaustion of legal remedies, which is evidenced by re- turn of the execution unsatisfied. The basis of such a return may be that the judgment debtor has fraudu- lently conveyed his property ahd thereby placed it be- yond the reach of an execution, or it may be from the fact that the property or fund is of such nature and character, or so situated that a levy is impracticable. The general rule is that whenever the nature of the property or thing in action is such, or the same is held in trust for the insolvent judgment debtor that it cannot be reached at law by levy and sale on execution, then the execution must be returned unsatisfied in whole or in part before a bill in equity, or what is generally known as a creditor's bill, can be filed to reach such' property.''^ ecution and which may be contra, Wakeman v. Russell, 1 reached by it, it -will be fatal to Edw. Ch. 509. the bill and it -will not be sus- '* Sage v. Memphis, etc., R. Co., tained. Child v. Brace, 4 Paige 125 TJ. S. 361. Ch. 309. 70 Brown v. Lake Superior 73 On a bill by an assignee of Iron Co., 134 U. S. 530. a judgment it is not necessary to 76 Gilbert v. Stockman, 81 Wis. show the issuing of an execution 602. In such case the equitable after the assignment. Strange v. lien is created not by the judg- Longley, 3 Barb. Ch. 650; Glea- ment and execution but by the son V. Gage, 7 Paige Ch. 121; filing of the bill and service of f 171.] JUDGMENT, EXECUTION AND HETUEN. 205 The return of an execution unsatisfied being a juris- dictional fact must not be regarded as a mere formality. The law requires an honest and diligent effort to satisfy the execution.'''^ And if it appears that the debtor has a place of resi- dence and a business and a large amount of property subject to levy in one county and the execution is issued to another county in which there is no reason to expect to find property, there is no effort in good faith to col- lect the judgmenf^ § 171. A Debtor of Defendant Paying Pro- tected. — A creditor by garnishment, or a creditor's bill, may obtain an equitable lien upon a debt due a non- resident creditor and a compulsory payment of the debt to the creditor obtaining such lien enforced, and in such process. Dunlevy v. Tallmadge, 32 N. Y. 457. In suits against an association or partnership con- sisting of several persons, the remedy against their joint prop- erty must be exhausted before an action can be brought against one or more of the individuals. Robbins v. Wells, 26 How. (N. Y.) Pr. 15; 18 Abb. Pr. 191. The defendant in a creditor's bill cannot object that plaintiff has not taken the proper steps to en- force his judgment against prop- erty which had been sold by the defendant to bona fide purchas- ers previous to issuing execution. Youngs V. Morrison, 10 Paige 325. A creditor under a bill to reach land conveyed in fraud of the grantor's creditors needs to proceed first at law only far enough to acquire a lien on the land; he need not have taken out execution. Wadsworth v. Schisselbauer, 32 Minn. 84. ^^ A creditor's bill cannot be sustained unless it appears that the creditor has in good faith made an effort to collect his judgment by execution and has fairly exhausted his remedy at law. Northwestern Iron Co. v. Central Tr. Co., 90 Wis. 570. '8 Northwestern Iron Co. v. Central Tr. Co., 90 Wis. 570; Cf. Re Remington, 7 Wis. 643; Clark V. Bergenthal, 52 Wis. 103; Ahl- hauser v. Doud,74 Wis. 400; Child V. Brace, 4 Paige 309; Dunlevy V. Tallmadge, 32 N. Y. 457; Bas- sett V. Orr, 7 Biss. 296; Durand V. Gray, 129 111. 9. A return to an execution that after diligent search the sheriff could find no property belonging to the de- fendant whereof to make the whole or any part of the debt, is sufficient evidence of insolvency to entitle the plaintiff to any equitable remedy. Zweig v. Horlcon Iron & Mfg. Co., 17 Wis. 362. But in such case if it is shown on the trial that the de- fendant has in fact sufficient property subject to execution to satisfy the judgment, and that other parties will be injured by granting the relief the court may stay proceedings until an effort has been made to make the judg- ment on execution. Id. 206 EQTJITABLE EBMEDIES. [§ 173. case the payment will protect the debtor everywhere against a suit to recover the same debt by a creditor^® Where an execution at law fails and a court of equity is called upon to render relief, it has been called, and not inaptly so, an equitable execution.®" § 172. Return of Execution, When Made. — It has been a matter of much discussion as to when an exe- cution may be returned and be made the basis of a creditor's suit. The authorities upon this subject are so inharmonious and contradictory that it is utterly im- possible to reconcile them, or by any systematic analysis reduce them to an orderly arrangement. It has been held that where the issuing of an execution is required as preliminary to the commencement of a creditor's suit the execution must run the full statutory period. The reason urged for this doctrine is that it cannot be cer- tainly known prior to the expiration of that period that the judgment will not be paid, or that property will not be discovered to satisfy the execution, or, in other words, not until then have the legal remedies been fully ex- hausted, or at least the evidence of that fact is not com- plete. On the other hand, it has been held that the re- tention of the execution by the officer for sixty or ninety days, or for the statutory period, where the insolvency of the judgment debtor is made to appear, or when it '9 Bragg V. Gaynor, 85 Wis. ecutlon must have been Issued 468; Allen v. Watt, 79 111. 284; and returned unsatisfied. Clark- Bethel V. Chipman, 57 Mich. 379; son v. De Peyster, 3 Paige Chy. Newland v. Reilley, 85 Mich. 151; 320. Hannibal, etc., v. Crane, 102 111. so An equitable execution is 249; Morgan v. Neville, 74 Pa. equitable relief which the court St. 52; Cochran v. Fitch, 1 gives because an execution at Sandf. Ch. 142; Williams v. In- law cannot be had. Atkins v. gersoll, 89 N. Y. 508; Guillander Shepard, 43 Ch. Div. 131. What V. Howell, 35 N. Y. 657. The gar- is commonly called an equitable nishment or creditor's bill oper- execution is not in fact an ex- ates as an equitable levy. La ecution but equitable relief Crosse Nat. Bk. v. Wilsons, 74 which is granted because there Wis. 391; Re Milburn, 59 Wis. is a hindrance in the way of an 24. In order to obtain an equita- execution at law. Id. tola lien by creditor's bill an ex- § 173.] JITDGMBNT, EXECUTION AND EETUEN. 307 would be a useless act, the officer may in good faith after demand return the execution nulla bona within the life- time of the execution and the return thus made become the basis of a creditor's suit. The reason for this doc- trine is in the disinclination of equity courts to follow mere formalities, and where it satisfactorily appears that the holding of the execution for the full statutory period would be productive of no good results the for- mality will be waived and jurisdiction sustained. The advantages of the doctrine first above stated are princi- pally to the debtor in affording him an opportunity to discharge the indebtedness or satisfy the judgment, and thus avoid the train of consequences that sometimes are the inevitable result of a creditor's suit. Besides, the immediate return of an execution, or the perfunctory performance of his duties by the officer under the orders and direction of the plaintiff, or his attorney, is some- times made use of for unjust and inequitable ends, and particularly so where the judgment debtor is a corpora- tion and there is collusion between the judgment credi- tor and one or more of the officers and directors of the company, who for improper motives seek to wreck the corporation or injure its financial standing to the de- triment of stockholders having no notice of the proceed- ings, or who may be powerless to protect their interests. On the other hand, the delay occasioned by requiring an execution to run the full statutory period before a bill can be filed may, and frequently does, permit an unprin^ cipled debtor to further cover up, conceal or dispose of his property, so that by the time a court of equity is ready to be of service to the creditor the remedy is in- efficient, if not fruitless. Still other patent reasons suggest themselves to all experienced judges and lawyers both for and against each of the views on this subject above noted. A careful examination of the adjudged cases, however, will probably amply demonstrate the ^08 EQUITABLE EEMEDIES. [§ 172. following propositions, as founded on the best reason and result in securing to litigants the fullest measure of equity and justice: (1) Jurisdiction should be en- tertained at any time after an execution has been re- turned nulla hona if it is made to appear that an honest and bona fide effort has been made to realize thereon. (2) Jurisdiction should not be entertained if it does not satisfactorily appear that the ordinary legal rem- edies have been exhausted. (3) Jurisdiction should be refused in all cases where it appears the court by sequestration or a receivership is being made an instrument of unnecessary oppression, on the one side, or unjust favoritism on the other. ( a ) If the sheriff takes the responsibility of returning the execution within the time it has to run, after having made a demand for property, he may do so, and the re- turn of nulla iona will be prima facie evidence that the creditor has exhausted his legal remedies and chancery jurisdiction will be sustained.^ (b) It is the duty of the oflScer to hold an execution during its life, but he may take the responsibility of making an earlier return thereof where he has made a demand for property, and is unable to find anything to seize and satisfy the execution.^ iBowen v. Parkhurst, 24 111. The bill cannot be filed until 257. This case was subsequently after the return day of the ex- affirmed in Williams v. Ives, 49 ecution though the execution 111. 512; First Nat. Bk. v. Gage, may have been actually returned 79 111. 207. The responsibility of before that. Cassidy v. Meach- making a return on the execution am, 3 Paige Ch. 311; Hadden v. of the sheriff is upon the officer Spader, 20 Johns. 554. It is no and if he makes a demand and objection that an execution was no property is found upon his returned on the return day if the own responsibility it is sufficient. bill is not filed until after that Thompson v. Marsh, 61 111. App. day. Williams v. Hogeboom, 8 269; Cf. Forbes v. Waller, 25 N. Paige Ch. 469. The return of Y. 430; Renaud v. O'Brien, 35 an execution unsatisfied in N. Y. 99. whole or in part is a suffi- 2 Stirlen v. Jewett, 165 111. 410; cient foundation for a bill in Bowen v. Parkhurst, 24 111. 257; chancery to discover property First Nat. Bk. v. Gage, 79 111. 207. and subject the same to the § 172.] JUDGMENT, EXECUTION AND EETUEN. 209 (c) But such a return if made by order of the plain- tiff's attorney does not establish a presumption, nor does it where the return itself does not show an inability on the part of the officer to find property.^ (d) A proper return is just as much a jurisdictional prerequisite as the issuance. It must show that the of- ficer has been unable to find property liable to be taken on execution. payment of the judgment on "Which the execution is issued. Alexander y. Tams, 13 111. 221; Bowen v. Parkhurst, 24 111. 2b7; Mitchell V. Byrnes, 67 111. 522; Heacock v. Durand, 42 111. 230. It is a prerequisite to a filing of a creditor's hill, the plaintiff must have an execution issued to the sheriH of the county where the debtor resides and carries on "business, or where he did reside when the suit was brought, and if the plaintiff knows the de- fendant has property in a par- ticular county, he should send an execution to that county. Du- rand V. Gray, 129 111. 9; Child T. Brace, 4 Paige 309; Reed v. Wheaton, 7 Paige 663. If an ex- ecution is not sent to the county where the defendant resides at the time the execution is issued, plaintiff must by averment, show sufficient and legal excuse for not doing so. Id. Merchants' Bank v. Griffith, 10 Paige 519; Wheeler v. Heermans, 3 Sandf. Ch. 597; Smith v. Fitch, Clark's Ch. 265. The statute permitting a debtor to schedule property within ten days after demand, does not operate to make a re- turn within the ten days invalid or insufficient to support a cred- itor's bill. Howe v. Babcock, 72 111. App. 68. If the statute re- quires the issuing of an execu- tion upon a judgment within a given time from the date of ren- dition in order to preserve the lien of the judgment, as in Illi- nois, and the creditor's proceed- ing is based on the lien, in such case the issuance of the execu- tion within such period is a pre- requisite to the filing of a bill to set aside a fraudulent convey- ance, and subject the property to the payment of the judgment. Weisv. Tiernan, 91111. 27; New- man v. Willetts, 52 111. 98. 8 Michigan C. R. Co. v. Keo- hane, 31 111. 144; Hartley v. At- kins, 64 111. App. 502. When an execution is returned before the day which limits its life, it must show either by clear inference, or upon its face, that It is the officer's own act, so that a foun- dation may be laid for the prose- cution of equitable remedies based upon an exhaustion of all legal remedies. Pecos Irrigation & Improvement Co. v. Olson, 63 111. App. 313. When a return is made upon the responsibility of the sheriff it is presumed he has performed what is required of him by the statute as a prelim- inary to making a return before the expiration of the execution unless there is proof or clear im- plication to the contrary. Pecos Irrigation & Improvement Co. v. Olson, supra. The legal pre- sumption that an officer has made diligent effort to obtain satisfac- tion of his execution and has been unable to do so, as shown by his return, may be theoreti- cally true, but is often found to be the merest fiction. It appears, however, that the order of plain- tiff's attorney to return the ex- ecution will not make the retura 210 EQUITABLE EEMBDIES. [§ 173. The return must be to the county from which the exe- cution was issued.* And there must be an honest and Tjona fide attempt to make the money on the execution, and this must extend to all defendants against whom judgment is rendered.' (e) And the return be made before the bill is. filed.* (f) But an irregular return is subject to amendment, and the proceedings may be stayed a reasonable time so that the proper court may authorize the correction.'^ insufficient as a foundation for a creditor's bill where it also ap- pears that the execution had been in the hands of the sheriff for eleven days, that he had de- manded property of the defend- ant and was not able to find any property upon which to levy the execution. Huntington v. Metz- ger, 158 111. 272. A demand was held not to be necessary in. Thompson v. Marsh, 61 111. App. 269. And if the execution is re- turned unsatisfied before this is done at the direction of the plaintiff's attorney indorsed on the execution. It has been held that the legal remedies of the plaintiff are not then shown to be exhausted. The execution must be returned unsatisfied be- cause of an inability to find property whereon to levy. Scheu- bert V. Honel, 152 111. 313. Where a sheriff has taken all proper steps to collect an execution, has made demand without result, and has been unable to find proper- ty to levy on he may take the responsibility of returning the execution before the expiration of 90 days, and the fact that he has been requested by the at- torney of the creditor to make the return when such condition exists is immaterial. Howe v. Babcock, 72 111. App. 68. Return may be by order of plaintiff's at- torney if there was no collusion. Forbes v. "Waller, 25 N. Y. 430. Where the return of the sheriff is "returned with schedule" the court cannot say the defendant might have had property. If anything is implied It is that the defendant had only exempt prop- erty. Thompson v. Yates, 61 111. App. 262. * The return of an execution must be made to the county from which it issued and not to the county where docketed. Win- slow V. Pitkin, 1 Barb. Ch. 402. 5 Plaintiff must make a bona fide attempt to collect his execu- tion and must exhaust his legal remedy against all defendants against whom judgment is ren- dered. Child v. Brace, 4 Paige Ch. 309; Howard v. Sheldon, 11 Paige Ch. 558. « Hazen v. Burling, 2 N. J. Eq. 133. If the bill shows the return and filing of the execution to have been subsequent to the commencement of the suit this bill will be dismissed at the hear- ing, though the objection is not taken in the answer. Pardee v. De Cala, 7 Paige Ch. 132. The execution returned before the return day is not a foundation for a creditor's bill. Piatt v. Cadwell, 9 Paige Ch. 386; Cassi- dy V. Meacham, 3 Paige Ch. 311. ' If the return of the execution Is improper or irregular the court will stay the proceedings upon the bill a reasonable time so that the return may be recti- fied in the proper court, if there is a reasonable probability that it will be corrected. Piatt v. Cadwell, 9 Paige Ch. 386. § 173.] JUDGJIENT, EXECUTION AND KETUEN. 311 (g) While the return of an officer imparts verity, yet there must be no collusion or fraud between the plaintiff and the officer.^ (h) There can be no uniform rule as to the formal parts of the return.® (i) Allegations of the bill that are defective as to the execution and return may be cured by the evidence on the hearing.^" (j) A return admitted by the defendant as prima facie must be overcome by him.^^ § 173. Judgment Need Not be Such That Im- mediate Levy Could be Made. — While the general rule is that a judgment is necessary, yet it has been held that the judgment need not be such as could be imme- 8 If there Is no fraud or col- lusion between the plaintiff and the oflBcer a return of an execu- tion unsatisfied will be a suffi- cient foundation for a creditor's bill even if the officer was in- formed that the defendant had some Interest in property that might be sold. Stoors v. Kelsey, 2 Paige Ch. 418. Even a false re- turn by the officer of no prop- erty found is not fatal to the creditor's bill in the absence of proof of collusion between the officer and the plaintiff's attor- ney. Rawdon v. Benedict, 1 Ch. Sent. 48. 9 The following returns have been held to be substantially good. A return on an execution that the defendants had no goods or chattels, lands or tene- ments, where but one defendant was served is a sufficient return to sustain a creditor's bill and the appointment of a receiver for the joint property and the sep- arate property of the defendant served. Austin v. Figueira, 7 Paige Ch. 56. A return upon an execution "I return this the ex- ecution unsatisfied; found no goods and chattels on which to levy" is a sufficient return for a creditor's bill. Newman v. Van Duyne, 42 N. J. Bq. 485; Poineer v. Bagnall, 49 N. J. U 226. The return of an execution that the defendants are not either in their partnership name or as In- dividuals seized or possessed of any estate, real or personal, which could be seized or taken by virtue of the execution is prima facie a foundation for a creditor's bill. Randolph v. Daly, 16 N. J. Eq. 313. 10 Where a bill alleged that an execution had been issued on a judgment and delivered to the sheriff of the county to be ex- ecuted but did not allege what had been done under it, and did not allege that the debtor had no property from which the judg- ment could be made, but it did appear, on the hearing, that at that time, as well as at the time of the issuing of the execution, the debtor had no property what- ever liable to execution, it was held to be sufficient and the bill was sustained. Thorp v. Lei- brecht, 56 N. J. Eq. 499, and see Dunham v. Cox, 2 Stock. 437. 11 Tiirley v. Taylor, 3 Lea. 171. 212 EQUITABLE EEMBDIES. [§§ I'i'i, 175. diately enforced, as where the judgment should be re- vived by a scire facias. Where the proceeding is against an administrator of a deceased debtor and the grantee of such debtor, and is based on a conveyance alleged to be in fraud of creditors, the court does not exercise an auxiliary jurisdiction to aid legal process, and conse- quently it is not necessary that the creditor should be in a condition to levy an execution.^^ § 174. Judgment Upon a Judgment — Effect of. — Where the original judgment is still in force it is imma- terial that a new judgment has since been obtained on the original judgment. Courts of law consider the orig- inal judgment in full force until sufficient property has been levied on or money raised to satisfy the same, and the same rules apply in equity in that regard.^^ A judgment against a debtor upon which a judgment is rendered in another State is not merged into the lat- ter judgment so as to prevent the maintenance of an ac- tion on such former judgment in the State in which it is rendered for the purpose of attacking a fraudulent conveyance.^* § 175. Valid Judgment by Confession Sufficient. — A judgment by confession if valid between the parties is a sufficient foundation for a creditor's bill or a bill in the nature of a creditor's bill to set aside a fraudu- lent transfer. Where persons have obtained possession of the debtor's property by a fraudulent and void convey- ance they cannot be allowed to hold it against a judg- ment which is valid against the debtor, and fair in its 12 Where a creditor's bUl is the fraudulent transfer should be based upon a judgment to reach removed as where the judgment property fraudulently conveyed should be revived by scire fa- by a deceased debtor and the bill cias. Hagan v. Walker, 55 U. S. Is against the administrator and 29. the person to whom the property is Bates v. Lyons, 7 Paige 85. was conveyed, it is not necessary i* Wells v. Schuster-Hax Nat. that the creditors should be in a Bank, 23 Colo. 534. condition to levy an execution if § 176.] JUDGMENT, EXECUTION AND KETUEN. 313 consideration, though there may have been irregularity in its rendition.^ ^ § 176. Judgment, When Conclusive. — Where a creditor's suit is based upon a judgment the validity of the indebtedness upon which the judgment was based cannot be inquired intO' where the purpose of the suit is to set aside an alleged fraudulent conveyance. The judgment is prima facie as to a grantee of the debtor, and is conclusive against stockholders under a bill filed by creditors.^® Ordinarily the judgment on which the plaintiff's bill is filed is conclusive, but if there is doubt whether the bill is filed in good faith, or there is appearance of col- lusion between the plaintiff and the debtor, the court may properly go behind the judgment in determining 15 Neusbaum v. Keim, 24 N. Y. 325. 16 Shaw V. Manchester, 84 la. 246; Conover v. Jeffrey, 26 N. J. Bq. 36; Faber v. Matz, 86 Wis. 370; Carpenter v. Osborn, 102 N. Y. 552; Decker v. Decker, 108 N. Y. 128; Thornton v. Margin- al Pt. H. Co., 123 Mass. 32. The judgment on which a creditor's bill is based, is prima facie evi- dence only, of the validity of the debt, as against a grantee. Clark V. Anthony, 31 Ark. 546. A judg- ment upon which a creditor's bill is filed is conclusive as to the parties to it and cannot be impeached collaterally nor ques- tioned upon a creditor's bill. Mat- tingly V. Nye, 75 U. S. 370. Un- der a bill filed by a judgment creditor, against stockholders, it is not competent for the defend- ants who are simply called upon to pay what they owe the cor- poration, in order that its obliga- tions may be discharged, to re- open the question whether, upon the facts, the plaintiff ought to have had judgment against the corporation. The judgment was conclusive upon that fact, against the corporation, and all persons in privity with it, and carries with it, without litiga- tion, the facts upon which it is based. Baines v. Babcock, 95 Cal. 581; Marsh v. Burroughs, 1 Woods, 463. Where it is alleged that the indebtedness represent- ed by certain judgments was not legally and justly owing at the time from the debtor and that there was fraud in their recovery no rule is better settled than that the debtor in such case is pre- cluded from setting up the fraud. He is a party to it. Colburn v. Shay, 17 111. App. 289; Harmon V. Harmon, 63 111. 512; Ward v. Enders, 29 111. 519; Horner v. Zimmerman, 45 111. 14; Choteau V. Jones, 11 111. 300; Lyon v. Robbins, 46 111. 276; Upton v. Craig, 57 111. 257; Fitzgerald v. Porristal, 48 111. 228; Beebe v. Saulter, 87 111. 518; Campbell v. Whitson, 68 111. 240; White v. Russell, 79 111. 155; Rappleye v. International Bk., 93 111. 396. A judgment in full force rendered by a court of competent jurisdic- tion, where no fraud is alleged, must have full force until re- .214 EQUITABLE EEMEDIES. [§ 176. the question of relief. And so, also, in regard to the regularity of the execution issued on the judgment. '^'^ Where a suit is instituted by creditors against stock- holders of a corporation based upon a judgment against the company the defendants are not permitted to ques- tion the original cause of action unless they can sho-w collusion between the plaintiff and the defendant cor- poration entered into for the purpose of defrauding the stockholders.^* The reason for not permitting a defendant in a credi- tor's suit to question the character of the consideration of the judgment is to be found in the doctrine of res adjudicata, and it seems that estoppel does not depend upon the defense having been actually interposed, but it is sufficient if it might have been interposed.^^ versed. It cannot be attacked In a court of chancery on a credit- or's bill filed. Bay v. Cook, 31 111. 336. Under a creditor's bill the judgment on which it is founded cannot be attacked on the ground that there was no binding obligation at the time of the judgment. Sanderson v. Snow, 68 111. App. 384. Though the plaintiff in a creditor's bill has a judgment against the debt- or in another suit, it does not conclusively show the existence of a present debt to which there are no defenses. First Nat. Bank V. Randall, 38 Atl. 1055. 17 Williams v. Hubbard, 1 Mich. 446. Mr. Justice Field in Jones V. Green, 1 Wall. 330, says: "The court when its aid is in- voked looks only to the execu- tion and the return of the officer to whom the execution was di- rected. The execution shows the remedy afforded at law has been pursued and of course is the highest evidence of the fact. The return shows whether the rem- edy has proved effectual or not, and from the embarrassments .which would attend any other rule the return Is held conclu- sive. The court will not enter- tain inquiries as to diligence of the officer in endeavoring to find property upon which to levy." 18 Marsh v. Burroughs, 1 Woods 463; Glenn v. Williams, 60 Md. 93; Henry v. Elder, 63 Ga. 347; Lehman v. Glenn, 87 Ala. 618; Stephens v. Fox, 83 N. Y. 313; Merchants' Bank v. Chandler, 19 Wis. 434. In a suit in equity by a judgment creditor to reach lands held by a third party in fraud for the debtor it Is not competent for the defend- ant's trustees to question the judgment on any ground except it was recovered by fraudulent collusion between the plaintiff and the defendant therein. Mc- Canless v. Smith, 51 N. J. Eq. 505. A court in which a cred- itor's bill is filed will not enquire into the regularity of the judg- ment and execution of a co-ordi- nate court which is made the foundation of the proceedings. Piatt V. Cadwell, 9 Paige Ch. 386; and see also Baines v. Babcock, 95 Cal. 581. 19 McCanless v. Smith, 51 N. J. § 177.] JUDGMENT, EXECUTION AND EETUHN. 215 Of course in a case where there was fraud and collu- sion in the procurement of the judgment it would not be conclusive. Fraud and collusion may vitiate a judg- ment as well as a deed or contract.^** § 177. Judgment is Not Conclusive as to Other Creditors. — While the judgment debtor and those in privity with him are not permitted to question the judg- ment upon which the bill is filed, the rule does not pre- vent a judgment creditor from questioning the validity of an antecedent judgment creditor's judgment, but not for mere irregularity in the rendition.^^ Eq. 505. And see also Spencer v. Brockway, 1 Ohio 122; Thatcher T. Gammon, 12 Mass. 268; Healy T. Root, 11 Pick. 390; Christmas V. Russell, 5 Wall. 290; Matting- ly V. Nye, 75 TJ. S. 370; Candee V. Lord, 2 N. Y. 269; Burgess v. Simonson, 45 N. Y. 225; Carpen- ter V. Osborn, 102 N. Y. 552. 20 McCanless v. Smith, 51 N. J. Eq. 505. But when judgment is entered for a debt justly due and owing the fact that it was en- tered upon an offer to allow it, does not render it collusive in any sense which allows another creditor to interfere. Columbus Watch Co. V. Hodenpyl, 135 N. Y. 430; Sweetser v. Silber, 87 Wis. 102. 21 Edgar v. Clevenger, 2 N. J. Eq. 258. A judgment cannot be set aside at the suit of another creditor for mere irregularity, if the judgment is for a claim that is honest and the proceedings are bona fide. Trier v. Herman, 115 N. Y. 163. A creditor whose claim is unsecured by mortgage or privilege has no right to com- pel another creditor who has a judicial mortgage as well as the privilege of seizing creditor, to bring the proceeds of sale into the court for a ratable distribu- tion in concursu under the La. Code Prac, Art. 301. Thompson T. Daniel, 47 La. Ann. 1401. There must be an actual and bona fide indebtedness, which is the foundation of a judgment as to other creditors. Sprague v. Noble, 3 111. App.-521. A judg- ment will not be set aside on the petition of a judgment creditor unless it is shown to be unjust or inequitable. Farwell v. Hil- bert, 91 Wis. 437; MarshaU v. Milwaukee W. M., 84 Wis. 23; Horning v. E. Griesbach Brew. Co., 84 Wis. 71; F. Mayer B. & S. Co. V. Palk, 89 Wis. 216. If there are several bills which have not been consolidated, seeking assets that have been transferred by a debtor in favor of the creditors, the complainant in one of such bills in order to assail the decree in the other case must file an original bill. Jones V. Davenport, 45 N. J. Eq. 77. Judgment creditors are in no better position to attack a judgment on the ground of ir- regularity than the debtor him- self. Neither of these can avoid a judgment for irregularity ex- cept it is unjust and inequita- ble, though it would be other- wise as to fraud of the parties thereto. Marshall v. Milwaukee, etc., Mills, 84 Wis. 23; Cf. Brown V. Parker, 28 Wis. 21; Bonnell v. Gray, 36 Wis. 574; McCabe v. Sumner, 40 Wis. 386; Pirie v. Hughes, 43 Wis. 531; Rogers v. 216 EQUITABLE EEMEDIES. [§ 178. Where it is sought by one creditor to attack the valid- ity of judgments, executions, and levies against the prop- erty of the debtor on the ground of collusion and fraud, it is essential that the attacking party shall be a judg- ment creditor.^^ This right does not extend to a general creditor having no judgment.^^ § 178. Judgment in Federal Court Basis for Bill in State Court. — The better doctrine and one sup- ported by reason and the trend of modern judicial decis- ions is that a judgment of a United States court may properly be made the basis of a suit in equity in a State court to attack and set aside a fraudulent conveyance.** And so a judgment in the State court is a good founda- tion for a creditor's bill in the Federal court.*^ Cherrier, 75 Wis. 54; Compare, Sloane v. Anderson, 57 Wis. 123; Reid V. Southworth, 71 Wis. 288. 22 Mere creditors at large are not in a position to attack the validity of judgments, executions and levies against the debtor on the ground of collusion and fraud. Weber v. Weber, 90 Wis. 467; Gregory v. Rosenkrans, 78 Wis. 451; Ullman v. Duncan, 78 Wis. 213; Manson v. Phoenix Ins. Co. 64 Wis. 26. They must have exhausted their legal rem- edies or acquired some right or lien at law. Nassauer v. Techner, 65 Wis. 388; Meissner v. Meiss- ner, 68 Wis., 336; Ahlhauser v. Doud, 74 Wis. 400; Gilbert v. Stockman, 81 Wis. 602; North Hudson B. & L. Asso. v. Childs, 86 Wis. 292. 23 Frothingham v. Hodenpyl, 135 N. Y. 630; Wiggins v. Arm- strong, 2 Johns. Ch. 144; Dun- levy V. Tallmadge, 32 N. Y. 457. 24A judgment of a United States court is so far a domestic judg- ment that a state court of equity ■will lend its aid to set aside a fraudulent conveyance in order that the land may be subjected to execution. Bullitt v. Taylor, 34 Miss. 708; Vanderveer v. Stryker, 8 N. J. Eq. 175; Ballin V. Loeb, 78 Wis. 404; Chicago & A. B. Co. V. Fowler, 55 Kan. 17. The statement of the text is at variance with the decisions in Steere v. Hoagland, 39 111. 264; Winslow v. Leland, 128 111. 304, and Dillworth v. Curts, 139 111. 508, and yet the same court has held that where the amount con- fers jurisdiction the judgment of a justice of the peace is sufll- cient. If the doctrine of the above cases should be carried to their logical results a strange anomaly would present Itself if after the plaintiff had recovered a judgment in the United States court he should become a resi- dent of the same state with the defendant and should desire to enforce his judgment by insti- tuting a creditor's proceeding. 2IS First Nat. Bank v. Steinway (C. C. W. D. Pa.) 77 Fed. Rep. 661. A creditor's bill cannot be based on a judgment before a justice of the peace. Crippen v. Hudson, 13 N. Y. 161. The judg- ment must be docketed in the § 179.] JUDGMENT, EXECUTION AND EBTUEN, 217' It has also been held that a plaintiff by judgment obtained against a corporation in a United States court is entitled to pursue a remedy given to him by the statutes of the State in which such a court is situated, by which the property of the corporation may be se- questrated and equally distributed among creditors, to the same extent and in the same manner as if his judg- ment was obtained in the State court. This doctrine ia based upon the idea that United States courts are not foreign within the State in which they are held, and the State court will treat them as domestic.^® It is not necessary that the judgment on which the proceedings are based should have been rendered by the same court if the court in which it was rendered was of competent jurisdiction.*''^ But suit cannot be brought against a surety in one United States Circuit Court to set aside a fraudulent conveyance of the surety based on a judgment rendered in another circuit against the principal.*^ A judgment before a Justice of the Peace has been held not sufficient foundation for a creditor's bill.*^ § 179. Judgment Need Xot Antedate Act Com- plained of. — Where the bill is based on a fraudulent proper clerk's office and execu- for a creditor's bill In a circuit tion Issued and returned as to court of another district. Union real estate. Id. Trust Co. v. Boker, 89 Fed. Rep. 26 Ballin v. Loeb, 78 Wis. 404; 6; but see Merchants' Nat. Bk. Turrell v. Warren, 25 Minn. 9; v. Chattanooga C. Co., 53 Fed. Wandling v. Straw, 25 W. Va. Rep. 314. Nor is a foreign judg- 692; Thomson v. Lee Co., 22 la. ment or decree. Ladd v. Judson, 206; St. Albans v. Bush, 4 Vt. 174 111. 344. In Merchants' Nat.. 58; Barney v. Patterson, 6 Harr. Bk. v. Chattanooga C. Co., supra, & T. 182; Bmbry v. Palmer, 107 it was held that a judgment in U. S. 3; McCauley v. Hargroves, Georgia was a sufficient founda- 48 Ga. 50; Williams v. Wilkes, 14 tion for a creditor's bill in Ten- Pa. St. 228. nessee based upon the following 27 Faber V. Matz, 86 Wis. 370. cases: Stutz v. Handley, 41 Fed. 28 United States v. Ingate, 48 Rep. 531; S. C. 139 U. S. 419; Fed. Rep. 251. A judgment of Hatch v. Dana, 101 U. S. 205. the U. S. circuit court of one dis- 29 Crippin v. Hudson, 13 N. T, trict is not sufficient as a basis 161. 218 EQUITABLE EEMEDIES. [§§180-183. transfer of property it is not essential that the judgment shall have been rendered prior to the transfer, which is alleged to be fraudulent.^" § 180. Claim Against Estate as Basis Must be Exhibited, Etc. — A creditor's bill against a decedent's estate will not be entertained until the claimant exhibits his claim and has it allowed in the Probate Court.^^ § 181. Creditor's Bill by Wife Against Husband. — A creditor's bill will not be sustained by a wife against her husband to reach and apply property which cannot be taken on execution or attachment, until it shall be established in a court of competent jurisdiction that she is a creditor of her husband in an appropriate pro- ceeding.^^ § 182. Judgment Necessary Though Actual Fraud Charged. — A creditor who has not reduced his claim for goods sold to judgment, but has merely ob- tained an attachment subject to executions of judgment creditors, cannot maintain a bill to discover outstanding debts due the debtor, although he alleges fraud and is 30 Piersloff v. Jorges, 86 Wis. claim of a creditor is only prima 128; Jones v. Jones, 64 Wis. 301. facie evidence and may be con- si Goodman v. Kopperl, 67 111. tested in a suit against an heir to App. 42; Harris v. Douglas, 64 set aside a conveyance to him 111., 466; Armstrong v. Cooper, based on such judgment even if 11 111. 560; Freeland v. Dazey, 25 the conveyance is colorable only. 111. 294; Heustis v. Johnson, 84 Gibson v. Gibson, 82 111. 61. In 111. 61; Grain v. Kennedy, 85 111. New Jersey it has been held that 340; Duval v. Duval, 153 111. 49; where the creditor has a lien Hills V. Sherwood, 48 Cal. 386. given to him by statute upon the This, however, is not an unbend- decedent's estate, an allegation ing rule. A creditor whose claim in the bill that the claim has has been duly allowed by the been presented to the adminis- county court against an estate, trator, is unnecessary where the has no such interest in the real allegations of the bill admitted estate of the deceased as will au- on demurrer show the complain- thorize him to file a bill in equity ant to be a creditor. Mayor, etc., to perfect the title or remove in- v. Alyea, 53 N. J. Eq. 580; Mer- cumbrances. Le Moyne v. Quim- chants, etc., v. Borland, 53 N. J. by, 70 111. 399. Cf. McDowell v. Eq. 282. Cochran, 11 111. 31; Choteau v. 32 Willard v. Briggs, 161 Mass. Jones, 11 111. 300. The judgment 58. of the county court in allowing a §§ 183, 184.] JUDGMENT, EXECUTION AND KETUEN. 319 unable to discover the names and addresses of the debtor's creditors. A bill in equity will not lie for the purpose of procuring relief against fraud at the suit of a creditor who has never reduced his demand to a judg- ment. Unless the creditor has obtained a judgment so as to have a certain claim upon the property of the debtor, he has no concern with his frauds.^* § 183. Allegation as to Date of Judgment, Amendment, Etc.— It is not a defense to a creditor's bill based upon a judgment, that the judgment was en- tered upon a later date than that stated in the bill of complaint, if it appears that the later judgment entry was merely to correct the one relied on.** § 184. Judgment Based on Tort Sufficient. — Where the compMnant's cause of action is based upon a tort and the right of action accrues and becomes vested before a voluntary conveyance is made, the plaintiff is 33 Detroit C. & R. R. M. Co. v. Ledwidge, 162 111. 305; Shufeldt V. Boehm, 96 111. 560; Dewey v. Eckert, 62 111. 218; so in Green- way V. Thomas, 14 III. 271, a creditor filed a bill to set aside a fraudulent assignment alleged to have been made by his debtor, alleging that said debtor had left the country so that process could not be served upon him and that the complainant had served out an attachment and placed it in the hands of the sheriff. It was held that the demurrer to the bill was properly sustained and the bill dismissed on the ground that there was a remedy at law because the attachment could have been prosecuted to judg- ment, or the complainant could have garnisheed the debtors of the assignors. In Bigelow v. An- dress, 31 111. 322, a bill was filed alleging an indebtedness to plaintiff for goods sold; that an attachment had been issued and served upon one Earl as gar- nishee; that the debtor had left for parts unknown after making a fraudulent sale to his father; that Earl was disposing of the goods of the debtor as his agent. Held that there was no lien ac- quired upon the debtor's prop- erty in the hands of the gar- nishee which would authorize a court of equity to interfere on the ground that there was an adequate remedy at law. And it is for the reason that a court of chancery does not assume juris- diction to settle and establish purely legal rights. In Gore v. Kramer, 117 111. 176, 182, the pri- mary object of the bill was to recover a debt first cancelling the contract of sale for fraud and then obtaining a decree for the value of the goods, it was held that the plaintiff not having ex- hausted his legal remedies had no standing in a court of equity. That fraud in the purchase of the goods did not form a basis for equitable jurisdiction. 34 First Nat. Bk. of Marshall v. Hosmer, 48 Mich. 200. 220 EQ-CriTABLE REMEDIES. [§§ 185-187. entitled to attack the conveyance as fraudulent though judgment was not rendered until after the conveyance. While, strictly speaking, the relation of debtor and creditor in such case does not exist until judgment, yet the relationship of the parties is such that a creditor's bill may be sustained.*^ § 185. Order of Proceeding as Between Joint Tenants and Surety. — In a proceeding by creditors to reach property which has been owned by a husband and his wife as tenants in common and conveyed by them in trust to secure a note of the husband on which a third party is surety, the creditors may first proceed against the interest of the husband, then of the wife, and then against the surety.^® § 186. Agreement to Fay Debts Secured by Threats Not Enforcible. — An agreement to pay the debts of another induced by threats and undue influence cannot be enforced in equity by a creditor. Where the suit in equity is based upon such an agreement the de- fense of undue influence, etc., is available, and this though a payment may have been made on the' indebt- edness, if made under threats of suit and in ignorance of rights of the defendant; nor is forbearance to sue by reason of the agreement a defense.^'' § 187. One Creditor May Attack Another, When. — Where a fund is insufficient to pay in full all judg- ment creditors one of them may attack the validity of s5 Thorp V. Liebrecht, 56 N. J. Bishop, 29 Beav. 417; 6 Jur. (N. Eq. 499; Petree v. Brotherton, S.) 812; Crossley v. Elworthy, L. 133 Ind 692; Boid v. Dean, 3 H. 12 Bq. Cas. 158; 40 L. J. Ch. Dick. Ch. 193. In this case it was 480. The proceeding may be based held that a transfer could not be on a judgment in a bastardy pro- made with a view of being able ceeding. PierstofC v. Jorges, 86 to slander another with impun- Wis. 128. ity. Cf. The American Casualty se Rogan v. Williams, 63 Tex. Ins. Co.'s Case, 82 Md. 535. The 123. English authorities are in har- s^Rau v. Von Zedlitz, 132 mony with the text. Barling v. Mass. 164. § 187.] JUDGMENT, EXECUTION AND EETUEN, 221 other judgment creditors who are endeavoring to share in such fund.^* 38 One judgment creditor may attack the validity of tlie judg- ment of another creditor, ■where the funds are not sufficient to pay both. Cavaroc v. Four- net, 28 La. Ann. 587. But a gen- eral creditor cannot do so. Bownes v. Weld, 3 Daly 253. A chattel mortgage cannot be questioned by a creditor who during the time it was not on file was only a general creditor and had no process for the collection or enforcement of his debt. Bul- lard V. Kenyon, 49 N. Y. S. R. 132, 21 N. Y. Supp. 32. General creditors of an insolvent attach- ment debtor cannot maintain a bill to have declared void a sale of attached property as perish- able, under Ala. Code, Sec. 2958. McCreery v. Berney (Ala.) Nat. Bank, 22 So. 577. A defendant in a suit to ascertain the property of the debtor and the liens and priorities against the same may file an answer in the nature of a cross-bill attacking any of the liens involved therein as fraudu- lent preferences under the West Virginia statute. Casto v. Greer, 44 W. Va, 332. CHAPTEE VI. SUPPLEMENTARY PROCEEDINGS. § 200. General— Proceedings not uniform. 201. Are statutory in lieu of creditors' bills. 202. Common law remedies to be first exhausted. 203. Return of execution before return day. 204. Same — Contrary doctrine. 205. Examination of debtor — Discovery. (a) Examination of debtor when execution outstanding. (b) Examination of debtor's wife. 206. Examination — Scope of — ^Discretionary. (a) Examination — Power of court commissioner. (b) Examination must be in reasonable time. 207. Power of court to enjoin transfers. 208. Husband not a competent witness, when. 209. Receiver in. 210. Power of receiver. 211. Proceedings are ancillary. NOTE: — No effort has been made to include in this chapter all the subjects that have been passed upon, or all the cases that have arisen under supplementary proceedings, so-called, for the reason that generally the subjects and the cases are not distinguishable from those applicable to the general subject of creditors' bills. Section 200. General — Proceedings Not Uniform. — Supplementary Proceedings, or proceedings in aid, are actions authorized by statute and are designed to take the place of creditors' bills in chancery, the object sought in each being the same. The general scope of statutory proceedings of this nature is the same in all the States where the code procedure has been adopted, and yet there is sufficient dissimilarity in the provisions of the statutes, and the practice thereunder, as to ren- der many of the decisions of little general value. Not only this, but the decisions in the same State are often misleading without a careful and discriminating ex- 223 i 300.] SrrPPLBMENTAET PROCEEDINGS. 323 amination of the frequent revisions and modifications of the statutes. Radical legislative changes in court procedure most usually result in confusion and are fre- quently more injurious than the evils they are designed to remedy. But the ultra conservatism of courts in regard to vrhat has the appearance of judicial legisla- tion and their persistent enforcement of the principle of stare decisis, an inheritance of an unprogressive by- gone age, are largely responsible for many of the sweep- ing legislative changes so instrumental in unsettling the practice, frequently, for a generation. Courts should have no hesitancy in applying both nevF and old principles of law to new conditions and shaping the law to meet the exigencies of the times and no valid reason exists why they may not, when a mode of prac- tice has become detrimental to public interests, change the practice to correspond with general public senti- ment.^ 1 When the established law of England concerning personal property was recognized as det- rimental to the commercial in- terests of that country its courts changed the jurisprudence of that country to meet the public Inter- ests and established the law in harmony with the other coun- tries of Continental Europe. Our own supreme court, however, in the case of Booth v. Clark, 58 U. S. 322, adopted the law of England as it existed prior to 1789, and has since, so far as that court is concerned, stood by that decision on the principle of stare decisis, though most of the state courts have refused to fol- low it, and some of the states, particularly New York, have, by statute, repudiated the doctrine there announced. Upon this question Lord Cottingham said that it was the duty of courts of equity to adapt their practice and course of proceeding, as far as possible, to the existing state of society and apply their juris- diction to those new cases which from the progress daily made in the affairs of men must contin- ually arise and not from a too strict adherence to forms and rules established under very dif- ferent circumstances decline to administer justice and to enforce rights for which there is no rem- edy. Taylor v. Salmon, 4 Myl. & Cr. 134, 619, 635; Mare v. Mala- chy, 1 Myl. & Cr. 559. More than two hundred years ago the doc- trine was established in England that the admiralty jurisdiction was limited to the ebb and flow of the tide, and that doctrine was adopted and followed in the United States until 1851, when it was deliberately abandoned by the Supreme Court of the United States, and it was then held that the admiralty and maritime jur- isdiction granted to the federal government was not limited to ■334 EQUITABLE EEMEDIES. [§ 201. § 201. Are Statutory in Lieu of Creditors' Bills. — Supplementary proceedings are proceedings authorized by statute in many of the States and are intended to accomplish the same purpose as the cred- itor's bill under the chancery practice as it formerly existed. The proceeding is less formal and is simpli- fied and, as indicated by the title, is a proceeding sup- plemental to and in aid of the suit in which the judg- ment against the debtor is rendered. As a general rule, in this class of cases, on proper application, the debtor is examined under oath, touching his property and any disposition or concealment thereof, and on the discov- ery of property which ought to be applied in satisfac- tion of the debt all necessary orders and decrees may be entered to accomplish such purpose. For the pur- pose of reaching property that has been fraudulently conveyed by the debtor, a receiver will be appointed, who, in such case, is the representative of the rights and interests of creditors and as such representative may in- stitute necessary proceedings to cancel and set aside the debtor's fraudulent transfers of property.^ The difficulty experienced by the court in this class of summary proceedings, where the debtor's property is alleged to have been fraudulently conveyed, is the lack of necessary parties before the court so as to prop- tide waters, but extended to all Dunham v. Byrnes, 36 Minn. 106; navigable public lakes and rivers Miller v. Mackenzie, 29 N. J. Bq. ■where commerce was carried on 291. Supplementary proceedings between different states. Will- take the place of creditor's bills iamson, etc., v. Washington, etc., and a lien takes place on the R. Co., 33 Gratt 624. service of the order directing the 2 Smith on Receiverships, § 150, defendant to pay the debt. Lynch and eases cited, viz. : Underwood v. Johnson, 48 N. Y. 27. Proceed- v. Sutcliffe, 77 N. Y. 58; Bostwick ings auxiliary to execution for V. Menck, 40 N. Y. 383; Porter v. the discovery of property may Williams, 9 N. Y. 142; Dollard v. be maintained contemporaneous- Taylor, 1 Jones & S. 496; Os- ly with an action in equity to good V. Laytin, 48 Barb. 463; S. subject such property to the sat- C. Affirm, in 5 Abb. Pr. N. S. 9; isf action of the judgment. Estey Barton v. Hosner, 24 Hun, 467; v. Fuller, 82 la. 678. Hamlin v. Wright, 23 Wis. 491; § 202.] SUPPLEMENTARY PEOCEEDINGS. 225 erly adjust the interests of parties and render a decree that will be effectual from a jurisdictional standpoint.^ § 202. There Must be an Exhaustion of Com- mon Law Remedies. — Supplementary proceedings are intended as a substitute for creditors' bills, and like the creditors' bills in chancery there must first be an ex- haustion of common law remedies. The proceeding is not only statutory, requiring strictness as to require- ments, but is also extraordinary in its nature and not to be resorted to until the common law has failed in affording adequate relief. This does not mean that there has been a failure, on the part of the plaintiff, to make his debt out of the property of the debtor, but means that under the conditions existing the remedy at law is inadequate. The plaintiff's efforts are some- 3 It was held in Wright v. Nostrand, 94 N. Y. 31, that if the receiver desires to reach prop- erty that is alleged to have heen fraudulently conveyed, but which is in the possession of a third party, or the title in him, he must institute a special proceed- ing against the necessary parties for such purpose. Under § 3035, Rev. Stats. Wisconsin, property of a judgment debtor in the hands of a third person can only be applied towards the satisfac- tion of the judgment where there is no dispute as to the owner- ship and amount of the property. Blabon v. Gilchrist, 67 Wis. 38. The pending of proceedings sup- plementary to execution is no bar to a suit in equity to reach property fraudulently conveyed. Faber v. Matz, 86 Wis. 370; Ben- nett V. McGuire, 58 Barb. 625; Gates V. Young, 17 N. Y. Week. Dig. 551. In supplementary pro- ceedings an order upon third per- sons to turn over property in their possession to a judgment creditor is for the protection of such third persons, and not be- ing parties to the suit, they are not bound by the order, and are not in contempt for non-com- pliance. Estey V. Puller Imp. Co., 82 la. 678. The Iowa code pro- viding for the imprisonment for contempt of. a person disobeying an order of court, judge or ref- eree therein Is not unconstitu- tional, in that no jury trial is provided for (Code, ch. 3, title 18). Marriage v. Woodruff, 77 la. 291; Eikenberry v. Edwards, 67 la. 619. Where it appears that the judgment debtor has con- veyed property to a third person on the same day supplementary proceedings were instituted the court has no power to take pos- session of the property by a re- ceiver. It may authorize the judgment creditor to institute an action against the parties claim- ing the property for its recovery, and may forbid its transfer until the determination of that suit. McDowell V. Bell, 86 Cal. 615. 326 EQUITABLE EEMEDIBS. [§ 303 times ineffectual, but not by reason of the inadequacy of the remedy.* § 203, Return of Execution Before Return Day — General Rule. — There is no harmony in the de- cisions relative to the right to file a creditor's bill or institute supplementary proceedings based on the return of an execution before the expiration of the statutory period allowed for it to run. The weight of authority, as well as reason, is that the lifetime of the execution must expire. Otherwise there can be no legal determination whether common law remedies have been exhausted. Except where otherwise pro- vided by statute the rule is that a general creditor has no standing in court, but it is within the experience of every practitioner at the bar that the obtaining of judgment, the issuing of execution thereon, and the return thereof unsatisfied, so far as any bona fide ef- * Smith V. Weeks, 60 Wis. 94; the return of an execution it Graham v, LaCrosse & M. R. means such an execution as will Co., 10 Wis. 459; Seymour v. be effective to exhaust the reme- Brlggs, 11 Wis. 196; Almy v. dy at law, and it does not mean Piatt, 16 Wis.* 169. Ch. 2, title 9, an execution leviable only on the Code of Proc. of Wisconsin, was personal property. Importers' intended as a substitute for the Nat. Bank v. Quackenbush, 143 creditor's bill in chancery under N. Y. 567. When the statute pro- the old practice. But under this vides that in supplementary pro- proceeding it was contemplated ceedlngs the court may order that the creditor should first ex- property of the judgment debtor, haust his common law remedy in his hands or others, delivered before resorting to proceedings up or in any other mode applied m aid. Re Remington, 7 Wis. in satisfaction of the judgment 643. If the execution is issued it does not warrant such pro- and a return of nulla bona made ceeding where the ordinary pro- before supplementary proceed- cesses of law are adequate. Pro- ings are commenced it is suffl- ceedings supplementary to execu- cient, though the execution is tion are extraordinary and are not filed until afterwards. Bar- to be resorted to only when the wL'^- ^^y*:"?' 28 Wis 367. ordinary processes are inade- Wher^ a statute authorizing a quate, the purpose of this pro- judgment creditor to institute ceeding being discovery. Rear- supplementary proceedings at don v. Henry, 82 la. 134- Bstey any time within ten years after v. Fuller, 82 la 678 §§ 204, 305.] SUPPLEMENTABY PEOCEEBINGS. 227 fort to make the debt is concerned, are frequently mere perfunctory -pvoceedings, pro forma simply.^ § 204. Contrary Doctrine. — The holding of the ex- ecution for the full statutory period, or lifetime of the execution, has been held in some jurisdictions not necessary as a basis of supplementary proceedings where nothing appears showing a want of good faith, on the part of the plaintiff or the officer. Of course if it should appear that there was collusion, or an inten- tion to use the forms of the law for the purpose of oppression or unjustifiable ends, a court of equity will not sustain it.® And so where the execution is ordered to be returned by the plaintiff or his attorney, it is not sufficient.'' § 205. Examination of Debtor — Discovery. — As under the old chancery practice a debtor may be com- B Piatt V. Cadwell, 9 Paige, 386; Williams v. Hogeboom, 8 Paige, 469; Cassidy v. Mea- cham, 3 Paige, 311; Beck v. Burdett, 1 Paige, 505; Wright v". Nostrand, 94 N. Y. 31; Tyler v. Whitney, 12 Abb. Pr. 465; Fen- ton V. Flagg, 24 How. P. 499; Livingston v. Cleaveland, 5 How. Pr. 396; Farquaharson v. Kim- ball, 9 Abb. Pr. 385 n; Adams v. Bowe, 12 Abb. N. Cas. 322; Sper- ling V. Levy, 10 Abb. Pr. 426; Pudney v. Griffiths, 6 Abb. Pr. 211; Nagle v. James, 7 Abb. Pr. 234; Ritterband v. Maryatt, 12 N. Y. Leg. Ob. 158; McElwain v. Willis, 9 Wend. 548; Williams v. Hubbard, Walk. Ch. 28; Smith v. Thompson, Walk. Ch. 1; Beach V. White, Walk. Ch. 495; Stew- ard V. Stevens, Harr. Ch. 169; Thayer v. Swift, Harr. Ch. 430; and see Spencer v. Cuyler, 17 How. Pr. 157; Palmer v. Col- ville, 63 Hun, 536. 6 An execution returned before the expiration of the statutory period, nothing appearing to in- dicate want of good faith to reach property, is a sufficient foundation for a proceeding in aid. Second Ward Bk. v. Up- mann, 12 Wis. 499; Russell v. Chicago T. & Tr. Co., 139 111. 538; F. N. Bank v. Gage, 79 111. 207; Bowen v. Parkhurst, 24 111. 257; Renaud v. O'Brien, 35 N. Y. 99; Tyler v. Willis, 33 Barb. 327; Field V. Chapman, 15 Abb. Pr. 434; Hutchinson v. Brand, 9 N. Y. 208; Tomlinson, etc., v. Shat- to, 34 Fed. Rep. 380; Whitehead V. Hellen, 74 N. C. 679. And see also ante § 172. 7 It is not a sufficient return of an execution to form the basis of proceeding in aid if it be returned by order of plaintiff or his attorney. Re Remington, 7 Wis. 642; Marz v. Spaulding, 35 Hun, 478; Stirlen v. Jewett, 63 111. App. 55; Scheubert v. Honel, 50 111. App. 597; 152 III. 313; Al- bany City Bk. V. Dorr, Walk. Ch. 317. The return of the execution must be upon the responsibility of the sheriff, and not by the di- rection of the plaintiff. The re- turn must be based on the ina- 238 EQUITABLE EEMEDIBS. [§ 205. pelled to make discovery of his assets and property. And for the purpose of enabling the court to enforce its orders for an examination the debtor may be brought before the court for contempt on a proper showing, and be compelled to testify as to his assets and their dis- position, either before the court or under its direc- tion.^ (a) Where the proper basis has been laid for sup- plementary proceedings by the issuing and return of an execution unsatisfied, the debtor may be required to appear and be examined, notwithstanding the fact that another execution has been issued subsequently for the purpose of making a levy on personal property, unless it is clear that a levy under such execution will satisfy the judgment.® (b) A judgment debtor's wife may be required to dis- close whether she has any property of her husband nnder her control and may be attached for contempt for refusing to answer.*" bility of the officer to find prop- plementary proceedings after the erty. Durand v. Gray, 129 lU. 9; return of an execution unsatis- Scheuhert v. Honel, 152 111. 313. fied that another execution 8 It is contempt for a debtor to had been issued to levy on per- refuse to make discovery when sonal property unless It is clear so required. Re Rosenberg, 90 that such levy will effectually "Wis. 581. In contempt proceed- satisfy the judgment Sale v. ing based upon the refusal of a Lawson, 4 Sandf. 718; Faxque- debtor to appear and testify un- harson v. Kimball, 18 How. Pr. der an order of a commissioner 33; Lilliendahl v. Fellerman, 11 based upon § 3037 of the statute How. Pr. 528; Smith v. Mahony, the statute must be strictly con- 3 Daly 285. An order directing strued. The scope of the exami- the debtor to appear and answer nation in such case relates to concerning his property is not specific property, and not to a void for irregularity if the debtor general discovery. Smith v. appears and submits to an exam- WeeKs, 60 Wis. 94. As to the ination. Collins v. Angell, 72 sufficiency of an affidavit for an Cal. 513. order requiring the debtor to ap- lo In supplementary proceed- pear before a court commission- Ings the judgment debtor's wife er see Lamonte v. Pierce, 34 Wis. may be required to disclose 483. whether she has property of the » It is no objection to the ex- husband under her control and amination of a debtor under sup- may be attached for contempt for §206.j STJPPLEMENTAET PEOCEEDINGS. 229 § 206. Scope of Examination.— The scope of the examination of the judgment debtor is largely in the discretion of the court, or the commissioner before whom it is made, and the appellate court will not in- terfere except in case of an abuse of such discretion. Discretion of the court does not mean the mere will or caprice of the judge, but also includes the estab- lished practice of the court and an observance of the general principles of equity, so far as applicable to the existing condition of things, and the relation of the parties." (a) A commissioner has no power, unless by statute, to require a person other than the defendant to appear for examination, nor has he a right to make a restraining order against such person disposing of his property, and a statute conferring such power should be free from any constitutional restriction or criticism.^^ refusing to answer. Re Mary J. O'Brien, 24 Wis. 547; Copous v. Kauffman, 8 Paige, 583. 11 The scope of examination of a judgment debtor is largely in the discretion of the judge or commissioner, and the Appellate Court will not interfere except in case of an abuse of such dis- cretion. Heilbronner v. Levy, 64 Wis. 636. An order refusing to set aside a previous order grant- ing an attachment against a de- fendant for contempt in refusing to appear in supplementary pro- ceedings is appealable. (See Sub. 2, § 10, Ch. 264, Laws of 1860, Wis.) Lamonte v. Pierce, 34 Wis. 483. As to judicial discre- tion see Tripp v. Cook, 26 Wend. 143; Piatt v. Munroe, 34 Barb. 291. 12 Under § 3030, Rev. Stat, of Wisconsin, a court commissioner has no power to require any per- son other than a defendant to appear for examination, nor has he a right to make a preliminary order restraining such person from disposing of property. Bla- bon V. Gilchrist, 67 Wis. 38. A court commissioner has no pow- er to order a delivery of the debtor's property to the judg- ment creditor or his attorney. Nieuwankamp v. tJllman, 47 Wis. 168; Salter v. Hilgen, 40 Wis. 363; Pet. of Crandall, 34 Wis. 177; Pet. of Semler, 41 Wis. 517. The Circuit Court has power to make the order contemplated by § 88, Ch. 134, Rev. Stats, of Wis- consin. Gould V. Dodge, 30 Wis. 621. Under the Iowa statute a referee appointed by the court to examine a judgment debtor for the discovery of property in a proceeding auxiliary to execution may issue an order for the ap- pearance of the debtor, and af- terwards issue a warrant for his arrest, on proper proofs made. (See Code, § 3146, 3135.) Mar- riage V. Woodruff, 77 la. 291. 230 EQUITABLE BEMEDIES. [§§ 307, 308. (b) If a creditor desires to avail himself of an ex- amination of the debtor he must do so in a reasonable time after the return of the execution unsatisfied. The doctrine of laches is firmly established as an element of equity jurisprudence.^^ § 207. Power of Court to Enjoin Transfers. — The court, however, usually by statute, has power to enjoin the transfer or other disposition of property by the judgment debtor or interference therewith, and this power by construction has been extended to em- brace third persons. If it were not for this power fre- quently the proceeding would be fruitless. As else- where seen, the power to enjoin does not exist prior to judgment in the original proceeding.^* § 208. When Husband not a Competent Witness. — Where supplementary proceedings are instituted against a wife her husband is not a competent witness against her, in Wisconsin, except in so far as he may have acted as her agent. The policy of the law will not permit the domestic affairs of a family to be thus unnecessarily disturbed.^^ 13 Ten years' delay is not rea- questions, is applicable. Ballston sonable. Woodward v. Hall, 75 Spa Bk. v. Marine Bk, 18 Wis. Wis. 406; contra Owen v. Dupig- 490; Livingston v. Swift, 23 How. nac, 9 Abb. Pr. 180. Pr. 1. 14 Under the provisions of § 95, is in supplementary proceed- Ch. 134, R. S. Wisconsin, the ings against a wife her husband judge may forbid the transfer or is not a competent witness other disposition of the property against her, except in so far as of the judgment debtor, not ex- he may have acted as her agent, empt from execution, or interfer- Blabon v. Gilchrist, 67 Wis. 38; ence therewith, and by construe- cf. Birdsall v. Dunn, 16 Wis. 235; tion this statute applies to Hobby v. Wis. Bank, 17 Wis. 167; all supplementary proceedings. Meek v. Pierce, 19 Wis. 300; Far- whether against a debtor or a rell v. Ledwell, 21 Wis. 182; third person, and whether a re- Butts v. Newton, 29 Wis. 632, ceiver has or has not been ap- 640; Mountain v. Fisher, 22 Wis. pointed. Re B. F. Perry, 30 Wis. 93; Ainsworth v. Barry, 35 Wis. 268. An order discharging a 136; Hale v. Danforth, 40 Wis. person having property of a 382; Stewart v. Stewart, 41 Wis. judgment debtor, or who Is in- 624; Carney v. Gleissner, 58 Wis. debted to him from process for 674. And when the husband is contempt in refusing to answer called as a witness it must be §§ 209, 310.] STJPPLEMENTAEY PEOCEBDINGS. 331 § 209. Beceiver. — The appointment of a receiver in supplementary proceeding, where the facts disclosed as to the nature of the property are such as to justify it is an incident quite common. The necessity for the ap- pointment usually rests in the sound judicial discre- tion of the court, under all the circumstances of the case, having particular reference to the nature and character of the property discovered, or involved in the litigation. Not unfrequently the successful result of the proceeding depends on the preservation of the prop- erty sought to be reached pendente Ute. In other cases the rights and interests of the parties are preserved in the subject matter of the litigation by operating it as a going concern until final disposition of the suit. There are numerous instances where the chief value of the business over which the receivership is to be extended is its good will and its preservation in statu quo until a sale may be had.^^ § 210. Power of Receiver. — The powers of a receiv- er in supplementary proceedings, except where other- wise extended, or limited by statute, are the usual and customary powers of a receiver under a creditor's bill. Except as a matter of comity he has no power to sue stated that he is called as agent the proceedings from the com- of the wife. Menk v. Steinfort, missioner or the papers to that 39 Wis. 370; Mountain v. Fisher, court. Its power is, limited to a 22 Wis. 93. review. Clark v. Bergenthal, 52 16 A receiver may be appointed Wis. 103. The appointment of a in supplementary proceedings. receiver is a sufficient adjudlca- Barker v. Dayton, 28 Wis. 367. A tlon that the defendant has prop- receiver is proper in supplement- erty or effects which he refuses ary proceedings. Second Ward to apply to the payment of his Bk. V. Upmann, 12 Wis. 499. But debts. Holton v. Burton, 78 Wis. not if it appears that the defend- 321. These proceedings may be ant has property liable to execu- instituted against a foreign oor- tion. Second Ward Bk. v. Up- poration having no agent and mann, 12 Wis. 499. A court com- doing no business in this state, missioner in Wisconsin has pow- and a receiver of its property er to appoint a receiver in a may be appointed. Logan v. Mc- proper case, and the Circuit Call Pub. Co., 140 N. Y. 447. Court has no power to transfer 233 EQUITABLE EEMEDIES. [§311. in a foreign jurisdiction, and tlie legislature may prop- erly place restrictions and impose conditions on his power in this regard." In proceedings of this nature it will sometimes be found that the right of recovery by the receiver usually appointed as to some or all the creditors, whom he rep- resents, has been barred by some act of estoppel of such creditors and the right to question the validity of the transfer cannot be asserted. In this class of pro- ceedings particularly the receiver is the representative of creditors, and his rights, by reason thereof, are large- ly shaped and to be determined by their rights as they existed at the time of his appointment. Of course the power of the receiver is frequently enlarged by the statute in many respects.^® § 211. Proceedings are Ancillary. — As a general rule the proceedings are in the action in which the judgment is rendered, and are regarded as supplemen- tal thereto. The purpose of the code procedure in au- thorizing an examination of the debtor by the court, 17 Except as a matter of comity is Smith on Receivership, | a foreign receiver has no power 155, where the following cases are to sue as such in another state, cited in support of the text except on terms and conditions Mandeville v. Avery, 124 N. Y, imposed by the legislature. 376 (reversing 57 Hun, 78 Hence a statute limiting the Haynes v. Brooks, 116 N. Y. 487. bringing of such suit to six Metcalf v. Del Valle, 137 N. Y. months is valid. Wyman v. Kim- 545) ; (affirming 64 Hun, 245) berly-Clark Co., 93 Wis. 554. A Bostwick v. Menck, 40 N. Y. 383. receiver in supplementary pro- In so far as setting aside fraud- ceedings is not by virtue of his ulent transfers in an action by appointment vested with the ti- the receiver for that purpose it tie to the property of the debtor must be understood that his fraudulently conveyed, except by right of action does not extend statute. Olney v. Tanner, 10 Fed. beyond the right the creditors Rep. 101; 18 do. 636, and authori- whom he represents would have ties cited; Bostwick v. Menck, had if the action had been in- 40 N. Y. 383; Miller v. Macken- stituted by them for such pur- zie, 29 N. J. Eq. 291. He is vested pose. This is by reason of the with the legal title to personal fact that the receiver Is the rep- property. Mandeville v. Avery, resentative of the creditors and 124 N. Y. 385; Stephens v. Per- ex necessitate has no power be- rine, 143 N. Y. 476. yond that which could have been § 211. J SUPPLEMBNTAET PEOCEEDINGS. 333 or under its direction, and the subsequent orders based thereon is to simplify and expedite the proceeding as much as possible as compared with the original pro- ceeding in chancery .^^ Concerning the scope of supplementary proceedings, it may be stated in general terms that, except where otherwise provided by statute, the scope is co-extensive with creditors' bills, which has been elsewhere consid- ered. Where the debtor has money due him out of the state the proper course is to compel the debtor to trans- fer the title to a receiver, who may, as assignee, recover the same.^" exercised by them. Kennedy v. in New York. See Code Civ. Thorp, 51 N. Y. 174; Savage v. Proc, § 2423. Murphy, 34 N. Y. 508. 20 Buchanan v. Hunt, 98 N. Y. 19 Supplementary proceedings 560: The court cannot compel are proceedings in the action in the debtor to bring the money In. which the judgment was ren- A judgment for alimony in a di- dered. Barker v. Dayton, 28 Wis. vorce suit may be enforced by 367; Collins v. Angell, 72 Cal. supplementary proceedings. Bar- 513. It is a special proceeding ker v. Dayton, 28 Wis. 367. CHAPTER VII. UEN OF CREDITORS' BILLS. (See also Priority.) S 220. General rule. 221. Effect of lien secured. (a) As to assignments. (b) As to bankruptcy. ,(c) As to such under execution. (d) To operate as lis pendens. (e) As to other creditors' bills— Dormant judgment. (f) In case of fraudulent conveyance. (g) Is superior to subsequent attachment, (h) As to a junior judgment. 222. Extent of lien. (a) Equitable assets not subject to execution. (b) Property subject to levy and sale after receiver's appointment. (c) Title of purchaser from fraudulent grantee unaf- fected, when. (d) Mortgage prior to judgment unaffected. (e) Priority not secured by favored creditors. (f) Limited to such rights as plaintiff can assert. (g) Limitations in case of foreign corporation. 223. Priority of lien as between joint plaintiffs. 224. Prom what time lien dates — Does not abate. 225. Lien in supplementary proceedings. Section 220. General Rule. — As a general rule an equitable lien is acquired by the filing of a creditor's bill, or a bill in the nature of a creditor's bill, upon the choses in action and equitable assets of the judgment debtor. The effect of this lien is such in its relationship to the debtor that it remains unaffected by his death, and in its relationship to other creditors a priority is secured over them without reference to the priority of judgments, in the event that the suit terminates success- fully for the plaintiff. With reference to chattels that 234 § 320.] LIEK OF CEEDITOES' BILL. 235 are subject to levy and sale under execution, where the action is not brought in aid, there seems to be some doubt whether the mere commencement of suit creates a lien or priority in favor of plaintiff as against other creditors who subsequently actually levy on the prop- erty, before it is placed in custodia legis by means of a receivership in the creditor's suit. Whatever doubt, however, upon this point is removed by the actual re- duction of the chattels to possession by the court through the appointment of a receiver, which in effect is an equitable levy.^ 1 storm V. Waddell, 2 Sandf. Ch. 494; Eameston v. Lyde, 1 Paige Ch. 637; Sweeny v. Grape Sugar R. Co., 30 W. Va. 443; State V. Bowen, 38 W. Va. 91; Albany City Bk. v. Schermerhorn, Clark's Ch. 297. The plaintiff acquires by the commencement of his suit a lien upon the chose In action and equitable assets of the debtor which entitles him, in the successful event of the ac- tion, to a priority of payment in preference to other creditors, ir- respective of the priority of judg- ments. First Nat. Bk. v. Shuler, 153 N. Y. 163; Corning v. White, 2 Paige Ch. 567; Roberts v. Al- bany, etc., R. Co., 25 Barb. 662. And this lien is not defeated by the death of the debtor before judgment. Brown v. Nichols, 42 N. Y. 26. But in respect to chat- tels subject to be taken on exe- cution the rule seems to be that unless the action is brought in aid of an execution the mere commencement of an action creates no lien as against other creditors, and if any lien exists it is so incomplete and imperfect that it is subject to being over- reached by a subsequent levy in favor of other creditors made be- fore the appointment of a receiv- er. First Nat. Bk. v. Shuler, su- pra; Lansing v. Easton, 7 Paige, 364; Beck v. Burdett, 1 Paige, 305; Becker v. Torrancej 31 N. Y. 631; Van Alstyne v. Cook, 25 N. Y. 489; Davenport v. Kelly, 42 N. Y. 193; Storm v. Waddell, 2 Sandf. Ch. 494; Lynch v. John- son, 48 N. Y. 27. But when a re- ceiver has actually been appoint- ed before levy the appointment operates as an equitable levy and a sequestration of the chattels for the benefit of the plaintiff. It is the appointment of a re- ceiver which makes the lien ef- fective and gives the plaintiff a priority. First Nat. Bk. v. Shu- ler, supra. Filing a creditor's bill and the service process create a lien in equity upon the effects of the judgment debtor, and for this reason it has been termed an equitable levy. Miller V. Sherry, 69 U. S. 237. In speak- ing of the preference or lien ac- quired by a plaintiff under a creditors' bill Chancellor Kent In McDermott v. Strong, 4 Johns. Ch. 687, says: "The plaintiffs come in the character of execu- tion creditors, and have thereby acquired by means of their exe- cutions at law what this court regards as a legal preference or lien on the property so placed in trust. * * Though it be the favorite policy of this court to distribute assets equally among creditors pari passu. Yet when- ever a judicial preference has 236 EQUITABLE EEMEDIES. [§ 231. § 221. Effect of Lien Secured.— (a) The effect of the lien thus secured is that an assignment made there- after is subject thereto, and if the scope of the bill is broad enough payments cannot be made to the debtor after the lien attaches.^ (b) Nor is the lien affected by the subsequent bank- ruptcy of the debtor.^ Tjeen established by the superior legal diligence of any creditor, that preference is always pre- served in the distribution of as- sets by the court." Cf. Bayard V. Hoffman, 4 Johns. Ch. 450. The return of an execution gives no lien on property fraudulently conveyed. The lien in such case Is obtained by the filing of the bill. Ballentine v. Beall, 3 Scam. 203; George v. William- son, 26 Mo. 190; Davis v. Bon- ney, 89 Va. 755; Wallace v. Trea- kle, 27 Gratt. 479. The filing of a creditors' bill, or bill in chan- cery, creates a specific equitable lien on the thing or property sought to be subjected to an ex- ecution, for the reason that it brings such property within the control and jurisdiction of the court. Bridgman v. McKissick, 15 la. 260; Cf. Werborn v. Kahn, 93 Ala. 201. The lien extends to the rents and profits accruing on real estate during the statutory period allowed for redemption from an execution sale, or mort- gage foreclosure sale. Farnham v. Campbell, 10 Paige Ch. 598. 2 Edmeston v Lyde.l Paige Ch. 637; Spader v. Davis, 5 Johns. Ch. 280; Corning v. White, 2 Paige Ch. 567; McDermott v. Strong, 4 Johns. Ch. 687. Not so, however, if the assignment is first. Stilwell v. Van Bpps, 1 Paige Ch. 615. The usual prac- tice in suits by judgment cred- itors is to obtain in due season, where the facts warrant it, the appointment of a receiver, who Is to collect and apply the assets. The statute does not, nor do the rules, declare any lien to be cre- ated by merely filing a credit- or's bill; and until the debtor is enjoined from dealing with his property there is nothing in the law to prevent any honest dis- posal of it, and until a receiver is appointed there is nothing which will act on the property it- self. German American Semi- nary v. Saenger, 66 Mich. 249. Except for the statute a judg- ment creditor's bill is like any other suit, a mere personal liti- gation to which the death of the judgment debtor puts an end where no lien has attached. German American Seminary v. Saenger, supra; Jones v. Smith, Walk. Ch. 115. The lien ac- quired is superior to all subse- quent liens, encumbrances or as- signments and takes precedence over judgments acquired after the bill was filed. Bobbington v. Washington B. Co., 27 Wash. L. Rep. 22. 3 Sedgwick v. Menck, 6 Blatchf. 156; Carr v. Fearington, 63 N. C. 560. Pending a creditor's suit the discharge of the debtor in bankruptcy does not impair the creditor's lien by his bill. Storm V. Waddell, 2 Sandf. Ch. 494. The filing of a bill by a judgment creditor in which spe- cific assets are described as hav- ing been fraudulently transferred secures a lien thereon that will not be affected by a subsequent proceeding in bankruptcy. Reid, M. & Co. V. Cross, 41 Ohio L. J. 135; 31 Chicago Legal News, 216. ? 231.] HEN OF CEEDITOKS' BILL. 237 (c) Nor by a sale of the property under execution.* (d) But in order that a creditors' bill may operate as a lis pendens and notice as to real estate the descrip- tion of the property must be definite so that a person interested or to be affected thereby may know what property is subject to litigation. In other words, the filing of a bill and service of process operate as a Us pendens as to purchaser pendente lite. This at least should be the rule as to all property described in the bill and alleged to have been fraudulently conveyed.* (e) After a court of equity has taken possession of an insolvent's estate it is so far in the custody of the law that no creditor can thereafter by a creditors' bill obtain a lien which will give priority over other cred- itors.^ But the lien acquired by the filing of a creditors' bill is not lost by the filing of a subsequent creditors' bill under which a sale is made prior to a decree in the first suit; nor by permitting the judgment on which the bill is based to become dormant by failure to issue execution during the pendency of the proceedings.'^ (f ) The filing of a creditors' bill in a case where the husband has purchased property and procured the title to be placed in the name of his wife accomplishes three things: (1) A specific lien on the property in favor of •4 Newdigate v. Jacobs, 9 Dana be exclusive. Roseboom v. Whit- 18. It is the very essence of tbe taker, 132 111. 81. lien that no matter into whose 6 Miller v. Sherry, 69 U. S. 237; hands the property goes it passes Griffith v. Griffith, 9 Paige Ch. cum onere. Burton v. Smith, 38 315. U. S. 464. A creditor of an in- e Russell v. Chicago Tr. & S. solvent debtor may by a pro- Bk., 139 111. 538; Roseboom v. ceeding at law or by attachment Whittaker, 132 III. 81. or execution acquire a specific ■? Shepherd v. Woodfolk, 10 Lea lien on property which will give 593. The lien is not lost by per- him a preference over unsecured mitting the original judgment to creditors under a bill afterwards become dormant by failing to is- filed. But after a court of equity sue execution thereon during the has once acquired jurisdiction of pendency of the creditors' suit, the assets of the debtor, it will Cincinnati v. Hafer, 49 Ohio St. 60, 27 Ohio L. J. 151. 238 EQUITABLE HEMBDIES. [§ 333. the plaintiff (2) which prevents alienation thereof by defendants and (3) a superior equity in the property for the satisfaction of plaintiff's claim.^ (g) The lien acquired by the filing of the bill and service of process is superior to an attachment levied afterward.® (h) But in New York it has been held that there is no preference as to personal property over a prior judg- ment until a receiver is appointed.^" §222. Extent of Lien.— (a) The lien obtained by the filing of a creditors' bill extends to the equitable assets of the debtor, but does not embrace the property of the debtor which is liable to execution, and choses in action.*^ 8 Bridgman v. McKissick, 15 la. 260; Cf. Edmeston v. Lyde, 1 Paige 637; Corning v. Wliite, 2 Paige 567; Burrell v. Leslie, 6 Paige 445; Gordon v. Lowell, 21 Me. 251; Miers v. Zenesville & Co., 13 Ohio 197; Eaton v. Pat- terson, 2 S. & P. (Ala.) 9; Hen- dricks V. Robinson, 2 Johns. Ch. 283; Brinkerhoft v. Brown, 4 Johns. Ch. 671; McDermott v. Strong, 4 Johns. Ch. 687; Bbgell T. Haywood, 3 Atk. 457. The provisions of Va. Code, Sec. 2460, relating to liens of creditors, does not include only creditors without notice, but extends to all creditors. Dayis v. Bonney, 89 Va. 755. 3 McDermott v. Bborn, 90 Ala. 258. But under Miss. Code, Sec. 503, the lien acquired is not su- perior to attachments levied be- fore the bill was filed. Levy v. Marx, Miss. (1880.) i» Davenport v. Kelly, 42 N. Y. 193; Storm v. Waddell, 2 Sandf. Ch. 494; Van Alstyne v. Cook, 25 N. Y. 489; Cf. Lansing V. Easton, 7 Paige Ch. 364; West V. Eraser, 5 Sandf. 653. 11 Gormerly v. Chapman, 51 Ga. 421; Judson v. Lyford, 84 Cal. 505; Albany City Bk. v. Schermerhorn, Clark's Ch. 297; Davenport v. Kelly, 42 N. Y. 193. While the commencement of an action in the nature of a cred- itor's bill creates a lien upon the choses in action apd equitable assets of the debtor, it does not create a lien upon his tangible personal property subject to levy under execution unless a receiver is appointed. Kitchen v. Low- ery, 127 N. Y. 53; Knower v. Central Nat. Bank, 124 N. Y. 552; Storm V. Waddell, 2 Sandf. Ch. 494; Lansing v. Easton, 7 Paige 364. As to personal property which is the subject of a levy and sale on execution, a cred- itor by an equity suit acquires no preference as against a judgment creditor of the debtor until the entry of an order appointing a receiver in such equity suit. The Vigilant creditor who, by his execution, seizes and sells the property of his debtor before the appointment of a receiver in an equity action secures a prefer- ence which the law sanctions and protects. Davenport v. Kel- ly, 42 N. Y. 193. Equitable in- terests are not subject to a lien in favor of creditors until an execution has been returned and §222.] LIEN OF CEEDITOES' BILL. 23* (b) The tangible property of the debtor subject to levy and sale and which passes into the custody of the court by the appointment of a receiver.^ ^ (c) The lien of a judgment and the pending of a cred- itors' bill to impeach a fraudulent conveyance do not affect the title of a purchaser from the fraudulent grantee where the judgment was subsequent to the conveyance.^^ (d) And so a mortgage which is prior in point of time to a judgment on which a creditors' bill is filed to set aside a fraudulent conveyance has priority over the lien of the creditors' bill.^* (e) Where a creditor is permitted to obtain a judg- ment without delay in order that he may file a creditors' bill in behalf of all creditors he has no priority of lien or advantage over other creditors.^® (f) If the filing of a bill creates a lien only on the assets of the debtor held at that time it follows as a logical deduction that where the assets consist of ac- counts, or choses in action, and the debtor himself could not maintain an action thereon for the recovery thereof the creditor can secure no greater rights therein; nor can the bill be maintained against one who has funds a bill has been filed. Dunlevy v. which before the rendition of the Tallmadge, 32 N. Y. 457; Crippen judgment he has conveyed to de- V. Hudson, 13 N. Y. 161. A cred- fraud creditors. The reason for Itor's bill will be sustained as this is in the fact that as be- to debts, evidenced by bills and tween the grantor and grantee notes, and when suit is com- the conveyance is valid and no menced by service of process or title, legal or equitable, remains notice it operates as an equitable in the grantor upon which the levy and creates a lien in equity lien can rest. Union Nat. Bk. v. upon the effects of the judgment Lane, 177 111. 171; Rappleye v. debtor, and every species of International Bk. 93 111. 396; property belonging to him may Davidson v. Burke, 143 111. 139; be reached and applied to the Hallorn v. Trum, 125 111. 247; satisfaction of his debts. Bragg Lyon v. Robbins, 46 111. 276. T. Gaynor, 85 Wis. 468. i^ Trimble v. Turner, 13 S. & 12 See preceding note. M. 348. 13 Miller v. Sherry, 69 U. S. 237. is Talcott v. Grant, etc., Co., The judgment is not a lien on 131 111. 248. the real estate of the debtor g40 EQUITABLE BEMEDIES. [§§ 223, 224. in his hands belonging to the debtor but has an offset against such funds.^^ (g) It seems that where a bill is filed against a for- eign corporation, and there is no service on the cor- poration, no lien is acquired upon debts due such cor- poration from residents of another state than that in which the suit is brought." § 223. Priority of Lien as Between Joint Plain- tiflfs. — Where two judgment creditors join in a credit- ors' bill the creditor who first had execution in the hands of the sheriff has been held to have priority. This is based upon the idea that the lien secured by the filing of the creditors' bill relates back to the lien secured by the judgment and execution.^* § 224. From What Time Lien Dates. —The rule is not uniform that the lien secured by the filing of a creditors' bill dates as of the filing the bill or of the service of process. Some courts hold that the lien se- cured by creditors is not in the order in which the bills are filed, but is in the order in which the judgments are rendered on which the bills are based.^^ The lien does not abate by the death of the judgment 16 Bonte V. Cooper, 90 111. 440. the judgments are rendered or Unless by statute, a judgment docketed. White's Bank, etc. v. creditor can acquire no better Farthing, 101 N. Y. 344; Sconton right to the estate of a debtor v. Benders, 3 How. Pr. 185; than the debtor himself has Chautauqua Co. Bk. v. Rlsley, 19 when the judgment is recovered. N. Y. 369; Codwise v. Gelston, 10 He takes it subject to every lia- Johns. 507; Gracey v. Davis, 3 bility under which the debtor Strobh. Eq. 55; Jacoby's Appeal, held It, and subject to all the 67 Pa. St. 434; Hoffman's Ap- equities which exist at the time peal, 44 Pa. St. 95; Jackson v. in favor of third parties. Shipe Holbrook, 36 Minn. 494; McMeek- V. Repass, 28 Graft. (Va.) 716. in v. Evans, 1 Hill Ch. 288. In other courts it is held that the 17 Holbrook v. Ford, 153 111. lien dates from the filing of the 633. bill. Freedman's Sav. & Tr. Co. 18 Haleys v. Williams, 1 Leigh. v. Earle, 110 U. S. 710; Day v. 140. Washburn, 65 U. S. 352. The i»The courts hold in many filing of a creditor's bill and cases that the lien secured by service of process create a lien creditors is not in the order in on the property of the debtor so which the creditor's bills are that it cannot be sold thereafter filed but is in the order in which except subject to the lien. King §235.J LIEN OF CEEDITOES' BILL. 341 debtor, but survives against the assets in the hands of the administrator,^** and of necessity must relate to the property owned at the time of filing the bill or the ser- vice of process. A supplementary bill is necessary in order to acquire a lien on subsequently acquired prop- erty.^^ § 225. Lien in Supplementary Proceedings. —As in creditors' proceedings by creditors' bill so in proceed- ings supplementary a lien is acquired upon the equita- ble assets of the debtor. But in order to have priority over the levy of another creditor the order of examina- tion should be immediately followed by the appointment of a receiver. The idea seems to be that the mere order for an examination is not sufftcient of itself to create a lien and must be followed by the appointment of a receiver which operates as an equitable levy.^^ V. Goodwin, 130 111. 102; First Nat. Bk. V. Gage, 93 111. 172; Hallorn v. Trum, 125 111. 247. And a transfer thereafter is sub- ject to the lien. King v. Good- ■win, supra. The general rule is that the filing of a creditor's bill and service of process create a lien on the equitable assets of the judgment debtor and this without an order for an injunc- tion or the appointment of a re- ceiver. The liens thus acquired cannot be impaired by a volun- tary assignment of the debtor, or the intervening claim of other creditors. Lynch v. Johnson, 48 N. Y. 27; Miller v. Sherry, 69 U. S. 237; Adsit v. Butler, 87 N. Y. 585; Roberts v. Albany, etc., 25 Barber 662; Brown v. Nichols, 42 N. Y. 26; Storm v. Waddell, 2 Sandf. Ch. 494. The lien ob- tained by the filing of a creditor's bill and service of process has priority over the widow's award from her husband's estate, the husband having died after the accruing of the lien under the bill. King v. Goodwin, 130 111. 102. The filing of a creditor's bill and the service of process create a lien in equity upon the effects of the judgment debtor and upon the land fraudulently conveyed by him. The lien of a judgment under the statute does not extend to property fraudu- lently conveyed prior to the judgment. Davidson v. Burke, 143 111. 139. 20 Brown v. Nichols, 42 N. Y. 26. 21 Storm V. Waddell, 2 Sandf. Ch. 494; Eager v. Price, 2 Paige 333; First Nat. Bk. v. Gage, 93 111. 172. 22 Under sections 292 and 294 of the New York Code it was held that the service of the or- der in supplementary proceed- ings takes the place of the com- mencement of suit under the prior chancery practice and gave the creditor a lien on the equit- able assets of the debtor. Lynch V. Johnson, 48 N. Y. 27; Edmons- ton V. McLoud, 16 N. Y. 543; Cf. Brown v. Nichols, 42 N. Y. 26. CHAPTER VIII. PRIORITY AMONG CREDITORS. § 235. Priority defined. 236. General rule. (a) Priority of maturity of no effect. (b) Several bills— Rule as to priority. 237. Exceptions to rule — Waiver. 238. Reasons for rule of priority. (a) Lien result of filing bill not of judgment. 239. Rule where bill filed in behalf of all. (a) Priority must be obtained in iooA faith. (b) Partnership and individual creditors. (c) Questions of priority are equitable. 240. Priority in relation to other liens. (a) Mortgage lien. (b) Attachment. (c) Legal preferences. (d) Chattel mortgage. (e) Creditor proving debt and participating in dividend, rights of. 241. Priority of resident over foreign creditors of insolvent cor- poration. Judgment of justice of the peace gives no priority, when. 242. Judgment need not be a lien when conveyance made. 243. Fraudulent grantee cannot question priorities. 244. Supplementary Proceedings — Priorities under. 245. Discontinuance of assignment — No priority, 246. Statutory charge in favor of all creditors gives no priority. 247. Priority not permitted in violation of agreement. Priority where mortgage and assignment simultaneous. 248. Priority of one dealing with fraudulent grantee— When. Section 235. Priority Defined. — The priority whict one creditor obtains over another is not to be confound- ed, as is frequently done, with the preference which one creditor obtains over another. Priority as used in its relationship to creditors' bills and equitable proceedings in the nature of creditors' bills and the rights of credit- ors thereunder, has reference wholly to the advantage 342 § 336.] PEIOEITT AMONG CEEDITOHS. 343 which one creditor obtains by his superior diligence in pursuing such equitable remedies as the law gives him and the discovering and uncovering thereby of the prop- erty and effects of the debtor which ought in equity to be appropriated and applied in the satisfaction of his debts. The law justly rewards the diligent creditor who by his timely efforts succeeds in discovering assets of the debtor which are inequitably withheld from his creditors by some fraudulent act or deed deemed in law as unjust and improper. Whereas the preference which one creditor obtains over another has relation solely to the advantage one creditor secures over another by some act or transaction of the debtor intended by him as a payment.or security of the favored creditor independent of any meritorious action or proceeding by such creditor. Preference may also relate to the rights and remedies given usually to a class of persons by the statute on ac- count of labor and services rendered or materials fur- nished. § 236. General Rule. — Subject to certain limita- tions and exceptions to be noticed later on the general rule in regard to the priority which one creditor obtains over another growing out of the filing of a creditors' bill, or other equitable proceeding in the nature thereof, is that the creditor who secures a judgment against his debtor, issues execution thereon and obtains a' return thereon nulla hona, thereby exhausting his legal rem- edy against the debtor, and files his bill in equity where- by the equitable assets and property of such debtor are discovered and made available to the payment of debts, will thereby acquire a priority or right in equity to have the same first applied in the payment of his judgment as against other creditors who in the meantime remain passive.^ 1 Where a creditor has through equity discovered property of his the instrumentality of a court of debtor which he had before been 344 EQUITABLE REMEDIES. [§ 236. (a) Priority in the maturity of a claim against a fund to be distributed in equity gives no priority as to sat- isfaction. There must eao necessitate be a lien of some nature legal or equitable as a basis for priority.^ (b) Where there are several successive creditors' bills against the same defendant each of the several plaintiffs is entitled to priority over all creditors whose debts have not been reduced to judgment, and priority among themselves in the order of time of filing their respective bills.3 unable to discover and seize by execution, he becomes entitled to a priority over other creditors, even prior judgment creditors. Rappleye v. International Bk., 93 111. 396; Gordon V. Lowell, 21 Me. 251; Bdmeston v. Lyde, 1 Paige 637; Smith v. Lind, 29 111. 24; Lyon v. Robbins, 46 111. 276. This is but an application of the maxim vigllantibus non dormi- entibus jura subvieriant. Talcott V. The Grant Wire S. Co., 131 111. 248. A creditor who first files a bill obtains a priority over other creditors as to the effects of the defendant not subject to execution. Talcott v. Grant Wire S. Co., 131 111. 248; Lyon v. Rob- ins, 46 111. 276; Young v. Clapp, 40 111. App. 312; King v. Good- win, 130 111. 102; Cole v. Marple, 98 111. 58. This principle is based on the Idea that an active creditor is to be rewarded for his diligence, though its en- forcement sometimes operates with apparent harshness on oth- er creditors equally meritorious and particularly so where the priority creditor is assisted by the connivance of the debtor, in his race for advantage. 2 America, etc., Co. v. North- western, etc., Co., 166 Mass. 337; Eastman v. Foster, 8 Mete. 19; Franklin Co. Nat. Bk. v. First Nat. Bk., 138 Mass. 518; Mason V. Pomeroy, 151 Mass. 164; Fogg V. United Order of Golden Lion, 159 Mass. 9; Buswell v. Order of Iron Hall, 161 Mass. 224; Gor- ham V. Mutual Aid Soc, 161 Mass. 357; Klttredge v. Osgood, 161 Mass. 384; Merrell v. Com. Ins. Co., 166 Mass. 238. 3 Russell V. Chicago T. & S. Bk., 139 111. 538. The better rule and the one more in accordance with established principles of equity is to give to each plain- tiff in several creditors' bills against the same defendant pri- ority over all creditors who have not obtained judgments, and pri- ority among themselves in the order of time of the filing of their respective bills. Storm v. Waddell, 2 Sandf. Ch. 494; Bur- rail V. Leslie, 6 Paige Ch. 445. The preference thus obtained is a legal vested right. Safiord v. Douglas, 4 Edw. Ch. 537. A creditor's bill filed by a particu- lar creditor to enforce his own judgment and not in behalf of creditors generally gives a court of equity jurisdiction of the equitable assets for that particu- lar purpose and it does not in- volve a complete and final dis- tribution of the assets among all creditors. Russell v. Chicago T. & S. Bk., 139 111. 538. The first creditor's bill filed obtains pri- ority. Safford v. Douglas, 4 Edw. Ch. 537; Boynton v. Row- son, Clarke's Ch. 584; Hayden v. Bucklin, 9 Paige Ch. 512; Pullis V. Robison, 73 Mo. 201; Petway v. §§ 237, 238.] PEIOEITT AMONG CEEDITOES. 245' § 237. Exceptions to the Rule— Waiver.— The priority obtained by the application of the rule men- tioned in the preceding section being a result growing out of affirmative action of the plaintiff may be waived by the creditor entitled thereto by filing his bill in his own behalf and in behalf of such other creditors sim- ilarly situated — judgment creditors — who may join in the prosecution of the suit.* § 238. Reason for Rule as to Priority — The reason for the priority given to the diligent creditor has sometimes been placed upon the ground of a supposed lien which he obtains by the filing of a bill. The filing of the bill and service of process thereon has also been denominated an equitable levy on the property and effects of the debtor. It is believed, however, that the use of the terms lien and equitable levy, strictly con- sidered, have reference to the effect of the filing of the bill in relation to the debtor and his grantees and their inability thereafter to transfer or convey the property sought to be reached rather than the relationship of creditors to each other. Whatever reason may be given the priority acquired by the creditor who is diligent is well established in courts of equity and is founded in justice.® Hoskins, 12 La. 107. A subse- the hands of a third person to quent suit, commenced in behalf the payment of his debt, he of all the creditors, will not af- thereby obtains a lien upon such feet a former suit, unless an or- property or fund; and on recov- der of court be obtained by the ery he will be entitled to a pref- defendants, directing such for- erence to the exclusion of other mer creditor to come in under creditors. Cole v. Marple, 98 111. the subsequent proceeding. Van 58; Lyons v. Robbins, 46 111. 276; Wezel V Wychoff, 3 Sandf. (N. Rappleye v. International Bk., 93 T ) Ch. 528. Fractions of a day 111. 396; Ballentine v. Beall, 3 ■will be considered in determin- Scam. 203. A party obtaining a ing which bill is filed first. Pet- lien, prior to the assignment, way V Hoskins, supra. will be protected in such lien 4 Taicott V The Grant Wire S. as against a subsequent assign- Co supra. ment. Plume t. Caldwell, 136 6 Where a creditor files a bill 111. 163. to subject property or funds in 346 EQUITABLE EEMEDIES. [§ 338. The lien, if it may be so termed, which results in the priority of one creditor over others is not by reason of any lien secured by the rendition of the judgment which is made the basis of the bill, for, as is frequently the case, the bill resulting in a priority is based on a judgment later in point of time to other judgments on which later bills are predicated. Besides in many cases the bill seeks to reach and appropriate the real estate of the debtor which has been fraudulently conveyed to another where, as between the parties, the title passes to the grantee and is voidable only by creditors injured thereby who by appropriate proceedings annul the tran- saction. In such case there is nothing to which the lien of the judgment could attach and hence priority cannot be based on the judgment lien.® « After a conveyance fraudu- lent as to creditors' judgments against the debtor do not be- come liens on the property con- veyed in the order of their ren- dition. But the diligent credit- or who first seeks the aid of a court of chancery by filing a bill in chancery to reach such prop- erty so fraudulently conveyed obtains a priority. Lyons v. Robbins, 46 111. 276; Miller v. Sherry, 69 U. S. 237; Corning v. White, 2 Paige 567; Hayden v. Bucklin, 9 Paige 512; Edmeston V. Lyde, 1 Paige 637; Gordon v. Lowell, 21 Me. 251; Smith v. Lind, 29 111. 24. It has been held, however, that where a creditor's bill is filed in behalf of all cred- itors to reach property fraudu- lently conveyed, the judgment creditors are paid in the order of the rendition of their judgments, but general creditors are paid pari passu. Birely v. Staley, 5 Gill. & J. 432. When it appeared that a judgment was rendered against a debtor and subsequent- ly he purchased real estate and had the title conveyed to his wife for the purpose of defraud- ing creditors, and on this judg- ment a creditor's bill is filed making the debtor and wife de- fendants, along with another judgment creditor whose judg- ment was senior in point of time to that of plaintifE and the senior judgment creditor filed a cross- bill setting up his seniority, claiming a priority over the plaintiffs, alleging a sale of the property by the sheriff under his judgment, and asking to have plaintiffs' bill dismissed and his title quieted and confirmed and under this state of facts the question arose as to the priori- ties of the complainants in the original bill and the cross com- plainants. Complainants com- plied with the requirements of the statute relative to equitable actions supplemental to execu- tion. Cross-complainants took the other course of levying on the property, selling the same, and then asking the court to quiet their title. Held that the equities of the complainant were superior to those of the cross- complainant in a question of pri- ority between them. That while § 239.] PEIOBITY AMONG CEEDITOKS. 247 As just observed in this connection, a conveyance though void as to creditors who take steps to avoid the same passes all the estate of the grantor in the property, so that a subsequent judgment against the grantor does not become a lien on such property fraudulently con- veyed. If this were not so the prior judgment would, of necessity, confer priority on the plaintiff therein. The right of a judgment creditor to priority accrues by reason of his first seeking in a court of equity to set aside the fraudulent conveyance and apply the property in satisfaction of his indebtedness and his right dates from the commencement of suit for that purpose, or as held in some jurisdictions from the service of process. § 239. Rule Where Bill Filed in Behalf of All. — The rule giving the plaintiff priority, though a junior judgment creditor, is not applicable, however, if the junior judgment creditor files his bill in behalf of him- self and all other creditors who come in and prove up their claims, as he has, in all cases, a right to do.'' (a) The priority obtained by a creditor in order to be available as to other creditors must be, as to them, in the utmost good faith. The effect may be to defeat other creditors entirely in the collection of the debts, but, if the motive in securing the priority is to delay and defeat other creditors the priority thus secured will not be sustained in a court of equity.® (b) If there are individual and partnership creditors having demands against assets individual creditors will have priority as to the individual assets and partnership the lien of the judgment might able machinery in force were en- In some sense reach an equit- titled to priority. Bridgman v. able interest, yet such a lien McKissick, 15 la. 260; Neal v. -was effectual only in equity, de- Foster, 13 Sawy. 236; 34 Fed. pendent so far as priority is Rep. 496. , „ „„ concerned upon a prompt resort ^ Pennell v. Lamar Ins. Co., 73 to an equitable action, and plain- 111-303. .,. „, ron tiffs being first to put the equit- s Weber v. Mick, 131 111. 520. g48 EQUITABLE EEMEDIES. [§ 340. creditors will have priority as to partnership assets. This grows out of the nature of partnership relation- ships.^ (c) Questions as to the priorities of creditors with reference to each other touching the assets and funds of an insolvent are purely equitable in their nature and the fact that they grow out of common law proceedings is no reason why they should not be considered and deter- mined in equity.^** § 240. Priority in Relation to Other Liens. — (a) Where two or more creditors are engaged in a race for priority, and one secures a mortgage for a hona fide debt, such mortgage is not defeated by or postponed to a more tardy or less fortunate creditor, by a showing of a fraudulent intent on the part of the grantor in the making of the mortgage, and knowledge of such intent on the part of the mortgagee. As between two creditors the fraud of the grantor must be participated in by the grantee. Securing a hona fide debt by the latter, even with knowledge on his part of the intention of the grantor, is not fraudulent.^^ (b) Liens acquired against the property of by attach- ment when it is known that the effect of the attachment will be to precipitate a crisis in the affairs of the com- pany will be sustained and protected as against other creditors of the corporation.^^ 3 Owing to the nature of part- " Chase v. Walters, 28 la. 460. nership relationships, individual A mortgagee has no right of pri- creditors have priority as to in- ority to rents collected by a re- dividual assets and partnership ceiver in an administration suit; creditors as to partnership as- he must share with the other sets. Dillworth v. Curts, 139 111. creditors alike. Coddington v. ■508; Doggett v. Dill, 108 111. 560. Executors, etc., 36 N. J. Eq. 574. 10 Questions as to the priorities i^ An oificer of a corporation of creditors to the funds of an loaned money to it under a mis- insolvent are purely equitable, apprehension as to its condition, and the fact that they grow out When he had been an officer of common law proceedings is but a few weeks and not being no reason they should not be responsible for its financial con- tried in equity. Staver Wagon, dition, may attach the corpor- etc, Co. V. Halsted, 78 la. 730. ate property, though he knows §241.] PEIOEITY AMONG CHEDITOES. 24& (c) And, hence, it will be seen tliat where the law gives a priority such priority will not be disturbed by a court of equity, unless such priority is obtained by fraudulent means. The same rule would prevail where a legal and valid lien exists by act of the parties. It is not within the purview of a court of equity to disturb valid and iona fide rights legally obtained.'^* (d) And where an execution creditor has a legal right to redeem from a chattel mortgage by coming into a court of equity, and thereby obtains a priority such priority will be protected in equity.^* (e) Where a creditor proves up his debt before a mas- ter pursuant to an order of court directing the same and files his petition to prevent a dismissal of the suit and a discharge of the receiver appointed therein and receives his pro rata share of the dividend declared by the re- ceiver he is estopped from claiming a priority over other creditors.^® § 241. Priority of Resident Over Foreign Cred- itors. — It has been held to be the policy of the law to secure the resident creditors of a foreign insolvent cor- poration priority over foreign creditors so far as the assets of the corporation situated within the state are concerned. This principle is based upon the supposed injustice of requiring a domestic creditor to go into a foreign jurisdiction to assert his rights and obtain satis- faction of his debt. A stronger reason for this rule would seem to be in the fact that a creditor residing in a the attachment will precipitate an attachment and judgment a crisis in the affairs of the thereon. McKinney v. Farmers company, and such attachment Nat. Bk., 104 111. 180 win be good as against other is State Bank v. Marsh, 1 N. rreditors Rollins v. Staver J. Eq. 288. WaKon Co., 80 la. 380; Cf. War- i* Disborough v. Outcalt, 1 N. field V. Canning Co., 72 la. 666; J. Eq. 298. Garrett v. Plow Co., 70 la. 697. " Jackson v. Lahee, 114 111. A creditor's bill will not have 287. priority over the lien acquired by S60 EQUITABLE EBMEDIES. [§ 242. particular state and contracting with a foreign cor- poration may, and no doubt frequently does, contract with reference to the property of the corporation within the state where the contract is made, and the apparent security thus afforded him in his contractual relations.^* § 242. Judgment Need Not be a Lien When Conveyance Made. — The fact that at the time the alleged fraudulent conveyance was made the judgment against the debtor-grantor was not a lien on the debtor's land by reason of no execution having been issued there- on within one year from the date of rendition as re- quired by the statute in order to constitute a lien does 16 It is the policy of the law to secure resident creditors of a foreign insolvent corporation as against foreign creditors as to the assets within the state. Webster v. Judah, 27 111. App. 294; Ford v. Holhrook,50 lU. App. 547; Hunt v. Gilbert, 54 111. App. 491; Heyer v. Alexander, 108 111. 385; May v. First Nat. Bk., 122 111. 551; Woodward v. Brooks, 128 111. 222; Henderson v. Schaas, 35 111. App. 155; Fawcett v. Supreme Sitting 0. of I. H., 64 Conn. 170. But see contra un- der certain circumstances, Bus- well V. Supreme Sitting, etc., 161 Mass. 224. The doctrine an- nounced in the text is no doubt sustained by the great weight of authority in this country at the present time. It is doubtful, however, if it is sustained by cor- rect principles of equity. There would seem to be in a commer- cial country no equitable grounds for advantage based merely on residence. So far as contractual relationship is con- cerned it is doubtful if the per- son dealing with a foreign corp- oration ever contemplates for a moment its foreign domicile. It it be true as a matter of law that the assets of a foreign in- solvent corporation constitute a trust fund for the benefit of cred- itors then all creditors similarly situated should apparently be placed on the same footing. This is particularly so if the- equitable maxim. Equality is Equity, is sound doctrine in principle. Moreover if the constitutional theory of the government is such that it fosters the free and untrammeled commercial rela- tionship between the different states of the union no good rea- son is apparent why state lines should place restrictions and limitations upon the full and complete enjoyment of this guar- anty. Any other view places a premium on provincialism and retards the growing principle of interstate and international com- ity. The supreme court of Mas- sachusetts in the case of Fawcett V. Supreme Sitting, etc., supra, has taken the most advanced ground along the lines here sug- gested of any court in this coun- try. Every state owes protec- tion to its own citizens and when nonresidents deal with them it is a just and legitimate exercise of authority to hold and appropri- ate any property owned by non- residents to satisfy the claims of its citizens. Bragg v. Gaynor, 85 Wis. 468; Pennoyer v. Neff. 95 U. S. 714. §§ 343-345.] PEIOEITY AMONG CEEBITOES. 251 not prevent the creditor after the revival of his judg- ment and the issuing of an execution thereon from ques- tioning the bona fides of the transaction." § 243. Fraudulent Grantee Cannot Question Pri- orities. — The fraudulent grantee of property conveyed in fraud of creditors is not in a position to assign for error the giving of priority to creditors on whose bills the conveyances are set aside. The relative rights of creditors is a matter in which he has no concern.^® § 244. Supplementary Proceedings. — Under sup- plementary proceedings, which, in their nature are equi- table proceedings, and are substitutes for creditors' bills, as a general rule all property and effects which could be reached under the latter may be made available under the former and rights of priority under one are applica- ble to the other.^® § 245. Discontinuance of Assignment — No Pri- ority.— Where a statute concerning voluntary assign- ments provides for a discontinuance of the assignment proceedings upon the assent of the debtor and a major- ity of his creditors in number and amount and in such case all parties to be remitted to the same rights and duties as existed at the date of the assignment, it is not a fraud on creditors where the consent to a dismissal is obtained upon a promise of the debtor to pay creditors in full, and the estate is reinvested in the debtor on dis- 17 Bennett v. Stout, 98 111. 47. for the payment of the execution The case of Newman v. Willetts, and what was said in respect to 52 111. 98, is not to be understood the necessity of the existence of as announcing a different doc- a lien in order that the credit- trine That case was only In- or might have his remedy was tended to hold that where a bill only in reference to the facts of is filed in aid of an execution, that case. Id the judgment on which the exe- is Coale v. Molme Plow Co., 134 cution was issued must be at the 111.350. time of filing the bill a lien on lo Bdmonston v. McLoud, 16 the land sought to be reached N. Y. 544. 253 EQUITABLE REMEDIES. [§ 346. missal. This is neither fraud actual nor constructive. It gives to no one a priority or preference.^" If the discontinuance is obtained by fraud practiced upon the creditors, and if as a result of the discontin- uance the property is turned over to a third person and thus placed beyond the reach of creditors not join- ing in the agreement it will not be sustained as to cred- itors defrauded and injured thereby.^^ Where an assignment has been discontinued by fraud- ulent means and a non-assenting creditor is injured thereby and files a creditor's bill against parties instru- mental in perpetrating the fraud and in whose hands assets had been wrongfully transferred, he may be paid in full if the fund liable is sufficient, all other claims having been satisfied.^^ § 246. When Statute Places All Creditors on an Equal Footing. — Where the statute, in case of the pur- chase of property by the debtor and the taking of the deed to another, makes such property a trust estate for the benefit of creditors it is not within the power of one creditor to obtain priority over another with reference to property so conveyed. In such case a charge is cre- ated against the property in favor of all creditors by the 20 Kelley v. Leith, 176 111. 311. held that these things were 21 Howe V. Warren, 154 111. fraudulent as to non-assenting 227; Terhune v. Kean, 155 111. creditors. This was a creditor's 506. In American Exchange Bk. bill by a non-assenting creditor V. Walker, 164 111. 135, it ap- to reach assets fraudulently peared that by the operation of transferred. the discontinuance one of the 22 American Exchange Bk. v. creditors was paid or secured In Walker, 164 111. 135. Under a full and that the funds in the creditor's bill which does not hands of the assignee were used attack the debtor's assign- in buying up claims to procure ment for the benefit of cred- assent to a discontinuance; and itors as fraudulent, it is error to that the esiaie in the hands of decree that the property assigned the assignee was turned over to be held subject to a judgment a trustee as security for money and execution on the creditor's advanced to buy up claims of claims obtained after the com- assenting creditors, the trustee mencement of the creditor's suit, being one of the creditors, it was Post v. Roach, 26 Fla. 442. §§347,248.] PEIOHITT AMONG CBEDITOES. 253 statute and priority of one over others is inconsistent with the legislative intention.^^ § 247. No Priority in Violation of Agreement.^ While the general rule is that a creditor who reduces his claim to a judgment and files a creditors' bill to reach equitable assets of the debtor, by which property not subject to execution is reached and made available ob- tains a priority or right in equity to have the same first applied in payment of his judgment which is based upon the principle that a diligent creditor should be awarded for his superior diligence in discovering assets that would not otherwise have been brought to light, yet this doctrine does not extend to a case where an agree- ment is made by and between the debtor and plaintiffs by which the latter were facilitated in procuring judg- ment in order to lay the foundation for a creditors' bill for the benefit of all creditors. In such case the plain- tiffs having obtained an advantage over the other cred- itors pursuant to the agreement cannot be permitted in a court of equity to use such advantage to the in- jury of other creditors.^* Where a chattel mortgage and an assignment are ex- ecuted within a few minutes of each other the statute prohibiting preferences in assignments renders each void, where the mortgagees have notice that the debtors are heavily indebted.^^ § 248. Priority of One Dealing With Fraudulent Grantee. — Where credit is extended to a person on the strength of his ownership of property without no- 23 Miner v. Lane, 87 Wis. 348. Cartney v. Bostwick, 32 N. T. 53; This was under a statute creat- Ocean Nat. Bk. v. Olcott, 46 ing a trust in favor of credit- N. Y. 12; Brown v. Chubb, 135 ors where property was bought N. Y. 174. by the debtor and the deed was 2* Talcott v. The Grant Wire made to another. Garfield v. Spring Co., 131 111. 248. Hatmaker, 15 N. Y. 475; Wood 25 Burnham v. Haskins, 79 V. Robinson, 22 N. Y. 564; Mc- Mich. 35. 254 EQTJITABLE EEMEDIES. [§ 218. tice of any claim by any one that the property had been fraudulently conveyed, and the creditor procures judg- ment against such fraudulent grantee before any steps are taken by the creditors of the grantor to set aside the conveyance, he is entitled to priority.^* 28Applegate v. Applegate, 78 N. W. 34; —la. — CHAPTER IX. PREFERENCES. § 260. General rule, allowed. 261. Conditions attached. (1) No reservations. (2) No motive to cover up and conceal, (3) Indebtedness bona fide. (4) Rule as to compromise agreements. 262. When prohibited by statute. 263. Attitude of creditor preferred. 264. Preferences when valid. (1) Where no statutory restrictions. (2) When in good faith and in ordinary course. (3) Where conveyance to trustees. (4) Where valuation as a whole reasonable. (5) Where money placed in hands of attorney. (6) Where consideration is to pay self and others. (7) Money loaned when. (8) Mortgage when valid. 265. Assignments invalid as to creditors. (1) Concealing, etc., money and property. (2) Fictitious person or debt. (3) Or that provides for payment of attorney's fees. 266. Preferences when invalid. (1) Given with view of insolvency. (2) Where property worth more than debt. (3) Mortgage of all of debtor's property. 267. Statutory restrictions on preferences, 268. Transactions construed as assignments ahd void as prefer- ential. 269. Effect of stipulations in assignment as to preferences. Section 260. General Rule. — The general rule re- garding preferences, where there is no statutory enact- ment to the contrary, is that a creditor may make such preference in the payment or security of his creditors, as to him shall seem proper. The reason for this rule lies in the fact that the debtor is the absolute 255 356. EQUITABLE HEMBDIBS. [§ 261. owner of his property, and this includes the right of disposition thereof at his discretion. Any other rule would be inconsistent with the dominion which every man, in all civilized countries, is recognized as having in property of his acquirement by legal methods. A preference has been defined to be a payment to one creditor which will, or possibly may, give him an ad- vantage over others. It is not confined, however, to payments, but may include mortgages, judgments or other means of securing an indebtedness. Most bank- rupt and insolvent laws prohibit the making of prefer- ences by the debtor within certain specified limits of the adjudication, or commencement of proceedings.^ § 261. Conditions Attached to General Rule. — To the application of the rule there are certain conditions that must be understood in order to render the prefer- ential acts valid as to other creditors. (1) There must be no reservations, either express or implied, in favor of the debtor. All secret trusts in behalf or for his beneficial use that are embodied in the transaction, whether it be a payment, conveyance, transfer or mort- gage, render the preference void. The sole object must be the payment or securing of the debt.^ (2) There must be connected with the transaction no motive or purpose to assist the debtor in covering up and concealing his property from other creditors, even 1 The right of a person to dis- even where the results may be pose of his property in good faith detrimental to other persons, to a bona fide creditor in pay- The right of a debtor to pay ment of an honest debt is based one creditor in preference to an- upon the principle that every other, or to turn out property man has an absolute right to in satisfaction of, or to create a dispose of his own in his own lien upon it for the security of way. Tompkins v. Hunter, 149 a particular debt in preference to N. Y. 117; Citizens' Bank V. Will- and to the exclusion of other lams, 128 N. Y. 77; Reed v. Mc- liabilities always existed at com- Intyre, 98 U. S. 507; Brashear mon law. Farwell v. Nilsson, V. West, 7 Pet. 608. Courts will 133 111. 45. not lay an embargo upon free 2 Campbell v. Colorado Coal alienation for honest purposes & Iron Co., 9 Col. 60. I 261.] PKBFEKENCEa. 25? where the bona fides of the indebtedness is unques- tioned.^ (3) The creditor whose claim is preferred, either paid or secured, must be a bona fide creditor having a valid and subsisting indebtedness. And in such case it is immaterial that part of the scheme may be valid, as where part of the indebtedness is valid and part ficti- tious. The invalid and obnoxious part carries down with it the whole structure.* (4) Where there is a compromise agreement to pay, all creditors a pro rata share of their indebtedness, there must be no secret agreement and understanding to pay or secure some a greater amount.^ A preference made by a debtor to his creditor may be 3 David V. Birchard, 53 Wis. 492; Pilling v. Otis, 13 Wis. 495; Smith V. Hardy, 36 Wis. 417. If a debtor makes a sale of his personal property to one of his creditors with an agreement that out of the proceeds of sale the creditor shall retain enough to pay his own debt and then pay otlier creditors, and then pay the balance to the debtor and this sale is made to prevent other creditors from attaching the property, it is actual fraud and vitiates the sale as to other creditors. Menton v. Adams, 49 Cal. 620. Where one of the pur- poses of a mortgagor and mort- gagee is to deter the mortgagor's creditors from attaching the mortgaged property the mort- gage is wholly void as to those creditors though the principal purpose of the parties is to se- cure a bona fide debt. Crownin- shield V. Kittridge, 7 Mete. 520; Thomas v. Goodwin, 12 Mass. 140; Hutchins v. Sprague, 4 N. H. 469. If the purpose of the creditor in obtaining a judgment is not to collect his debt but to help the debtor cover up his property his judgment will be set aside though the debt be bona flde. Smith v. Schwed, 9 Fed. Rep. 483. * Crowninshield v. Kittridge, 7 Mete. 520; Davis v. Leopold, 87 N. Y. 620; Union Nat. Bk., etc. V. Warner, 12 Hun, 306; Shaw V. Hanley, 71 N. Y. 319; Savage V. Murphy, 34 N. Y. 508; Boyd V. Dunlap, 1 Johns. Ch. 478. 5 Hanover Nat. Bk. v. Blake, 142 N. Y. 404. In this case the composition agreement was up- held but the secret agreement was held void. Cf. Leicester v. Rose, 4 East. 372, 381; Russell v. Rogers, 10 Wend. 474, 479; How- den V. Haigh, 11 Ad. & Ellis 1033; Knight v. Hunt, 5 Bing. 432; Mallalieu v. Hodgson, 16 Ad. & Ellis, N. S. 689; Breck v. Cole, 4 Sandf. 79; Fellows v. Stevens, 24 Wend. 294; Bliss v. Matte- son, 45 N. Y. 22; Harloe v. Fos- ter, 53 N. Y. 385; White v. Kuntz, 107 N. Y. 518; Solinger v. Earle, 82 N. Y. 393. In the case of Hanover Nat. Bk. v. Blake, supra, there is a review of Eng- lish and New York cases and the conclusion arrived at, though contrary to the trend of English authorities, is that the composi- tion agreement and the prefer- ential agreement are separate 358 EQUITABLE REMEDIES. [§263, consummated in various ways, provided always that the motive is free from fraud. Thus it may be by pay- ment in money or property; or by a lien given as secur- ity on realty or personalty; or by a judgment; or a note or other evidence of indebtedness. § 262, Preferences— Prohibited by Statute.— In opposition to the established principles of the common law the legislative policy as expressed in many of the states of this country, particularly in reference to vol- and distinct and while the latter falls by reason of the fraud the former may stand. In Estes v. Gunter, 122 U. S. 450, it is held that a payment by an insolvent debtor of a debt due to his wife In advance and in contemplation of an assignment for the benefit of creditors does not invalidate a suDsequent assignment. Nor does the taking of supplies from the store of the debtor for fam- ily use. In Bean v. Patterson, 122 U. S. 496, it was held that a conveyance by a husband when insolvent to a trustee for the benefit of his wife if in good faith and to secure a bona fide debt is valid and binding as if ■made for a similar purpose to a third person's benefit, though it would not be if made to se- cure the wife against future ne- cessities. In Solinger v. EJarle, 82 N. Y. 393, it was held that a note given by a third person in no manner liable for the in- debtedness to a creditor as an in- ducement to secure a composi- tion agreement was fraudulent, but having been assigned before maturity to a bona fide holder and paid by the maker he, the maker, could not recover the money for the reason that he was par delictum in the transac- tion with the defendants. In Smith V. Bromley, 2 Douglas 696; Smith v. Cuff, 6 M. & S. 160; Atkinson v. Denby, 7 H. & N. 934, countenance is given to the doctrine that a party to an illegal contract cannot recover back money paid upon it does not apply to a case where the debtor, or one in his behalf, has paid money in pursuance of a secret agreement exacted by the debtor in fraud of a composi- tion. The exaction by the cred- itor is called "extortion" by Lord Mansfield, and a "species of du- ress and oppression," by Lord Kenyon, the parties not being in pari delicto, and "oppression on one side and submission on the other," by Lord Ellenborough. This doctrine is questioned, how- ever, by Andrews, J., in Solinger V. Earle, 82 N. Y. 393, in the following language: "It is some- what diflBcult to understand how a debtor who simply pays his debt in full can be considered the victim of oppression or extortion because such payment is exact- ed by the creditor as a condition of his signing a compromise, or to see how both the debtor and creditor are not in pari delicto." Sharp V. Teese, 9 N. J. L. 352; Case V. Gerrish, 15 Pick. 49. In Smith V. Craft, 17 Fed. Rep. 705, it was held that credit procured upon a promise of preference is not fraudulent except when fraud was intended, or the cir- cumstances within the knowl- edge of the creditor were such that he must have known that injury to others would follow ia all probability. § 363.] PEEFEHENCEa. 359 untary assignments for the benefit of creditors, is to prohibit preferences by the debtor. Sometimes prefer- ences are prohibited when embodied in an assignment, and sometimes the prohibition relates to preferences made prior to the assignment, but in anticipation thereof. It is not within the scope of this work to consider the several statutory enactments to be found upon this subject or the decisions that are purely of a constructive nature based thereon, except in so far as they may be illustrative of the general topic, or other- wise of general interest. Even where preferences are prohibited by the statute it is often a perplexing question to determine what knowledge on the part of the creditor of the debt- or's purpose, or of his insolvency, or participation in his preferential act will render the preference void as to other creditors. The general purpose of this class of legislation is to secure for all creditors equality in the distribution of the debtor's assets, and with this end in view the judicial policy should, as far as possible, con- form to and carry out the legislative intent, and par- ticularly so when by so doing well established princi- ples of equity are recognized and enforced. So far as the debtor himself is concerned, if the preferential pay- ment or security is made in anticipation of following it with a general assignment the preference will be void as to other creditors, who take reasonable and proper methods of attacking its validity. § 263. Attitude of Creditor Preferred. — But the validity or invalidity of the preference is to a large ex- tent determined by the attitude of the preferential creditor toward the transaction. There can in no case arise an imputation of fraud where the purpose of the creditor as expressed by the act alone consists in the collection of a valid and subsisting indebtedness due 260 EQUITABLE EEMEDIES. [§ 364. him from the debtor. Lack of knowledge on the part of the creditor of insolvency of the debtor, and of any intended assignment are also to be considered as not invalidating the assignment, but rather as elements establishing the hona fides of the act. Because the statute under certain circumstances prohibits prefer- ential payments is the creditor to whom an honest debt is due before accepting payment to put the debtor un- der a rigid examination as to his financial responsibil- ity and his purpose in making payment or in securing what is due? Such would not be a reasonable require- ment, nor be dictated by any system of sound legal ethics, or business propriety.® It is an interesting question in this connection as to how far the creditor may go in the way of moral coer- cion in procuring from his debtor payment or security of his indebtedness, which is not infrequently accom- plished by means of threats of suits, etc. § 264. Preferences When Valid.— Without expec- tation of exhausting the subject, and with the hope only of illustrating the general subject of valid and in- valid preferences, it may be stated that preferential payments made, or security given, by the debtor to favored creditors will be sustained when: (1) There are no statutory restrictions' prohibiting and where the common law rules are in force and the transaction x^hona fide.'' (2) When the preference is made in good faith and 8 The rule established in New 129 N. Y. 1; Bergen v. Varrel- York upon this subject is that mann, 127 N. Y. 281. even where a preference— in ex- 7 Juilliard v. May, 130 111. 87; cess of a certain amount— is Glover v. Lee, 140 111. 102; Hunt- prohibited, if the debt is bona ley v. Kingman, 152 U. S. 527; Me and the preferred creditor Jewell v. Knight, 123 U. S. 426; IS Ignorant of any Intention on Peoples, etc., Bk. v. Bates, 120 the part of the debtor to make U. S. 556; Sawyer v. Levy 162 an assignment, the preference Mass. 190; Glddings v. Sears, 115 lx^^^^\f\, ^^^^^ ^- ^^^'^' ^^ss- 505; Leavltt v. Blatchford, 14b N. Y. 34; Manning v. Beck. 17 N. Y. 521; Talcott v. Harder, § 264.] PEEFEEENCES. 261 in the ordinary and usual course of business without purpose or tendency to injure others.* (3) Where a conveyance of land is made to trustees for the benefit of certain creditors named to the exclu- sion of others.® (4) Where the valuation of the whole property is rea- sonable though some of it may be valued too high and some too low.^** (5) Where money is placed in the hands of the debt- or's attorney, who is also a creditor, to pay a certain per cent, of designated claims, the balance to be applied on indebtedness due the attorney .^^ (6) Where the consideration of a conveyance is the satisfaction of a pre-existing indebtedness to the gran- tee and the agreement on his part to pay other indebt- edness to other parties, which is done.^^ (7) Money loaned by father to his son to enable him 119 N. T. 536; Murphy v. Briggs, Warner Glove Co. v. Jennings, 89 N. Y. 446; Cutter v. Pollock, 58 Conn. 74; Stevens v. Breen, 4 N. Dak. 205; Alberger v. Nat. 75 Wis. 595. Bk. 123 Mo. 313; Schroeder v. » Hays v. Hostetter, 125 Ind. Bobbitt, 108 Mo. 289; French v. 60. Motley, 63 Me. 326; Warner v. i» Chlpman v. Stern, 89 Ala. Llttlefield, 89 Mich. 329; Warner, 207. etc., Co. V. Jennings, 58 Conn. n Warner Glove Co. v. Jenn- 74; Low V. Wortman, 44 N. J. ings, 58 Conn. 74. Eq. 193; Keen v. Kleckner, 42 12 Saunderson v. Broadwell, 82 Pa. St. 529. The cases sustaining Cal. 132. In this case it was the text are very numerous but held that a pre-existing Indebt- the above are illustrative and edness constitutes a valuable sufacient. The 111. Act of 1877, consideration. Jamison v. King, prohibiting preferences relates 50 Cal. 132; Schluter v. Harvey, only to preferences in an assign- 65 Cal. 158. Also a promise to ment. Farwell v. Nilsson, 133 pay the debt of the grantor to 111. 45. It does not apply to a third person. Gladwin v. Gar- judgment notes given by a fail- rison, 13 Cal. 330. A conveyance Ing debtor for the purpose of a to satisfy a debt due the grantee preference where there is no as- and also an assumption on his signment. Do. part to pay another, creditor 8 Stock-Growers Bank v. New- does not create a trust in favor ton 13 Colo. 245; Havens v. Ex- of creditors generally. Dana v. stein (Sup. Ct.) 31 N. Y. S. R. Stanford, 10 Cal. 269; Lawrence 43 9 N. Y. Supp. 605; Menze- v. NefC, 41 Cal. 566; Wood v. sh'eimer v. Kennedy, 75 Wis. 411; Franks, 67 Cal. 32. 863 EQUITABLE EEMEDIES. [§ 365. to enter a firm and money loaned to the firm on account of son.^^ (8) A mortgage to secure a bona fide debt is not ren- dered invalid if otherwise taken in good faith by the mortgagee, after possession taken under the mortgage, permitting the mortgagor to remain in possession and manage the business.^* § 265. Assignments Invalid as to Creditors. — The general principles regarding assignments which are invalid by reason of their being fraudulent as to creditors are, as a rule, the same as applied to fraudu- lent conveyances and are elsewhere considered. There are, however, certain assignments that are rendered in- valid by reason of some provision therein or act in con- nection therewith that is of a preferential nature and character which are proper to be considered in this con- nection: (1) Where the debtor omits from his assignment money or property which in anticipatiori of making an assignment has been given to, or for the purpose of con- cealing has been placed in the custody of, another.^^ • 13 Rosenfield v. Goldsmith, necessarily operate to defraud (Ky.), 11 Ky. L. Rep. 662. others he must be deemed to 1* Decker v. Wilson, 45 N. J. have intended the fraud." Cour- Eq. 772. sey v. Morton, supra; Coleman v. 15 Where an assignment pur- Burr, 93 N. Y. 17; Cunningham v. ports to transfer all the property Freeborn, 11 Wend. 240; Ford v. of the debtor, an intentional Williams, 24 N. Y. 359; Edgell v. omission from the schedule of Hart, 9 N. Y. 213; Wilson v. property assigned of items of Robertson, 21 N. Y. 587. In valuable property is sufBcient to Coursey v. Morton, 132 N. Y. 556, establish fraud, but an omission it is said that the intentional of worthless items is not. withholding and secreting by the Shultz V. Hoagland, 85 N. Y. 464; assignor of assets of a substan- Coursey v. Morton, 132 N. Y. 556; tial value is fraudulent as to Talcott V. Hess, 31 Hun, 282; creditors and renders the assign- Iselin v. Henlein, 16 Abb. (N. ment void. Shultz v. Hoagland, C.) 73; Chambers v. Smith, 38 85 N. Y. 464; Talcott v. Hess, 31 N. Y. St. Rep. 213. "Every par- Hun, 282; Iselin v. Henlein, 16 ty must be deemed to have in- Abb. N. C. 73; Chambers v. tended the natural and inevitable Smith, 38 N. Y. S. R. 213. An consequences of his acts, and assignment must be in good where his acts are voluntary and faith. It must not be for the § 266.] PEEFEBEKCE3. 263 (2) Where preferences are allowed if a preference is made to a fictitious person or for a fictitious or simu- lated debt.i" (3) Or that provides for the payment of attorney's fees for services to be rendered in the future; or for the payment of debts to grow due if such debts are not in existence, but to be thereafter created." § 266. Preferences— When Invalid.— While not in all cases uniform, the general trend of authorities will be found as invalidating preferences made by the debt- or to favored creditors. (1) Where the preference is given with a fraudulent purpose or with a view of taking the benefit of insolvent laws.^® (2) Where property is taken in payment of a debt of greater value than the debt and with knowledge of the debtor's insolvency, and even if the excess is used in the payment of other creditors if the effect is to hinder and delay creditors it will be invalid.^" (3) A mortgage of all of the debtor's property which purpose of delaying creditors gage made by an insolvent In and thereby giving the assignor good faith, to secure reasonable an advantage. Phelps v. Curts, compensation to his attorney for 80 111. 109. Creditors cannot be services in obtaining an insolv- required to file releases of their ency discharge, is not void as claims as a condition of partici- against creditors. Re Parsons, pating in the benefits of an as- 150 Mass. 343. signment made for the benefit of is Zahn v. Smith (Md.) Dec. all creditors. Re Fuller, 42 18, 1889 (not reported) 71 Md. Minn. 22. xiv. 16 Frank v. Robinson, 96 N. C. i» Willis v. Yates, 12 S. W. 232; 28. In Mississippi a general as- Gallagher v. Goldfrank, 75 Tex. signment for the benefit of cred- 562. In this case the mortgage Itors which provides for the was for more property in value payment of fictitious or simu- than the debt, and in addition lated debts is fraudulent and it appeared that the mortgagee void. Bickham v. Lake, 51 Fed. was authorized to take posses- Rep. 892. sion and sell the property in due 17 Sheldon v. Dodge, 4 Denio course of trade. But see Central 217; Grover v. Wakeman, 11 Nat. Bk. v. Seligman, 138 N. Y. Wend. 187; Barnum v. Hemp- 435, where it is held that the stead, 7 Paige 568; Bralnerd v. assignment is not invalidated, Dunning, 30 N. Y. 211. A mort- but only the excess. 264 EQUITABLE EEMEDIES. [§ 267. in fact amounts to an assignment, where the object is to prefer certain creditors, leaving out others.^'* § 267. Statutory Restrictions on Preferences, — The statutes of the several states in this country are so varied and inharmonious that it is not deemed of suffi- cient general interest to point out the distinguishing features thereof. A statute prohibiting preferences applies only to such preferences as are made within the state, and is not applicable to foreign pref erences.^^ 20 Atkinson v. Weidner, 79 Mich. 575. 21 Juiiiiard v. May, 130 111. 87. Generally speaking where a stat- ute prohibiting preferences is part of the law regulating volun- tary assignments the prohibition is not to be extended beyond that. Stein v. Levy, 29 N. Y. S. R. 87. But see Straw v. Jenks, 6 Dak. 414, where it is held that the object of Sec. 4660 Dak. Comp. Laws, is to prevent pref- erences by any form of instru- ment. The provisions of the United States Bankrupt Act in force July 1, 1898, relative to preferences are as follows: Sec. 60. Preferred Creditors. — a. A person shall be deemed to have given a preference if, be- ing insolvent, he has procured or suffered a judgment to be en- tered against himself in favor of any person, or made a transfer of any of his property, and the effect of the enforcement of such judgment or transfer will be to enable any one of his creditors to obtain a greater percentage of his debt than any other of such creditors of the same class. b. If a bankrupt shall have given a preference within four months before the filing of a petition, or after the filing of the peti- tion and before the adjudication, and the person receiving it, or to be benefited thereby, or his agent acting therein, shall have had reasonable cause to believe that it was intended thereby to give a preference, it shall be voidable by the trustee, and he may recover the property or its value from such person, c. If a creditor has been preferred, and afterwards in good faith gives the debtor further credit with- out security of any kind for property which becomes a part of the debtor's estates, the amount of such new credit re- maining unpaid at the time of the adjudication in bankruptcy may be set off against the amount which would otherwise be recoverable from him. d. If a debtor shall, directly or indi- rectly, in contemplation of the filing of a petition by or against him, pay money or transfer prop- erty to an attorney and counselor at law, solicitor in equity, or proctor in admiralty for services to be rendered, the transaction shall be re-examined by the court on petition of the trustee or any creditor and shall only be held valid to the extent of a reasonable amount to be de- termined by the court, and the excess may be recovered by the trustee for the benefit of the estate. Sec. 5128 of the bank- rupt act of 1867 relating to pref- erences provided that if any per- son, being insolvent or in con- templation of insolvency, within four months before the filing of the petition by or against him, with a view to give a preference § 268.] PKBFEEENCES. 365 Where preferences are prohibited by law and a lien in favor of a creditor has been obtained by the confes- sion of a judgment which is attacked as preferential and therefore prohibited, it must appear (1) that at the time the judgment was entered, execution issued and levy made, the debtor had made up his mind to make an assignment for the benefit of creditors, and (2) that he had some agency in bringing about the entry of the judgment and the seizure of the property on execution. And when the lien of the execution is apparently su- perior to the assignment the burden of defeating the lien will rest on the party attacking, on both of the above propositions.^^ § 268. Transactions Construed as Assignments as Void as Preferential. — It has been held that a judg- ment by confession by an insolvent debtor to some of his creditors upon which execution issued forthwith by consent, followed by an immediate levy upon all of the property of the debtor, constitutes an assignment to any creditor or person having 48. Koechl v. Leibinger & O. a claim against him, or who is Brew. Co., 53 N. Y. Supp. 982, under any liability for him, pro- 24 Misc. 298. And so it was held cures or suffers any part of his in South Carolina that there was property to be attached, seques- no preference to the creditor who tered, or seized on execution or brings the bill, although the makes any payment, pledge, as- prayer of his complaint is lim- signment, transfer, or convey- ited to himself and does not state ance of any part of his prop- that it is in behalf of creditors erty either directly or indirectly, who will contribute to the ex- abso'lutely or conditionally, the pense. Curlee v. Rembert, 37 S. person receiving such payment, C. 214. Section 6344 of the Rev. etc., having reasonable cause to Stat, of Ohio, establishes a stat- beli'eve such person is insolvent, utory rule for disposition of and knowing such payment, etc., property fraudulently conveyed, is made in fraud of the act shall and substitutes a ratable distri- be void bution among all creditors as 22Hanford v. Prouty, 133 111. under assignments. England v. 339 A corporation creditor can- Russell, 71 Fed. Rep. 818. A not maintain an action for his debtor has a right under Califor- own benefit to set aside a trans- nia Code, Sec. 3432, to prefer fer of property by the corpora- creditors by executmg an abso- tion with the intent of giving a lute, and not a colorable con- nreference in violation of the veyance of land to a creditor for New York corporation law, Sec. a valuable consideration. Saun- 266 EQUITABLE REMEDIES. [§ 268. within the purview of the statute prohibiting prefer- ences.^* But judgment notes taken at a time when the debtor did not contemplate making an assignment upon which judgment was afterward rendered does not render the judgment void as contravening 111. Rev. St. 1889, ch. 10a, § 13, prohibiting preferences.^* Where several judgments are confessed by an insol- vent debtor on the same day which are levied on all the debtor's property by his consent and by this means all his property is transferred to some of the creditors, it constitutes one transaction and is void as being prefer- ential.^B A secret agreement to pay a creditor in full after he has received his pro rata share under the assign- derson v. Broadwell, 82 Cal. 132. Under Virginia Code, Sees. 2458, 2460, 2874, creditors seeking to avoid an assignment by a spe- cial partnership share pro rata. Rothchild v. Hoge, 43 Fed. Rep. 97. 23 Putney v. Freisleben, 32 S. C. 492. Where certain debtors being aware of their hopeless in- solvency, and having determined to make a disposition of their estate among their creditors, made preferential payments, and conveyances of real es- tate to various relatives in sat- isfaction of alleged indebtedness, and then without solicitation made, delivered a series of judg- ment notes for the purpose of preferring certain other creditors and lastly made a deed of assign- ment for the benefit of creditors generally, in form free from le- gal defect, but was not filed un- til the favored creditors had time to take judgments and take out executions before the assignee could take possession, it was held that such preferences were fraudulent and would be set aside at the suit of the other creditors. Preston v. Spaulding, 120 111. 208. And so in Michi- gan an instrument, the first part of which is in the form of a chattel mortgage, but which puts the entire assets of a corpora- tion, legal and equitable, into the hands of a trustee for sale and distribution to a part only of its creditors, is Invalid, under Michigan statutes, as a general assignment with illegal prefer- ences. Kendell v. Bishop, 76 Mich. 634. But in Texas a lim- ited insolvent partnership, or when it contemplates insolvency, may make an assignment for the benefit only of such creditors as will accept their proportional share of the proceeds of the ef- fects assigned, and discharge their claims. Tracy v. Tuffly, 134 r. S. 206. 24 Home Nat. Bk. v. Sanchez, 131 111. 330; Hanford v. First Nat. Bk., 126 111. 584; Preston v. Spaulding, 120 111. 208. 20 Putney v. Freisleben, 32 S. C. 492. § 269.] PEEFEEENCES. 267 ment in consideration that he would accept a statutory assignment is void as to the other creditors.^® § 269. Effect of Stipulations in Assignment as to Preference. — In a general assignment for creditors there are some stipulations inserted therein which ren- der it void, but it has been held that a stipulation for a release based on a condition of preference does not do so.^'^ Nor does the omission of directions to the as- signee to notify the creditors of the condition upon which they may be preferred.^* In New York it seems to be the law that the sale of property to a creditor in payment of a debt, and taken by the latter solely for the purpose of such payment, cannot be defeated by another creditor by reason of the fraudulent intent on the part of the debtor, although the purchaser was cognizant of such intent of the ven- dor.^^ 26 Dansby v. Freiberg, 76 Tex. assignee to sell the assigned 463_ property and returns the execu- 27 Wolf V. Gray, 53 Ark. 75. tion unsatisfied. It further ap- 28 Wolf Y. Gray, 53 Art. peared in this case that the as- 75 In Knower v. Central Nat. signee paid the preferred credit- Bk etc 124 N. Y. 552, it was or pursuant to the terms of the held that the rights of a pre- assignment, and that suhse- f erred creditor are not prejudiced quently the assignment was set by the fact that after the mak- aside as void as to creditors, ing of an assignment and with The payment was held ^valid, knowledge of the fraudulent in- however, it appearing that the tent on the part of the assignor debt was bona fide. Of. Howe v. he obtained judgment by confes- Henriquez, 13 Wend. 240 sion for the firm's debt, issued 29 Knower v. Central Nat. Bk., execution thereon and by his di- 124 N. Y. 552 560; Dudley v. rections the sheriflE allowed the Danforth, 61 N. Y. 626. CHAPTER X. TRUST PROPERTY. I 280. Rights of creditors In relation to, general. 281. Statutory provisions. 282. Public policy. 283. When neither principal nor income liable. 284. General rule. Trust property not reached. 285. Contrary rule. 286. Restrictions on estates in fee. 287. Trust created by the debtor. 288. Trusts subject to rights of creditors. (a) Property conveyed to another to pay debts. (b) Property conveyed as security to creditor — surplus, (c) Property purchased by heirs when liable. (d) If subject to alienation may be reached. (e) Life estate, when. (f) Surplus income express trust. (g) Annuity, when, (h) Resulting trust. (i) Pure trust. (j) Alimony due a divorced wife, (k) Devisee's share in equitable remainder. (1) Money in the hands of an executor subject to de- mand. 289. Trust property converted may be followed. 290. Equity jurisdiction of estate in probate. 291. Equity jurisdiction of estate in foreign state. Section 280. Rights of Creditors in Relation to Trust Property — General.' — Concerning the rights and equities of creditors in relation to trust property or property held in trust for the benefit of the debtor there is not the utmost harmony in the decisions of our courts. The placing of the title to property, real or personal, by deed or will, in the name of a trustee for the beneficial use and enjoyment of another, if free from any fraudulent purpose, may be, and quite often 868 § 281.J TRUST PEOPEETT. 269 is, highly commendable as between the parties. The benefactions of the donor so fax as the creditors of the donee are concerned are entirely subject to his will and direction, and are limited only in certain respects by public policy. The effects of this method of alienation, however, places the beneficiary in a position unique in its nature when viewed from the ordinary standpoint of the relationship of debtor and creditor. He may, in most cases, enjoy all the benefits and advantages grow- ing out of the ownership of property without being sub- jected to the remedies the law provides against ordi- nary debtors. He is shielded and protected in the use and enjoyment of property however meritorious the claims of his creditors may be. § 281. StatutoryProvisions.^— To avoid the effects of placing trust property beyond the reach of creditors the statute in New York has provided that the income from trust property beyond what may be necessary for the education and support of the cestui que trust shall be liable in equity for debts. In New Jersey, by stat- ute, the income beyond a specified sum may be reached by creditors, and in that state where the cestui que trust has contributed money towards the trust prop- erty, equity will grant relief to the extent of the con- tribution. In Michigan rents and profits beyond what are necessary for the support of the cestui que trust are liable to the claims of creditors.^ 1 Under the statutes of Michi- debts only so far as the same is gan the rents and profits of a necessary for his suitable sup- trust beyond what is necessary port. Spring v. Randall, 107 to support the cestui que trust Mich. 103. Comp. L. Sees. 4120, are liable to the claims of credit- 4122, sustaining trusts in land ors, in the same manner as other in favor of creditors where the personal property which cannot debtor pays the entire consider- be reached by execution; and un- ation and the grant is made to der said statutes, so construed, another, covers a case where, the income of a trust fund, paya- pending suit, the judgment debt- ble to a designated beneficiary, is or completed his payments on a exempt from the payment of bis contract of purchase and fraud- 270, EQUITABLE EEMBDIES. [§ 283. §282. Public Policy. — Independent of public pol- icy, as expressed in statutory enactments, the courts liave established certain principles in relation to this subject, not entirely harmonious, it is true, but general- ly recognized and enforced. If the debtor himself is instrumental in procuring the property to be placed in trust for the benefit of himself and his family it will not be shielded from the reach of creditors. If, however, the donor has the absolute dominion over the property he may properly make such disposition thereof as his judgment may dictate, and it will be beyond the reach of creditors, and the latter are in no manner defrauded thereby.^ ulently caused the land to be deeded to another without con- sideration. Fairbairn v. Middle- miss, 47 Mich. 372. The provi- sion of a st3.tute that an annuity, out of the profits of a trust es- tate, for the support of the an- nuitant, may be taken by the creditors of such annuitant if he is able to support himself by his labor, enables the creditors to take only the surplus after sup- porting the annuitant. Clute v. Bool, 8 Paige (N. Y.) 83. Where a person is entitled, under a will, to an annuity for life, payable semi-annually, out of the income of real and personal estate in the hands of trustees, his inter- est in such annuity, beyond what is necessary for the sup- port of himself and his family, may, under the provisions of the Revised Statutes of New York, be reached by a creditor's bill, and applied to the payment of his debts. Sillick v. Mason, 2 Barb. (N. Y.) Ch. 79. In Will- iams V. Thorn, 70 N. Y. 270, the judgment debtor was a benefi- ciary of a trust under which the trustees were required to re- ceive and pay over to him the income of the trust estate and it was held that the action brought by a judgment creditor to reach the surplus income over what was necessary for the suit- able maintenance of the cestui que trust and those dependent on him would be sustained, and that this right of action exists wheth- er the trust estate is either real or personal and future accumu- lations could be provided for. The cases relied upon by the court as sustaining the position taken are: Rider v. Mason, 4 Sandf. Ch. 351; Sillick v. Mason, 2 Barb. Ch. 79; Bramhall v.' Fer- ris, 14 N. Y. 4i; Scott v. Nevius, 6 Duer 672; Graff v. Bonnett, 31 N. Y. 9, and see also Tolles v. Wood, 99 N. Y. 616; Wetmore v. Wetmore, 149 N. Y. 520, 529. 2 As a general rule it is con- trary to public policy to permit a person to have the absolute and uncontrolled ownership of property and be able at the same time to keep it from his honest creditors. Hardenburgh v. Blair, 30 N. J. Eq. 42; Hallett v. Thompson, 5 Paige Ch. 583. In this case is to be found a val- uable citation and analysis of English and American authori- ties upon this subject down to 1878, and also a valuable note upon this and cognate sub- § 283.] TEUST PEOPBETT. 271 § 283. When Neither Principal nor Income Liable. —In determining whether a trust fund may be reached jects. In England the law ap- pears to be as laid down in Will- iams V. Thorn, supra, see: Bran- don V. Robinson, 18 Ves. 429; Green v. Spicer, 1 R. & M. 395; Rochford v. Hackman, 9 Hare 475; Trappes v. Meredith, L. R. 9 Eq. 229; Snowden v. Dales, 6 Sim. 524; Rlppon v. Norton, 2 Beav. 63. To the same effect are Tillinghast v. Bradford, 5 R. I. 205; Heath v. Bishop, 4 Rich. Eq. 46; Dick v. Pitchford, 1 Dev. & Bat. Eq. 480; Mebane v. Me- bane, 4 Ired. Eq. 131; Smith y. Moore, 37 Ala. 330; Mcllvain v. Smith, 42 Mo. 45. In Nichols v. Eaton, 91 U. S. 716, it was held that where It appeared by the record of a will that the devisee held either a life estate or the income, dividends or rents of real or personal property paya- ble to him alone to the exclu- sion of creditors the creditors have no right to look to that estate or the income, dividends or rents as a fund to which they can resort to enforce payment of a claim against the devisee; that in giving the latter credit they were not misled nor defrauded. The court say: "We do not see any reason in the recognized na- ture and tenure of property and its transfer by will, why a tes- tator, who gives without any pecuniary return, who gets nothing of property value from the donee, may not attach to that gift the incident of con- tinued use, of uninterrupted ben- efit of the gift during the life of the donee. Why a parent, or one who loves another, and wishes to use his own property in securing the object of his af- fection, as far as property can do it, from the ills of life, the vicissitudes of fortune, and even his own improvidence, or inca- pacity for self protection, should not be permitted to do so, is not readily perceived." The cases relied on in support of this doctrine are: Fisher v. Taylor, 2 Rawle 33; Holdship v. Patter- son, 7 Watts 547; Shankland's Appeal, 47 Penn. St. 113; Ashurst T. Given, 5 W. & S. 323; Brown V. Williamson, 36 Penn. St. 338; Still V. Spear, 45 Penn. St. 168; Leavitt v. Beirne, 21 Conn. 1; Nickell V. Hundley, 10 Gratt. 336; Pope's Exrs. v. Elliott, 8 B. Mon. 56; Campbell v. Foster, 35 N. Y. 361. And see Jourolmon v. Massengill, 86 Tenn. 81; Bull v. Bank, 90 Ky. 452; Halstead v. Westervelt, 41 N. J. Eq. 100; Board of Freeholders v. Henry, 41 N. J. Eq. 388; Llppincott v. Evens, 8 Stew. Eq. 553; Parker v. Harrison, 42 N. Y. Supr. Ct. 150. In Broadway Nat. Bk. v. Adams, 133 Mass. 170, the doctrine of Nichols V. Eaton, supra, was adopted and is stated to be sus- tained by the following cases: Braman v. Stiles, 2 Pick. 460; Perkins v. Hays, 3 Gray 405; Russell V. Grinnell, 105 Mass. I 425; Hall v. Williams, 126 Mass. 344; Sparhawk v. Cloon, 125 Mass. 263. This question first came before the supreme court of Illinois in Steih v. Whitehead, 111 111. 247, where the doctrine of Nichols V. Baton, supra, was adopted in that state. And see also Springer v. Savage, 143 111. 301; Hallett v. Thompson, 5 Paige 583. Upon this subject of a privileged class thus created Professor Gray has forcibly re- marked that they "form a privi- leged class who could in- dulge in every speculation, could practice every fraud, and yet, provided they kept on the safe side of the criminal law, could roll in wealth. They would be an aristocracy, though certainly the most contemptible aristoc- 373 EQUITABLE EEMEDIES. [§ 384. and applied to the satisfaction of debts the question depends largely on the nature of the trust. Thus in case of a devise to trustees to be paid over to a legatee where nothing is to be done but make the payment, it may be reached by a judgment creditor, but if the trus- tees are to invest the fund and pay to the legatee dur- ing his life the interest and income thereof at such times, in such manner and in such amounts as the trus- tees shall deem prudent, neither the principal nor the interest vphich has been kept back for prudential rea- sons can be reached by a court of chancery on the appli- cation of a creditor of the legatee. The reason of this doctrine, thus applied, is in the fact that neither the legal title nor the right of possession is in the legatee until such time as, in the discretion of the trustee, the trust is executed.^ Where a trustee in a will holds money to be paid over on demand a court of equity may properly appro- priate the trust estate to the payment of a judgment creditor of the beneficiary.* § 284. General Rule — Trust Property Not Reached. — While not free from criticism based upon grounds of public policy, the weight of authority in this country undoubtedly is that, as to creditors, property may be conveyed or devised by the owner to a trustee for the benefit of debtor, and thus be placed beyond his power of alienation and beyond the reach of his creditors. This rule is based upon the doctrine otjus c?*sponera<^* appli- cable to the ownership and disposition of property gen- erally, where no impediments exist as to the compe- tency of the donor and there is no contravention of pub- licy policy.^ racy with which a country was * Wells v. Ely, 11 N. J. Eq. ever cursed." Restraints on all- 172; Lynch v. Utica Ins. Co., 18 enation. Sec. 262. Wend. 236. 8 Hardenburgh t. Blair, 30 N. s Nichols v. Eaton, 91 V. J. Eq. 645. S. 716; Hyde t. Woods, 94 U. f 285.] THTIST PHOPEETT. 373 §285„ Contrary Rule— Trust Property May be Reached. — The contrary doctrine that trust property held for the benefit of the debtor is subject to the pay- ment of his debts in a proper proceeding instituted by his creditors is maintained in other states with sound argument based on public policy, and the inequity of permitting a debtor to be the beneficial owner of prop- erty and be at the same time absolutely shielded against the demands of his creditors.® S. 523; Maynard v. Cleaves, 149 Mass. 307; Broadway Nat. Bk. v. Adams, 133 Mass. 170; Claflln V. Claflin, 149 Mass. 19; Billings V. Marsh, 153 Mass. 311; Wemyss v. "White, 159 Mass. 484; Smith V. Towers, 69 Md. 77; Wanner v Snyder, 177 Pa. St. 208; Steib v. Whitehead, 111 111. 247; Springer v. Savage, 143 111. 301; Martin v. Davis, 82 Ind. 38; Thompson v. Murphy, 10 Ind. App. 464; Barnes v. Dow, 59 Vt. 530; Garland v. Garland, 87 Va. 758; Partridge v. Cavender, 96 Mo. 452; Jarboe v. Hey, 122 Mo. 341: Roberta v. Stevens, 84 Me. 325; Jourolmon v. Massengill, 86 Tenn. 81; Moses v. Micou, 79 Ala. 564; Leigh v. Harrison, 69 Miss. 923. The doctrine of the text is based upon the principle of jus disponendi, by which the owner of property has a right to dispose of it absolutely or conditionally, and subject to such restrictions as he may see proper to throw around it. The grant or device by no possibility can be deemed fraudulent as to creditors when the debtors had notjiing what- ever to do in the matter. And see also the following: Tolland Co. Ins. Co. V. Underwood, 50 Conn. 493; Shankland's Appeal, 47 Pa. St. 113; Rife v. Geyer, 59 Pa. St. 393; Pope's Exrs. v. El- liott, 8 B. Mon. 56; Holdship v. Patterson, 7 Watts. 547; White V White, 30 Vt. 338; Monroe v. Trenholm, 112 N. C. 634; Gray V. Corbit, 4 Del. Ch. 135. The interest of a beneficiary in a trust created by a person other tnan the debtor cannot be reached. Campbell v. Foster, 35 N. Y. 361. The general rule is that property held in trust for the debtor may be reached to satisfy his debts, unless for debt- or's support. Graff v. Bennett, 31 N. Y. 9. The surplus may be reached after the support has been expended. Williams v. Thorn, 70 N. Y. 270. If a cestui que trust has no power to con- trol, alienate, or dispose of his interest in the trust property, it cannot be reached by creditor's bill. Degraw v. Clason, 11 Paige (N. Y.), 136. If he has such pow- er it may be reached. Id. An annuity derived from a fund held in trust for a debtor, but created by some other person, cannot be reached by creditors. Frazier v. Barnum, 19 N. J. Eq. 316. Where a father willed certain personal property, in trust, to pay, out of the profits, an annuity for the support of his son, it was held that the annuity was inalienable, and could not be reached, in an- ticipation, by creditors. Clute v. Bool, 8 Paige (N. Y.), 83. 6 Bailie v. MeWhorter, 56 Ga. 183; Williams v. Thorn, 70 N. Y. 270 (see statute); Hobbs v. Smith,15 Ohio St. 419; Tillinghast V. Bradford, 5 R. I. 205; Ernst V. Shinkle, 95 Ky. 608; Knefler V. Shreve, 78 Ky. 297; Lamber- ton V. Pereles, 87 Wis. 449; Heath v. Bishop, 4 Rich. Eq. 46; 274 EQtriTABLE EEMEDIBS, [§ 285. In the consideration of this question it is important to bear in mind that the fundamental basis of all equit- able proceedings of the nature we are now considering^ is in the fact that the debtor by some act or deed has perpetrated a fraud in fact or in law upon his creditors against which equity will grant relief. Whereas, in relation to trust property, the grant or conveyance of which is not of his procurement, the debtqr is in a state of absolute passiveness. He does nothing overtly or by implication. With the motives of the donor or grantor creditors are not concerned. The law of jus disponendi shields him from any imputations of wrongdoing. It would be a fruitless and presumptuous effort to un- dertake to reconcile the conflicting decisions upon this subject. To those courts which usually base this equit- able remedy upon some lien or legal right ineffectual in its enforcement through ordinary legal channels are to Lindsay v. Harrison, 8 Ark. 302; Hooberry v. Harding, 10 Lea 392. In New York ty statute the in- come of trust property beyond wbat is required for the educa- tion and support of the benefi- ciary is liable for his debts. In New Jersey the income above $4,000 is liable, but see Lippin- cott V. Evens, 35 N. J. Bq. 553; Freeholders v. Henry, 41 N. J. Bq. 388. Where the debtor in a will is entitled to the annual in- terest to the extent of a quarter of a million dollars he ought not to be protected in the enjoyment free from liability for the pay- ment of his debts where he is an absolute owner of the interest. Hardenburgh v. Blair, 30 N. J. Eq. 42. The assignment of an annuity due from parties and property out of the state to a receiver under the direction of the court, will enable the re- ceiver to collect it in a foreign state; but where the fund is held in trust for the debtor and has proceeded from some person other than the debtor himself it cannot be reached. (See Stat.) Frazier v. McWilliams, 19 N. J. Eq. 316. And see Green v. Tatum, 19 N. J. Eq. 105, under the law of 1845. The income of a life trust for the support of the grantor under a deed of trust may be reached. Bryan v. Knickerback- er, 1 Barb. Ch. 409. And so the life interest of a husband in pro- ceeds of his wife's real estate where it has been sold in parti- tion. Ellsworth V. Cook, 8 Paige Ch. 643. An annuity given by a testator to his widow, in lieu of dower, and charged upon his real and personal estate by his will, can be reached by creditors of the widow under a creditor's bill against her. Degraw v. Clason, 11 Paige (N. Y.). 136. If a cred- itor has a lien upon a life estate, held by a trustee in trust for the debtor, the court may order a sale of such life interest in sat- isfaction of the claim. Forbes v. Smith, 8 Ired. (N. C.) Bq. 30. ^86.] TETJST PEOPBETY. 275 be assigned those cases which hold that trust property; cannot be reached by a creditor's bill. To the other class of courts which base their equitable remedies upon broad and general equitable principles of right and justice between man and man are to be assigned those cases which hold that trust property may be reached on the application of a judgment creditor, or at least so much thereof as is not required for the sup- port of the debtor and his family. The tying up of property in the hands of a trustee in effect is in restraint of alienation and is not for this reason favored by the courts. A condition in a deed or will providing that it shall not be subject to alienation or levy is void.'' The rules above stated hold good in reference to per- sonal property, as in the case of real estate. § 286. Restrictions on Estates in Fee. — A re- striction by way of condition or devise over, or against alienation of an estate in fee, is void, as repugnant to an estate devised to the first taker, by depriving him during that time of the inherent power of alienation. Where there is by express terms a grant in fee simple and an immediate vesting of title with no conditions subsequent or limitation over to defeat the estate an attempt to prevent consequences of the ownership thereof from attaching thereto cannot avail. In a de- vise of land in fee simple a condition against alienation is void as being repugnant to the estate devised.* 7 Potter V. Couch, 141 U.S. 296; in grants to be void on the McCleary v. Ellis, 54 la. 311; ground that they are repugnant McDowell V. Brown, 21 Mo. 57; to the estate granted. Lovett v. Menken v. Brinkley, 94 Tenn. Gillender, 35 N. Y. 617, affirming 721- De Peyster v. Michael, 6 N. S. C. in 44 Barb. 560. Y 467- Blackstone Bank V. Da- s Henderson v. Harness, 176 111. vis 2l'pick 42 This appears to 302; Jones v. Port Huron Engine be the law in England. Brandon Co., 171 111. 502; Potter v. Couch, V Robinson 18 Ves. Jr. 429; 141 U. S. 296; McDonogh v. Mur- B'radley V. Piexoto, 3 Ves. Jr. 324. dock, 15 How. 367; Steib v. Some cases hold such conditions Whitehead, 111 111. 247; Roose- 273 EQUITABLE REMEDIES. [§ 287. Where an estate is created for life to vest without condition or limitation a restriction on the power of alienation is repugnant to an estate devised to the first taker, because depriving him during the time he holds the estate of the inherent power of alienation.^ The rule is not the same, however, where the legal title to the property has been vested in a trustee for the use of the beneficiary under specific conditions. That is the most appropriate, if not the only way, of accom- plishing the protection of the subject of a devise from creditors. Except by the intervention of trustees an estate cannot be devised for the benefit of the legatee in such a manner that it cannot be seized for the debts of one having a life estate therein.^" § 287. Trusts Created by the Debtor.— The rule of law applicable to trusts created by the debtor upon his own property rests entirely upon a different basis from trusts created by a third person for the debtor's benefit. Thus where part of the consideration for a velt V. Thurman, 1 Johns. Ch. 247. This was a case where a 220; Mandlebaum v. McDonell, testator devised all his lands to 29 Mich. 78; Anderson v. Carey, trustees to keep such lands, etc., 36 Ohio St. 506; Norris v. Hens- well rented, to make reasonable ley, 27 Cal. 439; Blackstone Bk. repairs on the same, to pay all V. Davis, 21 Pick. 42; Smith v taxes and assessments thereon, Clark, 10 Md. 186; Lane v. Lane, to keep the buildings insured 8 Allen 350; Gleason v. Fayer- against fire, and pay all remain- weather, 4 Gray 348; Lovett v. ing rents and income in cash to Gillender, 35 N. Y. 617; Van a devisee, it appearing that it Rensselaer v. Dennison, 35 N. Y. was the intention of the testator 393; Oxley v. Lane, 35 N. Y. 340; to place the net income of the Schermerhorn v. Negus, 1 Denio property beyond the control of 448; Hall v. Tufts, 18 Pick. 455; the devisee. The court held: Dick V. Pitchford, 1 Dev. & Bat. That a father may, by will or Bq. 480. otherwise, make such reason- 9 Henderson v. Harness, 176 able disposition of his property, 111. 302; Bank v. Davis, 21 Pick. when not required to meet any 42; Deering v. Tucker, 55 Me. duty or obligation of his own, 284; Keyser's Appeal, 57 Pa. St. as will effectually secure to his 236; McCormick Harvester Mach. child a competent support for Co. V. Gates, 75 la. 343; McCleary life, and the most appropriate, V. Ellis, 54 la. 311. if not the only, way of acoom- ^0 Henderson v. Harness, su- pllshing such an object is pra; Stelb v. Whitehead, 111 111. through the medium of a trust. i 387.] TEUST PEOPBETY. 37r conveyance was that the grantee should pay the gran- tor's debts it will be chargeable with such debts. The proceeding, however, in such case is more nearly a pro- ceeding to enforce a trust." The common and usual ground upon which trust property is reached and applied in satisfaction of cred- itors' demands is where the debtor has placed his prop- erty in trust in violation of the statute of frauds.^^ 11 A grantor conveyed land to his grantee in consideration that the latter would pay the for- mer's debts and support him dur- ing life. It was held that the land was chargeable in equity with the grantor's support and debts. Hamilton v. Barricklow, 96 Ind. 398. It is doubtful if a parol trust can be reached in equity. Cobb v. Cook, 49 Mich. 11. Neither law nor sound pol- icy will permit a person having the absolute title to property so that he may use it or dispose of it as he pleases, and for his own benefit to cover it up from his creditors under the guise of a mere nominal trust. Degraw v. Clason, 11 Paige Ch. 136. To make out a trust for the benefit of the creaitor the money must be paid at or before the execu- tion of the conveyance, and not after. Niver v. Crane et al., 98 N. Y. 40; Jackson v. Moore, 6 Cow. 706; Botsford v. Burr, 2 Johns. Ch. 405; Steere v. Steere, 5 Johns. 1; Jackson v. Seelye, 16 Johns. 197; Rogers v. Murray, 3 Paige, 390, 391; Russell v. Allen, 10 Paige, 249. After attempts to collect judgments are fruitless, and the debtor has fraudulently transferred property to an estate held by him as trustee for his wife and children, and has so in- termingled his money with that belonging to the trust estate that a separation is difficult, his in- terest therein may be determined. A case for equitable interposition is presented. Lathrop v. McBur- ney, 71 Ga. 815. The rule in New York seems to be that independ- ent of enabling acts, the court of chancery has jurisdiction to se- quester for the payment of debts any property not subject to exe- cution at law, when held on a trust created by a judgment debt- or with his own funds in fraud of creditors. Hardenburgh v. Blair, 30 N. J. Eq. 645; Bayard v. Hoffman, 4 Johns. Ch. 450; Mc- Dermott v. Strong, 4 Johns. Ch. 687; Hadden v. Spader, 20 Johns. 554. When a trust is created by agreement the entire amount thereof may be reached by judgment creditors, and they are not limited to a proceeding in equity to reach the surplus of the income over and above his needs. Everett v. Peyton (App. Div.) 55 N. Y. Supp. 464. The commencement of an action by a judgment creditor, assailing a trust created by the debtor on the ground that it is fraudulent as to creditors, subjects the trust property to a lien. Bissell v. Continental Trust Co., 25 Misc. 724, 55 N. Y. Supp. 570. 12 The principle has no appli- cation to a trust created by a third party for the benefit of the debtor. A trust of that kind be- ing a mere gratuity is not in vio- lation of the statute. Creditors are not misled or defrauded thereby. Hardenburgh v. Blair, 30 N. J. Eq. 645; Nicols v. Eton, 91 tr. S. 716; Donovan v. Finn, Hopk. Ch. 59. :278 EQUITABLE EBMEDIES. [§ 388. A creditor who by a bill in equity seeks to reach and apply in satisfaction of a debt the debtor's interest in a trust fund does not acquire a lien by the filing of his bill, and thus prevent the property passing to an as- signee.^* § 288. Trusts Subject to the Rights of Creditors. — (a) Where property is conveyed to another, in consid- eration of which the latter agrees to pay the debts of the former, the property thus conveyed becomes im- pressed with a trust in favor of the creditors of the grantor and they upon obtaining a judgment against the trustee-grantee are entitled to file a bill and subject the property to the payment of the judgment.^* (b) Where a debtor has conveyed land in trust to se- cure a creditor a court of equity at the instance of other creditors may sell the land so conveyed and apply the surplus over and above the first creditor's debt to the satisfaction of the debts due other creditors.^^ (c) Where land of a decedent is bought by the heirs at a sale of land made under a decree in favor of the estate, and the purchase money is retained under a con- dition embodied in the report of sale and the commis- sioner's deed that such purchase money shall be ac- counted for on the final account, an express trust is created which may be enforced by a creditor of the de- cedent by subjecting the land to the payment of his 13 Titcomb v. Bradlee, 159 been conveyed without consider- Mass. 190. ation. Kaiser v. Waggoner, 59 1* Where land is conveyed la. 40. An agreement to support to another in consideration the grantor, if it forms a sub- that the latter would pay stantlal part of the considera- the grantor's debts, and a cred- tion for land, is a secret trust, Itor obtained a judgment against and if the grantor afterwards is the grantee and filed a bill to unable to pay his debts it will be subject the property to the pay- void as to creditors. Funk v. ment of his judgment. Held that Lawson, 12 111. App. 229. plaintiff was entitled to recover is Schultz v. Blackford, 9 Lea. against the grantee and his wife, 431. to whom part of the property had § 288.] TEUST PHOPEKTT. 279 debt if the other assets of the estate are insufficient to pay the debts.^® (d) If property is alienable income can be reached." (e) And so a life estate if fraudulently conveyed.^® (f) The surplus income where there is an express trust.i9 (g) An annuity that is due and payable.^" (h) A creditor's bill is the only method of reaching and applying a resulting trust.^* le Westbrook v. Hunger, 62 Miss. 316. 1' The rule Is that if the debt- or's interest in the income from a trust estate is alienable it may- be reached by his creditors. Har- denburgh v. Blair, 30 N. J. Eq. 645. 18 Newman v. Willitts, 60 111. 519. i9Clute V. Bool, 8 Paige Ch. 83; Williams v. Thorn, 70 N. Y. 270. The Interest of a married woman in the surplus income when the debt was contracted be- fore marriage. L'Amoureux v. Van Renselaer, 1 Barb. Ch. 34. But not future rents and profits; or her separate property. Mal- lory V. Vanderheyden, 3 Barb. Ch. 9. Where the Income of stocks was willed to a son during his life, and upon certain contin- gencies, and upon his death his wife should be entitled to sup- port out of the income, held that the widow of the son had no in- terest a creditor could reach. Slattery v. Wason, 151 Mass. 266; Baker v. Brown, 146 Mass. 369. 20 The life annuity payable semi-annually from the income of real and personal property in the hands of trustees beyond what is necessary to support the annuitant and his family may be reached. Sillick v. Mason, 2 Barb. Ch. 79; Rider v. Mason, 4 Sandf. Ch. 351. But an annuity to mature in the future is not. Clute V. Bool, 8 Paige Ch. 83. An annuity beflueathed to a wid- ow in lieu of dower and charged upon real and personal property by will is liable. Degraw v. Cla- son, 11 Paige Ch. 136. 21 A creditor's bill is the proper remedy to reach and apply to the satisfaction of plaintiff's judg- ment a resulting trust which is not capable of being reached in an action at law. McDermott v. Strong, 4 Johns. Ch. 687; Wilkes V. Ferris, 5 Johns. 335; Scott v. Scholey, 8 East. 467; Bayard v. Hoffman, 4 Johns. Ch. 450; Brinckerhoff v. Brown, 4 Johns. Ch. 671. "It is impossible to raise a resulting trust so as to divert the legal estate of the grantee by the subsequent application of the funds of a third person to the improvement of the property, or to satisfy the unpaid purchase money." Rogers v. Murray, 3 Paige, 390, 391. The whole foun- dation of a trust of this nature is the payment of the money by the cestui que trust,- the real, not the nominal purchaser. Niver v. Crane et al., 98 N. Y. 40. The doctrine that a trust, in order to exist, must have been co-eval with the deeds, and that after one person has made a purchase with his own money or cred- it, no subsequent transaction, whether of payment or reim- bursement, can produce such a trust in his favor, is well settled. Says Chancellor Kent in Bots- ford V. Burr (2 Johns. Ch. 405): "There never was an instance of such a trust so created, and there 380 EQUITABLE EEMBDIBS. [§ 289. (i) And so in regard to a pure trust.^^ (j) But not to reach alimony due a divorced wife.^' (li) Nor to reach a devisee's share in an equitable re- mainder.^* (1) Money in the hands of an executor subject to the demand of the cestui que trust is subject to the rights of creditors through a court of equity.^^ And so, also, where money is in the hands of an attor- ney with notice of the rights of judgment creditors, and which he has acquired as the attorney of the debtor, or in violation of his duty as an attorney.^® § 289. Trust Property Converted May be Fol- lowed. — As long as trust property may be followed it is snbject to the trust; if converted into other prop- erty the latter is liable. And so where the trust fund is mixed with other funds the whole will be liable ex- cept such as may be identified as not belonging to the trust.2^ never ought to be, lor it would Bodine v. Edwards, 10 Paige 504; destroy all the certainty and se- Earl of Chesterfield v. Janssen, curity of conveyances of real es- 2 Ves. St. 125. In all cases of tate. * * * The trust results direct trust, such as mortgages from the original transaction at of real estate or pledges of per- the time it takes place, and at sonal property, a court of equity no other time; and it is founded will grant relief on its own pe- on the actual payment of money, culiar principles. Disborough v. and on no other ground." Outcalt, 1 N. J. Eq. 298. (Quoted in Niver v. Crane.) 2s Andrews v. Whitney, 82 Hun, 22 A bill to reach property paid 117, 31 N. Y. Sup. 164. for by the debtor, but where title a* Bartholomew v. Weld, 127 is in another, is a bill to enforce Mass. 210. a pure trust. McCartney v. Bost- 26 Money in the hands of exec- wick, 32 N. Y. 53; Wood v. Rob- utors subject to the demand of inson, 22 N. Y. 564. And the en- the cestui que trust may be forcement of such a trust is one reached. Wells v. Ely, 11 N. J. of the original and inherent pow- Eq. 172. ers of a court of equity. Id. 28 Cowing v. Greene, 45 Barb. Cf. Chautauqua Co.Bk. v. White, (N. Y.) 585. 6 N. Y. 236; Hagan v. Walker, 27 Liverpool Ins. Co. v. Mass, 55 U. S. 29; Loomis v. Titft, 16 77 U. S. 566. Where there has Barb. 541; Darrington v. Bor- been a misapplication of trust land, 3 Porter (Ala.) 9, 31; Mc- funds by trustees, or persons El wain v. Willis, 9 Wend. 548; standing in a fiduciary relation, Innes v. Lansing, 7 Paige 583; and the money or property mis- §§ 290, 291.] TRUST PEOPEETT. 381 § 290. Equity Jurisdiction of Estate in Probate — When. — Under a bill filed to reach certain real and personal property standing in the name of a trus- tee for the wife and children of the debtor, and which was fraudulently added to their estate by the debtor, and the debtor's estate is insolvent, chancery has juris- diction of the case to withdraw the administration from the court of probate.^* And so jurisdiction will be entertained where prop- erty that has been conveyed in trust for creditors has been sold under execution to determine whether all the debts secured have been paid pursuant to the trust and secured thereby.^^ If a contract is of such nature and character that the money to become due thereunder is not impressed with a trust a court of equity will not take jurisdiction.^" § 291. Equity Jurisdiction of Property in a Foreign State. — If the property which is the subject matter of the trust is in a foreign jurisdiction it has been held that a trust in regard thereto cannot be en- forced.^^ applied has been laid out in land American Sugar Ref. Co. v. Fan- or other species of property, the cher, 145 N. Y. 552; Pennell v. court lays hold of the substi- leffell, 4 DeG. M. & G. 372; Re tuted property and follows the Hallett, 13 Ch. Div. 696; Holmes original funds through all the v. Gilman, 138 N. Y. 369. changes it has undergone until 28 Pharis v. Leachman, 20 Ala. the power of identification is 662. gone, or the rights of bona fide 2" Justice v. Scott, 4 Ired. Eq. purchasers stop the pursuit and 108. holds it in its grasp to indemnify so Reddington v. Lanahan, 59 the innocent victim of the fraud. Md. 429. American Sugar R. Co. v. Fan- si Servis v. Nelson, 14 N. J. Eq. cher, 145 N. Y. 552. In case of 94. It would seem that where money which is said to have no the court has jurisdiction of the earmark its identity will not be parties and the subject matter in deemed lost though it is mingled controversy that the doctrine of with other money of the wrong- this case is stated too broadly, doer if it can be shown that it See Sercomb v. Catlin, 128 in- forms a part of the general mass. 556. CHAPTER XI. FRAUDULENT SALES OF PERSONALTY. § 300. General— Statute of 13 Eliz.— Twyne's case. 301. Fraudulent transfer of stock. 302. Sale Induced by fraud of vendee. 303. General assignment for the benefit of creditors. 304. Fraudulent contract not rescinded — remedy. 305. Reassignment of notes and mortgage. 306. Conditions of rescission. 307. Representations that are fraudulent. 308. Fraudulent assignment. 309. Liability of fraudulent purchaser. 310. Rescinded contract — Resulting trust not established. 311. Proceeding in equity to recover goods or value not sustained. 312. Fraud of vendee — Attitude of third party — Title. 313. Fraudulent purchase — Proceeds reached — Assignment. 314. Deposits in an insolvent bank. Section 300. General — Statute of 13 Eliz.— Twyne's Case. —By the statute of 13 Eliz. ch. 5, all transfers of property, real and personal, if made with, the intention of defrauding creditors are null and void. This statute, in substance, has been adopted in all the states of this country, and, indeed, in the absence of statutory enactment its substance would be recognized and treated as the common law of the country, as it was in fact the common law of England prior to the acts of Parliament known as 13 and 27 Eliz. It was probably owing to the prevalence of covinous trans- fers of property in the age of Elizabeth that induced the passage of the statute rather than the lack of an existing adequate remedy for such transactions. "Be- cause fraud and deceit abound in these days more than in former times." The statute of 13th Eliz. was followed in 1601 by the celebrated Twyne's case, which iJ82 §§ 301-303.] FBAUDULBNT SALES OF PEESONALTT. 383 has become as famous, perhaps more so, in jurispru- dence than the statute in Parliamentary enactments. 'And it will be remembered in this connection that this pioneer case in fraudulent and covinous transfers orig- inated partly, if not wholly, with reference to personal property. Like the statute, it was at first general and limited in its application, but has since been extended so as to cover subsequent creditors under certain lim- itations and now intangible rights and choses in ac- tion as well. § 301. Fraudulent Transfer of Stock. — A judg- ment creditor has a right to proceed by a bill in equity to set aside an alleged fraudulent transfer of stock by his debtor in the same manner as if the same were real estate. The character of property is immaterial, un- der the statutes and general principles of equity, except in the matter of evidence.^ § 302. Sale Induced by Fraud of Vendee. — Where a sale of personal property was induced by fraud on the part of the vendee and the property has been sold by the latter and the proceeds in the shape of notes or credits are identified in the hands of the assignee of the vendee a court of equity has power, in the absence of adequate legal remedy, to reach such proceeds and apply them for the benefit of the vendor. The property itself not being susceptible of application the proceeds are avail- able.2 In such case the assignee of the vendee stands in no better position than his assignor. § 303. General Assignment by Vendee for Cred- itors. — A question of novel character arises where the fraudulent vendee, before the discovery of the fraud by the vendor, makes a general assignment for the bene- 1 Ladd V. Smith, 107 Ala. 506. Fancher, 145 N. Y. 652, reversing 2 American Sugar Ret Co. v. 81 Hun, 56. 384 EQUITABLE REMEDIES. [§ 304. fit of creditors, and the fraudulently acquired property together with outstanding accounts due for such parts of the property as have been sold pass to the assignee's possession, and a bill is filed by the vendor against the assignee to recover the unsold portion of the goods and the accounts for the portions sold. The difficulty in such case arises from the fact that in this country, as well as in England, the title passes to the vendee and consequently to the assignee and remains in the ven- dee or assignee, until rescission of the contract by the vendor. The reinvestment of the vendor with the title to the unsold property and a right to the unpaid ac- counts seemingly in effect gives the vendor a prefer- ence over the general creditors who are equally meri- torious. But the assignee in such case is a volunteer and not a purchaser for value and takes the assigned property subject to the equities of the defrauded ven- dor, among which is the right of the vendor to rescind the contract by reason of fraud and be placed in statu quo. Property or its proceeds acquired by fraudulent practices is not in justice and equity a fund in the hands of the purchaser in the absence of specific liens acquired thereon, such as will be impressed with the equities of general creditors, unless, indeed it should be where they become creditors by force of the appar- ent ownership of the property. And no valid reason is perceived why an assignee has any better standing than the assignor.^ § 304. Fraudulent Contract Xot Rescinded— Bern- edy. — Where by fraud a person has been induced to enter into a contract and is not permitted by reason of circumstances to rescind it he may properly keep what he has received and sue for damages at common law, or 3 American Sugar Ref. Co. v. Fancher, 145 N. Y. 552. ^§ 305, 306.] FEAUDULENT SALES OF PEESONALTT. 285 he may, in a court of equity, obtain relief on offering to restore what he has received.* It is a rule in equity that one who asks to rescind a contract or set aside a compromise that has been pro- cured by fraud must return what he has received, or at least tender it back. If possible the parties must be placed in statu quo. ^ The tender must be in a reasonable time after the default of the other party, and what is a reasonable " time is to be governed by the particular circumstances of each case." § 305. Reassignment of Notes and Mortgage, — Where an assignment of notes and a mortgage is pro- cured by fraudulent representations as to the amount due on the notes a mere tendering back of the ajssign- ment and notes is not sufficient. There must be a re- assignment of the mortgage, in order to revest the legal title in the fraudulent assignor. The mere delivery, back of the assignment will not be sufficient.^ § 306. Conditions of Rescission.— A contract will not be rescinded unless steps are taken within a reason- able time and when both parties may be placed in statu qiio. If the party desiring to rescind cannot, or has placed himself in a position that he cannot, put the other party in the position he was in when the con- tract was made a rescission cannot be had.^ The rescission of a contract will not be decreed by a court of equity where there is a plain and adequate 4 Gould V. Cayuga County f Chase v. Hinckley, 74 Me. 181. Bank 99 N. T. 333. A reclsion s A lease of a coal mine cannot is not always necessary. If it be rescinded after the lapse of can be amended by a court of twenty months, and upon facts equity to conform to fair dealing, known to the lessee for three this may be done. Blfelt v. Hart, years where it is impossible to 1 McCrary C. Ct. 11. PUt the other party In statu quo. 5 Stewart v Houston & Texas Watson Coal & C. Co. v. Casteel, Central Ry. Co., 62 Tex. 246. 68 Ind. 476. 6 Willard r. Ford, 16 Neb. 643. 286 EQUITABLE EEMEDIES. [§§ 307-303. remedy at law. The inadequacy of the common law remedy must appear on the face of the bill or petition.* § 307. Representations That Are Fraudulent. — The representations such as will justify the rescission of a contract must be of material existing facts and not mere promises of what will be done in the future or is expected to be done.*" Representations resulting in procuring the execu- tion of a deed under the belief that it was an entirely different instrument will be sufficient cause for grant- ing relief in equity." A contract real estate broker who in collusion with the purchaser concealed material facts from his prin- cipal and otherwise worked against him cannot be en- forced in equity and such contract will be set aside as fraudulent.*^ § 308. Fraudulent Assignment. — Where a trans- fer intended as an assignment for the benefit of cred- itors, to the exclusion of plaintiff, is void as to him he may after judgment and execution file a creditor's bill and set aside the transfer. In such case he is not re- quired to pursue the statutory remedy supplementary to execution, as that remedy is not adequate to reach property in the hands of a transferee asserting an ad- verse title to the plaintiff.** §309. Liability of Fraudulent Purchaser. — Where a transfer is fraudulent as to creditors the fraudulent purchaser will be liable for the value of the goods at the time of the transfer where they have been mingled with other goods and no separate account has 9 Laidley v. Laldley, 25 W. Va. is Rapp v. Whittier, 113 Cal. 525. 429; cf. Swift v. Arents, 4 Cal. 10 Love V. Teter, 24 W. Va. 741. 390; Lewis v. Chamberlain, 108 11 Tufts V. Tufts, 3 Utah, 361. Cal. 625; Herrlich v. Kaufmann, 12 Young V. Hughes, 32 N. J. 99 Cal. 271. Bq. 372. §§ 310, 311.] FRAUDULENT SALES OE PEESONALTT. 387 been taken of the proceeds. The property is sometimes of such nature that its identity cannot be traced.^* Where it is made the duty of an executor to impeach a fraudulent sale made by his testator, if he refuses to do so, a creditor may institute an action for that pur- pose and will be entitled to recover, if the fraud is es- tablished. The same principle is applied to admin- istrators, trustees and others acting in a similar capa- city.is § 310. Rescinded Contract Does Not Establish Resulting Trust. — A contract for the purchase of land by a debtor which is not complied with by him, and for that reason has been rescinded, does not estab- lish a resulting trust in the debtor for which a court of equity on the application of a creditor will grant relief, even though part of the purchase money has been paid on the contract. Any other rule would in effect be the substitution of a new party to the contract by operation of law.^® An agreement between parties whereby they agree to purchase property under an execution sale and hold it as security until other claims are paid and then to be held for the defendant, in the absence of fraud will be enforced.^'' § 311. Proceeding in Equity to Recover Goods Etc., Not Sustained. — A court of equity will not sustain a creditors' bill, though filed in behalf of all creditors, based upon the ground that goods were pur- chased of plaintiff when the purchaser was insolvent, and that when he bought them he had no intention of paying for them. The goods not being recoverable in i4Steere v. Bigelow (Hoag- lo Alexander v. Tarns, 13 111. SinsVni209= Laswell V. 221. ^^^^^^^ ^^^^^.^^_ ^^ ^_ j_ ^» Bate f. Graham, 11 N. Y. 237. Eq. 439; Morrison v. Shuster. 1 Mackey (D. C), 190. 388 EQUITABLE KEMEDIES. [§§ 313, 313. such a proceeding payment for the value will not be decreed. In such a case there is clearly an adequate remedy at law. §312. Fraudulent Vendee — Attitude of Third Party — Title. — Where a person is induced to part with his property by the fraud of another under the guise of a contract he may, on discovery of the fraud, rescind the contract and reclaim the property unless it has passed into the hands of a bona fide holder. In such case the fraud being established between the orig- inal parties the burden is upon the third party claim- ing the title to show that he is a bona fide holder.^ ^ The title to the property vests in the vendee where the sale is procured by fraud until the sale is rescinded; in other words, the sale is voidable.^^ § 313. Fraudulent Purchase — Proceeds Reached — Assignments. — Courts of equity have jurisdiction to recover the proceeds of sales made by a fraudulent pur- chaser from the plaintiff where the sale by the plaintiff was induced by the fraudulent representations of the purchaser who at the time of the purchase was insol- vent, and where the purchaser after the resales by him made an assignment for the benefit of creditors and the assignee collected and held in his possession money derived from the subsales, after notice from the plaintiff of the rescission of original sale for fraud.^* IS Grant v. Walsh, 145 N. Y. erson v. Ruger, 76 N. Y. 279; Bai- 502. The law of New York is ley v. Bidwell, 13 M. & W. 73. well settled that when a maker i9 Am. Sugar Ref. Co. v. Fan- of negotiable paper shows that it cher, 145 N. Y. 552; Goodwin v. has been obtained from him by Wertheimer, 99 N. Y. 149; Bar- fraud or duress a subsequent nardt v. Campbell, 58 N. Y. 73; transferee must show that he is Ratcliffe v. Sangston, 18 Md. 383; a bona fide purchaser before he Bussing v. Rice, 2 Cush. 48. See, will be entitled to recover. Vos- also, Small v. Attwood, Younge burgh V. Diefendorf, 119 N. Y. 407. 357; F. & C, N. & B. v. Noxon, 20 In such case the assignee 45 N. Y. 762; Ocean National for creditors of the fraudulent Bank v. Carll, 55 N. Y. 440; Wil- vendee is not a purchaser for son V. Rocke, 58 N. Y. 642; Nick- value, and stands in no better § 314.J FEAUDULENT SALES OF PERSONALTY. 289 § 314. Deposits in an Insolvent Bank.— A some- Tvhat similar principle is involved where a person de- posits money in a bank relying on the supposed sol- vency of the bank, the bank being at the time insolvent and its managers knovf ing it to be such. The depositor in such case is entitled to recover the deposit or its proceeds.^^ position than his fraudulent as- signor. Am. Sugar Ref. Co. v. Pancher, 145 N. Y. 552; Goodwin T. Wertheimer, 99 N. Y. 149; Barnardt v. Camphell, 58 N. Y. 73; RatclifEe v. Sangston, 18 Md. 383; Bussing v. Rice, 2 Gush. 48. "Where a fund has teen procured by fraud and misapplied, by a person occupying a fiduciary re- lationship, and converted into either specie or paper, the court lays hold of the substituted pa- per and follows the original fund through all its changes, until such time as its identification Is lost, or the rights of bona fide purchasers stop pursuit. Newton v. Porter, 69 N. Y. 133. In such case of course the money has no earmark, but its identity will not be lost if it is shown to have been mingled with other money of the wrong-doer where it forms part of a general mass. Newton v. Porter, 69 N. Y. 133; Pennell v. Deffell, 4 De G. M. & G. 372; Re Hallett, 13 Ch. Div. 696; Holmes v. Oilman, 138 N. Y. 369. siCragie v. Hadley, 99 N. Y. 131; Metropolitan National Bank V. Loyd, 90 N. T. 530. CHAPTER XII. ESTATES. § 320. Jurisdiction of equity in. 321, Interest of legatee reached in equity. (a) When legatee may demand payment. (b) When estate fully administered. (c) When removal of cloud necessary. (d) When estate not subject to control of devisees, 322. Death of debtor extinguishes old remedies, 323. Fraudulent discontinuance of assignment. 324, Scope of bill in matters of estates. (a) To marshal assets— Property in another county. (b) To marshal assets when heirs non-resident. (c) To reach money in hands of commissioner. (d) To reach proceeds of sale. (e) To reach personal estate — Not followed when. (f) To reach personal estate in hands of executor, etc. [(g) To reach assets in hands of administrator and heirs. '(h) To reach surety of debtor. (i) To reach distributee's share. Xi) On bill for accounting — Decree against adminis- trator. Section 320. Jurisdiction of Equity In. — Ordi- narily the indebtedness of a deceased debtor is to be made through the methods of administration as pro- Tided by statute, and if an adequate legal remedy is thus provided equity will not assume jurisdiction on [the application of a creditor. This is by reason of the general principle of equity jurisprudence that equity will not grant relief where an adequate remedy other- wise exists, and in most cases courts of probate have full and complete power for all exigencies that arise.^' §321. Legacy When Reached in Equity. — (a) 1 Aldrich v. Annin, 54 Mich. 230; Eno v. Calder, 14 Eich. Bq. :(S. C.) 154. 390 § 321.] ESTATES. 391 The interest of a legatee in an estate may be reached through the instrumentality of a court of equity where the condition of the estate is such that the legatee can demand payment. In such case the court charged with the administration of the estate has, so far as the legacy is concerned, exhausted its functions.^ (b) Where an estate has been fully administered leav- ing judgment creditors unpaid, and land has been de- vised by the testator to various devisees, it may be reached by a bill in equity. In such case it is not tech- nically a proceeding to sell lands to pay debts, which could be done only in the probate court.^ The real estate of a deceased judgment debtor may be reached to satisfy the unpaid balance on a judg- ment.* (c) Where it appears that a decree will be finally necessary to remove a cloud upon title equity has been held to have jurisdiction in the first instance in order to avoid a multiplicity of suits, and to afford full and complete relief to the creditors in a single proceeding.* (d) Where an estate is devised in trust for the use of certain devisees named with a provision that the trust property in the hands of trustees shall not be subject to the control of the devisees or their creditors, and that it was the wish of the testator that the estate should not be subjected to the satisfaction of unjust judgments which the testator was under neither legal 2 Hallett V Thompson, 5 Paige, it does not operate to relieve tlie 583- Moores v. White, 3 Gratt. property from liability for his 139' And the suit may be by a debts, and it may be reached in foreign creditor. Green, Adx., v. equity. Smith v. Moore, 37 Ala. Creighton, 64 TJ. S. 90; Lang v. 327. .„ . , .oo > Brown 21 Ala. 179; Caldwell v. ^ Hall v. Brewer, 4,0 Ark 433;' Montgomery, 8 Ga 106. Where Macgill v. Hyatt 80 Md. 253 k wUl pSes that certain prop- " De Clerq v. Jackson, 103 111. ertv willed to a legatee shall not 658. . . ^ --,,,„ be subject to any indebtedness 5 Bank of Commerce v. Cham- he may have contracted, but be bers, 96 Mo. 459. used for his comfort and support, 393 EQUITABLE EEMEDIES. [§ 333. nor moral obligation to provide for, such estate cannot be reached by the creditors of the legatees.® The court is reluctant to decree a sale of the equita- ble interest of a judgment debtor in real estate where there is difficulty in determining the value and realiz- ing an adequate price of such interest, and will not do so if another satisfactory remedy exists.'^ Where an executor of a deceased debtor has paid money due on a bond given by the deceased debtor to an obligee on such bond an actual creditor of the de- ceased testator may file a bill to be satisfied out of such fund, where there is no other adequate remedy.^ §322. Death of Debtor— Effect as to Remedies. — By the death of a judgment debtor remedies which might have been pursued during his lifetime are ex- tinguished and a new class of rights and remedies are created. After his death the personal estate of the debtor is no longer liable to sale on execution and cred- itors are required to exhibit and establish their claims in the probate court and share in the distribution of the assets therein. In such case except where they have liens judgment creditors stand on the same footing as general creditors. In case of real estate the statute usually provides for a method of sale by the adminis- trator to pay debts.^ The mere fact that a creditor may have exhausted his legal remedies against the debtor while living does 6 Russell V. Milton, 133 Mass. rendered and performed, in favor 180. But see Bank of Com. v. of the distributees. Thomas v. Chambers, 96 Mo. 459, and Leake Sterns, 33 Ala. 137. The contln- V. Benson, 29 Gratt. 153. A cred- gent right which a person has In Itor -with an unsatisfied judg- the estate cannot be reached by ment against the administrator a creditor's bill. Smith v. Kear- de bonis non of his debtor can- ney, 2 Barb. (N. Y.) Ch. 533. not, in equity, reach assets of 7 Bryan v. May, 9 App. Cases the debtor in the hands of the (D. C.) 383. representative of the administra- s Stephens v. Harris, 6 Ired. tor in chief, against whom a de- Eq. 57. cree settling the estate has been »Winslowv.Leland,128 111. 304. § 333.] ESTATES. 393 not furnish a sufficient ground for a proceeding by a creditor's bill to reach personal estate while the ad- ministration of the estate of the debtor is in progress. This is particularly so where no fraud is charged against the intestate, and the only scope of the bill is a remedy against the fraud or the failure of duty of the administrator himself, and to reach property which the administrator is entitled to but which he has failed to get into his possession.^" § 323. Fraudulent Assignment — Discontinuance of. — A fraudulent assignment may be as obnoxious to the rights of creditors as a fraudulent conveyance, and in case of a fraudulent discontinuance of assignment proceedings a creditor's bill will lie to reach the assets of the insolvent estate. The assigned estate cannot be used to procure the assent of creditors in buying up their claims and thus procure a discontinuance where there is no restoration of the estate to the debtor ex- cept in form, but it is put beyond the reach of non- assenting creditors. Such a transaction is fraudulent and void. And in a suit by a creditor, after the assign- ment proceedings have been discontinued, to reach unadministered assets a creditor who has bought up the claims at a large discount is not, cannot set up against the fund the face value of the claims so pur- chased. He is only entitled to the amount expended." 10 Winslow V. Leland, 128 111. flcient can be assigned why that 304 338- Reitzell v. Miller, 25 lU. court cannot afCord the requisite 53-' Paschall V. Hailman, 4 Gilm. relief equity -will assist, but not 28 V Turney T. Gates, 12 111. 141; otherwise. Winslow v. Leland, Clinmian v. Hopkie, 78 111. 152. 128 111. 304, 340; Harris v Doug- TheTeMrai rule seems to be las, 64 111. 466; Blanchard v. that in case of a deceased person Williamson, 70 111. 647. prourt of equity will not ordi- ii American Exchange Nat. Bk Lrilv a^ume jurisdiction until v. Walker, 164 111. 135, affirming a cMmanHha 1 hare exhibited S. C. in 60 111. App. 510; cf. Howe hifclSm and had it allowed in v. Warren, 154 111. 227; Terhune ?he County (Probate) Court, v. Kean, 155 111. 506. Upon a dis- Then however, if any special continuance of the assignment reasons that may be deemed suf- the trust created by the assign- 394 EQUITABLE EEMEDIES. [§ 334. § 324. Scope of Bill in Matters of Estates. — (a) Where the court has jurisdiction of the parties under a bill filed to marshal the assets of a deceased debtor the validity of a conveyance made by the debtor may be determined, although the suit may be in a county other than that in which the land is situated.^ ^ (b) Under a bill by a creditor of a deceased debtor to marshal the assets and subject certain lands or their proceeds within the state to the payment of debts the heirs of the deceased debtor residing abroad may be made defendants as absent or non-resident parties, and if the land has been sold and the proceeds are in the hands of a court commissioner he is a necessary party, and particularly so if an injunction is sought against his paying over the money.^^ (c)Where money in the hands of a commissioner de- rived from a sale under a decree of court is paid over by him to the heirs of a deceased debtor under an order of court he will not be affected by the lis pendens of a creditor's suit to which he is not, as commissioner, a party and of which he has no knowledge.^* (d) Where a creditor of a deceased debtor is entitled to maintain a suit in equity against the heirs of such debtor on account of land inherited by them a decree may be rendered against the proceeds derived from a sale thereof which are in the hands of the court.*® (e) Personal estate will not be followed in the hands ment is terminated and the debt- and void, and in such a case a or again has his estate liable to court of equity has jutisdiction. be taken in satisfaction of his Howe v. Warren, supra. indebtedness as if no assignment 12 Coleman v. Franklin, 26 Ga. had been made. Howe v. War- 368. ren, supra. Where the assignor is Carrington v. Didier, 8 Gratt. assigned a large portion of his 260. estate to a third person in con- n Carrington v. Didier, 8 Gratt. sideration that the latter would 260. compromise the claims of cred- is Van Wezel v. WyckofC, 3 itors and procure their consent Sandf. Ch. 528. to a discontinuance is fraudulent § 334.J ESTATES. 395 of a third person to whom an administratrix has wrongfully paid in the absence of proof that the ad- ministratrix and sureties are irresponsible." (f) A court of equity has jurisdiction to reach the assets of a deceased debtor in the hands of the ex- ecutor and legatees to whom such assets have been delivered upon an assumption on their part to pay all debts against the estate." A creditor's bill may call for an accounting as to personality and the decree should make provision for its application in order to relieve real estate.^® Where the bill is filed for the distribution of a luna- tic's estate there cannot be a preference allowed to one creditor over another.^ ^ (g) A bill in equity may be maintained in behalf of the equitable holder of judgments against the admin- istrator and heirs of a deceased judgment debtor for the purpose of discovering assets of the intestate.^" (h) Before a creditor will be entitled to maintain: suit against the estate of an intestate surety of prin- cipal debtors the remedy against the principals must first be exhausted, and before proceeding against sure- ties of an intestate principal the estate of the principal coming to the hands of heirs and devisees should be first exhausted.^^ (i) Where the purpose of the bill is to reach a dis- tributee's share in an estate and subject the same to the payment of creditors it will be sustained if the plaintiff's remedy at law is not plain and adequate.^^ (j) Where a bill is filed by a creditor against an ex- le Jackson v. Forrest, 2 Barb. " Thomas v. Adams, 30 111. 37; Cjj 576 Carlton v. Felder, 6 Rich. Bq. 58. IT Moore v. Caldwell, 8 Rich. 22 a creditor's bill may be sus- j^._ 22 tained against the judgment 18 New V Bass, 92 Va. 383. debtor to reach his interest in 19 In re Adelia Otis, 101 N. T. his deceasedfather's^estate. Mc- 580, ' " ' " '"' Arthur v. Hoysradt, 11 Paige Ch. 20 Thomas v. Adams, 30 111. 37. 495. 296 EQUITABLE EEMEDIES. [§ 334, ecutor for an accounting and distribution of the per- sonal estate and by the pleading it is admitted that the executor has assets in his hands a decree against him is proper.^^ 23 Kennedy v. Creswell, 101 U. S. 641. Creditors may file a bill against the heirs and devisees for an account and the sale and dis- tribution of the real estate de- scended to make good any per- sonal assets. Thompson v. Brown, 4 John. Ch. 619. A cred- itor's bill may be sustained against executors and adminis- trators for a discovery and dis- tribution of assets. Thompson V. Brown, 4 John. Ch. 619; but not against the widow and heirs. Wilber v. Collier, 3 Barb. Ch. 427. A creditor has a right to come into a court of equity in an estate matter only for an ac- count and the discovery of as- sets, and on the ground of a trust in the executor or administrator. McKay v. Green, 3 John. Ch. 56. An action may be brought by a creditor under Wis. Rev. Stat. § 3835 on behalf of all in the Cir- cuit Court to reach and subject to sale any assets not included in the inventory which ought to be subjected to payment of debts. Richter v. Leiby, 75 N. W. 82. If an estate Is insolvent within the Tennessee statute, a creditors' bill may be filed in the Chancery Court, where the per- sonal estate is insufiacient to pay the debts, and has been ex- hausted, leaving unpaid debts, although there is real property sufficient to pay the unpaid debts. Bank of Blount County v. Smith, 48 S. W. 296. CHAPTER XIII. INJUNCTION. i 330. Injunction against debtor rarely granted. (a) To prevent removal of property from jurisdiction, (b) When there has been a fraudulent purchase. (c) When a lien or trust exists, and no other remedy. 331. Injunction against conspiracy to defraud. 332. Injunction against creditors, when. (a) Where a general assignment has been made. (b) Effect of assignment in a foreign state. (c) Jurisdiction in such cases. (d) Attachments In foreign states. (e) Where receiver has been appointed. (f) Where claim has been proven in estate proceeding. (g) Where claim is barred as domestic claim. (h) Where suit in foreign state to evade exemption laws. Section 330. Injunction Against Debtor Rarely Granted. —It is contrary to the policy of the law to permit a creditor who has no judgment to come into a court of equity and restrain a debtor from selling and disposing of his property and effects pending a common law action against him for the recovery of a judgment. The high and extraordinary power of a court of equity will not be exercised by writ of injunction for the pur- pose of restraining a debtor from enjoying and disposing of his property at the instance of a simple contract creditor. A contrary rule would vest courts of chan- cery with an arbitrary power, despotic in its nature, and liable to the grossest abuse growing out of the peculiar whims and idiosyncrasies of the particular judge before whom application might be made. The safe and well defined rules of law though sometimes tardy and slug- gish in motion have in them a guaranty of protection to citizens at large which would not exist if the property of 297 298 EQUITABLE EEMBDIBS. [§ 330. every debtor, pending litigation, protracted or other- wise, could be impounded at the instance of creditors. Suspected, or even actual, insolvency is not a quasi crime meriting sequestration except through the estab- lished forms of law. It were better that a dishonest debtor now and then succeed in his schemes of fraud than that the right of free alienation be trammeled and restricted.^ A few cases are to be found where an injunction has been granted restraining the disposition of the debtor's property pending a suit for the recovery of judgment against him, but the great weight of authority, as well as reasbn and public policy, is against it.^ (a) An apparent exception to the rule is where an attachment lien has been secured and an injunction granted to restrain the removal of the property from the jurisdiction of the officer holding it under the at- tachment, by other creditors having executions based on lUhl V. Dillon, 10 Md. 500; Schroetter v. Brown, 59 111. App. National Tradesmen's B'k v. 24. When a Creditors' Bill Wetmore, 124 N. Y. 241; State charges that the debtor has B'k V. Chatten, 59 Kan. 303. A choses in action in his posses- court of equity will not enjoin sion and asks for a discovery and the disposition of property al- the bill is taken for confessed, it leged to have been fraudulently is not error to enjoin the debtor transferred. This is based on the from disposing of his property, ground of a remedy at law ex- and to appoint a receiver. Run- isting. Shufeldt v. Boehm, 96 als v. Harding, 83 111. 75; cf. 111. 560; Phelps v. Foster, 18 111. First N. Bk v. Gage, 79 111. 207; 309; Bigelow v. Andress, 31 111. Dows v. McMichael, 2 Paige 345. 322; McNab v. Heald, 41 111. 326; If the defendant has in fact no Heacock v. Durand, 42 111. 230; property he cannot be injured by McConnel v. Dickson, 43 111. 99; the appointment of a receiver Horner v. Zimmerman, 45 111. 14. and the granting of an injunc- In Kansas a creditor cannot sus- tion. Bloodgood v. Clark, 4 tain an action to enjoin one in Paige 574. Whose name the title to land paid 2 Moore v. Kidder, 55 N. H. for by the debtor has been taken, 488; Cohen v. Meyers, 42 Ga. 46. from conveying it, until he has A court of equity will not inter- reduced his claim to judgment. vene by way of injunction, or State Bank v. Chatten, 59 Kan. otherwise, in behalf of a simple 303. The Issuance of an injunc- contract creditor upon the tion and the appointment of a ground that his debtor had made receiver under a Creditors' Bill a fraudulent transfer of his prop- are In the discretion of the court, erty. Bigelow v. Andress, 31 111. § 330.] INJUNCTION. 299 alleged fraudulent judgments.* (b) There is also another apparent exception where an action is brought 322. A creditor at large has no right to enjoin an alleged fraud- ulent grantee from selling or disposing of property. North Hudson B. & L. As. v. Childs, 86 Wis. 292; Reubens v. Joel, 13 N. Y. 488; Montague v. Horton, 12 Wis. 599; compare Damon v. Damon, 28 Wis. 510; Gibson v. Gibson, 46 Wis. 449; Way v. Way, 67 Wis. 662. The general rule is that an injunction will not issue at the instance of a general creditor to restrain the debtor from disposing of his property in fraud of creditors. Oakley v. Pound, 14 N. J. Bq. 178; Wiggins v. Armstrong, -2 Johns. Ch., 144; Hall v. Stryker, 27 N. Y. 596; Rinchey v. Stryker, 28 N. Y. 45; Frost v. Mott, 34 N. Y. 253. It should be observed, also, that in these cases suit was brought by the grantees against the attaching creditor and while not overruled in so far as a de- fending attaching creditor is concerned they are overruled by Whitney v. Davis, supra, so far as any affirmative action by the attaching creditor is concerned against alleged fraudulent grant- ees, and are not to be considered as authority for equitable action pending the attachment suit. In Thurber v. Blanck, 50 N. Y. 80, and Mechanics and Traders' Bank v. Dakin, 51 N. Y. 519, the right of the attaching creditor to an equitable action to remove fraudulent transfers is made to depend upon an exhaustion of legal remedies by the recovery of a judgment. Cf. Falconer v. Freeman, 4 Sandf. Ch. 565; Bates V Plousky 28 Hun, 112; Keller V. Payne, 22 Abb. N. C. 352; Tannenbaum v. Rosswog, 22 Abb. N. C. 346, 354; Witmer's Appeal, 45 Pa. St. 455; Gill v. Weston, 110 Pa. St. 305. 3 The general rule is that until the recovery of a judgment and the issuance of an execution no equitable action can be main- tained by an attaching creditor to set aside fraudulent transfers or to reach equitable assets. Whitney v. Davis, 148 N. Y. 256. This rule is not to be applied, however, where special circum- stances exist which require an equitable interposition: Thus where fraudulent judgments have been obtained and executions is- sued thereon and it is sought to use the judgment and executions to remove the attached property from the custody and control of the officer holding under the at- tachment it is evident that noth- ing but the equitable arm of the court can prevent the consum- mation of the wrong. This is not an Innovation of the general rule but a refusal to apply the rule under a state of facts de- manding a different remedy, im- perative In its nature. People ex rel. Cauffman v. VanBuren, 136 N. Y. 252. The earlier cases in New York base the equitable ac- tion of the court upon the ground that after the service of the attachment writ the person procuring It is no longer to be deemed a creditor at large but a creditor having a specific lien upon the goods attached. Reu- bens V. Joel, 13 N. Y. 488 (Code). Equity will assume jurisdiction of a bill for an injunction, filed by attaching creditors of an in- solvent debtor, and restrain pro- ceedings on execution against the property attached under a judgment against the debtor, in favor of another creditor, alleged to have been obtained by fraud, where all the material allega- tions of the bill, except fraud, are admitted. Heyneman v. Dannenberg, 6 Cal. 376. On a bill filed by an execution cred- itor, the court granted an injunc- tion and appointed a receiver. Fuller v. Taylor, 6 N. J. Eq. 301. 300 EQUITABLE REMEDIES. [§ 331. to rescind a sale procured by means of fraudulent repre- sentations. It is doubtful, however, if in such case the seller can be regarded as a creditor in the ordinary sense of the term. The sale having been procured by fraud no title passed and the injunction is granted to prevent a disposal of the property until a hearing can be had. Moreover in a proceeding of this nature the jurisdiction is based upon the equitable nature of the remedy de- manded in which injunction is only an incident, and the decree has no ancillary feature in it.* (c) It has been held that a creditor may enjoin the sale of the debtor's property under attachment against a third person be- fore recovering judgment where there exists a lien or trust, and it is shown that there is no other adequate available remedy. In this case there is also an element of original chancery jurisdiction, and the remedy invoked is purely equitable in effects.^ But the mere fact that a debtor is insolvent, and that without injunction the judgment would be lost is not a sufficient allegation that the creditor has no adequate legal remedy at law. A remedy may be ineffectual in its results and not inade- quate in nature.^ § 331. Injunction Against Conspiracy to De- fraud, — Following the rule in regard to an injunction to restrain the disposition by the debtor of his property pending suit as set forth in the preceding sections, and based upon substantially the same principles, a court of equity will not interfere to prevent an insolvent debtor from alienating his property to avoid payment of an existing or prospective debt, upon allegations of con- spiracy between the debtor and other persons. Carried to its logical results it would be but an evasion of the * Cohen v. Meyers, 42 Ga. 46. mereial Co., 51 IT. S. App. 663, 83 B Francis v. New York Com- Fed. Rep 769 8 Hall V. Joiner, 1 S. C. 186. § 333.] INJUNCTION-. 301 well established rules of equity under allegations ap- parently different but meaning the same in fact.'' § 332. Injunction Against Creditors, —(a) Courts of equity having jurisdiction over the person of a creditor may enjoin such creditor from prosecuting a suit in a foreign jurisdiction if the suit is under the di- rection and control of a resident creditor where the debtor has made a general assignment for the benefit of creditors. The action of the creditor in such case is in defiance of a statute the scope and purpose of which being to place all creditors on an equality. The public policy of a State, as expressed in its insolvent laws, is not to be thus disregarded and set at naught. Nor has such a proceeding any commendable feature in it such as exists in the ordinary race of the diligent in the discovery of assets. But a court of equity will not en- join a suit between the citizens of the State in which the court is sitting pending in another State unless a clear equity is made out requiring the interposition of the court to prevent a manifest wrong and injustice, or there is a clear waiver of the laws of the State where the parties reside.* (b) If, however, an assignment is T Where a creditor whose debt e Cunningham v. Butler, 142 was not due brought suit Mass. 47; Dehon v. Foster, 4 against his debtor and two other Allen 545; Lawrence v. Batchel- persons for a conspiracy to en- ler, 131 Mass. 504. This is based able the debtor to dispose of his upon the principle that the ac- property fraudulently so as to tion of a creditor in causing an hinder and defeat creditors in attachment in a foreign jurisdic- the collection of their debts an tion is for the purpose of defeat- action will not lie. The authori- Ing the operation of the insol- ties are clear that chancery will vent law and to prevent a por- not interfere to prevent an insol- tion of the debtor's property vent debtor from alienating his from coming to the hands of the property to avoid an existing or assignee to be distributed equal- prospective debt. It is also clear ly among creditors. Id. Com- a debtor has full dominion over pare Green v. Van Buskirk, 5 his property and may convert Wall. 307; 7 Wall. 139; Warner one species of property into an- v. Jaffray, 96 N. Y. 248; Law- other and it may be sold to a rence v. Batcheller, 131 Mass. purchaser. Adler v. Fenton, 65 504. In Warner v. Jaffray, su- xT g 4QY_ pra, the proceeding was based 303 EQUITABLE EEMEDIES. [§ 332. made in a foreign State such assignment will not be enforced in another State to the prejudice of citizens of the latter State where property of the debtor may be located, and where the forum is which is called upon to act. This appears to be the established law of this country sustained by the great weight of authority, and yet it is based upon a principle strangely inconsistent with what ought to be the public policy, if not in fact in violation of constitutional guaranties. It would seem that in a great commercial country like this a voluntary transfer of property in good faith, and for a commend- able purpose, should be recognized and enforced in every State. That the courts of a State should throw a shield of protection around their local or domestic cred- itors to the exclusion of foreign creditors, their equities being equal, has the appearance of shortsighted justice. It is also contrary to what has been the established law upon a voluntary assignment in equity would require that as be- New York, and it was held that tween a foreign assignee and for- a citizen of New York by attach- eign creditor the rights of the ment proceedings in Pennsylvan- assignee would be sustained, ia, obtained a lien that would not Cunningham v. Butler, supra, be affected by the assignment, This Is the rule as applied to re- and not subject to injunction. ceivers and creditors. Bugby v. The principle here announced is Atlantic, M. & 0. R., 86 Pa. St. based upon the idea that a vol- 291. A citizen of Massachusetts untary assignment is an act of knowing that his debtor had the assignor to which the credit- stopped payment and in antici- or can consent or not, as he pre- pation of insolvency proceedings fers, and until he becomes a against him made an assignment party to it he has a right to avail of his claim to a citizen of New himself of any legal right the York, without consideration, and laws of another State give him. the later before insolvency pro- It appears to be conceded that the ceedings were commenced law would be otherwise in Insol- brought suit in New York by vency proceedings where the attachment. On a bill filed by rights of parties are fixed by law. the assignee, in Massachusetts, But it would seem that when the the creditor was enjoined from Constitution of the United States prosecuting the suit in New (Art. 4 § 1) which provides that York. Cunningham v. Butler, full faith and credit shall be supra. As to the necessity of a given in each State to the public strong case being made out to acts,recordsand judicial proceed- enjoin citizens from prosecuting ings of ever other State, Is given a suit in a foreign State, see Car- proper consideration, justice and son v. Dunham, 149 Mass. 52. § 333.] INJUNCTION-. 303 of England for more than a century.^ (c) The juris- diction of the court over the subject matter, and over the person of the defendant gives the court power to make all needful orders concerning the property. A court of equity has jurisdiction in proper cases to pro- tect the interest of parties and may restrain such acts as will tend to injure those whose rights are to be pro- tected.^ ° (d) And based upon the same principle a court of equity will enjoin the prosecution of an attach- ment suit in a foreign State against the debtor where an assignee in insolvency has been appointed in the State of the domicile of the debtor and creditor.*^ (e) Where a receiver has been appointed over the property of two railroad companies one of them will not be per- mitted to go into a foreign jurisdiction and institute suit for the purpose of tying up funds belonging to the receivership.^^ (f) A creditor who has proved his claim in an administration suit is not permitted to go into an- other jurisdiction to prosecute the same claim.*^ (g) Suit in another State to collect from an intestate estate » Cunningham v. Butler, 142 Y. 248. A 'winding up order of Mass. 47; Burlock v. Taylor, 16 an insolvent corporation Is a Pick. 335; Bentley v. Whitte- suspension of all proceedings more, 4 C. B. Green 462; Sander- against the corporation wherever son V. Bradford, 10 N. H. 260. pending, and gives a right of in- 10 A court of equity having junction. Re International Pulp jurisdiction of the defendant can & Paper Co., L. R., 3 Ch. Div. compel or restrain a conveyance 594; Exparte Tait., L. R., 13 Bq. of his interest in personal or 311. real property although such 12 Vermont & C. R. Co. v. Ver- property is beyond the jurisdic- mont Cent. R. Co., 46 Vt. 792. tion of the court. Carver v. Peck, The receiver's right to enjoin a 131 Mass. 291; -Massie v. Watts, 6 foreclosure in a foreign State on Cranch. 148; Dehon v. Foster, 4 receivership property has been Allen 545; Sercomb v. Catlin, 128 denied. Walton v. Grand Belt 111 556. Copper Co., 56 Hun, 211; Moor v. ii Dehon v. Foster, 4 Allen 545. Anglo-Italian Bank, L. R., 10 Ch. And this doctrine has been ex- Div. 681. tended in its application to a is Hope v. Carnegie, L. R., 1 case of threatened insolvency. Ch. 320; Graham v. Maxwell, 1 Cunningham v. Butler, 142 Mass. MacN. & G. 71; Beauchamp v. 47 but not when a lien by at- Huntley, Jac. 546; Bustace v. tachment has already been pro- Lloyd, 25 Week. Rep. 211. This cured Warner v. JafCray, 96 N. would probably not be so if the 304 EQUITABLE REMEDIES. [§ 332. a claim barred by the statute of limitations of the dom- icile of the decedent but which is not barred by the statute of the State where brought will not be enjoined." (h) Where a suit by creditors of the same State as the debtor is brought in a foreign State in order to evade the exemption laws of the State of the debtor's residence its prosecution may properly be enjoined.^® creditor was of a foreign domicil and had not submitted his claim to administration. Re Boyse, L. R., 15 Ch. Div. 591; Carron Iron Co. V. Maclaren, 5 H. L., Cas. 416. 1* Thorndike v. Thomdilje, 142 III. 450; cf. Mitchell v. Shook, 72 111. 492; Mineral Point R. Co. v. Barron, 83 111. 365; Wabash R. Co. V. Dougan, 142 111. 248. For a note covering the authorities touching injunctions against suits in foreign jurisdictions, see 21 L. R. A. 71; Carter v. New- Orleans, 19 Fed. Rep. 659. For a valuable annotation of the law relating to injunctions against judgments for want of jurisdic- tion or judgments which are void see note to Texas Railway Co. v. Wright, 31 L. R. A., p. 200. IB Mumper v. Wilson, 72 la. 163; Hager v. Adams, 70 la. 746; Teager v. Landsley, 69 la. 725; Wilson V. Joseph, 107 Ind. 490; Keyser v. Rice, 47 Md. 203; Zim- merman v. Franke, 34 Kan. 650; Snook V. Snetzer, 25 Ohio St. 516; Illinois Central R, Co. v. Smith, 70 Miss. 344; Wabash Western R. Co. v. Seifert, 41 Mo. App. 35; Moton v. Hull, 77 Tex. 80; Allen v. Buchanan, 97 Ala. 399. But see Griffith v. Ltings- dale, 53 Ark. 71, where the par- ties were domiciled in different States. CHAPTER XIV. RECEIVERSHIP. S 350. Appointment of— General. (1) Power to appoint unquestioned. (2) Exercise of power in discretion of court. (3) Necessity for, how to be shown. (4) Basis of appointment must appear in each. case. 351. Appointment in discretion of court. 352. Prerequisites to appointment. (a) Actual bona fide indebtedness. (b) In case of corporation receiver, requirements, (o) In case of receiver of foreign corporation. (d) Application to proper court. (e) Location of property within jurisdiction. (f ) Jurisdictional facts appearing. (g) Danger of loss must appear. 353. Staftutory jurisdiction not exclusive. 354. Under what circumstances appointed. (a) Misconduct of administrators, etc. (b) Preservation of property. (c) Where assignee insolvent. (d) Deceased partner's estate. (e) Fraudulent assignment. (f) Where legal title involved. 355. Receiver in action to rescind sale for fraud, 356. Receiver in attachment proceedings. 357. Receiver in assignments. — Corporations. 358. Receiver in cases of fraudulent transfers. ■ 359. Receiver in partnership matters. 360. Receiver in supplementary proceedings. 361. Receiver in creditor's bills. 362. Receiver in building and loan associations. 363. Appeal from order appointing. 364. Powers of receiver. 365. Powers of receiver in fraudulent conveyances. 366. Powers of receiver, miscellaneous. 367. Powers of receiver, when he has not. (a) Foreign to set aside fraudulent conveyance, (b) To attack validity of judgment. (c) To annul contracts of corporation, when. 305 306 EQUITABLE EEMEDIBS. [§ 350. 368. Power to sue. 369. Power to sue In foreign jurisdiction. 370. Suits against receiver. 371. Liability of receiver. 372. Title of receiver in debtor's property. 373. Possession of receiver. 374. Right of creditor to collect unpaid subscription. 375. Claims against receiver and receivership funds. 376. Defense of receiver to claims. 377. Reservation of rights of creditor in presenting claim. 378. Time in which claim must be presented. 379. Validity of claims to receivership funds. 380. Claims against funds not allowed. 381. Claims entitled to preference. 382. Claims not entitled to preference. 383. Expenses against receivership funds. 384. Jurisdiction of court over property and parties. 385. Power of court over receiver and parties. 386. Receivership in bankruptcy. (a) Appointed after adjudication, when. (b) Where assignee in possession. (c) Where receiver already appointed in State court. (d) Rule as to concurrent jurisdiction. (e) Effect of possession of receiver in. (f) Receiver entitled to rents, when. (g) Receiver's right to money in marshal's hands. (h) Corporation in hands of receiver is involuntary bankrupt. (i) Receiver proper representative of bankrupt, (j) Cannot sue for property sold in fraud of act. (k) Right to sue in foreign jurisdiction. (1) He as receiver of creditor may prove debt, (m) Title good as against trustee, when, (n) Title good until impeached, (o) Cannot be receiver and trustee. 387. Distribution of receivership funds. Section 350. Appointment of— General. — It is common practice under a creditor's proceeding to ap- point a receiver over the property and effects of the debtor. The necessity for the appointment in all cases depends upon the condition of the property and the preservation of the same pending the litigation. The powers, duties and liability of the receiver appointed § 351. J EECEITEBSHIP. 307 in this class of suits are not essentially different from those pertaining a receivership in other cases. A few of the general and most important rules applicable to the subject are stated: (1) The power of a court of equity, or a court exer- cising chancery jurisdiction, in a proper case has been unquestioned almost since the first establishment of this branch of remedial jurisprudence. (2) The power to appoint being granted, the exercise of this power rests in the sound judicial discretion of the chancellor, based upon the recognized and estab- lished principles of law and equity and the practice of the court. (3) Whether the necessity exists is to be determined from the foundation laid therefor in the allegations of the bill or petition, or such other method of bringing the matter before the court as may be consistent with its established rules and practice. (4) The grounds upon which the appointment is ta be made must of course depend upon the nature of the proceeding, the objects sought thereby, and the pe- culiar facts and circumstances of each case in which the application is made. § 351. Appointment Rests in Discretion of Court.— The appointment of a receiver, as we have else- where seen, is not a matter of absolute right, but rests in the sound judicial discretion of the court, before whom the application is made, and usually the appellate court will not interfere with the appointment unless it clearly appears that there has been an abuse of this discretion. It has been said that in a creditor's pro- ceeding the appointment is a matter of course, but this pre-supposes a case presented in which the necessity for the affirmative action of the court is apparent, which is most usually the case in actions of this nature, whether they relate to the recovery and application of 308 EQUITABLE REMEDIES. [§ 351. property fraudulently conveyed or transferred, mort- gaged or concealed by the debtor to the injury of the creditor, or the sequestration of the property of an in- solvent corporation. It is not in all cases, however, even where the facts and circumstances make such a case that a court of equity would be justified in appointing a receiver, that it will do so. Thus if the contest is one that relates to a fund which the court, by reason of its jurisdiction over the parties, may impound or bring into court for safe keeping until the litigation is ended, it may properly do so.'^ Sometimes the legislature, as in Wisconsin, has placed a limitation on the right to an action for the appointment of a receiver by requiring the aggregate of plaintiff's claim to exceed a certain amount.^ But even if this were not statutory it would seem that a judicious exercise of the discretion vested in the court, or chancellor, would dictate a refusal to appoint where the plaintiff's judgment is for a small amount. The rule is well nigh universal that a simple contract creditor has no right to invoke the aid of a court of equity in the appointment of a receiver. The reason for this rule is that the court in the absence of a judg- 1 A broad discretion Is lodged Re Atty. Gen. v. Guardian Mut. in the circuit court as to ttie ap- L. Ins. Co., 77 N. Y. 272. The pointment of a receiver in cases court may properly refuse to ap- where executions have been re- point a receiver in a contest over turned unsatisfied. Dutton v. a fund which may be brought Thomas, 97 Mich. 93; Rankin v. into court. Continental Nat'l Rothschild, 78 Mich. 10. A veri- Bank v. Myerle, 24 App. Div. fled answer to a creditors' bill, 154; 48 N. Y. Supp. 718. in opposition to a motion for the " Under the Wisconsin Laws of appointment of a receiver, may 1897, ch. 334, a proceeding cannot be treated as an affidavit, to be instituted for the appoint- whlch the complainant may file ment of a receiver of an insol- counter affidavits. Rankin v. vent debtor where the aggregate Rothschild, 78 Mich. 10. The claims of the plaintiff are less appointment is not to be ques- than $200, exclusive of costs, tioned in a collateral proceeding. Woodard & Stone Co. v. Milnes, Davis v. Shearer, 90 Wis. 250; 101 Wis. 329. § 353.] EEOEIVEBSHIP. 3091 ment in most cases is unable to know whether legal remedies have been exhausted, or not. Besides as to the existence of an indebtedness, and the amount due, from the debtor, if anything, is purely a matter of legal adjudication in which a jury trial is a matter of consti- tutional guarantee.' § 352. Prerequisites to Appointment.— (a) It is equally true that there must be an actual bona fide indebtedness due and owing from the debtor. Thus a creditor who has accepted another party as payer in lieu of the debtor is not entitled to a receiver. And where his only claim against a debtor corporation is a dividend which has been declared it is not suffi- cient.* (b) To justify the appointment of a receiver of the assets of a corporation, in the absence of statutory grounds, at least four things should appear: (1) the creditor's claim against the corporation must be valid; (2) that there are assets to be reached that are appli- cable to the payment of the claim; (3) that the plaintiff has exhausted all adequate legal remedies, and (4) that there is danger of loss if a receiver be not appointed.^ 3 A simple contract creditor creditor as can apply for the ap- has no right to make appllca- polntment of a receiver. Leary tion for appointment of a re- v. Columbia River & P. S. N. Co., ceiver upon an allegation of in- 82 Fed. Rep. 775; Tenney v. solvency and the removal of its Ballard, W. & B. Hat Co., Supra, property from the state by a cor- s To justify the appointment of poration in the absence of stat- a receiver of a corporation on the utory authority. Smith-Dim- application of a creditor it mick Lumber Co. v. Teague should appear that his claim is (Ala ) 24 So. 4. Nor has a cred- valid, that there are assets to be itor who has accepted another reached applicable to the pay- party as payor of his claim. Ten- ment of his claim, and that he ney v Ballard W. & B. Hat Co., has exhausted his legal remedies, 17 Tex Civil App. 144. On the and there is danger of loss. Fal- return of an execution no prop- mouth Nat'l Bank v. Cape Cod ertv found a judgment creditor Ship Canal Co., 166 Mass. 550. mav apply for a receiver. M. Under Mo. Rev. Stat., 1889, sees. V Monarch Co. v. Bank of Har- 2VtfO, 2792, the appointment of a dinsburg (Ky.), 44 S. W. 956. receiver is proper where it ap- 4 A stockholder who claimed a pears that the officers have ap- dividend due him is not such a propriated the funds of the com- 310 EQUITABLE EEMEDIES. [§ 352. (c) The appointment of receivers for corporations- is not confined to domestic corporations, but where proper grounds for the exercise of jurisdiction exist a receiver may be appointed over a foreign corporation, as where it has fraudulently disposed of its property in the state where the application is made to the injury of creditors. Of course, in such a case, the granting of the order is subject to the same prerequisite essentials that are required in the matter of a domestic corpora- tion.® (d) The application for the appointment must in all cases be addressed to the proper court exercising juris- diction in receivership matters under facts constituting jurisdictional basis.'' (e) And the location of the property within the juris- diction of the court to which application is made is a proper jurisdictional element to be considered.^ pany to their own use. Glover V. St. Louis Mutual Bond Invest. Co., 138 Mo. 408. A receiver of a corporation may be appointed on the application of a creditor where it appears that the cor- poration is Insolvent and has executed an assignment under the Washington code of proced- ure, sec. 826. Oleson v. Bank of Tacoma, 15 Wash., 148. 6 A resident creditor of a for- eign insolvent corporation may have a receiver appointed of the assets within his state. Security Sav. & L. Ass'n v. Moore, 151 Ind. 174. Sections 58 and 59, ch. 53, W. Va. Code, authorize the circuit courts to appoint receiv- ers to wind up the affairs of for- eign corporations having prop- erty within that state and having contracted debts there. Swing V. Bently & Gerwlg Furn. Co. (W. V.) 31 S. E. 925. A judg- ment against the corporation is a prerequisite to the appoint- ment of a temporary receiver for an insolvent corporation. Uni- ted States Glass Co. v. Levett, 53 N. Y. Supp. 688. A judgment creditor of a foreign fraudulent corporation may apply for a re- ceiver of an insolvent that has fraudulently disposed of its prop- erty in a state where the appli- cation is made. Dreyfuss v. Charles Seale & Co., (N. Y.) 18 Misc., 551. 41 N. Y. Supp. 875. 7 Application for the appoint- ment of a receiver in the matter of a deceased person's estate is properly made to the probate division under the English Judi- catory Act of 1873. In re Parker, 54 L. J. Chancery, 694. The ap- pointment of a receiver of a rail- road in Florida in a suit in New York is improper. Kittel v. Au- gusta T. & G. R. Co., 78 Fed. Rep. 855. 8 The court has no power to appoint a receiver over property out of its jurisdiction. Baltimore B. & L. A. V. Alderson, 90 Fed. Rep., 142. |§ 353, 354.J EEOEIVEESHIP. 311 (f) In creditor's proceedings where the jurisdictional facts are sufficient the appointment of a receiver is a matter of right.® (g) There must be a necessity for the appointment, such as danger of loss or other injury to the plaintiff. Thus a receiver will not be appointed for a corporation on the application of a creditor where it has been dis- solved, and no insolvency is shown and where its trustees axe honest, faithful and competent, and no mismanage- ment or waste appears.^" § 353. Statutory Jurisdiction Not Exclusive.— "Where by statute a state officer is authorized to file a bill in equity and procure the appointment of a re- ceiver of an insolvent bank it does not take from a judgment creditor the right unless the statutory juris- diction is clearly intended to be exclusive." § 354. Under What Circumstances Appointed. — It is a proper exercise of the judicial functions of a court of equity to appoint a receiver : » The appointment of a receiv- granted. Smith-Dimmick Lum- er on the application of a judg- her Co. v. Teague (Ala.), 24 S. 4. ment creditor is a matter of A receiver will not be appointed right. In re Manchester & M. on the application of a creditor R. Co., L. R. 14 Chancery D., of a corporation which has been 645. The appointment of a re- dissolved in the absence of in- ceiver on the application of a solvency and where the statutory creditor not in an auxiliary pro- trustees are faithful and com- ceeding but in a proceeding petent and there is no misman- based upon a complaint where agement and waste. Weatherly the appointment is the sole re- v. Capital City Water Co., 115 lief is not authorized by the Ala. 156. common law practice nor by the " The fact that a state audi- Indiana statutes. State v. Union tor is given power to file a bill Nat'l Bk 145 Ind. 537. and procure the appointment 10 The appointment will not be of a receiver of an insolvent made on the application of a bank does not preclude a creditor who has been tendered judgment creditor from doing the amount due him. Miller, tae same. People v. Globe Sav. Nixon & Co V. Southern Land Bk., 14 Nat'l Corp. Rep. 723. The & L Co 53 S. C. 364. The ap- statutory remedy in N. Carolina nlication'for the appointment of given by ch. 26, sees, 5 and 6 of a receiver by a simple contract Rev. Code is exclusive and ousts creditor based only on allega- the former equity jurisdiction in tions of an insolvency and a re- the appointment of receivers on moval of property will not be the application of creditors. Von 312 EQUITABLE EEMBDIES. [§ 354. (a) In the administration of an estate where the con- duct of the administrator is such as to embajrass the collection of debts.i^ (b) Where it is necessary to preserve the property which is sought to be reached. The property may be of such character that a chief factor in its value is that it shall be kept in statu quo, or as a going concern, or it may be of such nature as to require constant care and attention.^^ (c) Where the debtor has made an assignment and the assignee is insolvent.^* Glahn v. DeRosset, 81 N. C. 467. 12 If an administrator of an es- tate hinders and embarrasses the collection of the debts of the es- tate, a court of chancery may ap- point a receiver to collect in the assets, and having acquired jur- isdiction, may settle the estate. DuVal V. Marshall, 30 Ark. 230. 13 A receiver is proper when it is necessary to preserve the property sought to be reached under a creditor's bill. Monroe We.. V. Schermerhom, Clark's Ch. 214; Bloodgood v. Clark, 4 Paige Ch. 575; Austin v. Figu- eira, 7 Paige Ch. 56. The answer of the defendant that he has no property of any kind will not prevent the appointment of a re- ceiver. Fuller V. Taylor, 6 N. J. Eq. 301. The appointment of a receiver under the New Jersey statutes of 1845 and 1864 relative to the application of the choses in action of a debtor to the pay- ment of the judgment of a cred- itor depends upon whether there is any property of the debtor held in trust for the debtor. Whitney v. Robbins, 17 N. J. Eq. 360. In a petition for the ap- pointment of a receiver of an insurance company an allega- tion that the assets are insufll- cient to justify the continuance in business and to pay its debts and liabilities is equivalent to an allegation that its further continuance in business would be hazardous to the persons Insured therein or to the public as re- quired by the statute. Rand, McNally & Co. v. Mutual Fire Ins. Co., 58 111. App. 528. Where a bill is filed and served to sequestrate the prop- erty of an insolvent corporation and appoint a receiver, and an order made and served requiring defendants to show cause why a receiver should not be appointed and forbidding interference with the property pending the mo- tion, it was held to be an equita- ble levy without the officers tak- ing manual possession. In such case the appointment of a re- ceiver by another court of co- ordinate jurisdiction is improp- er. Northwestern Iron Co. v. Land & River Imp. Co., 92 Wis. 487; cf Bragg v. Gaynor, 85 Wis. 468; Heidritter v. Elizabeth Oil Cloth Co., 112 U. S. 294; Bel- mont N. Co. V. Columbia I. & S. Co., 46 Fed. Rep. 336; Tom- linson, etc., Co. v. Sholto, 34 Fed. Rep. 380. A receiver takes possession of property subject to all valid liens at the time of his appointment. Mulcahey v. Strauss, 151 111. 70. 1* The appointment of a re- ceiver is proper when the debtor has made an assignment and the assignee is insolvent. Hag- garty v. Pittman, 1 Page Ch. 298. § 355.] EECEITEESHIP. 313 (d) Where it is sought to reach the judgment debt- or's interest in a deceased partner's estate." (e) Where the debtor has made an assignment with the intent to hinder, delay and defraud his creditors thereby. Fraudulent assignments as to creditors are (1) where the instrument provides for the assignor's con- tinuation in business; (2) where he reserves to himself a benefit in the distribution; (3) where his retaining possession is provided for; (4) where it provides for the payment of individual debts from partnership assets; (5) intentional omission of assets; where it includes fic- titious liabilities. Where the assignment is free from fraud on the part of the assignor a receiver may be ap- pointed (1) where the assignee refuses to take posses- sion or refuses to accept his duties; (2) where he is guilty of gross mismanagement of the property or funds.i« (f) Courts of equity are not disposed to interfere by the appointment of a receiver in the matters of real estate where the title and the possession are in third persons. This grows out of the fact that courts of equity do not, as a rule, undertake to determine be- tween contestants the legal title to real estate. In such cases, therefore, in order to secure the appoint- ment of a receiver, the plaintiff must establish his right by a clear and satisfactory showing of title to the prop- erty, a lien thereon or that it constitutes a special prop- erty or fund to which he has a right to resort to satisfy his judgment." § 355. Receiver in Action to Rescind for Fraud. While not strictly a creditor's proceeding but taking 15 On a Ijill to reach the judg- 149 (a) (b) and notes 2, 3 and i, ment debtor's interest in his de- and cases cited, ceased father's estate the ap- "Mays v. Rose Freeman's rointment of a receiver is prop- Chy. (Miss.) 703; Vanse v. Pr McArthur v. Hoysradt, 11 Woods, 46 Miss. 120; Lloyd v. Paige Ch. 495. Passingham, 16 Ves. Jr. 59. 10 Smith on Receivership, Sec. 314 EQUITABLE REMEDIES. [§§ 356, 357. somewhat of its nature, a suit may be maintained by the seller of goods to rescind the sale, based upon the fraud of the purchaser, and a receiver be appointed.^* § 356. Receiver in Attachment Proceedings. — As elsewhere seen a creditor's suit will, in some juris- dictions, be maintained in aid of an attachment lien where the remedy by such action appears to be inade- quate, and so, in such a case, a receiver may be ap- pointed, but it must clearly appear that the attach- ment is inadequate and inefficacious. Usually one of the grounds of attachment is that the debtor has fraudulently conveyed or transferred his property within a specified time, and the property is in cusfodia legis and the necessity of a receiver not always appar- ent." § 357. Receiver in Assignment. — The general creditors of an assignor may intervene in an attach- ment against the assignor within the statutory period and pray for a distribution of the proceeds of the prop- erty sold under the direction of the court among all the assignor's creditors, and pray for the appointment of a receiver to administer the trust where the assignment appears to be invalid, or where the assigned property becomes a trust fund by reason of a preference in the assignment, rendering the same invalid.^" And where the assets of an assigned estate have been transferred to a person who has bought up claims 18 The appointment is proper is The general rule is that a on the application of the seller receiver will not be appointed in of goods in an action brought by an attachment proceeding unless him to rescind the sale. Ex- the attachment is inadequate change Bk. of Macon v. H. B. and Inefficacious. Pearce v. Claflin & Co., 100 Ga. 640. In an Jennings, 94 Ala. 524; but see action to rescind the contract for Sackhoff v. Vandegrift, 98 Ala. fraudulent misrepresentations 192; Gassaway v. Heidenheimer the appointment of receiver is (Tex.) 37 S. W., 343. proper. Gibbs v. David, L. R. 20 20 Hockaday v. Drye (Ok.), 54 Equity, 373. Pac. 475. § 358- J EECEITEESHIP. 315 against the estate and who is to transfer the undisposed property after reimbursing himself in an agreed sum to persons named and the insolvency proceeding discon- tinued, a receiver will be appointed.^^ The usual grounds for the appointment of a receiver of a corporation on the application of creditors are mis- management of the affairs of the corporation by the corporate officers, or fraudulent disposition of its prop- erty and effects.^^ § 358. Appointment in Cases of Fraudulent Transfers. — It is a common practice in equitable pro- ceedings, either creditors' bills or bills in the nature of creditors' bills, and supplementary proceedings to ap- point a receiver where the property is of such nature as to render it necessary, or to facilitate the action of the court. The appointment is peculiarly appropriate if the transfer consists of personal property, where possession is an important factor of ownership, and where concealment or removal is so easily accom- plished. The exercise of this power pending an exam- ination as to the legal title to real estate, however, is always with greatest of caution on the part of the chancellor.^* 21 Warren v. Howe, 1 Chicago based on the judgment against li. J. Weekly, 177. an insolvent corporation ren- 22 A receiver may be properly dered upon notes executed by appointed on the application of the corporation to a director creditors on the ground of the while solvent for money actually mismanagement and disposition loaned the corporation, a re- of corporate property. U. S. ceiver will not be appointed, al- Rubber Co. v. American Oak though the corporation became Leather Co., 82 Fed. Rep. 248. Insolvent before judgment. Hud- In a suit by a creditor to set lun v. Blakeslee, 70 111. App. 664. aside a conveyance by a corpora- 23 When a bill is filed to set tion a receiver may be appointed aside a conveyance by a judg- and authorized to sell the prop- ment creditor in behalf of him- erty and franchises for the pur- self and all other creditors a pose of preventing a forfeiture. receiver may be appointed. Boston Invest. Co. v. Pacific Shand v. Hanley, 71 N. Y. 319. Short-Line Bridge Co., 104 la. The ordinary proceeding where 311 Under a creditor's bill a transfer is fraudulent is to ap- 316 EQUITABLE EEMEDIES. [§ 358. The equitable jurisdiction of a court may be invoked and a receiver appointed on the application of a cred- itor where the debtor has fraudulently conveyed his property to the injury of plaintiff as a creditor.^* And so where the debtor, with the intention of hin- dering, delaying and defrauding his creditors, has placed a fraudulent mortgage on his property, it is, as in the case of a conveyance absolute, a proper ground for appointment.^^ point a receiver and order him to seU and dispose of the prop- erty to the best advantage and pay the creditor, and not render a money decree. McLean v. Gary, 88 N. Y. 391. 24 A receiver is properly ap- pointed in an action involving the fraudulent character of a deed made by an executor and sole heir to a sister in settle- ment of an alleged debt due her. Brown v. Stanley, 105 Ga. 469. A receiver may be properly ap- pointed in an action by a judg- ment creditor attacking a con- veyance as fraudulent, which the judgment debtor has only an equity of redemption in the land. Freeman v. Stuart, 24 So. 31 (Ala.). In a proceeding by cred- itors, to set aside a conveyance of real property as fraudulent, a receiver will not be appointed where it appears that the build- ings and improvements on the property are properly cared for by the defendant who is solvent and capable of paying the rents received by him during the prog- ress of the suit. Spokane v. Amsterdamsch, Trustees Kan- toor, 18 Wash 81. Under Ohio Rev. Stat. Sections 5483-4, a re- ceiver will be appointed where a debtor has fraudulently or sus- piciously transferred his prop- erty to another person who is to hold it where it appears that there is danger of the prop- erty being misapplied. Hayes v. Moore, 5 Ohio N. P. 220. A re- ceiver may be appointed to take charge of property which has been transferred by a failing debtor for purpose of defraud- ing his creditors. Bomar v. Means, 53 S. C. 232. The re- ceiver may bring an action to set aside a transfer made by an insolvent partnership intended to be preferential. Stiefel v. Berlin, 45 N. Y. Supp. 746. 25 In an action by judgment creditors to subject to the lien of their judgments personal property in the possession of the debtor and claimed to have been fraudulently mortgaged a re- ceiver will be appointed, not- withstanding it appears that a remedy at law exists if such remedy is not exclusive. Hirsch V. Israel, 106 la. 498. The fraud- ulent mortgaging of personal property by a judgment debtor is a sufficient cause for the ap- pointment of a receiver. Hirsch V. Israel, 106 la. 498. An order appointing a receiver will not be set aside where the debtor in his application does not deny the al- legations of the bill charging the deed to have been made to hin- der, delay and defraud creditors, and to secure a fictitious debt Lyle V. Com. Nat'l. Bank, 93 Va. 487. A receiver may be appoint- ed in a creditor's action to take charge of property which has been fraudulently mortgaged by the debtor. Badger v. Sutton, 30 App. Div. 294; 52 N. Y. Supp. 16. §^ 359, 360.] EECEIVEESHIP. 317 § 359. Appoiutment in Partnership Matters. — A receiver may be appointed over the property and effects of a partnership on the application of a creditor, (a) where by reason of disagreement between the part- ners in the management of the business a loss is likely to ensue ;^® or (b) where each of two partners has under- taken to make an assignment to different assignees;^^ (c) in supplementary proceedings where a receiver has already been appointed in an action to dissolve the partnership.^® § 360. Receiver in Supplementary Proceedings. — In supplementary proceedings and proceedings in aid, which, in scope and purpose, are analogous to cred- itors' bills, provision is usually made by statute for the appointment of a receiver, and where no such pro- vision is made the rules and practice in chancery pre- vail. Receivers appointed in this class of proceedings are regarded as the representative of creditors and as such representative the scope of their power is meas- ured to some extent by the rights pertaining to cred- itors, and their power to impeach the debtor's fraudu- lent acts and transactions is generally conceded.^^ 26 Where unsecured creditors Y. 383; Porter v. Williams, 9 N. are Interested in partnership Y. 142; Bollard v. Taylor, 1 Jones funds and the partners are un- & S. 496; Barton v. Hosner, 24 able to agree, a receiver wiU be Hun, 467; Osgood v. Laytin, 48 annolnted Kolfe v. Burnham, Barb. 463; 5 Abb. Pr. N. S. 1; 110 mch 660 Miller v. Mackenzie, 29 N. J. Eq. 27 Where each partner under- 291; Hamlin v. Wright, 23 Wis. takes to make an assignment to 491; Dunham v Byrnes, 36 Mmn. different assignees a receiver -will 106. But see Higgins v. Gille- be appointed Fox v. Curtis, 176 sheiner, 26 N. J. Eq. 308 Inas- p"^ I2 much as the receiver is the rep- 28 In supplementary proceed- resentative of creditors his pro- Ings against the firm it is proper ceedings to subject the debtor s to appoint a receiver of the firm property to the payment of debts assets where a receiver has al- v^ill prevail only to so much ready been appointed in another thereof as may be req'uired to Iction to dissolve the firm. Price pay the •r'^'^jt^'^: .?e.,lias iio V Price, 21 App. Div. 597. concern vyith the debtor s fraud- 2runderwood v. Sutcliffe, 77 N. ulent _ transfers beyond this. Y 58- Bostwick v. Menck, 40 N. Bostwick v. Menck, 40 N. Y. 383. 318 EQUITABLE REMEDIES. [§361. Generally a receiver is proper in supplementary pro- ceedings or proceedings in aid of execution, where an order for an examination of the debtor has been served,^" and particularly so where it is necessary to preserve the property of the debtor.^^ § 361. Receivership in Proceedings by Creditor's Bills. — A receiver may be appointed in a proceeding by creditor's bill where it is necessary in order that the lien secured by the filing of the bill may be preserved and effectuated.*^ While he has the same right as creditors he has no extra power in his ofacial capacity beyond •what they possessed. Thus if the creditors hy -waiver or rati- fication have placed themselves in a position in which no re- lief could be granted the receiver will not be entitled to relief. Kennedy v. Thorp, 51 N. Y. 174. In such case the right of the receiver to recover is confined to such creditors as have not es- topped themselves from proceed- ing had no receiver been ap- pointed. Mandeville v. Avery, 124 N. Y. 376; Haynes v. Brooks, 116 N. Y. 487; Wright v. Nos- trand, 94 N. Y. 31; Becker v. Torrance, 31 N. Y. 631; Van Al- styne v. Cook, 25 N. Y. 489; Por- ter V. Williams, 9 N. Y. 142; Metcalf V. Del Valle, 64 Hun, 245; 137 N. Y. 545; Olney v. Tanner, 10 Fed. Rep. 101; 18 Do. 636. The only power of the court in a proceeding supple- mentary to execution as to an action by the judgment creditor is to make an order authoriz- ing the judgment creditor to in- stitute an action in the proper court to recover indebtedness due the judgment debtor and for- bid a transfer pending the action. High V. Bank of Commerce, 103 Cal. 525. 80 The appointment of a re- ceiver is proper in supplemental proceedings, although attachment proceedings are pending. Hanson V. Tripler, 3 Sandf. Super. Ct. 733. The appointment of a re- ceiver is proper in supplemental proceedings in New Jersey after an order for examination is served. Colton v. Bigelow, 41 N. J. L. 266. See also Holbrook v. Orgler, 40 N. Y. Super. Ct. 33; 49 Howard's Practice, 289. A debtor against whom a credit- or's bill is pending may be re- quired to appear before the Cir- cuit Court commissioner for ex- amination. Central Nat'l Bank v. Graham, (Mich.) 76 N. W. 1042. 31 The only purpose of the ap- pointment of a receiver in sup- plemental proceedings is to pre- serve the property. Rodman v. Harvey, 102 N. C. 1. The re- ceiver of a corporation in sup- plemental proceedings being in possession of its assets is a nec- essary party to an action against the corporation for injuries. Moore v. Los Angeles Iron & S. Co., 89 Fed. Rep. 73. 82 Where a lien is secured by the filing of a creditor's bill and it is averred that the appoint- ment is necessary in order to preserve and effectuate the lien by reason of the insolvency of the debtor and the disposition of the property by the defendant, a receiver may be appointed. Heard v. Murray, 93 Ala., 127; Morltz V. Miller, 87 Ala., 331; Thompson v. Tower Mnfg. Co., §§ 362, 363.] EEOEIVERSHIP. 31^ § 362. Receivership in Building and Loan Asso- ciations. — As a general rule a receiver in the matter of building and loan associations is appointed on the ap- plication of stockholders, who base their application upon their rights as members, rather than the relation- ship of debtor and creditor. Yet the element of trus- teeship is frequently prominent in such cases, as well as mismanagement, and a receivership proper and es- sential to the proper winding up of their business.^^ § 363. Appeal — From Order Appointing — Al- lowance of Claims. — As a general rule an appeal from an order appointing a receiver will not be reversed by the upper court where the evidence on which the ap- pointment was based is conflicting;** or where the property of the debtor is already in the hands of re- ceivers ; *^ or where the appointment was made without objection in the trial court.*® A receiver has no right to appeal from an order or decree giving certain claims a preference over a mortgage.*^ But creditors of an in- 87 Ala. 733. The appointment of 35 On a bill filed by creditors a receiver is proper after the fil- to reach the property of their ing of creditor's bill against a debtor where such property is judgment debtor. Central Nat'l already in the possession of a Bank v. Graham, (Mich.) 76 N. receiver and the validity of the W. 1042. See also Runals v. appointment is attacked, the ap- Harding, 83 111. 75. pellate court will not appoint or 33 In a proper case a receiver direct the appointment of a re- may be appointed over building ceiver upon reversing a judg- and loan associations. Hatfield ment dismissing the bill. Albion Y Cummings, (Ind.) 50 N. E. Malleable Invest. Co. v. First 817; Com. ex rel McCormick v. Nat'l Bk., (Mich.) 74 N. W. 515. Pennsylvania Bldg. & L. Asso., seA company which appears (C. P.) 20 Pa. Co. Ct. 589; lUi- on a rule to show cause why nois Bldg. & L. Asso. v. People, a receiver should not be ap- 173 111. 638; Sjoberg v. Security pointed and makes no objection Sav. & L. Asso., 75 N. W. (Minn.) to the appointment cannot claim 1116- Powers v. Blue Grass Bldg. on appeal that the appointment & L Asso. (C. C. D. Ky.) 86 was error. New York Life Ins. Fed. Rep. 705. Co. v. Davis, 94 Va. 427. 34 The court of appeal will not 37 The receiver has no right to interfere with the appointment appeal from a decree giving cer- of a receiver where the evidence tain claims preference over a is conflicting. Cameron v. Grove- mortgage. Bosworth v. Termin- land Improv. Co., (Wash.) 54 al R. A., 53 U. S. App. 302; 80 Pac. 1128. Fed. Rep. 969. 330 EQUITABLE EEMEDIES. [§§ 364, 365. solvent corporation whose assets, in part, consist of stock in another corporation may appeal from an order allowing claims against the latter company.^® § 364. Power of Receiver. — The usual source of the receiver's power is to be found in the order of his appointment. At the time of his appointment the pur- pose of the appointment, the duties he is expected to perform, and the general nature of the receivership, dictate the scope of the order and the power expedient to confer upon him. If the order is general, or not con- sidered comprehensive enough and the receiver is in doubt as to his power, the court is at all times open to him for instruction. Generally the receiver has power to compel by action the transfer to him of the funds and securities to which he is entitled, and to which he has title.39 The power of the receiver is derived from three sources, (1) the general rules of practice of courts of chancery or courts exercising chancery jurisdiction; (2) the order of appointment, and (3) in many cases statu- tory power is conferred. § 365. Power of Receiver in Fraudulent Con- veyance.' — The question has sometimes been raised as to the right of a receiver of the debtor to disaffirm and have set aside the fraudulent conveyances and trans- fers of the debtor. Upon this question there is not en- tire harmony in the decisions, and this lack of harmony grows out of two views of the receiver's relationship. He is considered so far as the debtor's property is con- cerned as the representative of the debtor, taking title only to such property as the debtor held at the time of 38 Blake v. Domestic Mnfg. Co., and to wliicli the receiver has (N. J. Eq.) 38 Atl. 241. acquired title. Armstrong v. 30 The receiver may by action McLean, 153 N. Y. 490; Farwell compel the transfer to him of v. Importers' Nat. Bk., 90 N. Y. funds and securities to which he 483. is entitled under an accounting I 366.] HEOEIVEESHIP. 331 the appointment, and that as to fraudulent transfers, the title having passed prior to the appointment, the receiver has no right to meddle therewith. On the con- trary, the receiver is considered by other courts as being the appointee of the court, a part of the machin- ery of the court, and ipso facto the representative of the creditors, and therefore may legally do and per- form all acts in the interest of creditors which they might do but for the appointment of the receiver. It is believed that the great weight of authority as well as sound reason is to the effect that a receiver has such right, and that the exercise of this right by him is in consonance with the general trend of equitable relief and the growing scope and power of receiverships in general and their efficiency and utility in the adminis- tration of equitable remedies. The position thus as- sumed has particular significance and relevancy in its application to insolvent corporations.*" The receiver of the property of an insolvent debtor and particularly if such debtor be a corporation, has the right, under the direction of the court, to impeach and annul in the interest of creditors all fraudulent conveyances and covinous transfers of the debtor's property. § 366. Powers of Receiver— Miscellaneous.— A^ receiver has power to avoid the transfer of goods by way of mortgage, made by a corporation, where the mortgage was not recorded within the time required by^ the statute.** 40 Hamlin v. Wright, 23 Wis. Co. v. McMillin, 119 N. Y. 46; 491- Brdall v. Atwood, 79 Wis. Kennedy v. Thorp, 51 N. Y. 174; 1- Dunham v. Byrnes, 36 Minn. Porter v. Williams, 9 N. Y. 142; 106- Olney v. Tanner, 10 Fed. Heineman v. Hart, 55 Mich. 64; Ren 101- 18 bo. 636; MiUer v. Glenny v. Langdon, 98 U. S. 20; Mackenzie 29 N. J. Eq. 291; Trimble v. Woodhead, 102 U. S. Higgins V.' Gillesheiner, 26 N. J. 647; Moyer v. Dewey, 103 U. S. Eq. 308; Mandeville V. Avery, 124 301. NY 376- Stephens V. Perrine, 4i Franklm Natl Bank v. 143 N. Y. 476; Pittsburgh Carbon Whitehead, 149 Ind. 560. 332 EQUITABLE EEMEDIES. [§ 366, The receiver in a supplemental proceeding may at- tack the fraudulent transfers of the debtor where the purpose was to give a preference. (See statute.)*^ The power of a receiver conferred by N. Y. Stat., 1858, ch. 314, amended by N. Y. Laws, 1894, ch. 740, to follow specific property conveyed in fraud of creditors and recover its value, is not authority for the receiver in supplemental proceedings to sue at law, based on a fraudulent conspiracy.*' The receiver has power to avoid the assignment of a chose in action,** but has no power to take forcible pos- session of property in the hands of a third person;** nor has the receiver of an insolvent bank power to allow claims of creditors.*® A partnership receiver should not be authorized in advance to prosecute and defend suits without further order;*'' nor has a court of equity power to authorize the appointment of a receiver in a partnership proceed- ing to sell real estate of the firm in another state.** A partnership receiver holding funds for the benefit of all creditors may prevent the levy of an attachment in a suit commenced before the appointment.** The receiver has power to impeach a fraudulent mortgage in behalf of creditors.^" Where a judgment has been confessed in fraud of creditors a receiver may be appointed with power to attack such confession.^^ *2Stiefel T. Berlin, 51 N. Y. ^s Dunlap v. Byers, 110 Mich. Supp. 147. 109. 48 Ward V. Petrie, 157 N. Y. *8 Myers v. Myers, 15 App. Div. 301. 448; 44 N. Y. Supp. 513. 4* Coleman v. Roffi, 45 N. J. bo Mandeville v. Avery, 124 N. Li. 7. Y. 376; Hedges v. Polhemus, 30 40 Dewey v. Finn, 18 N. Y. N. Y. S. 556; Kuser v. Wright, Weekly Dig. 558. 52 N J. Eq. 825; Farmers' L. & 48 Palmer v. Bank of Zum- T. Co. v. Baker, 20 Misc. N. Y. brota, (Minn.) 75 N. W. 380. 387; Bayne v Brewer Pottery Co.^ 47 Witherbee v. Witherbee, 17 90 Fed. Rep. 754. App. Div. 181; 45 N. Y Supp. 297. " Stern v. Austern, 120 N. C, 107. § 367.] EECEIVEESHIP. 323 The receiver of an insolvent debtor has power to set aside a fraudulent sale of such debtor of his personal property and may replevy the property or sue the ven- dee for its value.^^ The legal authority of a receiver is co-extensive only with the jurisdiction of the court in which he was ap- pointed in regard to the priority of creditors and the property or funds of a non-resident debtor not reduced to his possession.^^ A person dealing with a receiver must take notice that his powers are limited and that he is constantly subject to the orders of court.^* § 367. "When He Has Not Power.— (a) He has no power if a foreign receiver to maintain a suit to set aside a fraudulent conveyance,^® (b) Nor has a receiver power to attack the validity of judgments against a firm on the ground of fraud. In such case he occupies the same position as to cred- itors the firm did. The statute, however, sometimes confers this power, changing the general rule.^® (c) He has no general power to maintain a bill to set aside and annul the contracts of an insolvent corpora- tion in a case where the corporation itself would be bound. This would not be true if the acts complained of were forbidden by law." 52 Rossman v. Mitchell, the same position as to creditors (Minn.) 75 N. W. 1053. the firm did. Weber v. Weber, 63 Security Sav. & L. A. T. 90 Wis. 46. It is otherwise in Moore, 151 Ind. 174. supplementary proceedings 5* Brunner, Monds & Co. v. where the statute confers such Central Glass Co., 18 Ind. App. power. Id. -]^Y4 , 57 A receiver has no power to 55 A foreign receiver cannot maintain a bill to set aside con- maintain a suit to set aside a tracts by an insolvent corpora- fraudulent conveyance. Filkins tion where the latter was bound, v Nunnemacher, 81 Wis. 91. Hyde v. Lynde, 4 N. Y. 387; but 'seA receiver in a proceeding not so if the acts were forbid- to dissolve a copartnership can- den by law. Leavitt v. Palmer, not attack the Validity of 3udg- 3 Comst 19; Gillett v. Moody, 3 ments against the firm on the Comst. 479. ground of fraud. He occupies 324 EQUITABLE REMEDIES. [§ 368. § 368. Receiver's Power to Sue. — The receiver's power to sue is usually given in specific terms, or by implication from the general terms of the order, and the nature of the business. There would seem to be no serious question as to his power in this regard unless the receiver be a mere custodian of the property pend- ing litigation, and particularly so where the suit is within the state of the receiver's appointment.^* Suit by a receiver against a party to whom prop- erty has been transferred by the debtor to secure ad- vances will not be maintained when it appears that the amount due the pledger is greater than the value of the property held by him.^* It should be borne in mind that where the receiver seeks to reach property which has passed into the hands of third persons he must do so by a direct pro- ceeding instituted by him for that purpose in which such third persons are made defendants.®" An order appointing a receiver in supplemental pro- ceeding authorizing him to bring suit on a claim in favor of the debtor from a third person is not objection- able by reason of the extinguishment of the indebted- ness by agreement between the parties. If there is such an agreement it can be shown on the trial."^ 58 A receiver appointed in sup- and profits. Wright v. Nostrand, plementary proceedings may 98 N. Y. 669. A receiver of an maintain a bill against a mort- insolvent bank may properly gagee where it appears that the prosecute and defend actions in mortgage was not filed for rec- the name of the bank, though ord. As between the mortgagor there is a question whether he and creditor such a mortgage has Is clothed with a legal title to no existence, the mortgagor can- the property for want of a writ- not thereafter take possession ten assignment. Smith v. U. S. and sell the property. Stephens v. Express Co., 135 III. 279. Perrine, 143 N. Y. 476; Karst v. 09 Clymer v. Patterson, 52 N. Gane, 136 N. Y. 316; Tremaine J. Bq. 188; Cf. Wehle v. Koch, V. Mortimer, 128 N. Y. 1. In 46 N. Y. S. R. 24, 19 N. Y. Supp. an action by a receiver to set 189. aside a conveyance he must show oo Wright v. Nostrand, 94 N. Y. proceedings necessary to vest in 31. him the title of the real estate ei Globe Phosphate Co. v. Pin- before he is entitled to the rents son, 52 S. C. 185. § 369.] EBCEITBESHIP. 335 In supplemental proceedings a receiver has not power to maintain suit at law for damages growing out of a conspiracy to prevent the collection of the debt.'^ Leave need not be granted to file a creditor's bill against the corporation and its receiver if the leave is asked in the same court in which the receiver was ap- pointed, though not in that proceeding if the suit was not instituted to wind up the affairs of the corpora- tion.''^ In a suit by a partnership receiver to set aside a fraudulent transfer as to creditors he is entitled to a sufficient amount to pay the judgment on which he was appointed and the expenses of the receivership.®* The limitation statute does not run in favor of a re- ceiver of an insolvent corporation which has been dis- solved against a claim which is not barred at the time of the appointment so long as the receivership is a con- tinuing one.®^ § 369. Power to Sue in Foreign Jurisdiction. — There is, however, considerable conflict in the authori- ties concerning the receiver's power to sue in a foreign jurisdiction. It was formerly contended that the receiv- er, being the mere hand of the court, had no power to sue or do other acts in his official capacity beyond the state of his appointment. The general trend of decis- ions, however, of later years, based upon the growing doctrine of comity and constitutional guarantees, is de- cidedly in favor of the receiver's power. In all mat- ters except of strictly local concern the commercial relations of citizens of one state with those of another, and in all the incidents growing out of such relation- ship, there should be no more restrictions and impedi- 62 Ward V. Petrie, 157 N. Y. «* Stiefel v. Berlin, 28 App. Div. 301 103. 63 Sligt V. Shelton S. W. R. «" Ludington v. Thompson, 153 Co. (Wash.) 54 Pac. 763. N. Y. 499. .336 EQUITABLE REMEDIES. [§ 370. ments than are absolutely required. To hold that a receiver, for instance, of a corporation, having indebted- ness due it frequently in many other states, has no power to enforce collection thereof by suit in a foreign state is a short sighted policy, supported by the merest technicality and wholly at variance with the general scope and purpose of a receivership. It would seem that the doors of courts should be as open to a foreign receiver, who comes duly authenticated, as to a non- resident person or corporation, where the purpose is to reach assets belonging to or an indebtedness due the debtor. Some courts on the ground of comity permit a foreign receiver to sue except where their own domes- tic creditors would be injured thereby.®^ § 370. Suits Against Receiver. — Where it is con- sidered necessary to the attainment of justice and par- se The receiver has no power to bring suits on choses in ac- tion in foreign jurisdictions, in the absence of statutory power. Amy V. Manning, 149 Mass. 487. The power of the receiver to sue in a foreign jurisdiction was not In fact an issue to be determined In the above case and what the court said was dictum. Cf. Har- vey V. Varney, 104 Mass. 436; Booth V. Clark, 17 How. 322; Brigham v. Luddington, 12 Blatchf. 237; Yeager v. Wallace, 44 Pa. St. 294; Farmers, etc. v. Needles, 52 Mo. 17; Hazard v. Durant, 19 Fed. Rep. 471; 01- ney v. Tanner, 10 Fed. Rep. 101; 21 Blatchf. 540; Day v. Postal Tel. Co., 66 Md. 854; Bartlett v. Wilbur, 53 Md. 485; Graydon v. Church, 7 Mich. 36. A receiver may sue in a foreign state to collect an assessment on premi- um notes. Parker v. Stoughton Mill Co., 91 Wis. 174. But see Oilman v. Ketcham, 84 Wis. 60; Filklns V. Nunnemacher, 81 Wis. 91. A receiver appointed in a foreign court, for the benefit of creditors therein residing, can only sue in California on the ground of comity, but comity does not apply as against resi- dents of the state where the re- ceiver seeks to bring suit. In this case the receiver had re- duced the property to possession and had taken it rightfully with him into a foreign state, where it was taken from him by local creditors. Humphreys v. Hop- kins, 81 Cal. 551. See contra Chicago & Milwaukee R. R. Co. V. Keokuk Northern Line Pack- et Co., 108 111. 317. The receivers of a savings bank may maintain a bill in equity, against a person who is in possession of a note through an abuse of power by the treasurer of the bank, to compel the surrender of the note. Holden v. Upton, 134 Mass. 177. Very careful consideration has been given to the subject of the power of a receiver to sue in a foreign jurisdiction and the English and American authori- ties collected upon the subject in Smith on Receiverships, Sec. 73. §§ 371, 372.] EECEIVEESHIP. 337 ticularly where complicated accounts are involved or the facts are disputed it is sometimes expedient that the court permit the receiver to be sued where the is- sues can be properly raised and tried. The policy of the law, however, is against the suing of the receiver and his consequent harassing in the receivership af- fairs by litigation, especially in other jurisdictions, without permission of the court appointing' the re- <;eiver. This policy of the law is based upon the funda- mental equity doctrine that jurisdiction properly ob- tained by the court for one purpose will be retained for the purpose of adjusting the rights of all parties in in- terest. Moreover the appointment of the receiver and the dominion over the res assumed by the court does not prevent in any case an intervention by a party in interest who will be heard inter esse suo. ®^ § 371. Liability of Receiver. — Under a Minnesota involuntary insolvency proceeding under the general statute of 1894, ch. 76, the lessor of a bank is entitled to damages growing out of the repudiation by the re- ceiver of its executory contract and the abandonment of premises.*'* A receiver is not liable to a judgment creditor for losses on his judgment caused by the expenses incurred by the receiver.®^ § 372. Title of Receiver to Debtor's Property and Effects. — Upon the appointment and qualification of a receiver he acquires dominion — usually denomin- ated title — over the property and effects of the debtor, or, at least, so much thereof as is embraced within the 67 After the appointment of a ceiver cannot be garnisheed with- recelver of a corporation a cred- out leave of the court. Blum v. itor seeking to collect his debt Van Vechten, 92 Wis. 378. must apply to the court making es Minneapolis Base Ball Co. v. Se appointment for leave to City Bank, (Minn.) 76 N. W. hring an action against the re- 1024. ^ „,, , „ _, ceiver or come in and be ex- «9 Second Ward Say. Bk. v. amined pro inter esse suo. Rich- Schranck, 100 Wis. 480. ards V. People, 81 111. 551. A re- 3^8 EQUITABLE HEMEDIES. [§ 372. scope of the suit. It was formerly considered neces- sary in a proceeding of this nature to compel an assign- ment by the debtor of his property to the receiver, but this is no longer considered necessary, and particularly so in supplementary proceedings. Pending suit the custody of the property is in the court acting through its receiver and its orders are as efficacious and binding as if the legal title was vested in the receiver. In fact, the filing of a creditors' bill and the service of process create an equitable lien on the debtor's property, which is in effect an equitable levy.''" The receiver by his appointment obtains no power and dominion over such property as the debtor has only a naked possession of, or where he holds as trustee,, or the property is exempt.''^ 70 The receiver appointed in a creditor's suit in a foreign state has no title to property in an- other state. Filkins v. Nunne- macher, 81 Wis. 91. A receiver in a supplementary proceeding is vested with the title to per- sonal property only. (See Stat- ute.) Skinner v. Terhune, 45 N. J. Bq. 565. A decree on the dis- solution of an insurance com- pany appointing a receiver vests in him the property of the cor- poration. Re Atty. Gen. v. Guar- dian Mut. Life Ins. Co., 77 N. Y. 272. On the appointment of a receiver and his qualifying the judgment debtor's property vest- ed in him. Armstrong v. Mc- Lean, 153 N. Y. 490. Cf. Bost- ■wick V. Menck, 40 N. Y. 383. That the filing of the bill is in effect an equitable levy see Mil- ler V. Sherry, 69 U. S. (10 Wall.) 237; Bayard v. Hoffman, 4 Johns. Ch. 450; Beck v. Burdett, 1 Paige 305; Storm v. Waddell, 2 Sandf. Ch. 494; Corning v. White, 2 Paige 567; Bdgell v. Haywood, 3 Atk. 352; Tilford v. Burnham, 7 Dana 109. It the debtor's prop- erty is in the hands of a third person under a bona fide trans- fer or he has placed thereon in good faith an incumbrance the receiver takes subject thereto. In other words his rights are to be determined by the rights of the debtor at the time of the appointment. Chautauqua Co. Bk. V. Risley, 19 N. Y. 369; Bunn V. Fonda, 2 N. Y. Code Rep. 70; Steele' V. Sturges, 5 Abb. Pr. 442. As to the title of the receiver to choses in action in a foreign jurisdiction see Amy v. Man- ning, 149 Mass. 487, where it is held they do not pass. As against a judgment creditor, who is not a party to a creditor's suit, the title of the receiver ap- pointed in such suit, to whom the debtor makes an assignment of his property, does not relate to the time of filing of the bill, but vests by force of the as- signment only, and as of that date. Watson v. New York Cen- tral R. R. Co., 6 Abb. (N. Y.) Pr. N. S. 91. 71 Hancock v. Sears, 93 N. Y. 79; Underwood v. Sutcliffe, 77 N. Y. 58; Tillotson v. Wolcott, 48 N. Y. 188; Campbell v. Foster, § 373.] EEOEITEESHIP. 329 A receiver may make claim to payments made upon a mortgage of land belonging to the judgment debtor's wifeJ^ A receiver has no interest or claim on property ac- quired by the judgment debtor after the appointment.'^^ No valid title can be acquired to land at a sale for taxes where such land is in the possession of the re- ceiver.^* Where a receiver of a corporation has taken posses- sion of all of its property and assets a creditor of an- other state cannot attach any of its property that has passed to the receiver.''^ The title of a foreign receiver if by virtue of a volun- tary conveyance or a transfer is good aginst every one, even domestic creditors. But where it depends on a foreign statute or judgment it will be sustained against all except domestic creditors.'''' Where property has been transferred by the debtor prior to the appointment of a receiver the receiver merely acquires a right to set aside the transfer, if it was in fraud of creditors.'^'' § 373. Possession of Receiver. — Where execution has been issued upon a valid judgment recovered before the receiver's appointment the court may permit a sale of the real property of an insolvent corporation there- under.'^^ The possession of property by a receiver in a suit 35 N. Y. 361; Graff v. Bonnett, Co. v. Bristol Land Co., 88 Fed. 31 N Y. 9; Fumin v. Malloy, 1 Rep. 134. Jones & S. 382; Scott v. Nevins, '5 Merchants' Nat'l Bk. v. 6 Duer 672; Cooney v. Cooney, Pennsylvania S. Co., 57 N. J. Bq. 65 Barb. 524; Gardner v. Smith, 336. 29 Barb 68. 'sMabon v. Ongley Blec. Co., 72 Walsh V. Rosso, (N. J. Ea.) 156 N. Y. 196. But see Filkins v. 41 Atl 669 Nunnemacher, 81 Wis. 91. 73 Thorn' V. Fellows, 5 N. Y. 77 Thomas v. Van Meter, 153 ■Weekly Dig. 473. lU- ^^■ 74 virffinla T & C. S. & I. '^ Pelletire v. Greenville Lum- ^ ■ ber Co., 123 N. C. 596. 330 EQUITABLE REMEDIES. [§§ 374, 375. which is not successful should be returned to the trans- ferees of the property and not turned over to the sheriff holding executions.''* § 374. Right of Creditor to Recover Unpaid Stock Subscriptions.^ — Notwithstanding a receiver has been appointed for an insolvent corporation, creditors thereof may enforce the unpaid stock subscriptions.^" While there is not entire harmony in the cases on this subject the right should Unquestionably exist where the receiver neglects or refuses to sue. § 375. Claims Against Receiver and Receiver- ship Funds — Allowance of. — The receiver in the al- lowance or disallowance of claims against receiver- ship funds in his hands, accruing prior to his appoint- ment, and before insolvency in the case of an insurance company, occupies the position of the corporation.*^ And when so directed may hear and allow or disallow claims presented prior to the expiration of the time fixed by law.*^ Where claims are disputed it is proper for the court to authorize suit to be brought against a receiver to test the validity thereof.** The mere fact 79 Home Bank v. J. B. Brews- creditor, may be enforced by ter & Co., 53 N. Y. Supp. 867. such creditor, notwithstanding 80 The creditors of an insolv- the appointment of a receiver of ent corporation of which a re- the corporation. American Free- ceiver has been appointed under hold Land Mortg. Co. v. Wood- the Minn, general statute, 1894, worth (C. C. N. D. N. Y.) 82 Ch. 76, may enforce the stock Fed. Rep. 269. liability of its stockholders. si Tihe receiver of an insurance Harper v. Carroll, 66 Minn. 487; company occupies the position of Modified in 69 N. W. 1069. A the corporation as to the allow- creditor may maintain a suit to ance or disallowance of claims recover unpaid subscriptions to which accrued before the insolv- stock notwithstanding the pend- enoy of the corporation and his ency of a foreclosure proceeding appointment as receiver. Gray where a receiver has already v. Blum, 55 N. J. Eq. 553. "been appointed. Lea v. Iron Belt 82 The receiver may hear and Mercantile Co., (Ala.) 24 S. 28. allow or disallow claims prior The statutory liability of a to the expiration of the statu- stockholder in a corporation, un- tory period. Bissell v. Heath, 98 der the Kansas statute giving a Mich. 472. right of action to the judgment sa it is proper for the court oa §§ 376, 377.] EEOEIVEESHIP. 331 of obtaining judgment by default against the debtor, brought after the appointment, does not entitle the claim to be exhibited without further evidence of its bojia fide character.®* § 376. Defenses to Claims by Receivers. — A receiver of a corporation not only represents the cor- poration but represents its creditors as well, and is en- titled to make any defense to a claim presented for al- lowance which the creditors and the corporation may have made, and even, in some cases, may interpose a defense which the corporation itself would have been estopped from making. He is not estopped from assert- ing as a defense to a conditional sale or chattel mortgage by a recital contained in the instrument that it was not properly recorded.*^ It is not a defense, how- ever, in a suit by a stockholder to foreclose a chattel mortgage given by a corporation over which a receiver has been appointed, that he has a claim against the stockholder to the extent of the value of his stock.*® § 377. Reservation of Rights of Creditor in Claim Presented. — A claim filed with the receiver of a corporation by a non-resident creditor, with an ex- press reservation or condition that by filing it no rights acquired by an attachment in another state are to be a disputed claim to authorize a a claim which creditors are en- suit to be brought against the titled to, though the corporation receiver regarding the validity itself might have been estopped, thereof Ludington v. Thomp- Hamor v. Taylor-Rice Engi- son 153 N. Y. 499. neering Co., 84 Fed. Rep. 392. 84 Where a receiver has been The receiver is not estopped to discharged and the receivership claim that a conditional sale or property has been turned back, chattel mortgage was not prop- a judgment against the receiver erly recorded by a recital con- is conclusive as to the existence tained in the instrument. Re of the claim, and also as to the Wilcox & H. Co., 70 Conn. 220. amount Garrison v. Texas & se in a suit by a stockholder Pac R Co., 10 Tex. Civil App. to foreclose a chattel mortgage 136- Danforth v National Chem- given by a corporation it is not leal Co 68 Minn. 308. the defense by the receiver that 85 A receiver who represents he has a claim against the stock- creditors and the corporation it- holder to the value of his stock, self may make any defense to Kane v. Lodor, 56 N. J. Bq. 268. 333 EQUITABLE EEMEDIES. [§ 378. lost, does not affect rights acquired by such attach- ment.^'' § 378. The Time Within Which Claims Must be Presented. — The court usually fixes a time in which claims are to be presented to the receiver for allow- ance, and such an order must be complied with or the claim will be barred.*® The statement thus required must give the nature of the claim and the amount due thereon.®® The rule requiring claims to be exhibited within a certain specified time is not inexorable, and where a sufficient excuse is given for not doing so the claim may be permitted to be filed and the claimant en- titled to participate in the distribution on an equality with other creditors.^" Where a notice for the presen- tation of claims has been given in the Federal court it does not preclude a claimant from prosecuting his claim to a judgment in a state court in an action pend- ing therein.®^ Such an order for the presentation of 87 Linville v. Hadden, (Md.) 41 9o A claim against an Insolvent Atl. 1097. corporation where the facts jus- 88 Where a court orders that tify will be permitted to file his all claims should be presented claim after the expiration of the by intervention by a certain day term limited by the court and the order must be complied with be allowed a preferential divl- or the claim will be barred. dend from the receivership funds Dillingham v. Kelly, 8 Tex. Civ. to such an extent as to put him App. 113. The order appointing on an equality with other cred- a receiver fixes the time to which itors who have received partial claims of creditors must be pre- dividends. Pattberg v. Louis ferred for adjusting. Gray v. Pattberg & Bros., 55 N. J. Eq. Reynolds, 55 N. J. Bq. 501. And 604. A creditor not guilty of see also Jones v. Arena Pub. Co., negligence who presents his 171 Mass. 22. The court has claim late is entitled to share power to require all creditors to equally with other creditors, present their claims within a London & S. F. Bk. v. Willa- specifled time. Abraham v. Mer- mette Steam Mill L. & Mnfg Co cantile T. & D. Co., 86 Md. 254. 80 Fed. Rep. 226. 88 The court should direct all »i A notice authorized by the creditors to come in and prove court requiring all claims to be their claims against the receiv- presented to the receiver ap- ership funds and the statements pointed by a federal court within should give the nature and the a certain time, does not preclude amount due. Bidle Purchasing the prosecution of the claim to Co. V. Port Townsend Steel Wire final judgment in an action pend- & Nail Co., 16 Wash. 681. ^ § 379.] EECEIVEESHIP. 333 claims has no application to a trust fund which does not constitute a part of the assets of the estate.^^ § 379. Validity of Claims to Receivership Funds. — It is competent for the bondholders of a railroad to attack the validity of the claims of other creditors which are sought to be made equal or superior to their claims.®* As between creditors' funds in the hands of a receiver are of an equitable nature and are to be distributed on the basis of equality.^* State laws can- not control the rights of creditors to participate in the distribution of funds in the hands of a receiver ap- pointed by a federal court.®^ The purchaser of a valid claim is entitled to a dividend from the receivership fund for the entire face value, irrespective of the pur- chase price.**® In some cases it has been held that the claim must be reduced to a judgment before it will be allowed, as where a purchaser of shares in a bank seeks to recover the purchase price on the ground that the purchase was induced by fraud." ing In the state court. Erb v. ss state laws cannot control Poprltz 59 Kan. 264. the rights of creditors to particl- 92 An' order of the court fixing pate in the distribution of a fund a time within which claims are in the hands of a receiver ap- to be presented against the as- pointed by federal courts. Lon- sets of an incorporated company don & S. P. Bk. v. Willamette will not be a bar to a claim to Steam Mill L.. & Mnfg. Co., 80 a trust fund which does not con- Fed. Rep. 226. stitute part of the assets. New se The purchaser of a valid York Security & T. Co. v. Lom- claim is entitled to a dividend hard Invest Co., 75 Fed. Rep. from the receivership fund for 172 the entire lace value, irrespec- »3 The bond-holders of a rail- tive of the purchase price Dim- road can attack the validity of mick v. W. Fred Quimby Co., (N. other claims which are sought to J. Bq.) 41 Atl. 101. be made equal or superior to «7 The purohaser of shares m a their claims. Farmers' & Mer- bank is not entitled to recover chants' Nat'l Bk. v. Waco Blec. from the receiver of the bank cuaiii-s i p^ ^.jjg purchase price on the ground ?fi t w 131 tlat the purchase was induced 94 As between creditors funds by fraud until he has reduced It, the hands of a receiver are his claim to a judgnient Wa - oi an equfuble nature and are lace v. Hood, 89 Fed. Rep. 11 dLributTd on the basis of equal- Claims which arise by virtue of ftv In re Wadden-Entz. Co., 67 the death of a person insured m A^' onf ^'^ an assessment company before Conn. oZi, 334 EQUITABLE HEMEDIBS. [§ 380 § 380. Claims Against Receivership Fund Not Allowed. — A claim against funds in the hands of a re- ceiver will not be allowed where it appears that the claim is on account of a loan made to a construction company which owned all the stock of the debtor com- pany, the receiver holding only assets of the latter com- pany;^ or where the statute requires the presentation of the claim to be made under oath and the require- ment is not complied with;^ or where the claim is not within the scope of the order directing the receiver to pay the expenses of operation, as in case of a retainer of counsel for services not concerning the operation;* or where a claim is made by a railroad for freight charges against the receiver of another road which has been sold and the purchaser has assumed the debts;* or where a claim for a dividend has been made against funds in the hands of a receiver of a national bank ap- the appointment of a receiver compliance with the statute, are to he termed "accrued" Blake v. Domestic Mfg. Co., (N. claims under Massachusetts Stat. J. Eq.) 41 Atl. 376. The receiver 1890, Oh. 421, sec. 14. Knowlton is not liable on a claim which V. Massachusetts B. L. A. (Mass.) has been partly assigned as col- 50 N. E. 520. lateral seurity but not filed as re- 1 The claim of a creditor quired by order of court. Med- against receivership funds is not ing v. Todd, (N. J. Eq.) 41 Atl. entitled to payment, where it ap- 222. pears that the claim is for a s A retainer as counsel in a loan made to a construction com- matter not connected with the pany which owned all the stock operation of a road is not of the debtor company, the re- within the order of a court or- ceiver holding only the assets of dering receivers to pay the ex- the debtor company. Exchange penses of operation. Grand Bk. v. Macon Construction Co., Trunk R. Co. v. Central Vt. R. 97 Ga. 1. The receiver cannot Co., 88 Fed. Rep. 636. divert the property from cred- * The claim of a railroad iters of one corporation to the against the receiver of another creditors of anotiher corporation, road for freight charges is not a Ames V. Union P. R. Co., 74 proper item against the purchas- Fed. Rep. 335. er of the road under the receiv- 2 Where a statute requires the ership who is required to pay the presentation of a claim to a re- debts of the road. South Caro- ceiver, under oath, the court will Una v. Port Royal & A. Ry. Co., not allow such claim without a 89 Fed. Rep. 565. § 381. J EECEIVEESHIP. 335 pointed by the comptroller of the currency, except when ordered by him." § 381. Claims Entitled to a Preference in Pay- ment. — Certain claims against receivership funds, by reason of liens secured by process of law, act of th6 parties, or by statute, are entitled to preference over claims of other creditors. Thus: An attachment creditor of a corporation having se- cured a lien is entitled to payment out of the funds in the hands of the receiver where the property attached was delivered by the sheriff under an order of court preserving the lien in preference to other liens subse- quently acquired.® And claimants who furnish supplies to a corporation before the receivership are entitled to preference as against mortgagees, if there is an excess of net eai'u- ings over the operating expenses and fixed charges.'^ And money held in trust by the debtor.^ And claims against the receivership fund for right- away have priority over receivership expenses under Tennessee Constitution, art. 1, sec. 21.'* And judgments against a railroad which are given a priorty by statute^" sThe funds In the hands of see Haw v. Burch, (la.) 77 N. the receiver of a national banls; W. 461. who has been appointed by the s where money has been col- comptroller of the currency are lected by the bookkeeper of a not liable for a dividend to a bank to be set aside and used creditor except when ordered by to reimburse the bank for ad- the comptroller. Merrill v. First vances, it is impressed with an Nat'l Bk 75 Fed. Rep. 148. equitable trust which cannot be 8 Wise V L & C. Wise Co., reached by the receiver. Atlan- (N Y ) 12 App Div. 319. tic Trust Co. v. Carbondale Coal Tin' Case v. Fredrickson, 63 Co., 99 la. 234. Wis 501 the court refused to o Crosby v. Morristown & C. make claims fo? labor preferen- G. R Co (Tenn.) 42 S. W. 507. tial to other claims. Grand lo Holders of judgments Trunk R Co V Central Vt. R. against a railroad, which by stat- Co 88 Fed. Rep. 636. As to ute are given a lieii prior to nrioritv of labor claims under mortgage liens upon the proper- Iowa laws, Ch. 48, code sec. 739, ty of tbe road cannot be pre- ™ ' vented from claiming priority m 336 EQUITABLE EEMEDIES. [§ 383. § 382. Claims Not Entitled to a Preference in Payment. — Certain claims against a receivership fund are not entitled to a preference in payment over those of other creditors. Labor claims, more than six months old before the appointment, are not to be given priority of receiver- ship funds." A sleeping car company agreeing to furnish cars for a railroad corporation, with the right to collect fares for seats and berths and the company to pay a certain sum per mile for each mile run by such cars, is not entitled to priority over a mortgage debt.^^ The seizure of the unmortgaged property of a corpor- ation in a suit to foreclose a mortgage, by the appoint- ment of receivers, does not entitle creditors obtaining judgments to an equitable lien upon the property so seized, on the ground that they vrere prevented from obtaining legal liens by the seizure.^^ A claim preferred in constructing an addition to cer- tain canals which were never completed or in opera- tion is not entitled to a preference over bondholders.^* An order of court authorizing the receiver to pay a specific dividend on all claims does not make the divi- dend of a creditor a preferred lien upon the entire assets of a corporation.^^ Where a creditor attaches and sells property at a sheriff's sale he must account for the fair value before payment out of the funds earned i3 Mercantile Trust Co. v. by a receiver appointed under a Southern States Land & T ' Co' general creditors' bill. Thomas (C. C. App. 5th C.) 52 U S V. Cincinnati, N. 0. & T. P. Ry. App. 675, 86 Fed. Rep. 711 Co. (C. C. S. D. Ohio, D. Ky., i* Atlantic Trust Co v. Wood- & E. D. Tenn.) 91 Fed. Rep. 202. bridge Canal & I. Co. 86 Fed 11 Thomas v. Cincinnati N. O. Rep. 975 ^ 7:^\?^- *^°' ^^ ^^^- ^^P- ^95- " Rockwell V. Portland Sav. 1- Pullman Palace Car Co. v. Bk., 31 Ore 431 American Loan & T. Co., 55 U. S. App. 170; 84 Fed. Rep. 18. § 382.] EBOEIVEESHIP. 337 sharing in the benefit of a receivership in another state.^® Where the lien of judgment creditors is lost by laches he will not be entitled to priority." In a creditors' proceeding, where fraudulent judg- ments are set aside and transfers of property, the court will not direct the application of the property and its proceeds to the payment of complainants' judgments by its receiver, where a receiver has been appointed for the dissolution of the debtor firm, except in so far as property may be realized from such judgments and transfers.^ ^ The general creditors of a railroad company, who in- stituted suit to wind up the corporation by reason of in- solvency, and for a receivership, have no right to have expenditures of the receiver from the income for prefer- ential claims charged to the mortgagees.^^ A claim against the funds of a corporation in the hands of a receiver for a breach of contract for employ- ment does not entitle the claimant to a preference. It Is not a claim for wages.^" In a general creditor's bill a claimant against an in- solvent corporation where the claim is based on a specified amount for breach of contract, does not oc- cupy the position of a rightful claimant to preference in the funds in the hands of the receiver.^! A creditor having notice of the pendency of a wind- ing up suit is not entitled to share in the distribution of the receivership fund without a surrender of whatever advantage he may have obtained by an attachment in a foreign state.^^ 16 Ward V. Connecticut Pipe &. S. W. R. Co., 91 Fed. Rep. 5. Mnfg Co 71 Conn. 345. 20 Spader v. Mural Decoration 17 Saving & T. Co. v. Bear Val- Co., 47 N. J. Bq. 18. lev I Co 89 Fed. Rep. 32. 21 Crosby v. Morristown & C. 18 Metcalfe v. Moses, 22 Misc. G. R. Co., (Tenn.) 42 S. W. 507. ■664- 50 N Y Supp. 1060. 22 Ward v. Connecticut Pipe 18 Ruhlender v. Chesapeake 0. Mnfg. Co., 71 Conn. 345; Mercan- 338 EQUITABLE KEMEDIES. [§ 383. Under the Massachusetts Statute of 1890, ch. 421, the date at which a claim must have accrued as contem- plated by the statute is the date of filing the bill.^^ A receiver having paid the interest and taxes to pre- vent a sale under a mortgage is entitled to priority over creditors under levies made before the appointment.^* § 383. Expenses Against Receivership Fund — When Allowed. — Expenses for supplies and equip- ments are properly chargeable against receivership funds and property. ^^ Operating expenses are chargeable against the prop- erty irrespective of the ultimate ownership.^® Such expenses, at least for a reasonable time prior to the ap- pointment, are chargeable to the earnings during the receivership.^''^ The current expenses of a receivership are charge- able to the corpus when the income has been di- verted.^® The cost of an expert accountant is proper against a receivership fund where a large sum is realized there- by.2« The fees of a special commissioner for selling prop- erty in a foreclosure proceeding, where the contest is between the mortgagees and general creditors, are not chargeable against the receivership funds.*" Money expended for various purposes for the benefit of mortgagees is not payable from the earnings as be- tween the mortgagees and general creditors.^^ tile Nat. Bk. of City of N. Y. v. 27 Central T. Co. v. Utah C. Ry. Macfarlane, 71 Minn. 497. Co., 16 Utah 12. 23 Knowlton v. Massachusetts 28 Virginia & A. Coal Co. v. B. L. A., (Mass.) 50 N. B., 520. Central R. & B. Co., 66 Fed. Rep. 24Dummer v. Smedley, 110 803; Central T. Co. v. Thurman, Mich. 466. 94 Ga. 735. » 20 South Carolina v. Port Royal 20 Sands v. E. S. Greeley & Co.» & A. Ry. Co., 89 Fed. Rep. 565. 83 Fed. Rep. 772. And so are terminal facilities. s" Randolph v. Farmers' Loau Id. & T. Co., 91 Tex. 605. 26 Illinois Trust & S. Bk. v. Pa- si Randolph v. Farmer's Loan ciflc R. Co., 115 Cal. 285. &. T. Co., 91 Tex. 605. §§ 384, 385.] EECEiVEESHiP. 339 A court will not decree the payment of reeeivership expenses against the party securing the appointment though he may fail in a suit, where the appointment was proper and secured creditors consent.^^ § 384. Jurisdiction of Court Over Property and Parties. — A claim of lien by an officer of a corpora- tion as security for an indebtedness to him does not affect the jurisdiction of a court which has appointed a receiver of the company in a suit where the officer is a party and such party holding property may be or- dered by the court to turn it over to the receiver.^^ In regard to concurrent jurisdiction the rule is that the court first obtaining control will exclude other courts.^* In the case of an assignment for creditors the filing of a bond and its approval in the state court will not prevent a federal court from appointing a receiver.'^ A federal court will not appoint a receiver of prop- erty that has been attached under a writ from a state court where by the attachment such property is in the custody of the court.^® The court will not by injunction restrain the enforce- ment of a judgment against the receivership property in possession.^'^ § 385. Power of Court Over Parties and Re- ceiver. — The court has power to require a judgment debtor to pay to the receiver the balance of a bank ac- count standing in the name of his wife, which account is managed by the judgment debtor under a power of attorney from his wife.^^ 32 Jaflray v. Rabb, 72 la. 335. se Southern Bk. & T. Co. v. 33 Tinsley v. Anderson, 171 U. Folsom, 75 Fed. Rep. 929. g joi ^^ Gardner v. Caldwell, 16 34 LiKett V. Glenn, 51 Fed. Rep. Mont. 221. 381 ^ 38 Weld V. Sage, (N. Y.) 54 N. 35 Watson V. Bettman, 88 Fed. Y. Supp. 253; 34 App. Div. 471. Rep. 825. 340 EQUITABLE EEMEDIES. [.§ 386. § 386. Receivership in Bankruptcy Matters. — (a) After the adjudication iu bankruptcy and before the appointment of a referee a receiver may be prop- erly appointed where the circumstances render it de- sirable under the bankrupt law of 1898.^^ (b) And so where an assignment has been made and the assignee is in possession and is administering the estate, where the assignment is an act of bankruptcy, a receiver should be appointed by the bankrupt court.*" (c) Where a receiver has been appointed by the state court to take possession of the property of a corpora- tion, the United States court will not appoint a re- ceiver, as the jurisdiction is concurrent.*^ 39 A receiver may be appointed after an adjudication and before the selection of assignee for tbe temporary care of tlie estate, ■when special circumstances ren- der It desirable. Lansing v. Manton, 14 N. B. R. 127; 3 N. Y. Wkly. Dig. 112; Fed. Cas. 8,079; and this without notice to the bankrupt or his crediiors. Id. It is not only within the power of the court but It is its duty, upon its own motion In a proper case, to take the actual posses- sion of the bankrupt's estate through a receiver or by direc- tion to the marshal between the time of filing the petition in the case of a voluntary bankrupt and the appointment of a trustee. In re Abrahamson & Bretstein, 1 Am. B. R. 44. *o Where an assignment has been made within four months preceding adjudication in bank- ruptcy a receiver will be appoint- ed by the bankrupt court to re- ceive and take from the assignee, under the state insolvent law, the property assigned to him. In re Smith, 2 Am. B. R. 9. Where assignees under an as- signment for the benefit of cred- itors are enjoined from interfer- ing with the assigned property, and are made defendants to a suit by an assignee, a receiver may be properly appointed pend- ing the suit. Sedgwick v. Place, 3 N. B. R. 35. Where a person by making a general assignment for the benefit of creditors has committed an act of bankruptcy, and the assignee has taken pos- session and is administering up- on the property under the direc- tion of a state court under as- signment acts, the court of bank- ruptcy may and ought to appoint a receiver to take charge of the assigned property pending the time of filing the petition and the appointment of a trustee. In re Btherridge Furn. Co., 1 Am. B. R. 112. *i Blake v. Ala. & Chat R. R. Co., 6 N. B. R. 331; Fed. Cas. 1,493. On a petition filed In the United States circuit court for the southern district of Alabama, praying that a receiver be ap- pointed for railroad property. Held that, as the United States circuit court for the southern district of Mississippi and the chancery courts of Alabama, Georgia and Tennessee had ac- quired jurisdiction, and as their §386. J EEOBIVEESHIP. 341 (d) In the matter of jurisdiction in its relation to re- ceivers, the general rule is that property in the hands of a receiver in a state court cannot be interfered with by the bankrupt court where the state court has juris- diction of the subject matter and the property is in cus- todia legis^^ (e) The effect of the possession of the receiver in so far as the rights of creditors are concerned is sus- pensive, as he in such case holds for the legal owner. *^ (f) After the foreclosure of a mortgage, a sale therein powers were just as large, and as they were competent to ad- minister full relief, the court would not interfere. Ala- bama & Chatt. R. R. Co. v. Jones, 7 N. B. R. 145. Fed. Cas. 127. Where a bill was filed by certain stockholders praying an injunction to prevent contem- plated fraudulent acts, and a re- ceiver was appointed, and there- after a petition in bankruptcy was filed, and an assignee ap- pointed, a motion to discharge the receiver and to transfer the property to the assignee was de- nied. Myer et al. v. Crystal Lake P. & P. Works, 14 N. B. R. 9. When receivers of a cor- poration, declared insolvent un- der state laws, claimed the right to administer the assets as against the bankruptcy courts, held, the United States bank- ruptcy courts could take as against tlhem. In re Ind. Ins. Co., 6 N. B. R. 260; Holmes, 103; Fed. Cas. 7,017. *2 The bankrupt court will not compel a receiver appointed prior to the bankruptcy pro- ceedings to turn over the firm assets to a trustee where the receiver is an officer of the state court and the court has jurisdic- tion over the property. In re Price, 1 Am. B. R. 606. Re- ceivers of a company "dissolved" under state insolvency laws have no power to withhold the assets of the bankrupt company from the jurisdiction of the courts of bankruptcy. In re Independent Ins. Co., 6 N. B. R., 260; Holmes, 103; Fed. Cas. 7,017; in re Price, 1 Am. B. R. 606; Cf. Clark v. Binninger, 3 B. R. 528; S. C. 38 How. Pr. 341; Sedgwick v. Menck, 1 B. R. 675. A receiver appointed by a state court will not be enjoined by the bank- ruptcy court from disposing of property in his hands, based merely upon a prayer in an in- voluntary petition. Mather v. Coe, 1 Am. B. R. 505. A motion made in the state court for the appointment of a receiver after a petition in involuntary bank- ruptcy was filed cannot be en- tertained. Carpenter v. O'Con- nor, 1 Am. B. R. 383. 43 Property of a bankrupt was not in the receiver's hands when a subsequent incumbrancer, who had been already impleaded by a prior one in the original ac- tion, filed, without leave of court, a subsequent original bill to foreclose. Held, latter bill not sustained where relief sought is competent in the pending liti- gation. Sutherland et al. v. Lake Sup. S. C, R. & I. Co. Where the court takes possession of property and places the same 343 EQUITABLE EEMEDIES. [§ 368. and the establishment of a deficiency decree, the re- ceiver is entitled to the rents as against the assignee in bankrutpcy.** (g) The right of an execution creditor to money in the hands of the marshal, by reason of supplemental proceedings commenced prior to proceedings in bank- ruptcy, will not prevail.!^ (h) A corporation in the hands of a receiver ap- pointed in a state court is an involuntary bankrupt (Act 1898).** (i) Such a receiver is the proper representative of the corporation in a bankruptcy proceeding.*^ In the hands of receivers, the rights of the parties are not thereby affected, as the receiver holds for the legal owner and the action of the court is merely suspensive. Miller v. Bowles, et al.; Appleton v. Stevers, Ass., 10 N. B. R. 515. ** Hays V. Dickinson, 15 N. B. R. 350. 45 An execution credit or claimed a lien on money in the hands of the marshal by virtue of proceedings supplementary to execution commenced prior to bankruptcy, but which before ap- pointment of receiver were re- strained by the bankrupt court. Held, that the claim must be dis- allowed; that until the appoint- ment of a receiver his right is not a lien within the bankrupt law. In re Wheeler et al., 18 N. B. R. 385; 26 Pittsb. Leg. J. «4; Fed. Cas. 17,490. •!« Where a corporation is in- solvent and in the hands of a re- ceiver, appointed by a state court on the application of creditors filed within four months, it is ad- judged to be an involuntary bankrupt. In re Empire Metal- lic Bedstead Co., 1 Am. B. R. 136. The appointment of a re- ceiver by a state court to take possession of the assets of a per- son, firm or corporation, and ap- ply the same to the payments of debts, is a "taking on legal process," within the meaning of the act of 1867. In re Mer. Ins. Co., 6 N. B. R. 43. In the ab- sence of proceedings under the bankrupt act of 1898 the right of the state court to appoint a receiver for an insolvent corpo- ration under the local insolvency laws is not suspended. Strohl v. Superior Court, 1 N. B. N. 309. *^ A duly appointed receiver of a corporation is the proper rep- resentative of the corporation in a bankruptcy proceeding and its functions are not limited by the jurisdiction of the court in which he was appointed. In re Repub- lican Ins. Co., 8 N. B. R. 197. A corporation had been placed in the hands of a receiver by the state court, and a petition in bankruptcy having been filed, the rule to show cause was served on the cashier, who had turned the keys over to the re- ceiver. Held, sufficient service. Piatt V. Archer, 6 N. B. R. 465; 9 Blatchf. 559; Fed. Cas. 11,213. The receiver of a corporation is entitled to be heard on a mo- tion to set aside an adjudication. In re Atl. Mut. Life Ins. Co., 16 N. B. R. 541. §386.] EECEITEESHIP. 343 (j) He cannot maintain suit to recover the value of property sold by a bankrupt in fraud of the act.*« (k) But as a general rule he may sue in foreign juris- dictions.*^ (1) And as receiver of a creditor may prove the debt in bankruptcy.^" (m) When appointed more than four months prior to the filing of a petition in bankruptcy his title is good as against the trustee; and to a judgment or decree set- ting aside a fraudulent conveyance of the debtor the trustee obtains no title.^^ (n) The title of a receiver in a railroad under a pro- ceeding in a state court is good as against a trustee *8 A receiver cannot maintain an action to recover the value of property sold by the bankrupt, in fraud of the bankrupt act, prior to the commencement of the proceedings, and the assig- nee will not, on motion, be ad- mitted to prosecute the suit. Lansing v. Manton, 14 N. B. R. 127; 3 N. Y. Wkly. Dig. 112; Fed. Cas. 8,079. 4»A receiver appointed by courts of one state may gener- ally sue in the courts of an- other state. Chandler, Receiver et al. V. Siddle, 10 N. B. R. 236; 3 Dill. 477; 1 Cent. Law J. 341; Fed. Cas. 2,594. When a re- ceiver goes into a court of law he must stand on the legal es- tate. If he applies for leave to ■use the name of the person hav- ing the legal right of action, the court will indemnify the latter by compelling security against the costs. Lansing v. Manton, 14 N. B. R. 127; 3 N. Y. Wkly. Dig. 112; Fed. Cas. 8,079. 50 A receiver of property of a creditor of the bankrupt is an assignee of the debt, and as such assignee may prove it. But as it was assigned before proof, the proof must be supported by the deposition required in General Order No. 34 (Act of 1867). The deposition may be ex parte, as in Form No. 22. In re Mills, 17 N. B. R. 472; Fed. Cas. 9,612. 61 Where a receiver by an ac- tion brought more than four months before the filing of a pe- tition in bankruptcy has recov- ered a judgment setting aside a conveyance in fraud of creditors made before the bankrupt act is passed, the trustee in bankruptcy has no title to such judgment and is not entitled to be sub- stituted as plaintiff. In re Mey- ers, 1 Am. B. R. 347. In the absence of proceedings in bank- ruptcy a state law which pro- vides for the winding up of af- fairs of an insolvent corporation by the appointment of a receiver is not suspended. State ex rel. Strohl V. Superior Court, 2 Am. B. R. 92. The receiver is not entitled to rights as against an assignee where he was appointed after the filing of the petition. Conover v. Dumahaut, 17 N. B. R. 558. Until a lien is secured by the appointment of a receiver the property will be subject to the claim of the assignee in bankruptcy. Johnson v. Rogers, 15 N. B. R. 1. 344 EQUITABLE EEMEBIES. [§ 387, in bankruptcy until impeached for cause impeachable under the bankrupt act. (Act of 1867.)®^ (o) The same person cannot be at the same time re- ceiver under a proceeding in a state court and a trustee or assignee under the bankrupt act.®^ § 387. Distribution of Receivership Funds, — The New York assets of a Connecticut corporation collected by New York receivers appointed in a Federal court should be first applied to the protection of New York creditors before distribution among general creditors.^* Under the Connecticut general statute, sec. 590, the court may require a claimant to elect between the sur- render of his security and the taking of a dividend upon the excess of such claim above the value of his secur- ity.55 52 A United States district ss Tihe same person cannot be court in bankruptcy will not in- at the same time receiver under terfere witli possession o£ re- the state law and a trustee or ceivers appointed by state court assignee appointed by the bank- to take charge of a railroad until rupt court. In re Stuyvesant title is impeached for cause im- Bank, 6 N. B. R. 272. peaehable under bankrupt act. si Sands v. B. S. Greeley & Alden v. Boston, H. & B. R. R. Co., 80 Fed. Rep. 195. Co., 5 N. B. R. 230; Fed. Cas. ss in re Waddell-Entz. Co., 67 152. Conn. 324. CHAPTER XV. THE BANKRUPTCY LAW IN ITS RELATIONSHIP AND EFFECTS AS TO CREDITORS. § 400. General. 401. Effect of upon creditors generally. 402. Jurisdiction of bankruptcy court (a) Power to stay pending suits. (b) Power to entertain and determine all controversies. (c) State court has not concurrent jurisdiction. (d) Territorial extent of jurisdiction. (e) Jurisdiction depends on citizenship. (f ) Jurisdiction in fraudulent transfers, when. (g) Jurisdiction as to adverse claimant. (h) Jurisdiction of state court in contempt proc. (i) Jurisdiction when property Is in state court, (j) Who are parties. 403. Liens in state court void, when. 404. Proceedings to obtain possession of property in hands of re- ceiver of state court. 405. Power of bankruptcy court to restrain levy. 406. Lien enforced in state court, when. 407. Jurisdiction in matters of fraudulent conveyance. 408. Jurisdiction where corporation dissolved. 409. Proceedings in state court, when void. 410. Existence of bankrupt law does not suspend state law. (a) Does not ipso facto as to collection of debts. (b) Voluntary assignment when not, when. (c) Where trustee and creditors abandon claim. (d) After sale of property in state court. (e) In matters of alimony. (f) Where execution levied prior to bankruptcy pro- ceedings. (g) When dispute between assignee and purchaser, (h) Where debts are fully secured by liens. (1) Where acts of state court are not in conflict, (j) Adverse claimants to property, (k) In foreclosure proceedings, when. (1) Circuit court no jurisdiction, when, (m) Discharge must be pleaded to affect, when (n) Option in state courts, when. 345 246 EQUITABLE EEMEDIES. (o) Power of congress to Impose duty on state court. (p) Attachment in state court, when. (q) United States court no jurisdiction, when. (r) Failure to procure discharge, effect of. (s) When right to real and personal property involved. (t) When bankruptcy proceedings not brought to notice. (u) No power in state court to impeach discharge. (v) State court cannot garnishee, when. 411. Jurisdiction of state court where assignee or trustee is a party. 412. Suspension of state laws. 413. General effects of bankrupt law and proceedings thereunder. (a) Law of 1898 in operation from its passage. (b) Payments by debtor after proceedings commenced. (c) Does not affect bona fide liens. (d) Does not affect rights of bona flde claimants. (e) Effect as to conditional sales. 414. Effect of bankruptcy as to liens. (a) Legal and bona fide liens protected. (b) Judgment liens in state court valid and invalid. (1) Valid (2) Invalid. (3) Judgments by confession. (4) When not a lien. (c) Execution liens valid and invalid. (1) Valid. (2) Invalid. (d) Liens secured by creditor's bill. (e) Liens of mortgagee in possession. (f) Liens secured by attachment (g) Liens by pledge, (h) Lien of landlord. (i) Power of bankrupt court over liens. 415. Effect of bankruptcy on mortgages and mortgage foreclos- ures. (a) Mortgages, when valid. , (b) Mortgages, when void, (c) Foreclosure in state court 416. Injunction in bankruptcy proceedings. (a) When granted — General. (b) Granted against sale on execution. (c) Granted against judgment (d) Against proceedings in state court. (e) Against foreclosure proceedings. (f) Against supplementary proceedings. (g) Against assignments. (h) Restraining order under Sec. 11. THE BANKHTJPTOT LAW. 347 417. Effect of bankruptcy upon assignments and insolvency laws. (a) Insolvency laws, when suspended (b) Distinction between insolvent laws and assign- ments. (c) When assignment an act of bankruptcy. (d) Title derived under state insolvent laws. (e) Suit in re by trustee. 418. Effect of bankruptcy laws as to fraudulent conveyanceB. (a) Jurisdiction — Bankrupt court — Trustee. (b) How avoided. (c) Who may avoid. (d) What is fraudulent conveyance. (e) When fraudulent conveyance act of bankruptcy. (f) Power of bankrupt court over. (g) Kinds of fraudulent conveyances. (h) Rights of creditors vested in assignee. (1) Rights of creditors under creditor's bill. (]■) Rights of seller under fraudulent purchase, (k) Title in whom vests. 419. Effect of bankruptcy law on preferences. (a) Preferences, when valid under. (b) Preferences, when void. (c) Preferences, when act of bankruptcy. (d) Preferences secured by legal proceedings. (e) Statutory preferences. (f ) Right of assignee to recover. (g) Judgment creditors not entitled to^ when, (h) Creditors may attack, when and where. (i) Landlord entitled to priority, when. (j) Priority in partnership assets, (k) Priority under conditional contract. (1) Law of distribution changed as to priorities. (m) Judgment notes may be preferential. (n) Taxes entitled to priority. 420. Insolvency as an element in bankruptcy. (a) What is insolvency. (b) Effect of Insolvency — Notice. 421. Statute of limitations in bankruptcy. 422. Corporations may be adjudged bankrupts. (a) Jurisdiction of Federal courts. (b) Effect of bankruptcy of on directors and Btock- holders. (c) What corporations may be proceeded against. 423. Effect of bankruptcy on alimony. 424. Exemptions under bankrupt law. (a) Title to does not pass. (b) Exemptions in property fraudulently conveyed. 348 EQUITABLE EEMEDIES. [§400, (c) In partnership property. (d) Determined by state laws. (e) Must be claimed. (f) When waived in notes. (g) Exempt property, when may be sold, (h) Termination of homestead. 425. Rights of creditors. (a) To require trustee to account. (b) To declare debtor bankrupt, (e) To move for a preference, (d) To a sale by receiver. 426. What are assets. 427. Discharge of debtor. Note. — For provisions of Bankrupt Act referred to in this chapter see Appendix. Section 400. General. — It is designed in this chap- ter to treat mainly of the scope and effect of the exist- ing bankrupt law with reference to the equitable rights and remedies of creditors; how far those rights and remedies are unaffected, modified or suspended by the operation of the law so long as it shall remain in force and effect. The history of national bankrupt legisla- tion in this country tends to establish the belief that no permanent and continuous law will be enacted, and perhaps it is to the best interest of commercial affairs that this should be so, unless, indeed, the involuntary feature of it should be made permanent with a view of securing uniformity. From the general point of view it is undoubtedy true that the great variety of state legis- lation embodied in our insolvency laws and quasi bank- rupt laws can be only detrimental to the commercial public interests.^ 1 The first bankrupt act passed the days of Henry VIII. to the In England was the statute of 34 days of Victoria the English and 35HenryVIII.,Ch.4. Thepro- bankrupt act applied only to visions of this act were extended traders and it was not until 1861 and expanded by the act of Eliz., that bankruptcy was extended to Ch. 7, 21 Jac. 1, Ch. 19, by act non-traders. The United States of 7 George I. Ch. 21, by act of bankrupt law of 1800 was an in- 5 George II. Ch. 30, by act of 46 voluntary law and applied only George III. Ch. 135, by act of to traders, brokers and under- 6 George IV. Ch. 16, by act of 1 writers. The Lediegh Carriage and 2 William IV. Ch. 56. From Co. v. Stengel, 1 N. B. N. 387. § 401.] THE BANKEUPTOT LAW. 349 § 401. The Effect of, Upon Creditors Generally. — The general effect of the bankrupt law upon debtors at large and its restraining influence with regard to those acts and conduct which form the basis of the equitable rights and remedies of creditors cannot be estimated and, of course, is political and ethical in its nature. The particular effect of the bankrupt act upon the great body of debtors and their relationship to their creditors and the equitable rights and remedies of the latter with regard to the former and their prop- erty and effects remain as before the passage of the law. Except in the matter of state insolvent laws the scope and effect of the bankrupt law is not sweeping, and relates only to the comparatively few cases of bankrupt debtors who by voluntary or involuntary action are brought within the jurisdiction of the bank- rupt court. The equitable remedies of creditors, as to the property and effects of their debtors, as they existed prior to the passage of the bankrupt act, except in the matter of preferences and the forum, remain in substance as before. The trustee is selected by and is the representative of the creditors and as a general rule whatever rights and remedies existed in their favor prior to bankruptcy are enf orcible by and avail- able to him in state and federal courts in their behalf. While the primary purpose, other than the discharge of the debtor, is to secure equality in the distribution of the debtor's assets among his creditors, yet all con- tractual liens and liens secured by legal proceedings obtained in good faith and not in fraud of creditors and the act are respected and maintained, and in many cases these liens are enforced through the same reme- dial channels as before, even where bankruptcy pro- The two main principles lying and that his collectible assets at the basis of the bankrupt act may be divided equitably and ar« +Lt the debtor may be dis- ratably among his creditors, charged from Ws%vable debts Bank v. Katz, 1 Am. B. R. 19. 350 EQUITABLE EEMEDIES. [§ 402. ceedings are pending in behalf of or against the debtor. The bankrupt law is statutory in its origin, but in its scope and purpose and in the proceedings by which it is enforced it is equitable in its nature, and being reme- dial should be governed by the rules pertaining to that class of legislation. § 402. Jurisdiction of Bankruptcy Court.— (a) The court of bankrutcy has power to stay all suits pending at the time of the filing of the petition in bank- ruptcy which are based on claiins that are provable in bankruptcy and against which a discharge may be granted. Subdivision a, sec. 11, of the bankruptcy act provides that: "A suit which is founded upon a claim from which a discharge would be a release and which is pend- ing against the person at the time of the filing of a petition against him shall be stayed until after an ad- judication or a dismissal of the petition; if such person is adjudged a bankrupt such action may be further stayed until twelve months after the date of such adjudication, or if within that time such person applies for a discharge then until the question of such dis- charge is determined." (b) Bankruptcy courts have jurisdiction to entertain and determine all suits of the trustee that may be nec- essary to collect and distribute assets of the bankrupt, and to determine all controversies in relation thereto.^ (c) A state court does not have concurrent jurisdic- tion with the bankrupt court where an assignment has been made within four months preceding the adjudica- tion. The jurisdiction of the bankrupt court is ex- clusive.' 2 In re Sievers, 1 Am. B. R. s la re Smith, 2 Am. B. R. 9. § 402.] THE BANKEUPTCT LAW. 351 (d) Jurisdiction of a bankrupt court extends to the property of the bankrupt in another state.* (e) A court of bankruptcy does not have jurisdiction of an action to set aside a conveyance, which is in fraud of creditors, where the defendant is a citizen of the same state in which the bankrupt resides.' (f) Nor has a court of bankruptcy jurisdiction of an action to set aside a fraudulent transfer made more than four months prior to the filing of the petition in bankruptcy.® (g) The bankrupt court has no jurisdiction to deter- mine by a summary proceeding a controversy between the trustee, as such, and an adverse claimant of prop- erty, even though the claimant brings the action in that court.'' (h) A state court has no right to imprison a debtor for contempt of court for failure to pay alimony when an order has been issued by the bankrupt court staying and enjoining proceedings in such action.* (i) Where the exclusive jurisdictional facts appear the law seems well settled that a court of bankruptcy has power to and should assume jurisdiction where property is in the hands of a state court, and may re- strain further action by that court.^ (j) The adjudication being in rem all parties inter- ested in the res are regarded as parties, including cred- itors and lien-holders.^<* i Markson v. Heney, 4 N. B. R. N. B. R. 97. (The above decisions igc were rendered under the Act of 5 See sec 236 Burnett v. Mor- 1867, which was different from rls Mercantile Co., 1 Am. B. R. the present act.) See sec 23a; In 229 re Fowler, 1 Am. B. R. 637. 6 In re Grabs, 1 Am. B. R. 465. s m re Houston, 1 N. B. N. 305. 7 In re N Y. Kerosene Oil Co., » In re Brown, 1 Am. B. R. 3 N B R 125: In re Boansteel, 3 107; Cf. In re Mallory, 1 Saw. N B R 517; In re Hunt, 2 N. B. 88; In re Fuller, 1 Saw. 143; In r' 540- Ferguson v. Peckham, 6 re Davis, 1 Saw. 260. N B R 569; Smith v. Mason, 6 lo Carter v. Hobbs, 1 Am. B. N. b! R. 1; Marshall v. Knox, 8 R. 215. 352 EQUITABLE EEMEDIES. [ §§403-405. § 403. Liens Procured in State Courts Void When.— Subdivision f, sec. 67, of the bankrupt act pro- vides "that all levies, judgments, attachments, or other liens, obtained through legal proceedings against a person who is insolvent, at any time within four months prior to the filing of a petition in bankruptcy against him, shall be deemed null and void in case he is adjudged a bankrupt, and the property affected by the levy, judgment, attachment, or other lien shall be deemed wholly discharged and released from the same and shall pass to the trustee as a part of the estate of the bankrupt, unless the court shall, on due notice, order that the right under such a levy, judgment, at- tachment, or other lien, shall be preserved for the ben- efit of the estate; and thereupon the same may pass to and shall be preserved by the trustee for the benefit of the estate as aforesaid." § 404. Procedure to Obtain Possession of Prop- erty in Hands of Receiver of State Court. — Where the trustee desires to obtain possession of property in the hands of a receiver of a state court, his course to pursue is to move in the bankrupt court for authority to appear in the state court for an order substituting him as plaintiff in the case, and then to ask for a decree settling the partnership accounts, and an order directing a transfer of the assets to him by the re- ceiver.^ ^ § 405. Power of Bankruptcy Court to Restrain Levy. — The bankruptcy court has the power to restrain the sheriff of the state court from levying on the prop- erty of the bankrupt to satisfy a judgment of the latter court, although judgment was obtained prior to the adjudication in bankruptcy .^^ " In re Price, 1 Am. B. R. 606. of an action against the assignee 12 In re Mallory, 6. N. B. R. 22. in banlcruptcy for the purpose of A state court has no jurisdiction enjoining him from collecting a §§406, 407.] THE BANKRUPTCY LAW. 353 And to issue an injunction to prevent the sale of a debtor's land under a judgment by the state court. On motion to dissolve upon the ground that the court could not restrain the sale, the motion to dissolve will be denied.^^ The United States district court in bankruptcy may enjoin mortgagees for a reasonable time from proceed- ing to foreclose a mortgage, and may order a sale free from incumbrances in special instances where rights of parties are clear.^* Where an injunction has been issued out of the circuit court under the equitable jurisdiction auxiliary to that of the district court in bankruptcy, the execution cred- itor may require the assignee to proceed in the circuit court in equity or invoke the jurisdiction of the court of bankruptcy, testing the question of priority.^^ § 406. Lien Enforced in State Court When. — No lien can be enforced by proceedings in a state court commenced after the petition in bankruptcy is filed, but where jurisdiction has been previously acquired by a state court from force of a valid lien such jurisdiction will not be divested.^® It is said that the right to foreclose a mortgage in a state court ceases where the bankrupt court orders a sale of the mortgage property." § 407. Jurisdiction of United States Court in Setting Aside Fraudulent Conveyances.— The United States courts are not divested of jurisdiction over suit brought by the trustee to set aside fraudulent transfers note. Southern v. Fisher, 16 N. " In re DeVore, 16 N. B. R. 56. g jj 414 United States courts have exclus- 13 in re Lady B. M. Co., 6 N. ive jurisdiction over all proceed- B R 252- Fed Cas. 7,980. Ings relating to the estate of the 'i4 in re Pitlekow, 1 N. B. N. bankrupt. Including foreclosures. 234- see exhaustive brief on this In re Brinkman, 7 N. B. R. 21. au'biect 1 N B N p. 234. The above case cannot be sus- 15 In 're Haefer, i N. B. R. 163. tained by the authorities to the 16 In re Winnie, 4 N. B. R. 5. extent stated. 354 EQUITABLE BEMEDIBS. [§§408-410. of the bankrupt. The trustee is not compelled to proceed in the state court.*® § 408. Jurisdiction in Dissolution of Corpora- tion.— The bankrupt court is not deprived of jurisdic- tion by the dissolution of the corporation in a state court before adjudication but after the service of the order to show cause.* ^ The state has power to pass laws for the winding up of a corporation irrespective of the bankrupt act. In this case the jurisdiction of the bankrupt court is not exclusive.^" § 409. Proceedings in State Court Void When. — All legal proceedings under a judgment within four months of the filing of the petition are void except as to the title of a bona fide purchaser under such levy and sale, the proceeds in such case standing as a substitute for the property sold.^* § 410. The Existence of a Bankrupt Law Does Not Suspend State Laws, When. — (a) The bankrupt laws do not vpm facto suspend state laws for the col- lection of debts, and the jurisdiction conferred upon courts of bankruptcy in this respect is superior but not exclusive as to the state laws.^^ (b) A voluntary assignment by a debtor, under the insolvent laws of the state of Connecticut, no proceed- ings having been instituted under the bankrupt act, is not void, although such act is applicable to the case at the time of the assignment. But in case of an actual 18 Carter v. Hobb, 1 N. B. N., lo Piatt v. Archer, 6 N. B. R. p. 191. Opinion by referee as to 465. the enjoining of further prose- 20 Chandler v. Siddle, 10 N. B. cution of a creditors suit to set R. 236; 3 Dill. 477. aside a fraudulent conveyance, 21 In re Kenney, 1 N. B. N. see In re Adams, 1 N. B. N., p. 401. 167. 22 Chandler v. Siddle, 10 N. B, R. 236. § 410.] THE BANKEUPTOT LAW. 355 conflict of jurisdiction, the state law must yield to the national.^^ (c) Where the assignee and general creditors aban- don all claim to incumbered property state courts may subject such property to the satisfaction of the mort- gage and in such case the mortgagee is entitled to all remedies notwithstanding the bankruptcy.^* (d) After the sale of property by process from a state court the district court will not interfere.^® (e) A court of bankruptcy has no power to review the action of a state court in granting alimony to a bank- rupt's wife.^® (f) The possession of goods by a sheriff under execu- tion levied prior to proceedings in bankruptcy cannot be disturbed by the assignee.^'' (g) The state court is the proper forum to settle a dispute between the purchaser at an assignee's sale and bankrupt creditors.^® (h) A judgment creditor cannot claim the jurisdic- tion of a court in bankruptcy for the collection of his debt fully secured by the only lien on real estate.^^ (i) Where acts are done by state courts in the proper exercise of their jurisdiction, which do not conflict with the jurisdiction of federal courts, such acts bind the federal courts.^" (j) Property of the bankrupt, held adversely by an- other under a claim of title, is not to be determined by the court of bankruptcy, nor by a referee.^^ 23 Maltbie v. Hotchkiss, 5 N. Cf. Shiner v. Huber, 19 N. B. R. B R 4g5. 414; Goddard v. Weaver, 6 N. B. "24 Second Nat'l Bk. v. National R. 440; In re Kerr, 2 N. B. R. S. Bk., 11 N. B. R. 49; Cf. Je- 124. rome v. McCarter, 94 U. S. 734; 28 in re Abraham, 1 N. B. N. McHenry v. LaSociete, etc., 95 281. .„„„.,.„ U g 5g_ 29 In re Johann, 4 N. B. R. 143. '25 in re Fuller, 4 N. B. R. 29. so in re Keller et al., 18 N. 26 In re Garett, 11 N. B. R. 493. B. R. 10; Fed. Cas. 7,647. 27 Marshall v. Knox, 8 N. B. R. si In re Carter, 1 Am. B. R. 160. 97; In re Weamer, 8 N. B. R. 527; 356 EQTTITABLB REMEDIES. [§410. (k) The mere filing of a petition in involuntajpy bank- ruptcy does not take from the state court jurisdiction in the foreclosure of a mortgage.^'^ (1) The circuit court has no jurisdiction to force con- veyance to the trustee of property held by mortgagees under a mortgage executed before bankruptcy.^* (m) To affect proceedings in state courts the adjudi- cation or discharge of the bankrupt must be pleaded.** (n) It is optional with state courts in all cases whether they will entertain jurisdiction in matters concerning bankruptcy.*^ (o) Congress has no power to impose upon state courts any duties in connection with inforcement of a bankrupt act.*^ (p) The lien of an attachment or the lien of the cred- itor upon property conveyed in fraud of creditors may be enforced in other courts where proceedings were commenced before the bankruptcy proceedings.*''^ (q) The United States circuit court has no jurisdic- tion to set aside a fraudulent transfer of a bankrupt's property at the suit of a trustee.*^ (r) The failure of a bankrupt to obtain his discharge entitles creditors to proceed at law.*^ (s) The jurisdiction of state courts is not divested in •suits involving the right to real or personal property of the bankrupt or debts owing to his estate by operation of the bankrupt act.*" (t) Where cases are pending in the state court the bankruptcy of one party does not affect the proceed- 82 In re Irving, 14 N. B. R. 289. s^ Mason v. Warthen, 14 N B. 33 Heath v. Shaffer, 1 N. B. N. R. 346. 291. 38 Goodler v. Barnes, 1 N. B. 3'i Serra v. Hoffman, 17 N. B. N. 383. ^- 124. 39 Dlngee v. Becker, 9 N. B. R. 3s Shearman v. Bingham, 7 N. 508. B- R. 49. 40 Eyster v. Gaff, 13 N. B. R. 38 Goodall V. Tuthill, 7 N. B. R. 546; 91 U. S. 521. 193; 3 Biss. 219. § 411.] THE BAKKEUPTCT LAW. 357 ings unless brought to the notice of the state court in an appropriate proceeding.*^ (u) The state court has no power to impeach a bank- ruptcy discharge upon any of the grounds where the United States court has jurisdiction.*^ (v) The distribution in bankruptcy cannot be inter- fered with by garnishment in the state court.** § 411. Jurisdiction of State Court Where As- signee a Party. — The bankruptcy act does not give the United States district courts jurisdiction over actions and suits incident to the collection and reduction to money of bankrupt's estates where the actions arise between the trustees and strangers who claim property acquired or claimed by the trustees.** A state court has jurisdiction in a suit by an assignee where the equity sought is recognized by the laws of the state in which the suit is pending, and not the crea-. ture of the bankrupt act.*^ A state court will entertain jurisdiction of an action by an assignee to set aside a conveyance alleged to have been made in violation of the bankrupt act.*'' The reason a state court will entertain jurisdiction of an action by an assignee is that the bankrupt act is simply the source of the assignee's title. He does not derive his jurisdiction as such from that court.*'' Property fraudulently disposed of by a bankrupt may be recovered in a state court in a suit by the as- signee.*® 41 Bracken v. Johnston, 15 N. « Voories v. Crisbie, 8 N. B. B R 106 ^' 152. ■42 Alston V. Hobinett, 9 N. B. *^ Voories v. Crisbie, 8 N. B. T> 17^ R, 152. 43 In re Bridgman, 2 N. B. R. ^7 Dambmann v. White, 12 N. "R R 438 ^^i'i Hicks V, Knost, 1 N. B. N. '*« Cook v. Waters, 9 N. B. R. 336. 155. 358 EQUITABLE BEMEDIES. [§ 412. But a state court has no power to compel an assignee to become a party.*" In a proceeding by an assignee in a state court the court, it is said, may properly examine into the juris- diction of the bankrupt court.^" State courts have jurisdiction of suits by the trustee in bankruptcy to enforce collection of debts due the bankrupt and also to determine controversies as to title of property held adversely by third persons and claimed by the trustee.^^ An assignee in bankruptcy submitting himself to the jurisdiction of a state court cannot after decree object to the power of the court.^^ But a state court may entertain an action against an assignee in bankruptcy for the wrongful taking of property not in the possession of the bankrupt and be- longing to a stranger.®* § 412. Suspension of State Laws. — Owing to the constitutional power conferred upon congress in re- gard to uniform bankruptcy laws, when it has acted, it follows that all state legislation that encroaches upon the domain of national legislation in this regard is sus- pended. The bankruptcy law merely suspends the operation of state insolvent laws in so far as they come in conflict with the bankruptcy law or intrude upon its province.®* But unless clearly so designed jurisdiction conferred by the bankrupt act upon United States courts does not oust state courts of jurisdiction. ■IK Serra v. Hoffman, 17 N. B. B. R. 360. Proceedings In bank- R. 124. ruptcy are in their nature equit- 50 isee V. Stuart, 16 N. B. R. able proceedings. In re Wallace, 191. 2 N. B. R. 52. " Heath v. Shaffer, 2 Am. B. 64 in re Wright & Co., 1 N. B. R- 98- N. 428. Under the law of 1867 B2 Scott V. Kelley, 12 N. B. R. a general assignment for the 96- benefit of creditors without pref- 53 Leighton v. Harwood, 12 N. erence was void. Piatt v. Pres- S413.] THE BANKEUPTCY LAW. 359 When a debtor is adjudged a bankrupt, all proceed- ings against him in a state court must stop, if the sub- ject matter can be proven against his estate in bank- ruptcy; and no creditor who holds a claim against the estate, which might be proven in bankruptcy, whether the debt is secured or not, can enforce such debt in a state court, except by the permission of the district court.^** § 413. General EflFects of Bankrupt Law and Proceedings Thereunder.— (a) The bankrupt act of 1898 operates, from the time of its passage, upon the property of debtors who are subsequently adjudicated bankrupts, and also upon the rights of creditors as well in equity as at law existing at the time of its passage.^^ (b) A payment made by a debtor to his creditor after the filing of the petition is not good as to the assignee, though made in good faith and without knowledge of the bankruptcy proceedings.^'' (c) Adjudication in bankruptcy does not annul or in any manner affect the existence and validity of bona fide liens which are not fraudulent as to creditors, and not in fraud of the provisions of the bankrupt act.^* In ton, 19 N. B. R. 241. The Na- In re Daggett, 8 N. B. R. 433. tional bankruptcy laws super- A suit brought within four sede state insolvency laws. In months before filing the petition re Richard, 1 N. B. N. 487. Sees. In bankruptcy and all proceed- 2662-2683 inclusive. Rev. Stat, of ings thereunder are void. Indiana 1881, 2 Burn's Rev. Stat. Boothe v. Nickerson, 1 N. B. N. 1894, sees. 2899-2920 Inclusive, 476; In re Winn, 1 N. B. R. 131. regulating assignments in that se in j-e Adams, 1 Am. B. R. state are superseded by the 94. (Opinion of referee), bankrupt act. In re Smith, s? in re Opinion of Attorney 2 Am. B. R. 9. General, 9 N. B. R. 117. 55 In re Central Bk., 6 N. B. es See Liens sec. 414. The R. 207. Bankruptcy law of 1867 vesting of title of the bankrupt's was held not to oust a probate property in the trustee places court of jurisdiction in the ad- him In the same position the ministration of the estate of a bankrupt stood in regard to the deceased partner where a peti- valid rights, equities and liens tion was subsequently filed to of creditors. In re Bozeman, 1 put the firm Into bankruptcy. N. B. N. 479. 3G0 EQUITABLE EEMBDIES. [§ 414. some cases, however, the mode of enforcing and the forum are changed. (d) Nor are the rights and interests of third parties >who claim under title adverse to the trustee affected.^^ (e) Where a bankrupt purchases property on condi- tion that the title shall not vest in him until the entire purchase price is paid, the seller has a valid lien upon the property for such amount of the purchase money as is due and unpaid at the time of filing the petition.®"* § 414. Effect of Bankruptcy as to Liens. — (a) Legal and Bona Fide Liens Protected. Subject to certain exceptions set forth in a bankrupt act the bankrupt court cannot divest prior liens on the debtor's property, and if possession is taken by the bankrupt court it is subject to such liens.®^ Sec. 67d provides if the liens given are accepted in good faith and not in contemplation of, or in fraud of the bankruptcy act, and for a present consideration and have been duly recorded when necessary to impart notice, are not affected by the bankruptcy act.®^ Liens bona fide under the state law are entitled to priority in bankruptcy."* 59 See sec 410. set up title as against the tnis- «o In re Bozeman, 1 N. B. N. tee. In re Youkon Woollen Co.. 479. (Opinion by referee). 1 N. B. N. 420. (Opinion by ref- Where a bankrupt is in posses- eree). sion of property under a con- si Bank v. Katz, 1 Am. B. R. tract for a conditional sale and 19. is not to have title until the 62 Carter v. Hobbs, in re, 1 Am. goods are paid for, such property B. R. 215, note, is not an asset of the bankrupt 63 Reed v. Bullington, 11 N. B. and the title does not pass to the R. 408. All valid liens existing trustee. In re McKay, 1 Am. against the bankrupt's property B. R. 292. A claimant to prop- when proceedings are com- erty, held by a trustee, who con- menced will be protected. In tends that the bankrupt held the re Greenville, 9 N. B. R. 29. property under a conditional Liens perfected before the corn- contract of sale where the sta- mencement of bankruptcy pro- tutory provisions with reference ceedings are effective as to the to the filing of the contract have assignee (trustee). In re Smith, not been complied with, cannot 1 N. B. R. 169. § 414.J THE BANKEUPTCT LAW. 361 A creditor securing a lien by diligence will be pro- tected in the bankrupt court in the absence of col- lusion;®* and where a lien secured more than four months prior to the commencement of bankruptcy pro- ceedings will be protected in a court of bankruptcy notwithstanding the discharge.®^ Courts should preserve the lien by creditors even where they have some doubts about the solvency of the debtor.^® An adjudication in bankruptcy operates in rem and from the moment of the adjudication of the bankruptcy the bankrupt's estate is in custodia legis. This custody no other court nor individual can interfere with. An attempt to interfere with such custody in any other court is a contempt.®'' (b) Judgment Liens in State Court — Valid and In- valid. (1) Valid. — Valid mortgages and judgments which are liens upon real estate of the bankrupt will be pro- tected by the court of bankruptcy, under an order of sale by the trustee, and the title be conveyed free of liens, the liens attaching in such case to the proceeds.®^ Where a creditor obtains a judgment more than four months prior to filing a voluntary petition in bank- ruptcy by the judgment debtor, but does not make his levy and procure his lien until within four months before filing such petition, the judgment is a valid and subsisting lien against the bankrupt's estate.®^ A judgment creditor's claim though obtained by fraud against the debtor is not a subject of attack by the assignee; it is res adjuMcata,'''^ and if obtained 84 Trimble v. Williamson, 14 es in re Worland, l,Am. B. R. N. B. R. 53. 450. 65 Stoddard v. Lock, 9 N. B. 69 in re Collins, 2 Am. B. R. 1.. R 701 '0 Stilwell V. Walker, 16 N. B. 66 In re Kerr, 2 N. B. R. 388. R. 569. 67 Carter v. Hobbs, 1 Am. B. R. 215. 362 EQUITABLE REMEDIES. [§414. without fraud or collusion is conclusive as to the amount.'^^ And a judgment and a levy in the usual course of practice where there is no collusion with reference to priority is valid against the assignee.''^ (2) Invalid. — Sec. 67 of the bankruptcy act, providing that liens obtained by legal proceedings within four months prior to the filing of a petition in bankruptcy becomes null and void upon adjudication, applies only to cases of involuntary bankruptcy and not to cases of voluntary bankruptcy .''* Where a creditor obtains a lien by virtue of a judg- ment and subsequent levy within four months prior to the filing of a petition in bankruptcy by the judgment debtor, the judgment is dissolved by the subsequent adjudication in bankruptcy. Paragraph c, sec. 7, of the bankrupt act, provides that a lien created by, or obtained in, or pursuant to any suit, or proceeding at law, which was begun against a person within four months before the filing of a petition in bankruptcy, such judgment shall be dissolved by the adjudication of such person to be a bankrupt if it appears that the lien was obtained and permitted while the defendant was insolvent and that its existence and enforcement will work a preference. Several facts must exist before a lien may be dissolved under this section; (1) it must be created by, or obtained in, or pursuant to a suit or proceeding at law; (2) such suit or proceeding must have begun within four months before the filing of the petition in bankruptcy; (3) it must appear that the lien was obtained and permitted when the bankrupt was '1 Catlin V. Hoffman, 9 N. B. property has priority in the pro- !*■• 342. ceeds of the bankrupt's estate as 72 Dolson V. Kerr, 16 N. B. R. against the fees and cost of 405. A creditor obtaining judg- banlcrupt proceedings. In re ment before banliruptcy which Hambright, 2 N. B. R. 157. becomes a lien on the debtor's 's in re Easley, 1 Am. B. R. 175. § 414.] THE BANKEUPTCY LAW. 363 insolvent; (4) the existence and enforcement of the lien must work a preference.''* Judgments in favor of creditors in fraud of the bank- rupt act are invalid as well as proceedings there- under.''^ And where a judgment is not a valid lien under the laws of the state it will not be a lien in bankruptcy proceedings.''^ To render a judgment void it must be shown that the plaintiff knew at the time it was entered that the debtor had executed an assignment.'''' The lien of a judgment procured within four months prior to bankruptcy is void in Ohio.''^ A judgment may be impeached under the bankrupt act by showing that it was designed to avoid the equal distribution of a debtor's estate.''^ Fraud in the obtaining of a judgment in a foreign jurisdiction may be shown but not so as to domestic judgments.*** A judgment levy without knowledge or collusion of the debtor when the debtor was insolvent is held to be suffering or permitting a preference and therefore an act of bankruptcy.*^ (3) Judgment by confession. A creditor may secure a lien by a confession of judg- ment where he has no knowledge of the failing circum- stances of the debtor.82 The preference secured by a creditor with a judg- ment note must relate to the time of the judgment^^ 74 In re Collins, 2 Am. B. B. 1. 8» Michaels v. Post, 21 WaJl. 75Buchannan v. Smith, 16 398.^^^^^^^^^.^^^^^^^ ^fe in re Cozart, 3 N. B. R. 126. - In re Weeks^ 4 N B R 116. 77 Shaffer V Fritchery, 4 N. B. sa Golson v. Nieheff, 5 N. B. T, -i7q R. 56. As to the state of judg- ,= Tr^' v» wllprath 1 N. B. N. ment notes and confessions of 78 In re Felleratn, x in. ^ judgment under the bankrupt act 79 Michaels v. Post, 21 Wall, of 1898 see 1 N. B. N. 414. 398. 364 EQUITABLE EBMEDIES. [§414. (4) When not a lien. A judgment creditor obtaining a lien after an assign- ment for the benefit of creditors without preference obtains no lien on the property assigned although the assignment is subsequently set aside by the assignee in bankruptcy.^* A judgment creditor has an option whether he will prove his debt or rely on his judgment lien.*^ (c) Execution Liens — Valid and Invalid. (1) Valid. — A lien upon property of the bankrupt ac- quired more than four months before the filing of the petition in bankruptcy is valid, and not affected by a discharge.*® And so where the lien is given by an execution levy and placing a custodian in charge the creditor has a lien in priority over the marshal in proceedings in bank- ruptcy.*'^ Creditors obtain a valid lien by execution against the property of the debtor when they have no reason to believe the debtor insolvent.** Levy made by a sheriff after filing a petition in bank- ruptcy on a judgment before creates a lien andthe assignee may sell and hold the proceeds subject to the liens as declared by the court.*^ To invalidate the lien it must be shown that the debtor was insolvent and that the creditor knew of the insolvency at the time of the levy.^** An execution issued and in the hands of the sheriff before proceedings in bankruptcy gives the creditor a s* Belden v. Smith, 16 N. B. R. 1; but see Davis v. Anderson, R. 302. 6 N. B. R. 154. SB Heard v. Jones, 15 N. B. R. ss in re Black, 2 N. B. R. 65; 402. In re Weeks, 4 N. B. R. 116; se In re Blumberg, 1 Am. B. Swope v. Arnold, 5 N. B. R. 148. R. 633. 89 Pennington v. Sole, 1. N. B. "In re Hughs, 11 N. B. R. R. 157. 542; Cf. In re Hull, 18 N. B. »o Armstrong v. Rickey, 2 N. B. R. 150. S 414.] THE BANKHUPTOT LAW. 365 lien as against general creditors where a lien attaches on a delivery of the execution to the sheriff.^^ An execution against a debtor where the creditor has no reasonable ground for believing the debtor to be insolvent is valid.^^ A lien created by an execution issued within four months before the filing of a petition in bankruptcy on a judgment obtained two years before is held to be valid and enforcible.®* Collusion is not shown by the fact that an affidavit was filed and execution issued and levied on the day proceedings in bankruptcy were commenced.®* (2) Invalid. — ^Where before a levy is made no lien exists it will be ineffective as against the bankrupt funds in the hands of an assignee where bankruptcy proceedings are commenced before levy.®^ Moneys obtained by a sheriff under execution sale a month prior to the filing of a petition in bankruptcy belong to the trustee.®® Where a creditor obtained a judgment and levied his execution upon the personal property and the debtor became a bankrupt and was discharged, the judgment creditor may withdraw his proof of claim on petition and proceed against property sold by the debtor before bankruptcy.*"^ (d) Liens Secured by Creditor's Bill. A suit by a creditor to set aside a fraudulent convey- ance is in legal effect the levying of an equitable execu- tion upon property which an execution at law is not effectual to reach, and such an equitable execution is a lien obtained pursuant to legal proceedings within 01 Wilson V. Childs, 8 N. B. R. »= In re Mackintosh, 2 N. B. R. 527. 158. 92 In re Black, 2 N. B. R. 65. ^« In re Kenney, 1 N. B. N. 401. 93 In re Easley, 1 N. B. N. 230. 97 Phelps v. Bowdoin, 14 N. B. 9* Witt V. Hereth, 13 N. B. R. R. 43. 106. 366 EQUITABLE EEMEDIES. [§ 414. the terms of subdivision f, sec. 67, of the bankrupt act.^ Under an action brought to reach choses in action or property not subject to execution a lien is acquired by the commencement of the suit.^ A creditor's bill secures a lien in favor of creditors as against property purchased by the debtor in his wife's name.* A commencement of an action by a creditor's bill gives to the creditor an equitable lien upon the prop- erty and choses in action of the debtor whether such property is in his hands or in the hands of a third party as fraudulent transferee.* (e) Lien of Mortgagee in Possession. Mortgagees of personal property in possession thereof at the time of the institution of bankruptcy proceedings cannot be compelled by a court of bank- ruptcy in a summary proceeding to surrender such property.^ Where a creditor calls in question the validity of a mortgage, executed by a bankrupt and held by another creditor, it is the duty of the bankrupt court to exercise jurisdiction over the questions involved and if neces- sary declare the mortgage null and void.® 1 In re Adams, 1 Am. B. R. feet, preceding the adjudication 95. But the lien must he secured in bankruptcy, it was held that before adjudication. Winters v. the sheriff who had made a levy Claitor, 18 N. B. R. 533. upon the property pursuant to 2 Johnson v. Rogers, 15 N. B. the judgment should be ordered R. 1. Where a creditor com- to turn over the property to the menced a suit against a bankrupt trustee. In re Fellerath, 2 Am. on April 12, '98, obtained judg- B. R. 40. ment January 13, '99, under s winter v. Claitor, 18 N. B. which the lien dated back to R. 533. November 21, '98, that being the * Stuart v. Isidor, 1 N. B. R. first day of that term of court, 129. and on January 23, '99, a cred- s in re Buntrock Clothing Co., iter's suit based on the judg- 1 Am. B. R. 454. ment was commenced within 6 in re Christy, 3 How. 292; four months of the time when Norton v. Boyd, 3 How. 426; Col- the bankrupt law went into ef- lier on Bankruptcy, pp. 12-17. § 414.J THE BANKEUPTCT LAW. 367 (f) Lien Secured by Attachment. An attachment execution within four months of a bankruptcy of the defendant who is insolvent and the lien acquired thereunder is void and the trustee has a right to the property.' A bankruptcy law does not affect any right acquired by proceeding in rem or partly in rem brought at an earlier date than four months next before filing peti- tion. A lien acquired by attachment more than four months before the filing of a petition is not affected by the discharge in bankruptcy.® The lien obtained by an attachment relates back to the commencement of the attachment and not the date of the judgment." The lien acquired by an attachment in a suit com- menced a year before the filing of a petition is not destroyed by an adjudication in bankruptcy.*" In order to render an attachment null and void as against the bankrupt law the debtor must be insolvent at the time of the attachment.** An attachment within four months prior to the filing of a petition is void where the debtor was insolvent at the time of issuing the attachment where the bankrupt was subsequently adjudicated a bankrupt.*^ 7 Peck Lumber Co. v. Mitchell, tion of the debtor as a bankrupt 1 N B N 262 annulled the lien of the attach- sin're Blu'mberg, 1 N. B. N. ment where the debtor was in- 23g solvent at the time of the attach- 9 Hudson V Adams, 18 N. B. R. ment, and the attaching creditor 102 *^ entitled to no preference. In liln re DeLue, 1 Am. B. R. re Friedman, 1 Am. BR. 510. SS7 12 Peck Lumber Mnfg Co. v. 11 In re Friedman, 1 Am. B. R. Mitchell, 1 Am. B. R. 701. A fjio Where an attachment suit commenced an action against a was commenced against the debtor and levied an attachment bankrupt more than four months upon his land. Another creditor Prior to tSi filing of his petition obtained judgment afterwards Ct thP attachmint of the prop- and levied execution on the sama Lty was not made within four land. The debtor filed a petit on ^nr^ths of the filing of such peti- in bankruptcy, and sale of the ton, the subsequint adjudica- land was enjoined. It was sold 368 EQUITABLE EEMEDIES. [§414. (g) Lien of Pledge. — Where collaterals have been pledged by a bankrupt as a security for debts the secur- ity will be protected unless the pledge is preferential in violation of the bankrupt act.^^ A creditor holding a pledge from the bankrupt prior to the filing of the petition and not in contemplation thereof will be entitled to priority against general cred- itors.i* (h) Lien of Landlord for Rent. — The landlord's lien for rent is protected in bankruptcy.*^ A bankrupt is absolved from all contractual rela- tions and personal obligations to the landlord growing out of a lease.*^ (i) Power of Bankrupt Court Over Liens. — The dis- trict court has jurisdiction to determine the validity of liens upon and the fraudulent conveyances of the prop- erty of the bankrupt, and may grant the same relief which state courts could grant, and this without the con- sent of the secured creditor.* '^ A bankrupt court has power to sell incumbered property and distribute among lienholders.*^ A lien creditor by proving his debt and asserting his claim in the bankrupt court and participating in the t)y the assignee, and the amount le in re Jefferson, 1 N. B. N. received was enough to pay both 288. In Pennsylvania the land- judgments. Held, that A was lord is entitled out of the pro- entitled to priority, as his judg- ceeds of personal property upon meat lien related back to the the demised premises in the service of the attachment. Hud- hands of a receiver or trustee in son. Ass. v. Adams, 18 N. B. R. bankruptcy to priority in pay- 102; 3 Gin. Law Bui. 1,066; Fed. ment of rent due at the time of Gas. 6,832. filing the petition in bankruptcy 13 In re Peebles, 13 N. B. R. not exceeding one year. In re 149. Garson, 1 N. B. N. 315. A claim " In re Ohio Co-operative for rent under Pennsylvania Shear Go., 1 N. B. N. 477. The statutes is entitled to priority, lien of a landlord for rent will In re Cronsin, 1 N. B. N. 474; have a preference in bankruptcy. In re Shilliday, 1 N. B. N. 475. Barne's Appeal, 9 N. S. 521. it Carter v. Hobbs, 1 Am. B. 15 In re Wyne, 4 N. B. R. 5; R. 215. Neator v. Everet, 10 N. B. R. 421. is in re Salmons, 2 N. B. R. 19. § 415.] THE BANKEUPTCY LAW. 369 bankruptcy proceedings is estopped from enforcing his lien in the state court.^* A lien given by statute may be waived by a sur- render of property to the assignee without claim for a lien.20 § 415. EflFect of Bankruptcy as to Mortgages and Mortgage Foreclosures.— (a) Mortgages When Valid. A mortgage executed four months and four days and filed less than two hours before a voluntary petition in bankruptcy by the mortgagor is a valid lien as to gen- eral creditors. ^^ (b) Mortgages When Void. A mortgage made after bankruptcy proceedings were commenced may be summarily set aside on appli- cation of the assignee,^^ but where a mortgagor con- veys in fraud of the bankrupt law actual notice must be brought home to the mortgagee.^* So also if the mortgage is executed within four months of the filiflg of a petition in bankruptcy it is void.2* A chattel mortgage void as against creditors will also be void as against the bankrupt's estate.^^ Where a creditor of a bankrupt holds a mortgage securing an antecedent indebtedness the mortgage being executed within four months before the filing of the peti- tion in bankruptcy he will not be entitled to prove his claim until he has surrendered his mortgage.^® 19 Spilman v. Johnson, 16 N. B. Kerby-Dennis Co., 1 N. B. N. 337. H. 145. 21 In re Wright, 1 N. B. N. 381. 20 In re Mitchell, 8 N. B. R. 47. 22 in re Sims, 16 N. B. R. 251. Money on deposit in the hands 28 Boothe v. Brooks, 12 N. B. of a banker is not subject to a R. 398. lien in favor of the banker as 24 Hipskind v. Murphy, 1 N. B. against the assignee. In re War- N. 310. ner, 5 N. B. R. 414. Liens in 25 in re Leigh Bros., 1 N. B. N. favor of laborers are not in- 425. (Opinion by referee.) hibited liens or preferences 26 in re Leeman, 2 Am. B. R. under the bankrupt act. In re 52. (Opinion by referee.) 370 EQUITABLE REMEDIES. [§ 415. A mortgage and bill of sale of personal property, void as to creditors under the statute of frauds oi the state, are void and convey no title as against an as- signee.^'' Where a debtor gives a mortgage to a creditor who has reasonable cause to believe him insolvent it is void under the bankrupt act.^^ (c) Foreclosure in State Court. The mere filing of a petition in voluntary bankruptcy does not divest the jurisdiction of the state court in a proceeding to foreclose a mortgage. ^^ A mortgagee may proceed to foreclose in a state court vrhere the assignee does not seek to redeem,^" but he must not submit himself to the jurisdiction of the bankruptcy court by proving his debt.^^ Foreclosure of a mortgage and the sale of the prem- ises pending proceedings in bankruptcy without proof of the mortgage debt or leave of the court first ob- tained are invalid and in contempt of the jurisdiction and authority of the bankrupt court;^^ Proceedings to foreclose a mortgage may be stayed on the application of the assignee,^* but a foreclosure suit in the state court will not be interfered with by the United States court where there is no surplus over and above the mortgage debt.^* A second mortgagee is not entitled even with the con- sent of the first to take and hold possession of the mort- 27 Edmondson v. Hyde, 7 N. B. render of his mortgage security. R. 1. In re Leeman, 1 N. B. N. 331. 28 Hall V. Wager, 5 N. B. R. (Opinion by referee.) 181. 32 Phelps V. Sellick, 8 N. B. R. 29 In re Irving, 14 N. B. R. 289. 390. 30 Brown v. Gibbons, 14 N. B. as Markson v. Haney, 12 N. B. R. 407; McKay v. Funk, 13 N. B. R. 484; see also In re Snedaker,. R. 334. 3 N. B. R. 155. 31 Hatcher v. Jones, 14 N. B. R. a In re HoUoway, 1 N. B. N. 387. A mortgagee is not allowed 264. to prove a claim without a sur- § 416.] THE BANKBtrPTOT LAW. SYl' gaged property as against an assignee nor to appro- priate the rent.^^ A trustee cannot take possession of mortgage goods in the hands of mortgagees before bankruptcy proceed- ings were begun by summary proceedings.^® Failing to join the trustee in a mortgage foreclosure commenced after the adjudication in bankruptcy but before the appointment of a trustee does not affect the trustee, and a purchaser at such sale would not obtain a title free from infirmity.*'' A trustee must assert his rights in the state court where mortgaged property of the bankrupt is being sold under foreclosure, and where the holder of the mortgage has taken possession of the property before the institution of proceedings in bankruptcy against the mortgagor and brought suit for foreclosure he can- not be restrained by a bill in equity in the bankruptcy court.*^ A mortgagee of chattels has no right to foreclose without permission of the court of bankruptcy, unless some action is commenced to make such foreclosure in a state court which obtains jurisdiction over the chat- tels, or unless the mortgagee, or the officer making the chattel mortgage sale, gets exclusive possession before adjudication.** § 416, Injunction in. Bankruptcy Proceedings— When Granted and When Not.— (a) When Granted General. A court of bankruptcy has power to enjoin proceed- ings in the state court where the debtor has been ad- 35 Hutchings V. Muzzy Iroa as Heath v. Shaffer, 1 N. B. N. ^aTi"n%e' B^unt^oc^cfotW Co.. ''} In re Broo.s, 1 Am. B. R. 1 N. B. N. 291. , ^, « TST 37 Mills V. Kierman, 1 N. B. N. 410. 373 EQUITABLE EBMEDIES. [§416. indicated a bankrupt; (1) in a foreclosure proceeding until the validity of the mortgage is determined;*" (2) in a proceeding in a state court to obtain judgment and execution; (3) to enjoin creditors from taking proceed- ings in the state court affecting the possession of the assignee by writ of sequestration ;*^ (4) to restrain pro- ceedings in the state court pending the question of dis- carge of the bankrupt;*^ (5) to restrain the sheriff from levying on the property of the bankrupt on a judgment prior to adjudication;*^ (6) to restrain an action of trover against a marshal for taking possession of the bankrupt's property where the plaintiff claims the goods taken.** But a United States district court will not restrain by injunction proceedings in a state court until the bankruptcy proceedings are pending.*^ Nor where a creditor is selling under an execution an alleged homestead.*® Nor where proceedings ex delicto are pending against a bankrupt in a state court growing out of fraud.*^ Nor to stay proceedings on an order to show cause why the bankrupt should not be punished for contempt in proceedings supplemental to execution.*® Where the bankrupt does not apply for a stay of pro- ceedings against him after his adjudication the judg- ment will be valid in the absence of fraud.** An injunction should not be issued where it appears that the real purpose of the injunction is to tie up the *o In re Kerosene Oil Co., 2 N. *3 In re Richardson, 2 N. B. R. B. R. 164. 74. 41 Hewett V. Norton, 13 N. B. *e in re Hunt, 5 N. B. R. 493. R- 276. 47 Horton v. Harlan, 7 N. B. R. 42 In re Thomas, 3 N. B. R. 7. 238. 43 In re Mallory, 6 N. B. R. 22. 48 in re Hill, 2 N. B. R. 53. 44 Hudson V. Schwab, 18 N. B. 49 Cutter v. Elvans. 11 N. B. R. R. 480. 448. § '^^^■1 THE BANKBUPTOY LAW. S^S proceeds of a sale until bankruptcy proceedings can be instituted.^^' _ (b) Against Sale on Execution.— The court may en- join the sale of goods under an execution from a state court and direct the trustee to take possession and sell the goods with leave to judgment creditors to apply for an order to have their lien satisfied out of the proceeds;" and to enjoin the sale of the debtor's land under a proceeding in the state court.^^ An injunction should issue against creditors who ob- tained judgment against a debtor pending the bank- ruptcy proceedings and are selling his property after adjudication.^^ General creditors have power to enjoin the sale of property of an insolvent debtor under process of a state court until such time as an involuntary petition can be filed against the debtor.^* The court may restrain further proceedings by a sheriff under an execution on a judgment in a state court even though the recovery antedates the adjudica- tion.^^ (c) Against Judgment. — An injunction against a judgment where the creditor has reasonable cause to believe the debtor is insolvent may be granted.^® (d) Against Proceedings in State Court. — A district court in bankruptcy has plenary power to enjoin all proceedings in a suit in a state court founded on a debt to which a discharge would be a release. Whether the injunction could issue or continue is a matter of discre- tion." 50 Vietor v. Lewis, 1 Am. B. R. es in re Northrup, 1 Am. B. R. 667. 427. 51 In re Schnepf, 1 N. B. R. 190. 58 Haskell v. Ingall, 5 N. B. R. 52 In re Lady Byrn Mining Co., 205. 6 N. B. R. 252. 57 in re Globe Cycle Works, 1 53 In re Wallace, 2 N. B. R. 52. N. B. N. 421. 54 Blake v. Valentine Co., 1 Am. B. R. 372. 374 EQUITABLE EEMEDIES. [§416. Injunctions against proceedings in the state court should usually be granted if the suit is not yet in judg- ment, and even after judgment if the rights of general creditors not parties to the suit will be jeopardized by further proceedings in the state court, or the judgment is founded on a transaction which is an act of bank- ruptcy, or a fraud on creditors or the bankrupt law; but in the absence of either ot both of these elements it should never be granted after the judgment has ripened into an execution sale, if the state court has or can be given jurisdiction of all the parties interested in this distribution.^® 5s Globe Cycle Works, 1 N. B. N. 421. Under the bankrupt act of 1898 the power of the bank- rupt court to restrain proceed- ings In the state court may be summarized as follows: (1) Where the debts are discharge- able in bankruptcy proceedings in state courts which would re- sult in the arrest of the bank- rupt may be restrained, for contempt of court, 1 N. B. N. 60; for contempt of court in refus- ing to pay alimony, in re Hous- ton, 94 Fed. 119; where under statute in an action for labor a body execution might issue, in re Grist Buffalo Review, Oct. 31, 1898; and -when the cause of ac- tion was a claim for loss of ser- vices to a father 'by reason of seduction, in re Sullivan, 1 N. B. N. 380; (2) Injunction may issue to restrain suits for debt in per- sonam at least prior to judg- ment; to restrain proceedings supplementary to execution based on a judgment In person- am; in re Spencer, 1 N. B. N. 154; in re Kletchka, 92 Fed. 901; to restrain execution sales from sheriffs, Blake v. Francis Valen- tine Co., 89 Fed. 691, 94 Fed. 793; but see Victor C. Lewis, 24 Misc. (N. Y.) 515; (3) where a sale has already taken place the issuance of an injunction is rare- ly exercised, in re Easley, 93 Fed. 419; in re Meyers, 1 N. B. N. 293; in re Adams, 1 N. B. N. 167; (4) where proceedings are in rem and an injunction has is- sued as in re Nathan, 92 Fed. 590, where a stock in trade under a chattel mortgage which was al- leged to be an act of bankruptcy. However, in Heath v. Shaffer, 93 Fed. 647, Judge Shiras refused to restrain further proceedings by a holder of chattel mortgage who had taken possession of the bankrupt's property before the institution of proceedings in bankruptcy and was proceeding to foreclose against the bank- rupt and the trustee. Injunctions have also been issued to restrain foreclosures of real property in re Pitlekow, 92 Fed. 901; in re Holloway, 93 Fed. 638; in re Gutwillig, 90 Fed. 481; in re Agins, 1 N. B. N. 180; 93 Fed. 1018; (5) the Federal courts have been almost unanimous in restraining further proceedings where the bankrupt has made a general assignment, in re The Leidigh Carriage Co., 1 N. B. N. 387; Davis v. Bohle, 92 Fed. 325; the reason being apparently that the general assignment is an act of bankruptcy, and therefore, a fraud on the law and on credit- ors. Referee Hotchkiss in re Globe Cycle Works, after a re- view of the cases relating to In- §416.] THE BANKEUPTCT LAW. 375 Even if a judgment provides that execution shall not issue until the further order of court where the judg- ment is entered after the bankruptcy proceedings are commenced it should be stayed.^^ On the petition of creditors after adjudication and before the appointment of an assignee an injunction may issue restraining attaching creditors from further proceedings against the property.*"* (e) Against Foreclosure Proceedings. — A bankrupt court on the petition of the trustee may restrain a state court from proceeding in an action commenced after adjudication where the purpose of the suit is the appointment of a receiver and foreclosure until the validity of the mortgage is determined.^^ This power is only vested in the circuit court or dis- trict court where the bankruptcy proceedings are pend- ing.®^ junctions against proceedings in state courts, under the law of 1898, summarizes the law upon this subject as follows: The in- junction, after adjudication, is always discretionary and, pro- vided the cause of action is one dischargeable in bankruptcy, should usually be granted: (1) If the bankrupt is threatened with arrest, or will be needlessly harassed; (2) if the suit is not yet in judgment, and (3) even after judgment if (a) the rights of the general creditors not par- ties to the suit will be jeopar- dized by further proceedings in the state court, or (b) the judg- ment is founded on a transaction which is an act of bankruptcy or a fraud on creditors or the law; but, in the absence of either or both of the latter elements (a or b). It should never be granted after the judgment has ripened into an execution sale, provided the state court has or can be given jurisdiction of all parties interested in the distribution, in- cluding the general creditors represented by the trustee in bankruptcy. It was frequently held under the law of 1867 that creditors could be restrained from the entry of judgment on provable debts and that sheriffs could be enjoined from making sales after executions thereon. In re Schnepf, Fed. Cas. No. 12471; in re Mallory, Fed. Cas. No. 8991; in re Bloss, 4 N. B. R. 147; Irv- ing V. Hughes, 2 N. B. R. 61. It was however doubted whether a Federal court should interfere with the proceeds of a sale al- ready had. Appeal of Biddle, 68 Pa. St., 13; Wild v. O'Brien, sherife, 4 Alb. L. J., 364. 59 McKay v. Funk, 13 N. B. R. 324. 80 In re Ullrich, 8 N. B. R. 15; Walker v. Siegel, 12 N. B. R. 394; in re Fuller, 4 N. B. R. 29. 61 In re Kerosene Oil Co.,' 2 N. B. R. 164. 62 Markson v. Heney, 4 N. B. R. 165. 376 EQUITABLE KBMEDIES. [§416. (f) Against Supplementary Proceedings. — Where proceedings supplementary to execution have been in- stituted upon a judgment against a person afterwards adjudged a bankrupt and another person jointly in- debted with him, the proceedings may be stayed by order of the referee in bankruptcy so far as the bank- rupt is concerned; but there is no jurisdiction as to the other joint debtors. And in such case it is immaterial that the supplementary proceedings were prior to the passage of the bankrupt act.®* The supplementary proceedings are a prosecution of the bankrupt in a state court and are subject to subdi- vision a, sec. 11, of the bankrupt act. The bankrupt act contemplates proceedings by all the creditors under clause 9, subdivision a, sec. 7, and supplementary proceedings are not of such character.®* (g) Against Assignments. — The bankruptcy court has jurisdiction to restrain proceedings in assignment in a state court.®^ The court may restrain a trustee or assignee from disposing or interfering with property that came into his hands under a general assignment.®® (h) Effect of Restraining Order Under § 11.— The ef- fect of a restraining order under sec. 11 granted ecc parte with permission to move to vacate at any time is in the nature of a show cause and the party restrained be- comes a party to the proceeding in bankruptcy, even before adjudication for the purpose of moving to vacate the order granted.®'' Proceedings pending in a state court will not be 63 In re DeLong, 1 Am. B. R. es tea Bros. v. West, 1 Am. B. 66. R. 261. 64 In re Adams, 1 Am. B. R., eo in re Gutwillig, 1 Am. "B. R. 94, 105. Supplementary proceed- 388. ings pending at the time of ad- e? in re Globe Cycle Works, 1 judication will be stayed by a N. B. N. 421. (Opinion by ref- court of bankruptcy. In re eree.) Kletchka, 1 Am. B. R. 479. § 417.] THE BANKRUPTCY LAW. 377 stayed on the ground that the plaintiffs have instituted proceedings to have the defendants declared involun- tary bankrupts.** A joint judgment against the bankrupt and another party does not affect the right of the plaintiff to pro- ceed against the third party even if enjoined as against the bankrupt.*® § 417. Effect of Bankruptcy Upon Assignments and Insolvency Laws.— (a) Insolvency Laws When Suspended. The bankrupt act suspends all state insolvency laws during the continuance of its operation.''" An assignee under a state insolvent law where the assignment is made within four months preceding ad- judication takes no title as against the creditors, and all his acts touching the estate of the bankrupt as well as all acts of the state court in the administration of the same are unauthorized and void and will be treated as nullities wherever drawn in question.^^ The state laws are not entirely superseded by the bankruptcy act, but where there is no conflict the former remain in force.''^ If the property of a bankrupt is in the hands of an assignee appointed by a state court the bankrupt court may, by a summary proceeding, compel the assignee to 68 MaxweU v. Faxton, 4 N. B. re Bruss-Ritter Co., 1 Am. B. R. R. 60. 59. 8s> Penny v. Taylor, 10 N. B. R. 7i In re Smith, 2 Am. B. R. 9; 200. The stay of a suit or action in re Hathorn, Fed. Cas. No. in a state court is discretionary 6214; In re Blninger, id. 1420; ■with the Bankrupt court. In re in re Wallace, id. 17094; in re Holloway, 1 Am. B. R. 659. Washington Marine Ins. Co., id. T> State insolvency courts have 17,246; in re Merchants' Ins. Co., no jurisdiction of insolvency id. 9,441; Thornhill v. Bank, id.^ matters after the passage of the 13992; Manufacturing Co. v. national bankruptcy act on July Hamilton (Mass.), 51 N. E. 529; 1, 1898. Parmenter Co. v. War- in re Bruss-Ritter Co., 90 Fed. r'en 1 Am B. R. 39. In re 651; Lea v. George M. West Co., Smith, 2 Am. B. R. 9. The 91 Fed. 237. bankruptcy act suspends all '2 Gerry's Appeal, 17 N. B. R. state insolvency actions. In ;■ 196. 378 EQUITABLE REMEDIES. [§417. surrender the property to the trustee of the bank- rupt.''* (b) Distinction Between Insolvent Laws and Assign- ment Laws. — There is a difference under a state in- solvency statute and one under a state statute per- mitting general assignments. Proceedings under state insolvency laws are, since the passage of the bank- ruptcy act, void, whether or not bankruptcy proceed- ings follow, but general assignments are valid unless they become invalidated by subsequent bankruptcy proceedings.'^* The difference between a general assignment law as distinguished from a state insolvency law is held by Judge Adams in re Sievers, 1 N. B. N., p. 68, is as fol- lows: Under a general insolvency act there is an ad- ministration on the estate of the insolvent as a proceed- ing in the court, in which proceeding the estate is wound up judicially and the debtor discharged. This constitutes it essentially a bankruptcy proceeding which is superseded by the act of congress. Under a statute permitting general assignments the potency is not derived from the law, but the contract or the deed of the debtor, and is administered under and according to the provisions of the deed, supplemented only by leg- islative safeguards, in which proceeding the debtor is 73 In re Fellerath, 2 Am. B. R. sen, 29 U. S. 329. The general 40. assignment law of Missouri is '■> In re Sievers, 1 Am. B. R. superseded by the bankrupt law. 117. The general bankruptcy 1 N. B. N. 216; Davis v. Bohle, law suspends all proceedings 1 N. B. N. 216. A 'bankrupt peti- under state Insolvent laws. In tioned for the benefit of the state Te Merchant Ins. Co., 6 N. B. R. insolvent law after the passage 43. The assignment law of Illi- of the United States bankrupt nols is substantially an insol- law. Held, that the state law was vent law and hence Is suspended suspended in so far as the pro- by the bankrupt law from July 1, visions of the bankrupt law 1898. In re Curtis, 1 N. B. N. p. cover the subject matter of the 163; cf. Hanchett v. Waterbury, state insolvent law. In re Rey- 115 111., 227; Buchanan v. Smith, nolds, 9 N. B. R. 50; Fed. Cas. 83 U. S. 277; Meyer v. Hileman, 11,723. 71 U. S. 329; White v. Cotzhau- § 417.] THE BAKKEUPTCY LAW. 379 not discharged. This latter method is not superseded by the act of congress.''^ The law would seem to be that insolvency laws are suspended by the bankrupt act whether bankruptcy ensues or not, whereas proceed- ings under general assignment laws, as in the state of Missouri or under the common law deed, are not void or voidable until bankruptcy proceedings are instituted. A proceeding by an insolvent corporation to procure the appointment of a receiver for itself and a dissolu- tion of the corporation and a distribution among cred- itors of all of its assets, is a transaction equivalent to the general assignment for the benefit of creditors within the meaning of the fourth act of bankruptcy, specified in sec. 3a, subhead 4.'^'' (c) When Assignment an Act of Bankruptcy. — The assignment of all the debtor's property for equal dis- tribution among creditors under the law of 1867 was held not to be an act of bankruptcy unless made with intent to hinder, delay or defraud his creditors, or to defeat the operation of the bankrupt act." Under the act of 1898 a general assignment for the benefit of cred- itors is an act of bankruptcy, whether the assignor is insolvent or not.''^ Where two partners of an insolvent firm, with knowl- edge of their co-partners, institute a proceeding to pro- cure a receivership of the partnership and a distribu- tion of their assets according to state insolvency laws, and in such proceeding a receiver is appointed and certain creditors are entitled to a priority under the state law and to be paid in full, which preference is 75 Mayer v. Hellman, 91 TJ. tt Langley v. Perry, 2 N. B. R. I,,'%^r^ McSte'98 U. i: ''?« Lea v. West^ 1 Am. BR. 379, Keea v. i¥ii.iuuj. ^^^_ George M. West Co. v. Lea ^°I;in re Empire Metallic Bed- Bros IN. B. N. 409; Bray v. steadCo , 1 Am. B. R. 136. Cobb, 1 Am. B. R. 153. 380 EQUITABLE EEMEDIES. [§ 417. greater than that allowed by the bankrupt law, it is an act of bankruptcy.''^ Where the liquidating partner of a firm has made a general assignment of the firm's property for the bene- fit of creditors within four months prior to filing the petition, to which proceedings the other partner practi- cally acquiesced, the assignment is an act of bank- ruptcy.*** An assignment is in fraud of the bankrupt act and in law is made to hinder, delay and defraud creditors if the immediate result is to defeat the operation of the bankruptcy act and impair and defeat the remedy of creditors under that act.®^ A general assignment is an act of bankruptcy and may be avoided by subsequent adjudication if made within four months, but until such adjudication the assignment is valid.®^ An assignment for the benefit of creditors justifies an adjudication in bankruptcy without an averment or proof that the assignor was insolvent at the time of the assignment.** Where an assignment is made within four months of an adjudication the assignee will, upon a summary petition, be required to surrender the property in his possession to a receiver appointed by a court in bank- ruptcy.** (d) Title Derived Under State Insolvency Law. — An assignment made under a state insolvency act within four months preceding the adjudication of a bankrupt conveys no title to the assignee in the assignment as against the trustee in bankruptcy.*^ '» Mathe v. Coe, 1 Am. B. R. sa in re Romanow, 1 Am. B. 504. R. 461. 80 Chemical Nat'l Bk. v. Meyer, ss The Lediegh Carriage Co. v. 1 Am. B. R. 565. Stengel, 1 N. B. N. 387. 81 In re Gutwillig, 1 Am. B. R. »* in re Smith, 2 Am. B. R. 9. 388. 85 In re Smith, 2 Am. B. R. 9. 1 418.] THE BANKEUPTOT LAW. 381 A voluntary assignment for the benefit of creditors made pursuant to the laws of New York is voidable by, the trustee of the debtor in bankruptcy if made within four months prior to the adjudication; and also be- cause such an assignment is in effect a transfer in fraud of creditors within sec. 70 of the bankrupt act.^^ Creditors who have received dividends under a state assignment are not precluded from participating in proceedings under the bankrupt law, and it is not nec- essary for them to refund the amount realized on the assignment.*'' (e) Suit by Trustee, — An assignee must bring his action in equity for a conversion of the bankrupt's property made prior to the filing of the petition.** A district court other than that in which bankruptcy proceedings are pending has no jurisdiction in an action by an assignee to recover assets.*" § 418. Effect of Bankrupt Law as to Fraudulent Conveyances.^(a) Jurisdiction — Bankrupt Court — Trustee. — Subd. b, sec. 33, of the bankrupt act, does not divest the bankrupt court of jurisdiction in suits brought by a trustee to set aside fraudulent convey- ances of property belonging to the bankrupt. And the district court, as a court of bankruptcy, has ample jur- isdiction to entertain a suit by a trustee, in bankruptcy, to set aside a fraudulent conveyance."" (b) How Avoided.— Property conveyed by mortgage and in the hands of the mortgagee does not authorize the seizure of the property in a summary proceeding. 86 In re Gutwillig, 1 Am. B. E. months prior to the filing of the Yg petition. In re Grabs, 1 Am. B. ST In re Folb 1 Am. B. R. 22. B. 465; Carter v. Hobbs, 1 Am. 88 Mitchell v.' McKibben, 8 N. B. R. 215. The United States g jj 54g courts have no jurlscliction to 89 Lamb v Damron, 7 N. B. R. set aside a fraudulent convey- gng ' ance where the debtor and the 90 The bankruptcy act does grantee are both residents of the not confine itself strictly to same state Burnett v. Morris transfers made "Within four Mercantile Co., 1 Am. B. R. 229. 382 EQUITABLE EEMEDIES. [§ 418. Sec. 69 is intended to imply only to the seizures of property in possession of the bankrupt and not the property that has passed from his possession before the institution of proceedings.®^ (c) Who May Avoid. — The assignee may file a bill to set aside a conveyance made in fraud of creditors, al- leging that the deeds vrere without consideration and were designed to defraud creditors."^ A creditor cannot have a conveyance of real estate, which is either really or constructively fraudulent, set aside unless he has a lien thereon or has reduced his claim to a judgment and the fraudulent conveyance is an obstacle to a sale on execution.®^ The trustee can avoid any conveyance which the creditors could avoid, although made more than six months before bankruptcy;®* and he may avoid a fraudulent conveyance in a state court where it was in fraud of the bankrupt act.®^ A trustee in bankruptcy has no greater right than a judgment creditor, and property may be conveyed as against the trustee to a bona fide purchaser by the fraudulent grantee where the purchaser is without notice."® (d) What Is a Fraudulent Conveyance. — It is prima facie evidence of fraud for an insolvent debtor to make a transfer out of the usual course of business.®'' A voluntary conveyance may be fraudulent without the grantee knowing or participating in the fraudulent intent.®* The removal of a debtor's goods in fulfillment of a 91 In re Rockwood, 1 N. B. N. os Dambmann v. White, 12 N. p. 134. B. R. 438. »2 Johnson v. Helmsteae, 19 N. »6 Beall v. Harrell. 7 N. B. R. B. R. 71. 400. OS Parker v. Smith, 12 N. B. R. 07 Webb v. Sachs, 15 N. B. R. 474. 168. 91 Crabb v. Curtis, 6 N. B. R. »8 Beecher v. Clark, 10 N. B. R. 139. 385. § 418.] THE BANKEUPTCT LAW. 383 contract made long prior to bankruptcy is not fraudu- lent within the meaning of the bankrupt act of 1867.8" (e) When an Act of Bankruptcy. — The transfer of personal property by an insolvent debtor to a creditor greater in value than the amount of the debt, the differ- ence being paid in cash to the vendor, is an act of bank- ruptcy, under sec. 3 of the act of 1898.^ (f) Power of Bankrupt Court Over. — A court of bank- ruptcy has power to determine whether a transfer by the bankrupt is voidable as being in fraud of creditors where the transfer was made within four months before the filing of an involuntary petition.^ But a trustee cannot in the district court of the United States sustain an action of replevin for goods held adversely under a claim of title where the bank- rupt and the person holding the property are citizens of the same state.^ (g) Kinds of Fraudulent Conveyances. — Under the act of 1867 there were three kinds of fraudulent convey- ances as to creditors, those void or voidable by statute, those voidable at common law, and those in fraud of the bankrupt act.* (h) Eights of Creditors Vests in Assignee.— Under the former bankrupt act it was held that all the cred- itors' rights of action to reach fraudulently conveyed property passed to the assignee as a statutory right.^ (i) Rights of Creditors Under Creditor's Bill.— Where creditors by reason of their diligence in the commencement of creditors' proceedings before the filing of a petition in bankruptcy to reach property fraudulently conveyed before the passage of the act of 83 M & N. Nat'l Bk. v. Brady's s Mitchell v. McCIure, 1 Am. B. ■RpTifl iron Co 5 N. B. R. 419. E.. 53. 1 Joinson y.' Waid, 2 Am. B. ^ ^ Allien v. Montgomery, 10 N. ■^2 In re Kesii, 2 Am. B. R. 79. '= Olney' v. Tanner, 22 Blatchf. 540. 384 EQUITABLE EEMBDIES. [§ 419. bankruptcy their rights are' unaffected by the bank- ruptcy law. This is by reason of the fact that the trustee in bankruptcy takes the property as he finds it subject to existing liens.^ (j) Rights of Seller Under Fraudulent Purchase. — Where a creditor before bankruptcy who has rescinded his contract of sale with the debtor and began replevin proceedings wherein a portion of the goods sold to the bankrupt were recovered, he cannot prove up a claim for the residue on the ground of fraudulent con- version.'^ (k) Title in Whom Vests.— Under sec. 5446, U. S. Rev. Stat., of the former bankrupt act, all title to the property of the debtor conveyed in fraud of creditors was vested in the assignee and it was held that the right to attack a fraudulent assignment was in the as- signee in bankruptcy.^ Property fraudulently conveyed by the bankrupt prior to his petition, where the title subsequently vested in him before the filing of the petition, is subject to the distribution under the bankrupt act.® Where a voluntary bankrupt makes a conveyance without consideration, a few days prior to the verifica- tion of his petition in bankruptcy, and does not include the real estate in his schedule, the oath is not false.^° § 419. Effect of Bankruptcy Law Upon Prefer- ences. — (a) Preferences When Valid. — The payment of a pre-existing debt within four months of bankruptcy proceedings is valid if the creditor has no reason to 6 In re Adams, 1 Am. B. R. 94; S. 647; Moyer v. Dewey, 103 V. S. cf. Yeatman v. Sav. Inst. 96 U. S. 301. 764. 9 In re Brown, 1 Am. B. R. 7 In re Heinsfurter, 1 N. B. N. 107. 467. loSchreck, 1 Am. B. R. 366. 8 In re Adams, 1 Am. B. R. 94; Property which Is In the hands Cf. Olney v. Tanner, 22 Blatchf. of a receiver appointed by a 540; Glenny v. Langlon, 98 U. S. state court in an action by cred- 20; Crimble v. Woodhead, 102 U. itors to set aside a conveyance 5 419.] THE BANKETJPTOT LAW. 385 believe the payment is made with a view of giving him a preference or that the debtor was insolvent." A claim for reasonable attorney's fees under subd. B, sec. 64, has priority over a claim for rent.^^ The court may allow as a preference a claim for rea- sonable attorney's fees for legal services actually needed for the preservation of property in voluntary proceedings pending the appointment of the trustee.^^ Costs and expenses of bankruptcy proceedings are entitled to priority of payment out of funds in court derived from the sale of the bankrupt's property," (b) Preferences When Void. — Payments to creditors by an insolvent within four months prior to adjudica- tion are preferences within the meaning of sec. 57g under the bankrupt act, though made without an inten- tion to prefer and received by the creditor without rea- sonable cause to believe they were preferences.^^ Where the bankrupt has conveyed personal property to a creditor in payment of an indebtedness an intent to prefer such creditor will be inferred for the reason that a preference is the natural result of such a trans- fer and the insolvent must be presumed to intend the natural results of his own acts.^® (c) When an Act of Bankruptcy. — An insolvent who allows or suffers a lien to be obtained by an attachment in proceedings begun within four months before the filing of a petition against him and does not in good faith prevent or resist the effort of the creditor to as fraudulent, wliich property " Blakey v. Boomville Nat'l after it has come into the hands Bk., 1 N. B. N. 411. of a receiver is transferred back 12 In re Duncan, 1 N. B. N. 340. to the fraudulent grantor, vests is in re Knost, 1 N. B. N. 403. in the trustee in bankruptcy and 1* In re Whitehead, 2 N. B. R. the receiver has no control 599; in re Beck, 1 N. B. N. 338. thereof. In re Brown, 1 Am. B. 15 Johnson v. Wald, 2 Am. B. R. 107. R. 84. if> In re Arnold, 1 N. B. N. 334. 386 EQUITABLE EEMEDIES. [§ 419. obtain a lien, permits a preference within the meaning of the law." An insolvent debtor who does not lift a levy made on his property before the time fixed for a sale commits an act of bankruptcy. The giving of judgment notes with power to confess judgment for borrowed money by the debtor who is insolvent and the holder of the notes enters judgment and levies upon the debtor's property, is an act of bankruptcy by reason of its being a preference by legal proceedings.^® (d) Preferences Secured by Legal Proceedings. — An execution against the property of the debtor may be a preference in violation of the bankrupt act.^" Creditors are not allowed to obtain preference by a judgment execution or a levy where they have reason to believe the debtor is insolvent.^** (e) Statutory Preferences. — Claims of creditors who file their statements of liens according to provision of the state law are entitled to priority from the property covered thereby as against laborers who had no liens under any state law or otherwise upon the property. The proceedings in the state court securing the liens are not affected by proceedings in bankniptcy. (f) Right of Trustee to Recover Back. — Where an. execution creditor knows his debtor to be unable to pay his debts at maturity he is chargeable with notice and must surrender what he has received in order to prove his debt.^^ Where the property of the debtor has been sold by the creditor and the facts are such as to make the pro- 17 In re Meyers, 1 N. B. N. lo Wilson v. Brinkman, 2 N. B. 207; in re Moyer, 1 Am. B. R. R. 149. 577. 20 Kerty-Dennls Co., 1 N. B. N. 18 In re Dunkle, 7 N. B. R. 72; 399. but see Cox v. Hale, 8 N. B. R. 21 In re Forsythe, 7 N. B. R. 062. 174, § 419.] THE BANKRUPTCY LAW. 387 ceeding preferential, the assignee may recover from the creditor the value of the property.^^ Creditors having seized under executions the per- sonal property of an insolvent who within four months is adjudged a bankrupt, and who sell the property under execution and the proceeds remain in the sheriff's hands, and who file their claims in the bank- rupt court, are to be regarded as preferred creditors by legal proceedings and must surrender the same to the trustee.^^ (g) Judgment Creditors Not Entitled to When. — Judgment creditors under a judgment by a justice of the peace, where there is no lien until a levy is made, are not entitled to priority as against the bankrupt fund.2* (h) Creditors May Attack, When and Where.— Creditors who attack alleged preferences as fraudulent in state courts do not preclude themselves from attack- ing these preferences in a bankrupt court.^^ (i) Landlord Entitled to Priority When. — A' landlord is entitled to priority of payment over general creditors under the laws of Pennsylvania.^® (j) Priority in Partnership Assets. — When a man and his wife hold themselves out to the world as part- ners in trade and the firm becomes bankrupt, the part- nership creditors are entitled to be paid in preference to individual creditors of the husband out of the part- nership assets.^'' (k) Priority Under Conditional Contract. — Where a bankrupt within four months preceding the filing of a voluntary petition in bankruptcy resells property 22 Christman v. Haner, 8 N. B. 25 The Lediegh Carriage Co. v. R 528 Stengel, 1 N. B. N. 387. '23 In' re Huffman, 1 Am. B. R. =6 in re Goldstein, 1 N. B. N. gg7 422. (Opinion by referee.) 2* In re Wood, 1 N. B. N. 430. 2' In re Kinkead, 7 N. B. R. 439. 388 EQUITABLE EEMEDIES. [§430. which he has bought upon a contract providing that the proceeds of the sale of such property were to be understood as pledged to the seller as collateral se- curity for the purchase price subject to the seller's orders, the seller reserving the right to take possession and dispose of the same to satisfy the purchase price, the transfer is not a preference within the meaning of the bankrupt act and is good and valid against the gen- eral creditors and the trustee.^^ (1) Law of Distribution Changed as to Prior- ities. — The Supreme Court of Massachusetts has held that priorities created by the insolvent law control by analogy the distribution of assets in the hands of re- ceivers.^* (m) Judgment Notes May be Preferential. — Judgment notes with power of attorney to confess judgments where the payee has reason to believe the debtor insolvent is a fraudulent preference and there- fore void.'" (n) Taxes Entitled to Priority. — A bank owed debts to the state and also taxes levied under the laws of the state. Held, that the taxes had priority over the other claims, but that for a debt other than taxes the state had no preference over other creditors of the same class.'^ § 420. Insolvency as an Element in Bankruptcy. — (a) What Is. — Insolvency in the ordinary meaning of the term is where a man's debts cannot be made in full out of his property by levy and sale on execution.'^ 28 In re Klingaman, 2 Am. B. than three months before the R. 44. (Opinion by referee.) bankruptcy proceedings and en- 2» Jones V. Arena Pub. Co., 171 titled to priority under the in- Mass. 22. The bankruptcy law solvent laws was held not en- changed the rule of distribution forcible under the bankrupt law. in Massachusetts as declared so in re Lord, 5 N. B. R. 318. above in case of receivers. In in si in re Brand, 3 N. B. R. 85. re Rouse, 91 Fed. Rep. 196, a S2 Randall v. Sunderland, 4 N. claim for labor performed more § 430.] THE BANKEirPTCY LAW. 389 Under the law of 1867 insolvency as applied to trad- ers did not mean inability to pay at some future time upon a settlement of their business, but a present in- ability to pay in the ordinary course of business.'^ In determining what is ordinary and usual course of business the question is whether the transaction is ac- cording to the usual course of business of the particular person.** A person's insolvency under the bankrupt act of 1867 so far as commercial paper is concerned was deter- mined by the custom of his place of business.*^ Under that law it meant an inability to pay debts in the ordi- nary course of business as persons usually carry on business;*^ or was inability to pay commercial paper in the due course of business by a merchant.*'' (b) Effect of Insolvency — Notice. — Reasonable cause to believe a debtor insolvent is where such a state of facts exists which brought to the notice of the creditor respecting the financial condition of the debtor would lead a prudent man to the conclusion that the debtor is unable to pay his obligations as they mature in the ordinary course of business.*^ Where a creditor has notice of a state of facts which in law would constitute insolvency there is a presump- tion of actual knowledge conclusive until rebutted.*** A creditor who knows that his debtor is unable to pay his debts in the ordinary course of business has reasonable cause to believe the debtor insolvent.*" B. R. 4; cf. Harrison T. McLaren, B. R. 283; Toof v. Martin, 6 N. 10 N B R 244 B. R. 49 ; cf . Wilson v. City Bank 33 Rison V. Knapp, 4 N. B. B. of St. Paul, 5 N. B. R. 270. 144- Shaffer v Fritcliery, 4 N. B. 3^ Warren v. Tenth Nat'l Bit., R. 179. 7 N. B. R. 481. 34 Randall v. Sunderland, 4 N. ss Dutcher v. Wright, 16 N. B. B. R. 4: cf. Harrison v. Mc- R. 331. Laren, 10 N. B. R. 244. 39 in re Hauck, 17 N. B. R. 158. 35 Hall V Wager, 5 N. B. R. *o Wilson v. Brinkman, 2 N. 181. ■ B. R. 149. 33 Jackson v. McCuUoch, 13 N. 390 EQUITABLE EBMEDIBS. [§431,433. Creditors having accounts over due for several months on vrhich suit has been brought for collection have reasonable cause to believe the debtor insolvent.** An insolvent who undertakes to make a final distri- bution of his assets must do so in a court of bankruptcy vi^hen there is such a court.*^ § 421. Statute of Limitations in Bankruptcy. — The scheduling of a debt barred by the statute of limi- tations does not revive the same.*^ § 422. Corporations May be Adjudged Bankrupts. — (a) Jurisdiction of Federal Courts. — When a corpo- ration for manufacturing purposes applies under a state law for its dissolution and asks for and has ap- pointed a temporary receiver of its property, the fed- eral courts are not ousted of jurisdiction to adjudge such a corporation a bankrupt.** The voluntary application in a state court by a cor- poration for dissolution is not an act of bankruptcy.*^ (b) Bankruptcy Does Not Discharge Directors and Stockholders. — Corporation creditors have a right to enforce the statutory liability of its directors. The sec- ondary liability of directors and stockholders in certain 41 Strannahan v. Gregory, 4 N. not, whether the act of the bank- B. R. 142. rupt In entering the debt upon 42 In re Union Pac. R. Co., 10 his schedule revived the same. N. B. R. 178. For valuable note Both questions virere answered in on intent In connection with the negative. In re Kingsley, 1 preference under the bankrupt N. B. R. 66. The petitioner in act see Johnson v. Wald, 2 Am. involuntary bankruptcy claimed B. R. 84. to be a creditor by reason of a *3 The question was certified claim which was barred by the to the court as to whether a statute of limitations, and that debt barred by the statute of the bankrupt court was not limitations of Massachusetts, bound by the state statute. Peti- where the bankrupt had resided tion dismissed. In re Cornwell, for ten years, but not barred by 6 N. B. R. 305. the statute of limitations of Ver- 44 in re Empire Metallic Bed- mont, -where the creditor re- stead Co., 1 Am. B. R. 136. sided and where the contracts (Opinion of referee.) were made, could be proved ^o In re Empire Metallic Bed- agalnst the bankrupt, and, if stead Co., 1 N. B. N. 387. § 423. ] THE BANKRUPTCY LAW. 391 cases within certain limits and for certain classes of debts is abundantly established, notwithstanding the bankruptcy and discharge of the corporation. In order to enforce this liability creditors must be permitted to obtain their judgment against the corporation as a basis of enforcing the statutory liability.*® Stockholders are liable in bankruptcy to the assignee for the amounts of their unpaid stock. (c) What Corporations May Be Proceeded Against. — An insurance company is not such a corporation as can be proceeded against in involuntary bankruptcy.*^ § 423. Effect of Bankruptcy on Alimony. — In England it has been held that alimony is not a debt or liability provable against the husband in bankruptcy and notwithstanding the bankruptcy of the husband he still continues liable to pay alimony.*® A judgment for alimony is not a provable debt and not effected by a discharge.*^ But it has been held that a judgment for alimony is a debt provable in bankruptcy and a judgment creditor may be enjoined from further prosecution thereof.^" Alimony is not the subject of assignment." 46 In re MarshaU Paper Co., 1 bo In re VanOrden, 1 N. B. N. N. B. N. 407. Wilbur v. Stock- 475. holders 18 N. B. R. 178. si Jordon v. Westerman, 62 47 In re Cameronto-wn M. F. L. Mich. 170; Hackley v. Muskegon & W S Ins Co. 1 N. B. N. 383. Clr. J., 58 Mich., 854; cf. Ro- Whether loan and building asso- maine v. Chauncey, 129 N-Y 566. ciations are subject to the bank- In this case it was held that ali- ruptcy law see 1 N. B. N. 413. mony is in one sense property of is In re Robinson, L. B. 27 . the wife and is a specific fund Chv Div 160- Linton v. Linton, provided for a specific purpose L R 15 Q B Div 239; Ex parte only, whose express limitations Frve'r L R 'l7 Q B. Div. 718; take it out of the general law of Haddon V. Haddon, L. R., 18 Q. property, and as it is created by B Div 778- in re Otawa, 58 L. equity it should have the pro- t' fN S 1 85 tectlon of equity so that it may ■49 m re Siiiith, 1 N. B. N. 471; not be perverted for a purpose romnlonbv referee). Cf. in re not intended. Cf. article by GarrettrFed. Cas No. 5252; in Thomas D. Adams, in 1 N. B. N. re Lachemeyer, Fed. Cas. No. 468. 7966 (under law of 1867) ; Noyes T. Hubbard, 64 Vt. 302. 393 EQUITABLE REMEDIES. [§ 424, § 424. Exemptions Under Bankrupt Law. — (a) Title to Exempt Property Does Not Pass. — No title to exempt property passes to an assignee.^^ (b) In Property Fraudulently Conveyed. — A debtor is entitled to a homestead in property fraudulently con- veyed but set aside by the assignee.^* Where a bankrupt has disposed of part of his prop- erty with the intention of defrauding his creditors upon subsequently being adjudged a bankrupt he is entitled to his exemptions out of the property in the hands of the trustee. The trustee has no right to treat fraud- ulently concealed or disposed of property as part of the exemptions.^* (c) In Partnership Property. — On the bankruptcy of a partnership if there are no individual assets the part- ners are each entitled to an exemption from the assets.^^ Partners are entitled to exemptions out of partner- ship property in North Carolina.^® A partner is not entitled to exemptions out of part- nership property until partnership debts are paid.^'^ A partner may have his exemption out of partner- ship property in Georgia if his interest in the partner- ship assets is equal to or more than the exemption.®^ (d) Determined by State Laws. — Where a creditor has acquired a specific lien on exempt property the bankruptcy court will not interfere in favor of the ex- emption claim.^® The exemptions which a bankrupt is entitled to are 52 In re Hester, 5 N. B. R. 285. m in re Grimes, 1 N. B. N. 339. 53 Bartholomew v. West, 8 N. st in re Jacobs, 1 N. B. N. 232. B. R. 12; 2 Dill. 290. (Opinion by referee.) 54 In re Peterson, 1 Am. B. R. bs in re Camp, 1 N. B. N. 142. 254. (Opinion of referee.) Cf. b9 a debtor cannot claim two Wilcox V. Hawley, 31 N. Y. 648. exemptions. In re Miller, 1 N. 5B In re Young, 3 N. B. R. Ill; B. N. 263. (Opinion by referee.). In re Rupp, 4 N. B. R. 25. § 425.J THE BANKEUPTOT LAW. 393 to be determined by the state laws as interpreted by the supreme court.*''* (e) Must Be Claimed. — Exemptions must be claimed by the bankrupt in order to entitle him thereto."^ (f) When Waived in Notes.— A court of bank- ruptcy has jurisdiction to enforce against bankrupt's exemptions the rights of general creditors holding promissory notes or other like obligations to pay wherein there is a written waiver of homestead and ex- emptions authorized and prescribed by the constitution of a state.®^ (g) Exempt Property When Sold. — Where property in the hands of a trustee is incapable of division with- out injury to it and of the parties in interest, it may be sold as a whole and the bankrupt's exemptions allowed out of the proceeds.®* (h) Termination of Homestead. — After homestead ceases or terminates the trustee may sell and reduce to money the bankrupt's interest or property in land held previously by him as a homestead exemption.®* § 425. Rights of Creditors.— (a) To Eequire Trus- tee to Act. — The right of a trustee to avoid fraudulent conveyances of the debtor is imperative at the instance of creditors although the language of the act is "may."®' Where the trustee in bankruptcy has no funds with which to prosecute actions for fraudulent transfers of the debtor's property the bankrupt court on the basis of its equity jurisdiction may provide that the action 80 In re Hopkins, 1 Am. B. R. «« In re Grimes, 1 N. B. N. 426. 210. (Opinion by referee.) In (Opinion by referee.) re Camp, 1 Am. B. B. 165. " In re Woodard, 1 N. B. N. ei In re Nunn, 1 N. B. N. 427. 385. 82 In re Woodruff, 1 N. B. N. es in re Adams, 1 Am. B. R. 94. 423. 594 EQUITABLE EEMEDIES. [§436,427. shall be prosecuted for the benefit of such creditors as are willing to contribute to the expense.®® (b) To Declare Debtor Bankrupt. — The right of creditors to have debtors declared bankrupt is not pre- cluded by their previously having filed claims in a vol- untary assignment of the same debtor.®^ (c) To Move for a Preference. — Attaching creditors in a state court who have not filed their claims in the bankrupt court are in no position to move for a prefer- ence in favor of the attaching creditors on the proceeds of the goods impounded by them in the state court.®^ (d) To a Sale by a Eeceiver. — The law is that when property is taken into the custody of the law through the instrumentality of a receiver of the property of an insolvent corporation it may be sold under the execu- tion, previously levied, by the receiver.®* § 426. What Are Assets. — The right of action for a tort arising prior to the debtor's adjudication does not pass to the trustee.'^'* Money paid to a bankrupt by mutual mistake, after demand made on discovering the mistake, may be re- covered from the trustee.''^ A liquor license that has marketable value, upon the surrender of which a sum of money may be obtained, passes to the trustee.''^ § 427. Discharge of Debts. —A petition in bank- ruptcy filed by a member of a firm in which part of the debts are the firm debts does not entitle the debtor to a discharge from the partnership debts without mak- ing his partner or partners parties to the proceedings.'^* oi In re Adams, 1 Am. B. R. 94, 7o in re Hansell, 1 Am. B. R. 105. 286. 07 In re Curtis, 1 N. B. N. 357. 'i In re Collsi, 1 Am. B. R. 88 In re Ogles, 1 N. B. N. 400. 625. (Opinion by referee.) 72 in re Fisher, 1 Am. B. R. 68 In re Adams, 1 Am. B. R. 94; 557. cf. Walling V. Miller, 108 N. Y. 73 in re Freund, 1 Am. B. R. 25. 173; Varnum v. Hart, 119 N. Y. 101. § 427. j THE BANKEUPTCT LAW. 395 A debt which did not exist at the time of filing the bankrupt petition is not provable.''* Creditors who have not proven their claims have no right to oppose the discharge of a bankrupf^ '*In re Silverman, 1 N. B. N. re Burk, 3 N. B. R. 76; in re 286. Borst, 11 N. B. R. 96; in re Gal- 75 In re Levy, 1 N. B. R. 66; in lison, 5 N. B. R. 353. APPENDIX. EXTRACTS FEOM THE BANKRUPT ACT OF 1898 AFFECTING THE EQUITABLE RIGHTS AND. REMEDIES OF CREDITORS. Section 1. Definitions. — (a) (2) — "Adjudication" shall mean the date of the entry of a decree that the de- fendant, in a bankruptcy proceeding, is a bankrupt, or if such decree is appealed from, then the date when such decree is finally confirmed. (a) (4) — "Bankrupt" shall include a person against whom an involuntary petition or an application to set a composition aside or to revoke a discharge has been filed, or who has filed a voluntary petition, or who has been adjudged a bankrupt. (a) (7) — "Court" shall mean the court of bankruptcy, in which the proceedings are pending, and may include the referee. (a) (8) — "Courts of bankruptcy" shall include the dis- trict courts of the United States and of the Territories, the supreme court of the Dictrict of Columbia, and the United States court of the Indian Territory, and of Alaska. (a) (9) — "Creditor" shall include anyone who owns a demand or claim provable in bankruptcy, and may in- clude his duly authorized agent, attorney or proxy. (a) (10) — "Date of bankruptcy" or "time of bank- ruptcy," or "commencement of proceedings," or "bank- ruptcy," with reference to time, shall mean the date when the petition was filed. 397 398 APPENDIX. [§ 2. (a) (11) — "Debt" shall include any debt, demand or claim provable in bankruptcy. (a) (23) — "Secured creditor" shall include a creditor who has security for his debt upon the property of the bankrupt of a nature to be assignable under this act, or who owns such a debt for which some indorser, surety or other persons secondarily liable for the bankrupt has such security upon the bankrupt's assets. (a) (25) — "Transfer" shall include the sale and eyery other and different mode of disposing of or parting with property, or the possession of property, absolutely or conditionally, as a payment, pledge, mortgage, gift or security. § 2. Courts of Bankruptcy and Powers of. — That the courts of bankruptcy as hereinbefore defined, viz., the district courts of the United States in the several States, the supreme court of the District of Columbia, the district courts of the several Territories, and the United States courts in the Indian Territory, and the District of Alaska, are hereby made courts of bank- ruptcy, and are hereby invested, within their respective territorial limits as now established, or as they may be hereafter changed, with such jurisdiction at law and in equity as will enable them to exercise original judisdic- tion in bankruptcy proceedings, in vacation in cham- bers and during their respective terms, as they are now or may be hereafter held, to (1) adjudge persons bank- rupt who have had their principal place of business, re- sided, or had their domicile within their respective ter- ritorial jurisdictions for the preceding six months, or the greater portion thereof, or who do not have their principal place of business, reside, or have their domi- cile within the United States, but have property within their jurisdictions, or who have been adjudged bank- rupts by courts of competent jurisdiction without the United States and have property within their jurisdic- § 2-] THE BANKEUPT ACT. 399' tions; (2) allow claims, disallow claims, reconsider al- lowed or disallowed claims, and allow or disallbw them against bankrupt estates; (3) appoint receivers or the marshals, upon application of parties in interest, in case the courts shall find it absolutely necessary, for the preservation of estates, to take charge of the prop- erty of bankrupts after the filing of the petition and until it is dismissed or the trustee is qualified; (4) ar- raign, try, and punish bankrupts, officers, and other persons, and the agents, officers, members of the board of directors or trustees, or other similar controlling bodies, of corporations for violations of this act, in ac- cordance with the laws of procedure of the United States now in force, or such as may be hereafter enacted, regulating trials for the alleged violation of laws of the United States; (5) authorize the business of bankrupts to be conducted for limited periods by re- ceivers, the marshals, or trustees, if necessary in the best interests of the estates; (6) bring in and substitute additional persons or parties in proceedings in bank- ruptcy when necessary for the complete determination of a matter in controversy; (7) cause the estates of bankrupts to be collected, reduced to money and dis- tributed, and determine controversies in relation there- to, except as herein otherwise provided; (8) close estates, whenever it appears that they have been fully administered, by approving the final accounts and dis- charging the trustees, and reopen them whenever it ap- pears they were closed before being fully administered; (9) confirm or reject compositions between debtors and their creditors, and set aside compositions and rein- state the cases.; (10) consider and confirm, modify or overrule, or return, with instructions for further pro- ceedings, records and findings certified to them by ref- erees; (11) determine all claims of bankrupts to their ^exemptions; (12) discharge or refuse to discharge bank- 400 APPENDIX. [§ 3. rupts and set aside discharges and reinstate the cases; (13) enforce obedience by bankrupts, officers and other persons to all lawful orders, by fine or imprisonment or fine and imprisonment; (14) extradite bankrupts from their respective districts to other districts; (15) make such orders, issue such process, and enter such judg- ments in addition to those specifically provided for as may be necessary for the enforcement of the provisions of this act; (16) punish persons for contempts com- mitted before referees; (17) pursuant to the recommen- dation of creditors, or when they neglect to recommend the appointment of trustees, appoint trustees ;and upon complaints of creditors, remove trustees for cause upon hearings and after notices to them; (18) tax costs, when- ever they are allowed by law, and render judgments therefor against the unsuccessful party, or the success- ful party for cause, or in part against each of the par- ties, and against estates, in proceedings in bankruptcy; and (19) transfer cases to other courts of bankruptcy. Nothing in this section contained shall be construed to deprive a court of bankruptcy of any power it would possess were certain specific powers not herein enumer- ated. § 3. Acts of Bankruptcy. — (a) Acts of bapkruptcy by a person shall consist of his having (1) conveyed, transferred, concealed, or removed, or permitted to be concealed or removed, any part of his property with in- tent to hinder, delay, or defraud his creditors, or any of them; or (2) transferred, while insolvent, any portion of his property to one or more of his creditors with intent to prefer such creditors over his other creditors; or (3) suffered or permitted, while insolvent, any creditor to obtain a preference through legal proceedings, and not having at least five days before a sale or final disposi- tion of any property affected by such preference va- cated or discharged such preference; or (4) made a gen- § 3.] THE BANKRUPT ACT. 401 eral assignment for the benefit of his creditors; or (5) admitted in writing his inability to pay his debts and his willingness to be adjudged a bankrupt on that ground. (b) A petition may be filed against a person who is Insolvent and who has committed an act of bankruptcy within four months after the commission of such act. Such time shall not expire until four months after (1) the date of the recording or registering of the transfer or assignment when the act consists in having made a transfer of any of his property with intent to hinder, delay, or defraud his creditors or for the purpose of giving a preference as hereinbefore provided, or a gen- eral assignment for the benefit of his creditors, if by law such recording or registering is required or per- mitted, or, if it is not, from the date when the bene- ficiary takes notorious, exclusive, or continuous posses- sion of the property unless the petitioning creditors have received actual notice of such transfer or Assign- ment. (c) It shall be a complete defense to any proceedings in bankruptcy instituted under the first subdivision of this section to allege and prove that the party pro- ceeded against was not insolvent as defined in this act at the time of the filing the petition against him, and if solvency at such date is proved by the alleged bank- rupt the proceedings shall be dismissed, and under said subdivision one the burden of proving solvency shall be on the alleged bankrupt. (d) Whenever a person against whom a petition has been filed as hereinbefore provided under the second and third subdivisions of this section takes issue with and denies the allegation of his insolvency, it shall be his duty to appear in court on the hearing, with his books, papers, and accounts, and submit to an examin- ation, and give testimony as to all matters tending to 402 APPENDIX. [§ 4. establish solvency or insolvency, and in case of his fail- ure to so attend and submit to examination the burden of proving his solvency shall rest upon him. (e) Whenever a petition is filed by any person for the purpose of having another adjudged a bankrupt, and an application is made to take charge of and hold the property of the alleged bankrupt, or any part of the same, prior to the adjudication and pending a hearing- on the petition, the petitioner or applicant shall file in the same court a bond with at least two good and suf- ficient sureties who shall reside within the jurisdiction of said court, to be approved by the court or a judge thereof, in such sum as the court shall direct, condi- tioned for the payment, in case such petition is dis- missed, to the respondent, his or her personal repre- sentatives, all costs, expenses, and damages occasioned by such seizure, taking, and detention of the property of the alleged bankrupt. If such petition be dismissed by the court or with- drawn by the petitioner, the respondent or respondents shall be allowed all costs, counsel fees, expenses, and damages occasioned by such seizure, taking, or deten- tion of such property. Counsel fees, costs, expenses, and damages shall be fixed and allowed by the court, and paid by the obligors in such bond. § 4. Who May Become Bankrupts. — (a) Any per- son who owes debts, except a corporation, shall be en- titled to the benefits of this act as a voluntary bank- rupt. (b) Any natural person, except a wage-earner or a person engaged chiefiy in farming or the tillage of the soil, any unincorporated company, and any corpora- tion engaged principally in manufacturing, trading, printing, publishing, or mercantile pursuits, owing debts to the amount of one thousand dollars or over, may be adjudged an involuntary bankrupt upon de- § 5.] THE BANKRUPT ACT. 403 fault or an impartial trial, and shall be subject to the provisions and entitled to the benefits of this act. Private bankers, but not national banks or banks in- corporated under State or Territorial laws, may be ad- judged involuntary bankrupts. § 5. Partners. — (a) A partnership, during the con- tinuation of the partnership business, or after its disso- lution and before the final settlement thereof, may be adjudged a bankrupt. (b) The creditors of the partnership shall appoint the trustee; in other respects so far as possible the estate shall be administered as herein provided for other estates. (c) The court of bankruptcy which has jurisdiction of one of the partners may have jurisdiction of all the partners and of the administration of the partnership and individual property. (d) The trustee shall keep separate accounts of the partnership property and of the property belonging to* the individual partners. (e) The expenses shall be paid from the partnership property and the individual property in such propor- tions as the court shall determine. (f) The net proceeds of the partnership property shall be appropriated to the payment of the partner- ship debts, and the net proceeds of the individual estate of each partner to the payment of his individual debts. Should any surplus remain of the property of any part- ner after paying his individual debts, such surplus shall be added to the partnership assets and be applied to the payment of the partnership debts. Should any surplus of the partnership property remain after pay- ing the partnership debts, such surplus shall be added to the assets of the individual partners in the propor- tion of their respective interests in the partnership. (g) The court may permit the proof of the claim of 404 APPENDIX. [§§ 6, 11. the partnership estate against the individual estates, and vice versa, and may marshal the assets of the part- nership estate and individual estates so as to prevent preferences and secure the equitable distribution of the property of the several estates. (h) In the event of one or more but not all of the members of a partnership being adjudged bankrupt, the partnership property shall not be administered in bankruptcy, unless by consent of the partner or part- ners not adjudged bankrupt; but such partner or part- ners not adjudged bankrupt shall settle the partner- ship business as expeditiously as its nature will per- mit, and account for the interest of the partner or part- ners adjudged bankrupt. § 6. Exemptions of Bankrupts. — (a) This act shall not affect the allowance to bankrupts of the exemptions which are prescribed by the state laws in force at the time of the filing of the petition in the state wherein they have had their domicile for the six months or the greater portion thereof immediately pre- ceding the filing of the petition. § 11. Suits By and Against Bankrupts. — (a) A suit which is founded upon a claim from which a dis- charge would be a release, and which is pending against a person at the time of the filing of a petition against him, shall be stayed until after an adjudication or the dismissal of the petition; if such person is ad- judged a bankrupt, such action may be further stayed until twelve months after the date of such adjudica- tion, or, if within that time such person applies for a discharge, then until the question of such discharge is determined. (b) The court may order the trustee to enter his ap- pearance and defend any pending suit against the bankrupt. (c) A trustee may, with the approval of the court, be §13.] THE BANEEXJPT ACT. 405* permitted to prosecute as trustee any suit commenced by the bankrupt prior to tlie adjudication, with like force and effect as though it had been commenced by him. (d) Suits shall not be brought by or against a trustee of a bankrupt estate subsequent to two years after the estate has been closed. § 12. Compositions, When Confirmed.— (a) A' bankrupt may offer terms of composition to his cred- itors after, but not before, he has been examined in open court or at a meeting of his creditors and filed in court the schedule of his property and list of his cred- itors, required to be filed by bankrupts. (b) An application for the confirmation of a composi- tion may be filed in the court of bankruptcy after, but not before, it has been accepted in writing by a major- ity in number of all creditors whose claims have been allowed, which number must represent a majority in amount of such claims, and the consideration to be paid by the bankrupt to his creditors, and the money necessary to pay all debts which have priority and the cost of the proceedings, have been deposited in such place as shall be designated by and subject to the order of the judge. (c) A date and place, with reference to the conven- ience of the parties in interest, shall be fixed for the hearing upon each application for the confirmation of a composition, and such objections as may be made to its confirmation. (d) The judge shall confirm a composition if satisfied that (1) it is for the best interests of the creditors; (2) the bankrupt has not been guilty of any of the acts or failed to perform any of the duties which would be a bar to his discharge; and (3) the offer and its accep- tance are in good faith and have not been made or pro- 406 APPENDIX. [§§ 13, 14. cured except as herein provided, or by any means, promises, or acts herein forbidden. (e) Upon the confirmation of a composition, the con- sideration shall be distributed as the judge shall direct, and the case dismissed. Whenever a composition is not confirmed, the estate shall be administered in bank- ruptcy as herein provided. § 13. Compositions, When Set Aside. — (a) The judge may, upon the application of parties in interest filed at any time within six months after a composition has been confirmed, set the same aside and reinstate the case if it shall be made to appear upon a trial that fraud was practiced in the procuring of such composi- tion, and that the knowledge thereof has come to the petitioners since the confirmation of such composition. § 14. Discharges, When Granted. — (a) Any per- son may, after the expiration of one month and within the next twelve months subsequent to being adjudged a bankrupt, file an application for a discharge in the court of bankruptcy in which the proceedings are pend- ing; if it shall be made to appear to the judge that the bankrupt was unavoidably prevented from filing it within such time, it may be filed within but not after the expiration of the next six months. (b) The judge shall hear the application for a dis- charge, and such proofs and pleas as may be made in opposition thereto by parties in interest, at such time as will give parties in interest a reasonable opportunity to be fully heard, and investigate the merits of the application and discharge the applicant unless he has (1) committed an offense punishable by imprisonment as herein provided; or (2) with fraudulent intent to conceal his true financial condition and in contempla- tion of bankruptcy, destroyed, concealed, or failed to keep books of account or records from which his true condition nright be ascertained. §§ 15-23.] THE BANKRUPT ACT. 407 (c) The confirmation of a composition shall discharge the bankrupt from his debts, other than those agreed to be paid by the terms of the composition and those not affected by a discharge. § 15. Discharges, When Revoked.— (a) The judge may, upon the application of parties in interest who have not been guilty of undue laches, filed at any time within one year after a discharge shall have been granted, revoke it upon a trial if it shall be made to appear that it was obtained through the fraud of the bankrupt, and that the knowledge of the fraud has come to the petitioners since the granting of the dis- charge, and that the actual facts did not warrant the discharge. § 16. Co-Debtors of Bankrupts.— (a) The liability of a person who is a co-debtor with, or guarantor or in any manner a surety for, a bankrupt shall not be altered by the discharge of such bankrupt. § 17. Debts Not Affected by a Discharge.— (a) A discharge in bankruptcy shall release a bankrupt from all of his provable debts, except such as (1) are due as a tax levied by the United States, the State, county, district, or municipality in which he resides; (2) are judgments in action for frauds, or obtaining property by false pretenses or false representations, or for willful and malicious injuries to the person or prop- erty of another; (3) have not been duly scheduled in time for proof and allowance, with the name of the creditor if known to the bankrupt, unless such creditor had notice or actual knowledge of the proceedings in bankruptcy; or (4) were created by his fraud, embezzle- ment, misappropriation, or defalcation while acting as an officer or in any fiduciary capacity. § 23. Jurisdiction of United States and State Courts. — (a) The United States circuit courts shall have jurisdiction of all controversies at law and in 408 APPENDIX. [§ 34. equity, as distinguished from proceedings in bank- ruptcy, between trustees as such and adverse claim- ants concerning the property acquired or claimed by the trustees, in the same manner and to the same extent only as though bankruptcy proceedings had not been instituted and such controversies had been be- tween the bankrupts and such adverse claimants, (b) Suits by the trustee shall only be brought or prosecuted in the courts where the bankrupt, whose estate is being administered by such trustee, might have brought or prosecuted them if proceedings in bankruptcy had not been instituted, unless by consent of the proposed defendant. (c) The United States circuit courts shall have con- current jurisdiction with the courts of bankruptcy, within their respective territorial limits, of the offenses enumerated in this act. § 24. Jurisdiction of Appellate Courts. — (a) The Supreme Court of the United States, the circuit courts of appeals of the United States, and the supreme courts of the Territories, in vacation in chambers and during their respective terms, as now or as they may be here- after held, are hereby invested with appellate juris- diction of controversies arising in bankruptcy proceed- ings from the courts of bankruptcy from which they have appellate jurisdiction in other cases. The Su- preme Court of the United States shall exercise a like jurisdiction from courts of bankruptcy not within any organized circuit of the United States and from the supreme court of the District of Columbia. (b) The several circuit courts of appeal shall have jurisdiction in equity, either interlocutory or final, to superintend and revise in matter of law the proceed- ings of the several inferior courts of bankruptcy within their jurisdiction. Such power shall be exercised on due notice and petition by any party aggrieved. § 35.] THE BANKRUPT ACT. 40& § 25. Appeals and Writs of Error.— (a) That appeals, as in equity cases, may be taken in bankruptcy proceedings from the courts of bankruptcy to the cir- cuit court of appeals of the United States, and to the supreme court of the Territories, in the following cases, to wit, (1) from a judgment adjudging or refusing to adjudge the defendant a bankrupt; (2) from a judg- ment granting or denying a discharge; and (3) from a judgment allowing or rejecting a debt or claim of five hundred dollars or over. Such appeal shall be taken within ten days after the judgment appealed from has been rendered, and may be heard and determined by the appellate court in term or vacation, as the case may be. (b) From any final decision of a court of appeals, allowing or rejecting a claim under this act, an appeal may be had under such rules and within such time as may be prescribed by the Supreme Court of the United States, in the following cases and no other: 1. Where the amount in controversy exceeds the sum of two thousand dollars, and the question involved is one which might have been taken on appeal or writ of error from the highest court of a State to the Su- preme Court of the United States; or 2. Where some Justice of the Supreme Court of the United States shall certify that in his opinion the deter- mination of the question or questions involved in the allowance or rejection of such claim is essential to a uniform construction of this act throughout the United States. (c) Trustees shall not be required to give bond when they take appeals or sue out writs of error. (d) Controversies may be certified to the Supreme Court of the United States from other courts of the United States, and the former court may exercise juris- diction thereof and issue writs of certiorari pursuant tO' 410 APPENDIX. [§§ 26-38. the provision^ of the United States laws now in force or such as may be hereafter enacted. § 26. Arbitration of Controversies. — (a) The trustee may, pursuant to the direction of the court, sub- mit to arbitration any controversy arising in the settle- ment of the estate. (b) Three arbitrators shall be chosen by mutual con- sent, or one by the trustee, one by the other party to the controversy, and the third by the two so chosen, or if they fail to agree in five days after their appoint- ment the court shall appoint the third arbitrator. (c) The written finding of the arbitrators, or a major- ity of them, as to the issues presented, may be filed in court and shall have like force and effect as the verdict of a jury. § 27. Compromises. — (a) The trustee may, with the approval of the court, compromise any controversy arising in the administration of the estate upon such terms as he may deem for the best interests of the state. § 38. Jurisdiction of Referees. — (a) Keferees re- spectively are hereby invested, subject always to a review by the judge, within the limits of their districts as established from time to time, with jurisdiction to (1) consider all petitions referred to them by the clerks and make the adjudications or dismiss the petitions; (2) exercise the powers vested in courts of bankruptcy for the administering of oaths to and the examination of persons as witnesses, and for requiring the produc- tion of documents in proceedings before them, except the power of commitment; (3) exercise the powers of the judge for the taking possession and releasing of the property of the bankrupt in the event of the issu- ance by the clerk of a certificate showing the absence of a judge from the judicial district, or the division of the district, or his sickness, or inability to act; (4) per- §§ 44, 65.] THE BANKEDPT ACT. 411 form such part of the duties, except as to questions arising out of the applications of bankrupts for com- positions or discharges, as are by this act conferred on courts of bankruptcy and as shall be prescribed by rules or order of the courts of bankruptcy of their respective districts, except as herein otherwise pro- vided; and (5) upon the application of the trustee dur- ing the examination of the bankrupts, or other proceedings, authorize the employment of stenograph- ers at the expense of the estates at a compensation not to exceed ten cents per folio for reporting and tran- scribing the proceedings. § 44. Appointment of Trustees. — (a) The cred- itors of a bankrupt estate shall, at their first meeting after the adjudication or after a vacancy has occurred in the office of trustee, or after an estate has been reopened, or after a composition has been set aside, or a discharge revoked, or if there is a vacancy in the office of trustee, appoint one trustee or three trustees of such estate. If the creditors do not appoint a trustee or trustees as herein provided, the court shall do so. § 55. Meetings of Creditors.— (a) The court shall cause the first meeting of the creditors of a bankrupt to be held, not less than ten nor more than thirty days after the adjudication, at the county seat of the county in which the bankrupt has had his principal place of business, resided, or had his domicile; or if that place would be manifestly inconvenient as a place of meeting for the parties in interest, or if the bankrupt is one who does not do business, reside, or have his domicile within the United States, the court shall fix a place for the meeting which is the most convenient for parties in interest. If such meetings should by any mischance not be held within such time, the court shall fix the date, as soon as may be thereafter, when it shall be held. 412 APPENDIX. [§ 56. (b) At the first meeting of creditors the judge or referee shall preside, and, before proceeding with the other business, may allow or disallow the claims of creditors there presented, and may publicly examine the bankrupt or cause him to be examined at the in- stance of any creditor. (c) The creditors shall at each meeting take such steps as may be pertinent and necessary for the pro- motion of the best interests of the estate and the en- forcement of this act. (d) A meeting of creditors, subsequent to the first one, may be held at any time and place when all of the 'creditors who have secured the allowance of their claims sign a written consent to hold a meeting at such time and place. (e) The court shall call a meeting of creditors when- ever one-fourth or more in number of those who have proven their claims shall file a written request to that effect; if such request is signed by a majority of such creditors, which number represents a majority in amount of such claims, and contains a request for such meeting to be held at a designated place, the court shall call such meeting at such place within thirty days after the date of the filing of the request. (f) Whenever the affairs of the estate are ready to be closed a final meeting of creditors shall be ordered. § 56. Voters at Meetings of Creditors. — (a) Cred- itors shall pass upon matters submitted to them at their meetings by a majority vote in number and amount of claims of all creditors whose claims have been allowed and are present, except as herein other- wise provided. (b) Creditors holding claims which are secured or have priority shall not, in respect to such claims, be en- titled to vote at creditors' meetings, nor shall such claims be counted in computing either the number of § 57.] THE BANKRUPT ACT. 413 creditors or the amount of their claims, unless the amounts of such claims exceed the values of such se- curities or priorities, and then only for such excess. § 57. Proof and Allowance of Claims.— (a) Proof of claims shall consist of a statement under oath, in writing, signed by a creditor setting forth the claim, the consideration therefor, and whether any, and, if so what, securities are held therefor, and whether any, and, if so what, payments have been made thereon, and that the sum claimed is justly owing from the bank- rupt to the creditor. (b) Whenever a claim is founded upon an instrument of writing, such instrument, unless lost or destroyed, shall be filed with the proof of claim. If such instru- ment is lost or destroyed, a statement of such fact and of the circumstances of such loss or destruction shall be filed under oath with the claim. After the claim is allowed or disallowed, such instrument may be with- drawn by permission of the court, upon leaving a copy thereof on file with the claim. (c) Claims after being proved may, for the purpose 6t allowance, be filed by the claimants in the court where the proceedings are pending, or before the ref- eree, if the case has been referred. (d) Claims which have been duly proved shall be al- lowed, upon receipt by or upon presentation to the court, unless objection to their allowance shall be made by parties in interest, or their consideration be continued for cause by the court upon its own motion. (e) Claims of secured creditors and those who have priority may be allowed to enable such creditors to par- ticipate in the proceedings at creditors' meetings held prior to the determination of the value of their securi- ties or priorities, but shall be allowed for such sums only as to the courts seem to be owing over and above the value of their securities or priorities. 414 APPENDIX. [§ 57. (f) Objections to claims shall be heard and deter- mined as soon as the convenience of the court and the best interests of the estates and the claimants will per- mit. (g) The claims of creditors who have received prefer- ences shall not be allowed unless such creditors shall surrender their preferences. (h) The value of securities held by secured creditors shall be determined by converting the same into money according to the terms of the agreement pursuant to which such securities were delivered to such creditors or by such creditors and the trustee, by agreement, arbitration, compromise, or litigation, as the court may direct, and the amount of such value shall be credited upon such claims, and a dividend shall be paid only on the unpaid balance. (i) Whenever a creditor, whose claim against a bank- rupt estate is secured by the individual undertaking of any person, fails to prove such claim, such person may do so in the creditor's name, and if he discharge such undertaking in whole or in part he shall be subrogated to that extent to the rights of the creditor. (j) Debts owing to the United States, a state, a county, a district, or a municipality, as a penalty or forfeiture shall not be allowed, except for the amount of the pecuniary loss sustained by the act, transaction, or proceeding out of which the penalty or forfeiture arose, with reasonable and actual costs occasioned thereby and such interest as may have accrued thereon according to law. (k) Claims which have been allowed may be recon- sidered for cause and reallowed or rejected in whole or in part, according to the equities of the case, before but not after the estate has been closed. (1) Whenever a claim shall have been reconsidered and rejected, in whole or in part, upon which a divi- § 58.] THE BANKRUPT ACT. ^15 dend has been paid, the trustee may recover from the creditor the amount of the dividend received upon the claim if rejected in whole, or the proportional part thereof if rejected only in part. (m) The claim of any estate vehich is being adminis- tered in bankruptcy against any like estate may be proved by the trustee and allowed by the court in the same manner and upon like terms as the claims of other creditors. (n) Claims shall not be proved against a bankrupt estate subsequent to one year after the adjudication; or if they are liquidated by litigation, and the final judgment therein is rendered within thirty days before or after the expiration of such time, then within sixty days after the rendition of such judgment: Provided, That the right of infants and insane persons without guardians, without notice of the proceedings, may con- tinue six months longer. § 58. Notices to Creditors. — (a) Creditors shall have at least ten days' notice by mail, to their respec- tive addresses as they appear in the list of creditors of the bankrupt, or as afterward filed with the papers in the case by the creditors, unless they waive notice in writing, of (1) all examinations of the bankrupt; (2) all hearings upon applications for the confirmation of compositions or the discharge of bankrupts; (3) all meetings of creditors; (4) all proposed sales of prop- erty; (5) the declaration and time of payment of divi- dends; (6) the filing of the final accounts of the trustee, and the time when and the place where they will be examined and passed upon; (7) the proposed compro- mise of any controversy, and (8) the proposed dismissal of the proceedings. (b) Notice to creditors of the first meeting shall be published at least once and may be published such number of additional times as the court may direct; the 416 APPENDIX. [§ 59. last publication sliall be at least one week prior to the date fixed for the meeting. Other notices may be pub- lished as the court shall direct. (c) Ail notices shall be given by the referee, unless otherwise ordered by the judge. § 59. Who May File and Dismiss Petitions. — (a) Any qualified person may file a petition to be adjudged a voluntary bankrupt. (b) Three or more creditors who have provable claims against any person which amount in the aggre- gate, in excess of the value of securities held by them, if any, to five hundred dollars or over; or if all of the creditors of such person are less than twelve in num- ber, then one of such creditors whose claim equals such amount may file a petition to have him adjudged a bankrupt. (c) Petitions shall be filed in duplicate, one copy for the clerk and one for service on the bankrupt. (d) If it be averred in the petition that the creditors of the bankrupt are less than twelve in number, and less than three creditors have joined as petitioners therein, and the answer avers the existence of a larger number of creditors, there shall be filed with the an- swer a list under oath of all the creditors, with their addresses, and thereupon the court shall cause all such creditors to be notified of the pendency of such petition and shall delay the hearing upon such petition for a reasonable time, to the end that parties in interest shall have an opportunity to be heard; if upon such hearing it shall appear that a sufficient number have joined in such petition, or if prior to or during such hearing a sufficient number shall join therein, the case may be proceeded with, but otherwise is shall be dis- missed. (e) In computing the number of creditors of a bank- rupt for the purpose of determining how many cred- § 60-] THE BANKEUPT ACT. 417 itors must join in the petition, such creditors as were employed by him at the time of the filing of the petition or are related to him by consanguinity or afiflnity with- in the third degree, as determined by the common law, and have not joined in the petition, shall not be counted. (f) Creditors other than original petitioners may at any time enter their appearance and join in the peti- tion, or file an answer and be heard in opposition to the prayer of the petition. (g) A voluntary or involuntary petition shall not be dismissed by the petitioner or petitioners or for want of prosecution or by consent of parties until after Dotice to the creditors. § 60. Preferred Creditors. — (a) A person shall be deemed to have given a preference if, being insolvent, he has procured or suffered a judgment to be entered against himself in favor of any person, or made a trans- fer of any of his property, and the effect of the enforce- ment of such judgment or transfer will be to enable any one of his creditors to obtain a greater percentage of his debt than any other of such creditors of the same class. (b) If a bankrupt shall have given a preference with- in four months before the filing of a petition, or after the filing of the petition and before the adjudication, and the person receiving it, or to be benefited thereby, or his agent acting therein, shall have had reasonable cause to believe that it was intended thereby to give a preference, it shall be voidable by the trustee, and he may recover the property or its value from such person. (c) If a creditor has been preferred, and afterward in good faith gives the debtor further credit without se- curity of any kind for property which becomes a part of the debtor's estates, the amount of such new credit remaining unpaid at the time of the adjudication in 418 APPENDIX. [§ 63. bankruptcy may be set off against the amount which would otherwise be recoverable from him. (d) If a debtor shall, directly or indirectly, in con- templation of the filing of a petition by or against him, pay money or transfer property to an attorney and counselor at law, solicitor in equity, or proctor in ad- miralty, for services to be rendered, the transaction shall be re-examined by the court on petition of the trustee or any creditor, and shall only be held valid to the extent of a reasonable amount to be determined by the court, and the excess may be recovered by the trustee for the benefit of the estate. § 63. Debts Which May Be Proved.— (a) Debts of the bankrupt may be proved and allowed against his estate which are (1) a fixed liability, as evidenced by a judgment or an instrument in writing, absolutely owing at the time of the filing of the petition against him, whether then payable or not, with any interest thereon which would have been recoverable at that date or with a rebate of interest upon such as were not then payable and did not bear interest; (2) due as costs tax- able against an involuntary bankrupt who was at the time of the filing of the petition against him plaintifE in a cause of action which would pass to the trustee and which the trustee declines to prosecute after notice; (3) founded upon a claim for taxable costs in- curred in good faith by a creditor before the filing of the petition in an action to recover a provable debt; (4) founded upon an open account, or upon a contract, ex- press or implied; and (5) founded upon provable debts reduced to judgments after the filing of the petition and before the consideration of the bankrupt's applica- tion for a discharge, less costs incurred and interests accrued after the filing of the petition and up to the time of the entry of such judgments. (b) Unliquidated claims against the bankrupt may. § 64.] THE BANEEUPT ACT. 419 pursuant to application to the court, be liquidated in such manner as it shall direct, and may thereafter be proved and allowed against his estate, § 64. Debts Which Have Priority.— (a) The court shall order the trustee to pay all taxes legally due and owing by the bankrupt to the United States, state, county, district, or municipality in advance of the pay- ment of dividends to creditors, and upon filing the re- ceipts of the proper public officers for such payment he shall be credited with the amount thereof, and in case any question arises as to the amount or legality of any, such tax the same shall be heard and determined by the court. (b) The debts to have priority, except as herein pro- vided, and to be paid in full out of bankrupt estates, and the order of payment shall be (1) the actual and necessary cost of preserving the estate subsequent to filing the petition; (2) the filing fees paid by creditors in involuntary cases; (3) the cost of administration, in- cluding the fees and mileage payable to witnesses as now or hereafter provided by the laws of the United States, and one reasonable attorney's fee, for the pro- fessional services actually rendered, irrespective of the number of attorneys employed, to the petitioning cred- itors in involuntary cases, to the bankrupt in involun- tary cases while performing the duties herein pre- scribed, and to the bankrupt in voluntary cases, as the court may allow; (4) wages due to workmen, clerks or servants which have been earned within three months before the date of the commencement of proceedings,, not to exceed three hundred dollars to each claimant; and (5) debts owing to any person who by the laws of the states or the United States is entitled to priority. (c) In the event of the confirmation of a composition being set aside, or a discharge revoked, the property acquired by the bankrupt in addition to his estate at 430 APPENDIX. [§ 65. the time the composition was confirmed or the adjudi- cation was made shall be applied to the payment in full of the claims of creditors for property sold to him on credit, in good faith, while such composition or dis- charge was in force, and the residue, if any, shall be , applied to the payment of the debts which were owing at the time of the adjudication. § 65. Declaration and Payment of Dividends. — (a) Dividends of an equal per centum shall be declared and paid on all allowed claims, except such as have priority or are secured. (b) The first dividend shall be declared within thirty days after the adjudication, if the money of the estate in excess of the amount necessary to pay the debts which have priority and such claims as have not been, but probably will be,^^ allowed, equals five per centum or more of such allowed claims. Dividends subsequent to the first shall be declared upon like terms as the first and as often as the amount shall equal ten per centum or more and upon closing the estate. Dividends may be declared oftener and in smaller proportions if the judge shall so order. (c) The rights of creditors who have received divi- dends, or in whose favor final dividends have been de- clared, shall not be affected by the proof and allowance of claims subsequent to the date of such' payment or declarations of dividends; but the creditors proving and securing the allowance of such claims shall be paid dividends equal in amount to those already received by the other creditors if the estate equals so much before such other creditors are paid any further dividends. (d) Whenever a person shall have been adjudged a bankrupt by a court without the United States, and also by a court of bankruptcy, creditors residing within the United States shall first be paid a dividend equal to that received in the court without the United States by §§ 66, 67.] THE BANKETJPT ACT. '4:21 Other creditors, before creditors who have received a dividend in such courts shall be paid any amounts. (e) A claimant shall not be entitled to collect from a bankrupt estate any greater amount than shall accrue pursuant to the provisions of this act. § 66. Unclaimed Dividends.— (a) Dividends which remain unclaimed for six months after the final divi- dend has been decided shall be paid by the trustee into court. (b) Dividends remaining unclaimed for one year shall, under the direction of the court, be distributed to the creditors whose claims have been allowed but not paid in full, and after such claims have been paid in full the balance shall be paid to the bankrupt: Pro- vided, That in case unclaimed dividends belong to minors such minors may have one year after arriving at majority to claim such dividends. § 67. Liens. — (a) Claims which for want of record or for other reasons would not have been valid liens as against the claims of the creditors of the bankrupt shall not be liens against his estate. (b) Whenever a creditor is prevented from enforcing his rights as against a lien created, or attempted to be created, by his debtor, who afterwards becomes a bankrupt, the trustee of the estate of such bankrupt shall be subrogated to and may enforce such rights of such creditor for the benefit of the estate. (c) A lien created by or obtained in or pursuant to any suit or proceeding at law or in equity, including an attachment upon mesne process or a judgment by con- fession, which was begun against a person within four months before the filing of a petition in bankruptcy by or against such person shall be dissolved by the adjud- ication of such person to be a bankrupt if (1) it appears that said lien was obtained and permitted while the de- fendant was insolvent, and that its existence and en- 423 APPENDIX. [§ 67. forcement will work a preference, or (2) the party or parties to be benefited thereby had reasonable cause to believe the defendant was insolvent and in contempla- tion of bankruptcy, or (3) that such lien was sought and permitted in fraud of the provisions of this act; or if the dissolution of such lien would militate against the best interests of the estate of such person the same shall not be dissolved, but the trustee of the estate of such person, for the benefit of the estate, shall be sub- rogated to the rights of the holder of such lien and em- powered to perfect and enforce the same in his name as trustee with like force and effect as such holder might have done had not bankruptcy proceedings intervened. (d) Liens given or accepted in good faith and not in contemplation of or in fraud upon this act, and for a present consideration, which have been recorded ac- cording to law, if record thereof was necessary in order to impart notice, shall not be affected by this act. (e) That all conveyances, transfers, assignments or incumbrances of his property, or any part thereof, made or given by a person adjudged a bankrupt under the provisions of this act subsequent to the passage of this act and within four months prior to the filing of the petition, with the intent and purpose on his part to hinder, delay, or defraud his creditors, or any of them, shall be null and void as against the creditors of such debtor, except as to purchasers in good faith and for a present fair consideration; and all property of the debtor conveyed, transferred, assigned, or encumbered as aforesaid, shall, if he be adjudged a bankrupt, and the same is not exempt from execution and liability for debts by the law of his domicile, be and remain a part of the assets and estate of the bankrupt and shall pass to his said trustee, whose duty it shall be to recover and reclaim the same by legal proceedings or otherwise for the benefit of the creditors. And all conveyances, ^68.] THE BANKEtrPT ACT. 433 transfers, or incumbrances of his property made by a debtor at any time within four months prior to the filing of the petition against him, and while insolvent, which are held null and void as against the creditors of such debtor by the laws of the state, territory or dis- trict in which such property is situate, shall be deemed null and void under this act against the creditors of such debtor if he be adjudged a bankrupt, and such property shall pass to the assignee and be by him re- claimed and recovered for the benefit of the creditors of the bankrupt. ^ (f) That all levies, judgments, attachments, or other liens, obtained through legal proceedings against a per- son who is insolvent, at any time within four months prior to the filing of a petition in bankruptcy against him, shall be deemed null and void in case he is ad- judged a bankrupt, and the property affected by the levy, judgment, attachment, or other lien shall be ■deemed wholly discharged and released from the same, and shall pass to the trustee as a part of the estate of the bankrupt, unles^ the court shall, on due notice, order that the right under such levy, judgment, attach- ment, or other lien shall be preserved for the benefit of the estate; and thereupon the same may pas^ to and shall be preserved by the trustee for the benefit of the estate as aforesaid. And the court may order such con- veyance as shall be necessary to carry the purposes of this section into effect: Provided, That nothing herein contained shall have the effect to destroy or impair the title obtained by such levy, judgment, attachment, or other lien, of a bona fide purchaser for value, who shall have acquired the same without notice or reasonable cause for inquiry. § 68. Set-Offs and Counterclaims.— (a) In all cases of mutual debts or mutual credits between the estate of a bankrupt and a creditor the account shall 4:24: APPENDIX. [§§ 69, 70, be stated and one debt shall be set off against tke other, and the balance only shall be allowed or paid. (b) A set-off or counterclaim shall not be allowed in favor of any debtor of the bankrupt which (1) is not provable against the estate; or (2) was purchased by or transferred to him after the filing of the petition or within four months before such filing, with a view to such use and with knowledge or notice that such bank- rupt was insolvent, or had committed an act of bank- ruptcy. § 69. Possession of Property. — (a) A judge may, upon satisfactory proof, by affidavit, that a bankrupt against whom an involuntary petition has been filed and is pending has committed an act of bankruptcy, or has neglected or is neglecting, or is about to so neglect his property that it has thereby deteriorated or is thereby deteriorating or is about thereby to deteriorate in value, issue a warrant to the marshal to seize and hold it subject to further orders. Before such warrant is issued the petitioners applying therefor shall enter into a bond in such an amount as the judge shall fix, with such sureties as he shall approve, conditioned to indemnify such bankrupt for such damages as he shall sustain in the event such seizure shall prove to have been wrongfully obtained. Such property shall be re- leased, if such bankrupt shall give bond in a sum which shall be fixed by the judge, with such sureties as he shall approve, conditioned to turn over such property, or pay the value thereof in money to the trustee, in the event he is adjudged a bankrupt pursuant to such peti- tion. § 70. Title to Property.— (a) The trustee of the estate of a bankrupt, upon his appointment and quali- fication, and his successor or successors, if he shall have one or more, upon his or their appointment and qualification, shall in turn be vested by operation of § '^0.] THE BANKKTJPT ACT. 42ff law with the title of the bankrupt, as of the date he was adjudged a bankrupt, except in so far as it is to property which is exempt, to all (1) documents relating to his property; (2) interests in patents, patent rights, copyrights and trade-marks; (3) powers which he might have exercised for his own benefit, but not those which he might have exercised for some other person; (4) property transferred by him in fraud of his creditors; (5) property which prior to the filing of the petition he could by any means have transferred or which might have been levied upon and sold under judicial process against him: Provided, That when any bankrupt shall have any insurance policy which has a cash surrender value payable to himself, his estate, or personal repre- sentatives, he may, within thirty days after the cash surrender value has been ascertained and stated to the trustee by the company issuing the same, pay or secure to the trustee the sum so ascertained and stated, and continue to hold, own and carry such policy free from the claims of the creditors participating in the distri- bution of his estate under the bankruptcy proceedings, otherwise the policy shall pass to the trustee as assets; and (6) rights of action arising upon contracts or from the unlawful taking or detention of, or injury to, his property. (b) All real and personal property belonging to bankrupt estates shall be appraised by three disinter- ested appraisers; they shall be appointed by, and re- port to, the court. Eeal and personal property shall, when practicable, be sold subject to the approval of the court; it shall not be sold otherwise than subject to the approval of the court for less than seventy-five per centum of its appraised value. (c) The title to property of a bankrupt estate which has been sold, as herein provided, shall be conveyed to the purchaser by the trustee. Its APPENDIX. [§ 70. (d) Whenever a composition shall be set aside, or dis- charge revoked, the trustees shall, upon his appoint- ment and qualification, be vested as herein provided with the title to all of the property of the bankrupt as of the date of the final decree setting aside the composi- tion or revoking the discharge. (e) The trustee may avoid any transfer by the bank- rupt of his property which any creditor of such bank- rupt might have avoided, and may recover the property so transferred, or its value, from the person to whom it was transferred, unless he was a bona fide holder for value prior to the date of the adjudication. Such prop- erty may be recovered or its value collected from who- ever may have received it, except a bona fide holder for value. (f) Upon the confirmation of a composition offered by a bankrupt the title to his property shall thereupon revest in him. INDEX. (References are to sections and pages.) ABATEMENT— death of debtor suspends suit when, § 103, p. 139. payment of judgment abates suit, § 104,' p.' iss! suit for all abates with payment of plaintiff,' § 69, p. 98. one suit not abatement of another, § 104, p. 138. where property is foreclosed, § 104, p. 139. ACTS FRAUDULENT— in fact— relief, § 3, p. 8. in law— relief, § 3, p. 8. ACCOUNT— assignee not compelled to when, § 8, p. 18 n. ADEQUATE REMEDY AT LAW— meaning of, § 50, p. 74 n. ADMISSIONS— of grantee when binding, § 103, p. 135 n. ADMINISTRATOR— may maintain suit by statute, § 85, p. 110. when may maintain bill, § 85, p. 110. may attack fraudulent conveyance under statute, § 16, p. 29;' § 17, p. 39. * " necessary party in suit on bond of intestate, § 65, p. 87. ■when necessary party, § 60, p. 79. when not necessary party, § 89, p. 116. decree against when, § 117, p. 154. of deceased stockholder proper party, § 63, p. 83 n. when made parties, § 64, p. 84. refusing to sue creditor may, §167, p. 201; § 68, p. 95. debonis non may be plaintiff when, § 68, p. 95. proceedings against must be for all, § 78, p. 107. suit against by general creditor, § 167, p. 192 n. death of not ground for creditors' bill, § 17, p. 38. misconduct of cause for receiver, § 354, p. 312. personal decree against seldom rendered, § 117, p. 158. AGREEMENT— to pay debts secured by threats not enforcible, § 186, p. 220. 427 428 INDEX. ALIMONY— equity may enforce, § 16, p. 31. enforced in supplementary proceedings, § 211, p. 233. not available to creditors when, § 288, p. 280. as effected by bankruptcy, § 423, p. 391. ALLEGATIONS OF BILL— necessary, § 100, p. 122. in suit to set aside foreclosure, § 103, p. 138. to reach deceased debtors' interest in estate, § 103, p. 138. in suit against heirs of deceased partner, § 103, p. 137. ■when deed to be impeached, § 103, p. 134. every material fact must be alleged, § 100, p. 122; § 103, p. 128. must show judgment in force, § 100, p. 123. must aver a judgment lien, § 42, p. 66. must show jurisdiction in equity, § 42, p. 66. must show relationship of parties, § 100, p. 126 n. must show the issuing of execution to proper company, S 172, p. 209. must be reasonably full and clear, § 103, p. 128. not necessary to allege defendant has no other property when, § 103, p. 136. to allege deficiency when, § 103, p. 135. consideration of debt, § 103, p. 137. must show issuing and return of execution, § 152, p. 172 n. return of execution, § 100, p. 123. date of judgment, § 184, p. 219. when sufficient, § 102, p. 128 n. where property concealed, § 103, p. 133. in fraudulent conveyance, § 103, p. 130. as to fraudulent intent, § 100, p. 124. as to insolvency, § 65, p. 87 n. must be made in the language of statute, § 103, p. 135. in case of foreign debtors of debtor, § 103, p. 133. what are required, § 103, p. 131. required to impeach voluntary conveyance, § 100, p. 123 n. injury to plaintiff, § 103, p. 130. where conveyance from husband to wife, I 103, p. 136. that plaintiff is a creditor, § 100, p. 123. exhaustion of legal remedies shown, § 100, p. 123. in fraudulent conveyances, § 100, p. 123. of fraud must be certain, §100, p. 122. participation of grantee to be shown, § 100, p. 124. of fraud general not sufficient, § 100, p. 123. by surety against principal, § 103, p. 136. as to when debt contracted not required when, § 100, p. 123. proof must correspond with, § 103, p. 136. INDEX. 43g ALLEGATIONS OF BILI^Continued. defective cured by evidence when, § 172 p 211 sufficiency not raised first on appeal, § 103, p. 137. ALLOWANCE OF CLAIM— riglit of appeal under, § 118, p. 161. ANNUITY— when reached by creditors, § 288, p. 279; § 285, p. 274 n ANSWER— must be specific and definite, § 109, p. 141. specific charges not answered by general allegations, § 109, p 141 must be consistent in all parts, § 109, p. 141. sufficiency of. must confess or traverse each charge, § 109, p. 141. must answer material parts of bill, § 109, p. 141: §113. p. 145 insufficiency of general allegation. § 112, p. 144; § 113, p. 145. scope of in matters of fraud, § 110, p. 143. counter facts sometimes alleged, § 110, p. 142. must be responsive to the bill, § 110, p. 142. by several defendants, § 110, p. 142. depends on nature of defense, § 110, p. 142. frame of, § 109, p. 141. usually in two parts, § 112, p. 144. Tinder oath when required, § 111, p. 143. oath may be waived, § 110, p. 141. effect of waiver, § 110, p. 141. preferable under oath even when waived, § 111, p. 143. effect of as to allegations not responsive, § 111, p. 144. if oath waived defendant cannot move to dismiss for want of equity, § 111, p. 144. particularity required in, § 109, p. 127. proof under, § 111, p. 143 n. proof required where fraud alleged, § 111, p. 143. answer when not evidence, § 111, p. 143. depends upon facts in each case, § 111, p. 145. reference to master, under answer, § 113, p. 145. demand for property with reference to answer, § 113, p. 145. defense that debtor had other property, § 113, p. 145. want of parties raised by, § 66, p. 89. may disclose necessary parties, § 61, p. 80. defense to demand no defense to bill, § 113, p. 148. Irregularity in return of execution no defense, § 113, p. 148. motives of plaintiff not material, § 113, p. 147. matters res adjudicata under, § 113, p. 146. exceptions to, § 113, p. 145. 430 INDEX. ANSWER— Continued. under bill of discovery, § 113, p. 146. defense not available when — defense to common law suit, § 113, p. 146. motive of plaintiff not investigated, § 113, p. 147. pendency of replevin suit no defense, § 113, p. 147. pendency of appeal, § 113, p. 147. defense of fraud when, § 113, p. 148. answer that plaintiff assigned his interest, § 113, p. 148. answer of no property will not prevent reference, § 113, p. 145. insolvency proceedings a defense when, § 113, p. 145. what defense defendant may show, § 113, p. 145. when traversable, § 113, p. 147. APPARENT OWNERSHIP— ground for avoiding contract when, § 16, p. 27. APPEALS AND WRITS OF ERROR— general subject, § 118, p. 160. from order appointing receiver not reversed when, § 363, p. 319. pendency of no defense when, § 113, p. 147. sufficiency of allegations not raised on, § 103, p. 137. by creditors when, § 118, p. 162; § 363, p. 319. decree not reversed where evidence conflicting, § 117, p. 157. reversal of decree not an estoppel, § 117, p. 152. from interlocutory order, § 118, p. 162. who may, §118, p. 161. appellant need not necessarily be party, § 118, p. 161. jurisdiction of U. S. Court of Appeals, § 118, p. 160. to Supreme Court of United States limited, § 118, p. 160. decree not reversed when, § 117, p. 154. reversal of decree, effect of, § 117, p. 153. ASSIGNMENTS— when fraudulent, § 8, p. 18; § 354, p. 313. omission from of money or property, § 265, p. 262. where property concealed from, § 265, p. 262. where provision for future indebtedness, § 265, p. 263. where preference to fictitious person, § 265, p. 263. fraudulent — cause for receiver, § 354, p. 313. receiver in, § 357, p. 314. receiver in when assignment valid, § 354, p. 113. when void, § 247, p. 253. in anticipation of judgment, § 8, p. 18 n. in payment of debt when void, § 8, p. 18 n. by one partner void when, § 8, p. 18 n. to hinder and delay creditors void, § 8, p. 19 n. INDEX. 431 :&.SSIGNMENT&— ConUnued. how attacked, § 308, p. 286. may be attacked by accepting creditor, § 8, p. 19. rules applicable as to fraudulent conveyances, § 265, p. 262. fraudulent discontinuance of, § 323, p. 293. effect of, § 245, p. 252. effect on priorities, § 245, p. 257. of on creditor to assets, § 8, p. 19 n. assigned estate not to be used to secure assent of creditors, § 323, p. 293. when conveyance adjudged an assignment, § 158, p. 185. void in part may be partly assigned, § 8, p. 19 n. if more beneficial will be upheld, § 8, p. 19 n. effect of bankrupt law on, § 417, p. 377. when a defense, § 113, p. 147. no defense to bill to set aside fraudulent conveyance, § 16, p. 27.. proceedings under for all creditors, § 78, p. 107. effect of failure to set aside, § 8, p. 18 n. payment just before effect of, § 8, p. 18 n. distribution before how attacked, § 8, p. 18 n. creditor not presumed to know law of foreign state, § 8, p. 19 n, may be attacked by general creditor, § 167, p. 194. of mortgage when void, § 12, p. 21 n. not affected by decree when, § 117, p. 154. not required by debtor, § 117, p. 154. ASSIGNEE— for creditors may attack fraudulent conveyance, § 155, p. 178. in bankruptcy may attack fraudulent conveyance, § 8, p. 18 n. may file creditors' bill, § 87, p. 112. for creditors may file creditors' bill, § 87, p. Ill; § 87, p. 112. having paid judgment may file bill, § 87, p. 112. may be made defendants when, § 87, p. 112. necessary party, § 62, p. 81; § 89, p. 117. when it is sought to impeach assignment, § 65, p. 86. defendant when, § 89, p. 115. assignee of grantee necessary party, § 65, p. 89. trustee in bankruptcy when, § 65, p. 88. of vendee in fraudulent sale, § 302, p. 283; § 303, p. 283. of chose in action, cannot maintain creditors' bill, § 17, p. 41. of judgment, may be plaintiff, § 68, p. 95. need not have execution and return when, § 155, p. 177. when duty to defend, § 8, p. 19 n; § 16, p. 27. not compelled in equity to account, § 8, p. 18 n. insolvency of assignee cause for receiver, § 354, p. 312. ASSIGNOR— necessary party, § 62, p. 81; § 89, p. 115. not necessary party, § 67, p. 91. 432 INDEX. ASSETS— deficiency must be shown, § 69, p. 96. ■what are in bankruptcy, § 426, p. 394. fraudulently assigned how reached, § 8, p. 19 n. assets of insolvent corporation, form trust fund, § 2, p. 6. ASSESSMENT— of stockholders necessity to be shown, § 29, p. 54. limited to deficiency of assets, § 29, p. 54. ATTACHMENT— as a basis of suit, § 160, p. 186. when foundation for creditors' bill, § 167, p. 198. basis of bill attacking fraudulent conveyance, § 161, p. 184, attaching creditor may be plaintiff, § 68, p. 94. creditors may join as plaintiffs when, § 69, p. 97. may attack validity of judgment, § 8, p. 17 n. on foreign judgment basis of creditors' bill, § 167, p. 198. judgment in is in rem and foundation of suit, § 167, p. 260. abatement of, creditors bill not sustained, § 17, p. 38. suit in aid of falls when, § 167, p. 198. effect of bankruptcy on lien of, § 414, p. 367. receiver in, § 356, p. 314. subject to creditors' bill lien when, § 221, p. 238. equal distribution under when, § 70, p. 101. APPENDIX- bankrupt act of 1898, p. 397. BANKRUPTCY. general scope and effect of bankrupt act, § 400, p. 348. general effect of bankrupt law and its proceedings, § 413, p. 359. effect of on lien by pledge, § 414, p. 368. on landlord's lien, § 414, p. 368. on attachment lien, § 414, p. 367. on mortgage lien, § 414, p. 366. on lien of creditors' bill, § 119, p. 162; § 414, p. 365. on execution liens, § 414, p. 364. on judgment liens, § 414, p. 361; § 414, p. 362. on foreclosures of mortgages, § 415, p. 369. on supplementary proceedings, § 416, p. 376. on insolvent laws, § 417, p. 377. on assignment laws, § 417, p. 377. INDEX. 433 BANKRUPTCY— Continued. on creditors generally, § 401, p. 349. on fraudulent conveyances, § 418, p. 381. on alimony, § 423, p. 391. on liens generally, § 414, p. 360. liens procured in state court void when, § 403, p. 352. on judgment of confession, § 414, p. 363. lien enforced in state court when, § 406, p. 353. does not affect lien when, § 162, p. 189. proceedings in state court void when, § 409, p. 354. jurisdiction of state courts where assignee party, § 411, p. 357. injunction when granted in, § 416, p. 371. injunction against foreclosure, § 416, p. 375. power of bankrupt court to restrain levy, § 405, p. 352. state laws not suspended when, § 410, p. 354. state laws when suspended, § 412, p. 358. property in hands of receiver how procured, § 404, p. 352. corporations may he adjudged bankrupts, § 422, p. 390. insolvency as element in, § 420, p. 388. exemptions under, § 424, p. 392. statute of limitations in, § 421, p. 390. rights of creditors under, § 425, p. 393. assignee to be a party when, § 119, p. 163. discharge of bankrupt, § 427, p. 394. discharge, how set up, § 119, p. 162. how contested, § 119, p. 163. as a defense, § 119, p. 162. what are assets, § 426, p. 394. receiver in, § 386, p. 340. assignee may attack fraudulent conveyance, § 8, p. 18 n, assignee may file creditors' bill, § 87, p. 12. BANKRUPTCY COURT— jurisdiction of, § 402, p. 350. after corporation dissolved, § 408, p. 354. power to restrain levy, § 405, p. 352. power of over liens, § 414, p. 368. BASTARDY JUDGMENT— basis of creditors' bill, § 16, p. 32. BENEFICIAL INTEREST— of debtor in real estate subject to creditors' bill, § 16, p. 33. BILL OF DISCOVERY— scope of, § 4, p. 10. BILL— general frame of, § 101, p. 127. scope of, § 100, p. 122. 434 INDEX. BILL — Continued. in re estates of deceased debtors, § 324, p. 294. may set aside conveyance in another county, § 324, p. 294.. nature of, § 100, p. 122. allegations must show jurisdiction, § 42, p. 66. must appear from face of bill, § 101, p. 127. effect of, as lis pendens, § 108, p. 140. impertinent matter in, § 102, p. 128. particularity reauired in, § 101, p. 127. purpose of rule requiring particularity, § 102, p. 128. does not require technical formality as at law, § 101, p. 127. when amended, § 103, p. 137. allegations, of bill or petition. right of plaintiff to recover must appear, § 100, p. 127. allegation of injury to plaintiff necessary, § 103, p. 130. allegations of material facts, § 100, p. 122. every material fact and circumstance, § 103, p. 128. recovery depends on subsisting facts, § 103, p. 135. must show jurisdiction over person or property, § 101, p. 127. must show facts constituting jurisdiction, § 101, p. 127 must show power of court to grant relief, § 106, p. 127. of fraud, facts constituting to be stated, § 103, p. 129. sufiBcient if in language of statute, § 103, p. 135. must allege exhaustion of legal remedy, § 103, p. 130. not necessary to allege deficiency when, § 103, p. 135. under Alabama statute, § 103, p. 135 n. defective cured by evidence, § 172, p. 211. BUILDING AND LOAN ASSOCIATIONS— receiver appointed in, § 362, p. 319. BURDEN OP PROOF— in fraudulent conveyances, § 100, p. 126 n. C CESTUIS QUE TRUST— when necessary parties, § 67, p. 91 n. not necessary parties, § 67, p. 93. CHATTEL MORTGAGE— validity when not attacked, § 187, p. 221 n. when void as to creditors, § 247, p. 253. may be impeached by judgment creditor, § 8, p. 16 n. CHOSES IN ACTION— may be sold under decree, § 117, p. 157. jurisdiction- equity in New Jersey, § 39, p. 61 n. CIRCUMSTANCES— constitute notice when, § 26, p. 50. INDEX. 435 CITY— not subject to creditors' bill, § 17, p. 39. CITIZENSHIP— effect of in creditors' suits, § 40, p. 63. when not jurisdictional in creditors' proceedings, § 40, p. 64. United States Courts— jurisdiction over executors and admin- istrators, § 40, p. 63. not involved in ancillary suit by receiver, § 40, p. 64 n. CLAIMS AGAINST RECEIVER- allowance of, § 375, p. 330. when presented, § 378, p. 332. defenses to, § 376, p. 331. reservation of rights in presenting, § 377, p. 331. when preferred, § 381, p. 335. when not preferred, § 382, p. 336. not allowed when, § 380, p. 334. validity of, § 379, p. 333. CLOUD UPON TITLE— fraudulent conveyance removed as such, § 39, p. 62, COLLUSION— effect of, § 204, p. 227. between oflBcer and plaintiff invalidates return, § 172, p. 211. who may attack judgment for, § 177, p. 216. in rendition of judgment, what is, § 176, p. 215 n. of third party avoids transaction, § 28, p. 52. COLLATERALS— subject to creditors' bill, § 16, p. 36. COLLATERAL ATTACK— of decree when and where, § 117, p. 154. COMMON LAW REMEDY— inadequacy of — equitable relief, § 3, p. 8. CONCURRENT JURISDICTION— law and equity when fraudulent alienation of personalty. § 39, p. 62, state and federal in suit by trustee in bankruptcy, § 40, p. 64. when barred at law barred in equity, § 39, p. 62. proceedings against shareholders does not oust chancery, § 47, p. 71. in matters of fraud concerning real estate, § 47, p. 70. CONFESSION OF JUDGMENT— sufficient, when, § 175, p. 212. CONSIDERATION— of debt not to be alleged in bill, § 103 p. 137. of judgment not raised collaterally, § 103, p. 137. 436 INDEX. CONSOLIDATION OF SUITS— efeect of, § 71, p. 101. propriety of, § 71, p. 101. when proper, § 72, p. 103 n. individual bill not merged with general bill, § 73, p. 104. effect of rights of each depends on allegations and proof, § 71, p. 101. saves multiplicity of suits, § 71, p. 101. CONSTRUCTIVE FRAUD— decree in, § 117, p. 159. CONSTRUCTIVE NOTICE— what is, § 100, p. 124. not enforced in England, § 100, p. 125 n. CONSPIRACY TO DEFRAUD- injunction against, § 331, p. 300. CONSTITUTION— territory jurisdiction not applicable to creditors' bills, § 51, p. 75. CONTEMPT OF DEBTOR— for disobeying order, § 205, p. 228. CONTINGENT EXPECTANCY— ■right of not recoverable by creditors' bill when, § 17, p. 43. CONVERSION— liens on property converted preserved, § 22, p. 47. CONVEYANCES FRAUDULENT— relief against, § 4, p. 9. to third person — when fraudulent, § 4, p. 9. method of avoiding — quieting title, § 7, p. 15. methods of avoiding — legal and equitable, § 7, p. 15. CONVEYANCES VOLUNTARY— when valid as to creditors, § 12, p. 21. CO-ORDINATE JURISDICTION— in law and equity, § 39, p. 61. when property in hands of fraudulent grantee, § 39, p. 61. CORPORATIONS— creditors' bill against, § 29, p. 52. insolvent — proceedings against, § 4, p. 12. scope of creditors' bills in, § 2, p. 6. jurisdiction of U. S. court in, § 40, p. 64 n. stockholders — liable for fund illegally distributed, § 16, p. 31 n. INDEX. 437 CORPORATIONS— Continued. subscriptions to how reached, § 2, p. 7. concurrent jurisdiction, § 47, p. 71. cannot impeach judgment, § 176, p. 213. ■when suit must he for all against, § 70, p. 99. assessment may he made through receiver, § 29, p. 54. assessment of stockholders limited to deficiency, § 29, p. 54. judgment required — in proceedings against, § 155, p. 179 n. officers of, proceedings against, § 4, p. 12. may he adjudged bankrupts, § 422, p. 390. dissolution jurisdiction of bankrupt court, § 408, p. 354. receiver, grounds of, § 357, p. 315. property of in hands of trustee, power of, § 29, p. 55. when insolvent assets are trust fund, § 29, p. 52; § 69, p. 97. statutory remedies against, § 29, p. 53. conveyance to defraud creditors basis of bill, 1 15, p. 26. suit against for benefit of all creditors, § 29, p. 53; § 69, p. 97. suit to recover statutory liability must be for all, § 69, p. 96 n. fraudulent acts of grounds for creditors' bill, § 15, p. 26. proof nature of, § 15, p. 26. is a necessary party, § 63, p. 82; § 89, p. 116. creditor may sue when, § 69, p. 98. suit to wind up does not give priority, § 29, p. 55. CORPORATE DEBTS— how enforced, § 4, p. 12. COURTS— jurisdiction of person, § 35, p. 56. jurisdiction subject matter, § 35, p. 56. jurisdiction — extent of, § 36, p. 57. jurisdiction non resident defendant, § 36, p. 58. jurisdiction as between courts, § 43, p. 67. creditors' bill, when maintained in Iowa, § 50, p. 74 n. creditors' bill, jurisdiction of, § 39, p. 63. power of to compel conveyance in foreign state, § 36, p. 59 n. CREDITOR— when not injured, § 6, p. 14. rights of — as to fraudulent conveyance, § 36, p. 58 n. to have deed declared void when, § 16, p. 27. to attack fraudulent conveyance of deceased debtor when, § 16, p. 29. may elect what conveyances to attack, § 16, p. 29. may attack fraudulent conveyance of corporation, § 15, p. 26. may impeach conveyance where grantor engaged in hazar- dous business, § 16, p. 28. 438 INDEX. CREDITOR— Continued. may avoid fraudulent assignment, § 8, p. 18. may impeach fraudulent sale when, § 309, p. 287. only can impeach fraudulent transfer, § 68, p. 94. has two modes of relief against fraudulent conveyance, 47, p. 70. may impeach fraudulent judgment, § 8, p. 17. attaching may attack validity of judgment, § 8, p. 17 n. may reach equitable fund when, § 43, p. 67. may recover of grantee who has sold, § 16, p. 28. right to participate in funds, § 46, p. 70. right of against wife of deceased debtor, § 12, p. 22. rights of when not a party, § 46, p. 70. to collect unpaid subscriptions, § 374, p. 330. rights under bankrupt act, § 425, p. 393. when one may attack another, § 187, p. 220. must have judgment, § 27, p. 51. may sue when administrator refuses, § 167, p. 201. may sue when corporation refuses, § 69, p. 98. may secure priority when, § 8, p. 19. when entitled to intervene, § 68, p. 93 n; § 81, p. 108. when entitled to appeal, § 118, p. 161. when may join as plaintiffs, § 69, p. 97 n. attaching may join, § 68, p. 94. plaintiff must be bona fide, § 68, p. 93. effect of bankrupt act upon, § 401, p. 349. equality of under statute, § 246, p. 252. necessary parties in suit to enforce assignment, § 65, p. 87. general creditor not entitled to injunction, § 27, p. 51. who meant by order to prove debts, § 69, p. 98 n. failure to set aside assignment, effect of, § 8, p. 18 n. diligence secures no priority when, § 8, p. 19 n. no presumption of knowledge of foreign laws, § 8, p. 19 n. right to pursue property where assignee neglects, § 8, p. 19, CREDITORS' SUITS— kinds of, § 4, p. 8. judgment required, § 42, p. 66. equitable basis of, § 42, p. 67. may remove fraudulent conveyance as cloud, § 39, p. 62. United States court jurisdiction of, § 40, p. 63. may be removed to U. S. court, § 40, p. 63 n. jurisdiction not local when, § 36, p. 60 n. to cancel fraudulent transfer, § 4, p. 9. to cancel fraudulent incumbrance, § 4, p. 9. to reach Intangible assets, § 4, p. 11. to reach personal property under void contract, § 15, p. 25 n. in insolvent estates, § 4, p. 12. INDEX. 439 CREDITORS' SUITS— Continued. to reach equitable assets, § 4, p. 11. property in third person relief, § 4, p. 9. discovery, scope of, § 4, p. 10. as to homesteads, § 6, p. 14. in Massachusetts, § 4, p. 11 n. under creditors' act in Michigan, § 36, p. 60 n. property limit in N. J., § 39, p. 61. not sustained in absence of assets, § 42, p. 67. power of court to compel conveyance by debtor, § 36, p. 59 n. judgment creditor who is, § 68, p. 94. may avoid fraudulent conveyance, § 8, p. 16 n. may reach property not liable to execution, § 39, p. 20. CREDIT— obtained on apparent ownership renders transaction void, § 16, p. 27. CREDITORS' BILLS— defined, § 2, p. 5. scope of, § 2, p. 5. discovery, § 4, p. 10. may reach real and personal property, § 17, p. 46. fraudulent conveyance proceedings in law or equity, § 39, p. 61. must aver lien, § 42, p. 66. property in foreign state, § 36, p. 58 n. property In foreign jurisdiction, § 36, p. 60 n. fraudulent gift, § 4, p. 9. fraudulent transfer of, § 4, p. 9. fraudulent mortgage, § 8, p. 16. fraudulently encumbered property, § 16, p. 28. insolvent corporations, § 2, p. 6. fraudulent assignment, § 8, p. 18 n; § 308, p. 286. land purchased by wife with husband's money, § 16, p. 33. income from life estate, § 16, p. 33. equitable interest, § 16, p. 33. surplus on mortgage foreclosure, § 16, p. 33. shares of stock when, § 16, p. 31; § 16, p. 32. Insolvent estates, § 4, p. 12. equitable assets, § 4, p. 11. assets fraudulently assigned, § 8, p. 19 n. property not liable to levy and sale, § 2, p. 5. right of inventor in patent, § 16, p. 32. against estate of surety, § 324, p. 295. to procure settlement of estate, § 2, p. 6. only means of reaching resulting trust, § 288, p. 279. proceedings against heirs and devisees, § 4, p. 12. MO INDEX. CREDITORS' BILLS— Continued. only remedy for voluntary conveyance, § 12, p. 23. Jurisdiction not local, § 36, p. 67 n. based on property not liable to execution, § 41, p. 65. must show judgment lien, § 42, p. 66. based on diligence, § 41, p. 65. based on obstruction to legal process, § 41, p. 65. property limit in N. Y., § 37, p. 61. jurisdiction in Michigan, § 36, p. 60 n. allegation as to, § 103, p. 130. in whose behalf filed, § 2, p. 5; § 69, p. 95. may be for benefit of all similarly situated, § 25, p. 49; § 69, p. 95. may be in behalf of others if interests common, § 69, p. 97. must be for all creditors when, § 69, p. 95; § 75, p. 106. when for all Suits against trustees to reach trust fund, § 69, p. 98. in attachment suits where statute secures equal distribu- tion, i 70, p. 101. to administer estate of decedent, § 70, p. 99. In case of voluntary assignment, § 70, p. 99; § 78, p. 107. in case of an assignment by operation of law, § 70, p. 99. when suit to reach stock subscriptions, § 69, p. 97; § 70, p. 99. in case of sale and bringing property into court, § 70, p. 99. English rule, § 70, p. 100. American rule, § 70, p. 100. when corporate property illegally conveyed to officer, § 70, p. 99 n. when will be treated as for all, § 77, p. 106. when one suit for all bars another suit for all, § 73, p. 103. filed in behalf of plaintiff, rights of other creditors, § 46, p. 70. in proceedings against administrators must be for all, § 78, p. 107. who may not join as plaintiffs, § 75, p. 105. when attachment creditors may join, § 69, p. 97. By whom filed — by trustee of corporation, § 29, p. 55. by receiver, § 88, p. 113. by wife of debtor, § 88, p. 113. by assignee for creditors, § 87, p. 112. by purchaser when, § 88, p. 113. by assignee of judgment, § 87, p. Ill, p. 112. by surety, § 88, p. 113. by surety against principal, § 103, p. 136. may be maintained by master In chancery, § 84, p. 110. may be maintained by officer of court, § 84, p. 110. INDEX. 441 CREDITORS' BILLS— Continued, by administrator, § 85, p. 110. by executor, § 85, p. 110. by equitable holder of judgments, § 324, p. 295. by wife against husband, § 181, p. 218.' by general creditor, § 167, p. 194. by subsequent creditors, § 16, p. 27 n. by assignee of judgment, § 87, p. 112. by state, § 88, p. 114. by whom not to be filed— may not be filed by sheriff, § 88, p. 114. When sustained — to reach money due on note secured by mortgage when § 16, p. 35. to reach widow's dower, § 16, p. 35. to reach equitable interest, § 16, p. 35. to reach principal and income of trust fund, § 16, p. 35. to reach money due on judgment for personal injury § 16, p. 35. to reach note pledged as collateral, § 16, p. 36. to reach vested remainder, § 16, p. 36. to reach property not subject to execution, § 16, p. 27. by creditor of deceased person to set aside fraudulent sale, § 16, p. 36. to reach individual interest of debtor in judgment, § 16, p. 36. to recover money paid by debtor as usury, § 16, p. 36. when fund accessible to court of equity only, § 167, p. 201. to reach personal property under void contract, § 15, p. 25 n., to set aside a fraudulent conveyance, § 16, p. 27. to set aside fraudulent deed, § 16, p. 27 n. to reach money due debtor, § 16, p. 34. against estate of deceased joint debtor, § 89, p. 117. to reach money placed in improvements, § 16, p. 31. to Teach separate estate of married women, § 16, p. 34. to reach interest of partner in partnership property when, § 16, p. 34. to reach each partner's interest under joint execution, 5 16, p. 34 n. to reach money due debtor in life insurance policy, § 16,. p. 34. to reach notes given for purchase money on sale by insolv- ent firm, § 16, p. 34. to reach proceeds of property fraudulently sold, § 16, p. 35.. to reach money of debtor deposited in wife's name, § 16, p. 36. against corporation and stockholders, § 63, p. 83 n. 443 INDEX. CREDITORS' BILLS— Continued. against insolvent corporation, § 29, p. 53. against corporation to reach unpaid stock, § 155, p. 179 n. against voluntary conveyance when, § 12, p. 20 n. sustained even though some property liable to execution, § 51, p. 75 n. by administrator under statute, § 17, p. 39. to reach purchase money paid by debtor, § 23, p. 47. sustained by partner to reach misapplied funds, § 43, p. 67. by partnership creditors for fraudulent conveyance of part- ners, § 100, p. 126. the only proceeding where debtor is dead, § 39, p. 62 n. against executor when maintained, § 324, p. 296. When not sustained, § 17, p. 36. on indebtedness not in judgment, § 166, p. 192. where administrator dies, § 17, p. 38. by creditors to reach property purchased with money of estate, § 17, p. 36. by mortgagee without surrender of his surety, § 16, p. 37. by creditor, who has taken deed of trust from debtor, § 17, p. 37. to reach debt due by resident creditor of non resident debtor, § 17, p. 37. to reach land in foreign state, § 17, p. 37. on judgment against administrator, § 17, p. 38. by administrator when, § 17, p. 38. to reach patent right, § 17, p. 41. to recover debts due debtor in foreign state, § 17, p. 43. "Where not a subsisting lien, § 17, p. 38. by individual creditor to reach trust fund for all, § 17, p. 38. cause of action not accrued, § 15, p. 26 n. in U. S. court on judgment in another district, § 17, p. 40. merely to realize a better price, § 17, p. 40; § 17, p. 44. If brought by heirs of grantor if he were dead, § 65, p. 85 n. where estate in probate court, § 43, p. 67. ■where debtor turned over property, § 42, p. 67. not sustained when no assets, § 42, p. 67. if attachment will lie, § 17, p. 45; § 184, p. 219. to recover value of goods fraudulently purchased, § 311, p. 287. to reach money due for labor under assignment, § 16, p. 34 n. by firm creditors to reach individual interest of partners, § 16, p. 34 n. to reach railroad bonds when, § 16, p. 33 n. to reach trust estate when, § 16, p. 33 n. to recover rents due or to become due, § 17, p. 41; § 17, p. 46. to reach earnings of emancipated children, § 17, p. 45. INDEX. 443 CREDITORS' BILLS— Continued. on debts created by trustees, § 17, p. 45. ■where equitable attachment prohibited, § 17, p. 45. to reach verdict for personal injury before judgment, § 17, p. 45. •where deed void for uncertainty -when, § 17, p. 45. to subject goods to payment of debts, § 17, p. 44. to reach right of action in tort when, § 17, p. 43 n. to reach property in hands of debtor when, § 17, p. 43. to reach contingent right in expectancy, § 17, p. 43. to reach pension when, § 17, p. 43 n. by supplemental bill to reach subsequently acquired prop- erty, § 17, p. 43 n. to reach exempt property or homestead, § 17, p. 43. against foreign corporation in hands of receiver, § 17, p. 42. to reach trust property inalienable by will, § 17, p. 47. to set aside fraudulent conveyance unless debtor insolvent, § 17, p. 40. against city to reach money due contractor, § 17, p. 39. because assignee of chose in action cannot sue, § 17, p. 41. to reach property conveyed to wife when, § 17, p. 40. to reach land under forfeited contract, § 17, p. 40. to reach money due for services by debtor's assignee, § 17, p. 41. to reach balance due on deficiency decree when, § 17, p. 41. to reach debt falling due to debtor after discharge, § 17, p. 44. if filed to assist debtor in defrauding other creditors, § 17, p. 44. where remedy at law adequate, § 17, p. 44. to reach conveyance from father to son bona fide, § 17, p. 44. to reach promissory note given by resident partner to non resident, § 17, p. 42. where creditor under arrest under ca. sa., § 17, p. 41. by subsequent creditors without payment when, § 17, p. 41. to reach debtor's distributive share in hands of adminis- trator, § 17, p. 42. not maintained in Iowa when, § 50, p. 74. Allegations of plaintiff (see Bill) necessary allegations in, § 103, p. 134. must correspond with proof, § 103, p. 137. reference to plaintiff as creditor not sufficient, § 103, p. 153. sufficiency not raised on appeal, § 103, p. 137. necessary in suit to recover property conveyed by husband to wife, § 103, p. 136. sufficiency when property unknown or concealed, § 103, p. 133. 444 INDEX. CREDITORS' BILLS— Continued. sufficiency of against foreign creditors of debtor, § 103, p. 133. as to Judgments, amount, by whom, etc., § 103, p. 131. sufficiency of in fraudulent conveyance, § 103, p. 130. as to judgment, execution and return, § 103, p. 130 n. not necessary to allege that defendant has no other prop- erty when, § 103, p. 136. based on judgment, execution and return, § 155, p. 176. when judgment not required, § 16, p. 30. attachment as basis of, § 160, p. 186; § 167, p. 198. assigned judgment basis of, § 168, p. 204. equitable basis of, § 42, p. 67. Lien of — general, § 220, p. 234. effect of, § 221, p. 236. by debtor's bankruptcy, § 221, p. 236. as to property. In wife's name, § 221, p. 237. as to rents accruing during period of redemption, § 221, p. 236 n. ^ effect as to other creditors, § 220, p. 234. effect as to subsequent creditors' bill, § 221, p. 237. does not disturb existing liens, § 25, p. 49. prevents assignment thereafter, § 221. as to debts due foreign corporations, § 224, p. 240. as between joint plaintiffs, § 223, p. 240. equitable lien on debt due non resident creditor, § 171, p. 205. not affected by debtor's death, § 220, p. 234. not affected by sale under subsequent creditor's bill, § 221, p. 237. not affected by sale under execution, § 221, p. 237. ihow acquired, § 25, p. 49. dates from what time, § 224, p. 240. superior to subsequent attachment, § 221, p. 238. extent of, § 222, p. 238. as to property in hands of receiver, § 222, p. 239. as to real estate, § 221, p. 237. On what based — may be based on money decree, § 164, p. 190. may be based on probate of claim, § 14, p. 26; § 180, p. 218. may be based on bastardy judgment, § 16, p. 32. may be based on judgment, § 15, pp. 167-221. may be based on devastavit of executor, § 13, p. 25 n. may be based on insolvency of executor, § 13, p. 25 n. judgment by confession, § 176, p. 212. a tax may be basis of, § 18, p. 46. based on equitable element judgment not required, § 167, p. 199. based on fraud, before assignment, § 44, p. 68 n. INDEX. 445 CREDITORS' BILLS— Continued. not based on lien when, § 14, p. 26. not based on foreign judgment, § 68, p. 94. Defense to — no defense that debt not contracted until after convey- ance, § 16, p. 27. bankruptcy as a defense, § 119, p. 162. payment of judgment is, § 104, p. 138. defendants (see Parties) ■who are necessary, § 89, p. 114. daughter of fraudulent grantor protected when, § 16, p. 28 n. Not barred — by pendency of another suit, § 19, p. 46. by creditor holding security, § 21, p. 46. Preliminaries to filing bill — inadequacy of remedy, § 202, p. 225. all legal remedies must be exhausted, § 13, p. 25. exhaustion of legal remedies not alone sufficient, § 44, p. 68. resort to supp. proc. not required, § 13, p. 25. nature of lien required as a basis of, § 157, p. 183. personal demand need not be made on debtor, § 13, p. 25 n. not governed by constitutional provision when, § 51, p. 75. may call for accounting, § 324, p. 295. recovery under depends on debtor's right when, § 24, p. 47. right of set-ofE under, § 24, p. 47. evidence required to sustain, § 26, p. 50. declarations, § 26, p. 51. to set aside fraudulent conveyance, § 26, p. 50. receiver in when, § 354, p. 312 n; § 361, p. 318. as to exempt property, § 6, p. 14. as to homesteads, § 6, p. 14. who may participate in, § 76, p. 106. preference over relations, § 10, p. 20. property not subject to execution, § 4, p. 12 n. property in third person, relief, § 4, p. 9. purpose of may be double, § 16, p. 27. purchaser under protected against fraudulent grantee, § 16, p. 28 n. proof of claim binds party, § 79, p. 107. power of court to compel conveyance, § 36, p. 59 n. control of by plaintiff, § 107, p. 140. rights of creditors against corporate officers, § 4, p. 12. CROSS-PETITION— affirmative relief obtained thereby, § 115, p. 149. CROSS-BILL— by legatee when, § 115, p. 149. necessity of when, § 115, p. 149. 446 INDEX. CROSS BILL— Continued. affirmative relief obtained thereby, § 115, p. 149. judgment may be attacked thereby, § 115, p. 149. D DEATH OF DEBTOR— effect of as to remedies, § 322, p. 292. DEBTOR AND CREDITOR— when relation exists between surety and principal, § 103, p. 136. DEBTOR— not enjoined in absence of judgment, § 165, p. 190. DEBTS CORPORATE— how enforced, § 4, p. 12. DECREE— general nature of, § 117, p. 150. scope of, § 117, p. 150, validity of, § 117, p. 153. Attack of — when void attacked anywhere, § 117, p. 154. collateral attack when, § 117, p. 154. how made, § 72, p. 102 n. decree in another suit must be attacked by independent bill, § 72, p. 102 n. may be corrected on motion when, §117, p. 153. must be obeyed though erroneous, § 117, p. 154. ineffective when, § 117, p. 154. sometimes rendered on terms, § 117, p. 156; § 117, p. 159. rights of all parties adjusted under, § 117, p. 155. may not be in alternative when, § 117, p. 157. money decree is basis of equitable proceeding, § 164, p. 190. how assailed by other creditors, § 177, p. 215. effect of as an abatement of suits, § 104, p. 138. when may be personal, § 117, p. 152. in personam when granted, § 36, p. 59 n. personal against those participating in fraud, § 117, p. 156. limited to person of defendant, § 36, p. 57. in personam may affect property in foreign jurisdiction, § 17, p. 38. personal not rendered against vendee not in possession, § 16, p. 28. not personal against administrator, § 117, p. 158. INDEX. 447 DECREE— Continued. reversal does not estop plaintiff from other remedy, § 16, p. 29, when reversed not an estoppel, § 117, p. 152. not reversed on appeal if conflict, § 117, p. 157. may direct sale of equitable rights, etc., § 117, p. 157. from what property plaintiff satisfied, § 117, p. 157. may direct payments out of note taken by grantor, § 117, p. 157. need not in terms provide for payment of plaintiff's judgment, § 117, p. 158. may be for several judgments when, § 117, p. 158. against non resident when, § 36, p. 58. territorial extent of, § 36, p. 57. jurisdiction limited to state, § 36, p 57. jurisdiction to compel conveyance, § 36, p. 58 n. based on verdict of jury, § 117, p. 158. on jury finding based on chancellor's judgment, § 117, p. 159. must settle liens and priorities, § 117, p. 155. may charge lands with plaintiff's judgment, § 117, p. 153. where conveyance only constructively fraudulent, § 117, p. 159. property converted to money liens preserved, § 22, p. 47. law enforced as to land, § 117, p. 153. in case of fraudulent conveyance, § 117, p. 151. should cancel fraudulent deed, § 117, p. 157. may order satisfaction of trust deed, § 117, p. 153. If bill for all it is error to decree for plaintiff only, § 117, p. 160. amount for which rendered, § 117, p. 158. when conclusive as to amounts, § 117, p. 153. amount of when bill filed for plaintiff alone, § 117, p. 160. who may participate under, § 68, p. 93 n. must provide for bringing in of all parties, § 117, p. 159. distribution does not bind parties not in court, § 70, p. 100. does not affect those not parties to suit, § 65, p. 89. final not rendered in absence of necessary parties, § 61, p. 79. not rendered In absence of necessary parties, § 61, p. 80. based on plaintiff's judgment only, § 117, p. 153. must conform to case made by bill, § 117, p. 150. must be warranted by pleadings, § 117, p. 151. must conform to facts shown, § 117, p. 150. on sufficient evidence effect of, § 117, p. 153. must conform to the relief demanded, § 117, p. 150. relief not confined to prayer, § 117, p. 150. when bar to another decree, § 73, p. 103. effect of misdescription, § 117, p. 154. sufficiency of in description, § 117, p. 153. for interest' basis of, § 117, p. 152. assignment by debtor not required, § 117, p. 154. against administrator, § 117, p. 154. 448 INDEX. DECREE— Continued. should set aside homestead when, § 117, p. 155. ■where grantee has encumbered property, § 117, p. 151. may follow property into hands of grantee, § 117, p. 151. effect of as to grantee, § 117, p. 151. must confirm sale, § 117, p. 158. for damages improper, § 117, p. 159. DECLARATIONS— of assignor not evidence, § 26, p. 51 n. when evidence, § 26, p. 51. DEED VOID— reached by creditors' bill, § 16, p. 27 n. DEFENSE— if not set up in plea or answer waived, § 113, p. 148. no defense that plaintiff might have made judgment when, § 170, p. 205 n. ownership of property a defense when, § 155, p. 178 n. DEFICIENCY DECREE— not subject to creditors' bill when, § 17, p. 42. DEFENDANTS— who may be, § 74, p. 104; § 89, p. 114. who are necessary, § 89, p. 114. judgment debtor must be, § 60, p. 79. participants in fraud must be, § 60, p. 79. person in possession when, § 89, p. 115. who may be joined, § 74, p. 104. all joint judgment debtors should be parties, § 64, p. 83. maker and indorser of notes, § 89, p. 115. DEMAND— of ofacer under execution, § 172, p. 208. to satisfy judgment not a prerequisite to creditors' bill, § 13, p. 25 n. DEMURRER— defects must appear on face of bill, § 114, p. 148. want of parties raised by, § 66, p. 89. what facts are admitted thereby, § 114, p. 148. what defense is raised by, § 114, p. 148. effect of overruling, § 114, p. 149. DEPOSITS— in insolvent bank recoverable, § 314, p. 289. DEVASTAVIT— by executor ground for creditors' bill, § 13, p. 25 n. INDBS. 449 DILIGENT CREDITOR— secures no priority when, § 8, p. 19 n; § 25, p. 49. rewarded, § 235, p. 243. DISCOVERY— ■when may be had, § 324, p. 295. distinguished from creditors' bill, § 4, p. 10. under old chancery practice, § 205, p. 228. seldom resorted to now, § 116, p. 146. confined to no property, § 4, p. 10. under Ky. civ. code, § 439, § 13, p. 24. DISCHARGE IN INSOLVENCY— releases from creditors' bill debt falling due subsequently, § 17, p. 44. IN BANKRUPTCY, § 427, p. 394. DISCRETION OF COURT— meaning of, § 206, p. 229. DISCONTINUANCE— when fraudulent, effect of, i 245, p. 252. DISTRIBUTION— of receivership funds, § 387, p. 344. of assets policy of equity, § 85, p. 50. of proceeds between creditors, § 117, p. 155. when creditors share pro rata, § 117, p. 156. depends on establishment of claims, § 117, p. 156'. of funds belonging to a class— decree, § 117, p. 159. DISTRIBUTEES— not necessary parties when, § 67, p. 93. parties not before court not affected by, § 70, p. 100. when required to refund, § 70, p. 100. DISTRIBUTIVE SHARE— in estate not subject to creditors' bill, § 17, p. 42. DOWER INTEREST— subject to creditor's bill, § 16, p. 35. E EFFECT OF CONSOLIDATION— leaves rights of parties as before, § 71, p. 101. EJECTMENT— Inadequacy in fraudulent conveyance, § 48, p. 71. Fraudulent Conveyance — proceedings in Penn., § 39, p. 62 n. removal of cloud on title in lieu of, § 39, p. 62. 450 INDEX. EMANCIPATED CHILDREN— earnings of not subjeet to creditors' bill against father, § 17, p. 45. ENCUMBRANCE, FRAUDULENT. (See Mortgages.)— creditors may avoid, § 8, p. 16. EQUITABLE POWERS— General Nature of — relief, grounds of, § 44, p. 68. will adjust all conflicting rights and interests, § 22, p. 47. adjusts the rights of all parties, § 89, p. 115. will not take jurisdiction when, § 43, p. 67. will declare void voluntary conveyances, § 12, p. 21. co-ordinates jurisdiction of, § 39, p. 61. ancillary to judgment, when, § 25, p. 49. province as to impediments, § 11, p. 20. removal of obstructions to legal process, § 25, p. 49. where legal remedies enlarged equitable remedies are, § 25, p. 49. cannot extend legal rights, § 49, p. 73. policy of to distribute ratably, § 25, p. 50. requires good faith in all cases, § 28, p. 52. interposes not by reason of lien, § 25, p. 49. power of over equitable assets, § 25, p. 48. will distribute assets of corporation after dissolution, | 29, p. 55. power of to assess stockholders, § 29, p. 54. power of court to compel conveyance, § 36, p. 59 n. injvmction to restrain suits within and without the State, § 36, p. 59 n. defense made at law will bar in equity, § 39, p. 62. will not sustain bill to secure better price, § 17, p. 40. may reach equitable interest, § 16, p. 33. Equity of Redemption may be reached in equity, § 16, p. 33. no defense that legal remedy not exhausted, § 13, p. 25 n. Equity — may reach estate of non-resident partner, § 67, p. 92 n. EQUITY JURISDICTION, GENERAL— scope of, § 49, p. 72. jurisdiction, bases of, § 44, p. 68 n. jurisdiction, advantages of, § 48, p. 71. to aid courts at law, § 49, p. 73. based on exhaustion of legal remedies, § 50, p. 73; § 44, p. 68. based on inadequacy of common law remedies, § 41, p. 65. debt must be clear and undisputed, § 44, p. 68 n. Jurisdiction, Particular Grounds — jurisdiction against stockholders, § 47, p. 71. INDEX. 451 EQUITY JURISDICTION— Continued. to reach shares of stock, § 16, p. 31. to reach and apply salary of officer, § 16, p. 31. to appropriate land to payment of alimony, § 16, p. 31. to reach money put in improvements, § 16, p. 31. to reach partnership funds misapplied, § 43, p. 67. to reach property purchased and no title, § 48, p. 72. in fraudulent conveyances, § 7, p. 15; § 38, p. 61; § 49, p. 72. in case of fraud, § 45, p. 68. to restore property obtained by fraud, § 45, p. 69. to prevent fraud, § 45, p. 69. none in case of trusts, when, § 45, p. 69. in trust fund, § 36, p. 57 n; § 45, p. 68. in partition, § 46, p. 57 n. to reach property not liable to execution, § 48, p. 72. choses in action in N. J. § 37, p. 61 n. to remove fraudulent judgments, § 49, p. 72. to divest title to land, § 36, p. 57 n. title to land in another county, § 36, p. 57 n. of estates in probate, § 290, p. 281. as to suits beyond the State, § 36, p. 60 n. of property in foreign states, § 291, p. 281. ■ to remove fraudulent conveyance as cloud, § 39, p. 62. jurisdiction for one purpose may be for all, § 46, p. 69. is based on equality, § 46, p. 69. in case of mail fides of defendant, § 36, p. 59 n. to restrain suits by residents and non-residents, § 36, p. 59 n.. Equitable Remedies Sustained — based on fraud of debtor, § 157, p. 184. against non-resident assignor, § 167, p. 194. death of debtor suspends existing remedies, § 322, p. 292, to remove oloud upon title, § 321, p. 291. to set aside deed as fraudulent in another county, § 324, p. 294. no legal remedy against dead insolvent's estate, § 167, p. 193. maintained against distributees' estate, § 324, p. 295. in rescission of contract, § 306, p. 286. where fraudulent contract not rescinded, § 304, p. 2S4. over legacy, § 321, p. 290. not denied where judgment cannot be obtained, § 167, p. 192. where debtor procures title in name of another, § 157, p. 183. not blended with legal remedy in U. S. court, § 152, p. 174. not based on supplemental bill, § 166, p. 191. where fund accessible to court of .equity only, § 167, p. 201. to reach fraudulent judgment, § 49, p. 73. based on probate of claim, § 14, p. 26. as to homestead, § 6, p. 14. 453 INDEX. EQUITY JURISDICTION— Continued. Equitable Remedies Not Sustained — none where assets in hands of executor and legatees, when, § 324, p. 295. based on expired lien not sustained, § 162, p. 188. does not extend to general creditor, § 163, p. 189. none to recover damages for fraudulent purchase, § 311, p. 287. not sustained to enforce agreement secured by threats, § 186, D. 220. possession of insolTent's estate places in custodia legis, § 221, p. 237. not based on lien, when, § 14, p. 26. Equitable Relief — nature of, § 172, p. 206 n. grounds of generally, § 156, p. 181. based on lien of plaintiff on property of debtor, § 156, p. 181. property not subject to legal process, § 3, p. 8. placing property beyond legal process, § 8, p. 8. in ease of insolvent corporations, § 2, p. 6. concealment of property, § 3, p. 8. may be exhaustion of legal remedy, § 156, p. 182. as judgment, execution and return nulla bona, § 156, p. 182. based on property of defendant not subject to execution, § 156, p. 182. based on fraudulent obstruction, § 156, p. 181. based on lien does not require return of execution, § 156, p. 182. may be lien of plaintiff, § 156, p. 182. discovery, § 4, p. 10. Basis of Jurisdiction — grounds of, § 3, p. 7. interventien of fraud, § 3, p. 7. relief depends on equitable nature of action, § 3, p. 7. dees not depend on exhaustion of legal remedies, § 3, p. 7. ground of inadequacy of common law, § 3, p. 81. immateriality as to form of action, § 3, p. 7. is not ancillary, § 3, p. 7. EQUITABLE ASSETS— power of court over, § 25, p. 48. not subject to levy at common law, § 25, p. 48. EQUITABLE LEVY— what is, § 25, p. 49; § 354, p. 312 n. EQUITABLE RIGHTS— may be sold under decree, § 117, p. 157. INDEX. 453 EQUITABLE ESTATE— only reached after execution and return, § 167, p. 196 n. enlargement of by statute, § 25, p. 49. EQUITABLE EXECUTION— what is, § 49, p. 73; § 171, p. 206. EQUITABLE ASSETS— defined, § 25, p. 50. how reached, § 4, p. 11. how reached by creditors' bill, § 25, p. 49. applied in equity, § 25, p. 49. when trust fund, § 25, p. 50. not subject to payment of debts, when, § 25, p. 50. EQUITABLE FUND— how reached, § 43, p. 67. EQUITABLE ATTACHMENTS— plaintiffs may not join, § 75, p. 105. EQUITABLE INTEREST— cannot be seized on execution, § 16, p. 33. subject to creditors' bill, § 16, p. 35. whether can be reached, how determined, § 48 n. EQUITABLE LIEN— how obtained, § 171, p. 205. ESTOPPEL— effect of as to judgment, § 176, p. 214. when defendant estopped to show property liable, § 113, p. 145. reversal of decree not, § 117, p. 152. of receiver by acts of creditors, § 210, p. 232. of debtor estops codefendants, § 40, p. 64 n. creditor proving claim estopped when, § 240, p. 249. ESTATES OF DECEDENTS— scope of bill in, § 324, p. 294. jurisdiction of equity in, § 290, p. 281; § 320, p. 290. settlement of by creditors' bills, § 2, p. 6. when taken from administrator, § 16, p. 29. misconduct of administrator cause for receiver, § 354, p. 312. claim against sufficient basis of creditors' proceeding, § 180, p. 218. when cannot be reached in equity, i 321, p. 291. real estate of deceased debtor may be reached by creditor, § 321, p. 291. proof of debt is foundation for bill, § 167, P. 193 n. effect of death of debtor, § 322, p. 292. ESTATE OP LUNATIC— no preference in, § 324, p. 295. ESTATES IN FEE— restrictions on, § 286, p. 275. 454 INDEX, ESTATES INSOLVENT— proceedings against, § 4, p. 12. EVIDENCE REQUIRED— under creditors' bill, § 26, p. 50. in case of fraudulent conveyance, § 103, p. 134. to set aside voluntary conveyance, § 12, p. 20 n. declarations of grantor not sufficient, § 100, p. 125 n. declaration of assignor not, § 26, p. 51 n. declarations of vendor not evidence, § 26, p. 51. EXAMINATION OF DEBTOR— in discretion of court, § 286, p. 229. scope of § 206, p. 229. contempt for disobeying order, § 205, p. 228. power of commissioner, § 206, p. 229. when made, § 205, p. 228. supplemental proceedings, § 205, p. 227. of debtor's wife, § 205, p. 228. EXCEPTION TO ANSWER— nature of, § 113, p. 145. EXECUTION— must be shown to have issued, § 42, p. 66. must issue to proper county, § 168, p. 203; § 172, p. 209 n. issuance of may be waived, § 169, p. 204. need not issue after assignment of judgment, § 168, p. 204. duty of officer to hold, § 172, p. 208. officer must make demand, § 113, p. 145; § 172, p. 208. allegation must show return nulla bona, § 100, p. 123. allegations of issuance and return, § 103, p. 131. must be bona fide efforts to make, § 172, p. 210. cannot be levied on equitable interest, § 16, p. 33. when presumed to be regular, § 103, p. 135 n. cannot issue against administrator, § 167, p. 193; § 173, p. 211. levy of when not reauired, § 103, p. 132. must issue within one year, § 42, p. 66. Required — to reach personal property by creditors' bill, § 153, p. 175. to reach equitable assets, § 155, p. 177. to reach personal property, § 156, p. 182. Not required when, § 170, p. 205 n. when statute creates lien on lands of decedents, § 167, p. 197. In case of insolvent corporation, when, § 167, p. 197. where debtor has no property except what has been conveyed in fraud, § 167, p. 196. not required if useless proceeding, § 167, p. 195. where estate not subject to judgment at law, § 167, p. 202. where judgment and execution are impossible, § 167, p. 202. INDEX. 455 EXECUTION— Continued. return nulla bona when debtor is dead, § 14, p. 26. of assignee of judgment, when, § 155, p. 177. Return of — when made, § 172, p. 206. not required, when, § 154, p. 175. must run full statutory period, § 172, p. 206. within statutory period, § 172, p. 207. when to be made — contrary rule, § 204, p. 227. bona fide return at any time gives jurisdiction, § 172, p. 208. must show exhaustion of legal remedies, § 172, p. 208. by order of plaintiff's atty., § 172, p. 209. ordered by plaintiff not sufficient, § 205, p. 227. by sheriff on own responsibility, § 172, p. 208. imports verity, § 172, p. 211. must be before bill filed, § 172, p. 210. required where proceeding based on equity powers, § 154, p. 176. irregular may be amended, § 172, p. 210. under supplemental proceedings, general rule, § 203, p. 226. under Ky. Civ. Code, Sec. 439, § 13, p. 24 n. rule in Iowa, § 167, p. 195 n. EXECUTION LIEN— effect of bankruptcy on, § 414, p. 364. EXECUTOR— when may maintain bill, § 85, p. 110. when made party, § 64, p. 84. when necessary party, § 60, p. 79. duty to impeach fraudulent sale, § 309, p. 287. judgment against not ground for creditors' bill, i 17, p. 45. proceedings against must be for all, § 78, p. 107. insolvency of ground for creditors' bill, § 13, p. 25. EXEMPT PROPERTY— not subject to creditors' bill, § 17, p. 43. under bankrupt act, § 424, p. 392. conveyance of not fraudulent, § 6, p. 13. EXISTING CREDITORS— voluntary conveyance when void as to, § 12, p. 22. EXPENSES OF RECEIVER— when allowed, § 383, p. 338. EXHAUSTION OP LEGAL REMEDY— meaning of term, § 13, p. 24; § 50, p. 74; § 202, p. 225. foundation of law of remedy of creditors, § 50, p. 73. prerequisite to creditors' bill, § 150, p. 169. allegations must show, § 100, p. 123. bill based on exhaustion of legal remedies, § 50, p. 74. 456 INDEX. EXHAUSTION OF LEGAL REMEDY— Continued, must be before creditors' proceedings sustained, § 183, p. 219 n. in supplemental proceedings, § 202, p. 225. required in United States courts, § 152, p. 173. What is Exhaustion — judgment, execution and return nulla bona, § 156, p. 182. how established, § 170, p. 204. sheriff's return prima facie evidence of, § 172, p. 208, established by return of execution unsatisfied, § 152, p. 174 n; § 170, p. 204, must be shown by return of execution, § 172, p. 208, probate of claim sufficient, when, § 14, p. 26. must be honest effort to make judgment, § 170, p. 205. must be complete, § 161, p. 187. What is not Exhaustion — judgment against two out three not, § 13, p, 25 n. not shown without execution to proper county, § 168, p. 203. not shown by expired lien, § 162, p. 188, execution against personalty only not sufficient, 1 161, p, 187. where lien of judgment limited, § 50, p. 74 n. judgment must be lien on realty, when, § 161, p. 187. equity of redemption in debtor no defense, § 13, p. 25 n. inadequacy rather than exhaustion, § 14, p. 26. does not confer jurisdiction, when, § 44, p. 68. partial remedy at law does not bar equity, § 50, p. 74. garnishment, effect of, § 13, p. 24. What Is Not Required — resort to supplemental proceedings not required, § 13, p. 25. criminal proceedings not required, § 13, p. 24. judgment not required when debtor dead, § 14, p. 26. creditor not required to go into other jurisdictions, § 13, p, 24. complete exhaustion when not required, § 13, p. 24. debtor alone can make defense, § 13, p, 25, mortgagee cannot make defense, § 13, p, 25, defense must be made in opportune time, § 13, p, 25. waiver by Mo. Rev, Stat. 1889, § 571; § 13, p. 25 n. under Ky. Civ. Code, § 439 n. has no application in matters of concurrent jurisdiction, § 50, p. 73. F PICTI-nOUS CLAIMS— renders assignment void, § 8, p. 18. FICTITIOUS DEBTS— evidence of fraud, § 8, p. 18 n. FOREIGN JUDGMENT— not basis of creditor's bill, § 68, p, 94. INDEX. 451J' FOREIGN JURISDICTION— power of receiver to sue in, § 369, p. 325, FOREIGN CREDITORS— priority over, § 241, p. 249. FOREIGN CORPORATION— receiver of may be appointed, § 352, p. 310. in hands of receiver not subject to creditors' bill, § 17, p. 42. lien on property by creditors' bill, § 222, p, 240. FORECLOSURE— suit to set aside necessary allegations, § 103, p. 138. when operates as abatement of suit, § 104, p. 139. injunction against when, § 416, p. 375. effect of bankrupt act on, § 415, p. 369. FRAUD— Fraudulent acts. in fact — ^relief, § 3, p. 8. in law— relief, § 3, p. 8. ground for creditors' bill, § 15, p. 26. how pleaded, § 102, p. 128. facts constituting must be alleged, § 100, p. 123 n. general allegation of not sufficient, § 100, p. 123. is a conclusion of law, § 100, p. 124 n. inferred from facts, § 113, p. 148. not presumed, § 103, p. 129. when apparent on face of deed, § 103, p. 129. form of immaterial, § 9, p. '19. as defense not available when, § 113, p. 148- proof of In equity and at law, § 48, p. 71 n. positive denial of wlien not avoidable, § 111, p. 143. upon creditors, proceedings by ejectment as remedy, § 39, p. 62 n^ ground of jurisdiction of United States courts, § 40, p. 63 n. vitiates discontinuance of assignment, § 245, p. 252. though charged — ^judgment required, § 182, p. 218. FRAUD, ACCIDENT AND MISTAKE— relief against judgments for, § 8, p. 17 n. FRAUDULENT INTENT— what is, § 4, p. 9. notice to vendee, § 26, p. 50. allegation of, when sufficient, § 100, p. 124. FRAUDULENT REPRESENTATIONS- relief against, § 45, p. 69. necessary to recision, § 307, p. 286. concealment of material facts, § 307, p. 286. FRAUDULENT GIFT— what is, I 4, p. 9. 458 INDEX. FRAUDULENT GRANTOR— necessary party, when, § 89, p. 115. FRAUDULENT GRANTEE— necessary party, § 89, p. 115. when particeps criminls, § 9, p. 20. FRAUDULENT VENDEE— liability of, § 312, p. 288. of personalty, § 302, p. 283. FRAUDULENT PURCHASE— jurisdiction in, § 313. p. 288. on strength of ownership, void, § 12, p. 23. fraud in purchase of goods not basis of equitable jurisdiction, § 183, p. 219 n. liability of purchaser, § 309, p. 286. FRAUDULENT SALES— jurisdiction of equity in, § 45, p. 69. right of vendor to rescind, § 303, p. 283-4. rescision. must be in reasonable time, § 306, p. 285. rescision of conditions, § 304, p. 285. rescinded contract not resulting trust, § 310, p. 287. sale not rescinded, remedy in, § 304, p. 284. when not subject to rescission, § 304, p. 284. assignment, how attacked, § 308, p. 286. general assignment by vendee, § 303, p. 283. fraudulent vendee, liability of, § 312, p. 288. vendee not in possession not liable, § 16, p. 28. fraud of vendee, § 302, p. 283. burden of proof on purchaser from fraudulent vendee, § 312, p. 288. representations that are fraudulent, § 307, p. 286. of personalty, § 300, p. 282. when executor refuses to impeach, § 309, p. 287. United States Court, — jurisdiction in case of, § 40, p. 63 n. FRAUDULENT TRANSFER— what is, § 4, p. 9. relief against, § 4, p. 9. jurisdiction of equity in, § 45, p. 69. jurisdiction concurrent in law and equity, § 39, p. 62. personal property, remedy in, § 4, p. 9. must injure creditor, § 6, p. 14. form of, immaterial, § 9, p. 19. may be by valid judgment lawfully enforced, § 9, p. 20. receiver in, grounds for, § 358, p. 315. cancellation of fraudulent transfer, § 4, p. 9. declarations of assignor not evidence, § 26, p. 57 n. INDEX. 459 FRATJBULENT TRANSFER— Continu ed. upheld to extent of actual oonsideration, when, § 16, p. 31. taking title in third person, § 4, p. 9. of stock, § 301, p. 283. FRAUDULENT ASSIGNMENT— reached by creditor's bill, § 8, p. 18 n. when upheld, § 8, p. 19 n. void as to creditors, when, § 8, p. 18. for benefit of creditors, § 308, p. 286. may be attacked by accepting creditor, § 8, p. 19. if made in view of judgment, void, § 8, p. 18 n. in payment of debt, when void, § 8, p. 18 n. by one partner, when void, § 8, p. 18 n. attack of by general creditor, § 167, p. 194. discontinuance of, § 323, p. 293. who may attack, § 8, p. 19 n. FRAUDULENT JUDGMENT— what is, § 4, p. 9. void as to creditors, § 8, p. 17. how impeached, § 8, p. 17 n. remedy against, § 8, p. 18 n. relief in equity against, § 8, p. 17 n. when not vacated in equity, § 8, p. 18 n. decree against, scope of, § 8, p. 17 n. attacked by attaching creditor, § 8, p. 17 n. set aside only to extent of plaintiff's claim, § 8, p. 18 n. on debt not due void, when, § 8, p. 18 n. may be attacked in garnishment proceedings, when, § 49, p. 73. in relation to statute of limitations, § 8, p. 17 n. not ground for injunction, § 27, p. 51. FRAUDULENT ENCUMBRANCE- what is, § 4, p. 9. creditor's bill may remove, § 16, p. 28 n. bill to cancel fraudulent encumbrance, § 4, p. 9. jurisdiction when land in another county, § 51, p. 75. colorable only, is void, § 8, p. 16. validity, how attacked, § 8, p. 17 n. impeached by judgment creditor, § 8, p. 16 n. FRAUDULENT CONVEYANCE- what is, § 4, p. 9; § 418, p. 382. kinds of, § 7, p. 15. must injure creditor, § 6, p. 14. relief against, § 4, p. 9; § 39, p. 62. jurisdiction of U. S. Court in, § 407, p. 353. Equity, — jurisdiction in, § 12, p. 21 n; § 45, p. 69; § 47, p. 70. 460 INDES. FRAUDULENT CONVEYANCE— Continued. advantage of equitable method, § 7, p. 15. creditors may proceed in equity when, | 39, p. 62. equity not barred by statutory jurisdiction, § 37, p. 61 n. may reach fraudulent encumbrance in another county, § 51, p. 75. equity will apply property to payment of plaintiff, § 22, p. 47. creditors' bill the only proceeding where debtor dead, § 39, p. 62 n. co-ordinate jurisdiction in law and equity, § 39, p. 61. where property in hands of grantee, § 39, p. 61. attacked at law or in equity, § 153, p. 175. creditors have two modes of relief, § 47, p. 70. legal relief against, § 39, p. 62; § 47, p. 70. legal method, sale and ejectment, § 7, p. 15. inadequacy of law as a remedy, § 48, p. 7. remedy prior to Statute 13 Eliz., § 5, p. 12; § 5, p. 13. form of, not material, § 9, p. 19; § 9, p. 20. attachment basis of attacking, § 161, p. 187. may be attacked on judgment for tort, § 184, p. 219. judgment need not be prior to, § 179, p. 217. relief against in foreign jurisdiction, § 36, p. 58 n. jurisdiction as to property in another State, § 36, p. 60 n. jurisdiction, residence of grantor and grantee, § 38, p. 61. Who may attack. by assignee of judgment, i 87, p. 111. or assignee of several judgments, § 87, p. 111. of deceased debtor, who may attack, § 16, p. 29; § 16, p. 36. generally, who may attack, § 8, p. 16; § 16, p. 29; § 68, p. 94. firm creditors, I 100, p. 126. by principal, relief against by surety, § 103, p. 136. may be attacked by assignee, § 155, p. 178. creditor may attack when assignee neglects, § 8, p. 19 n. creditor may attack when administrator refuses, § 16, p. 29; § 68, p. 96. may be attacked by State as creditor, § 88, p. 114. not set aside by those who would be heirs when, § 65, p. 85 n. administrator may not attack, § 17, p. 39. subsequent creditors cannot set aside without compensa- tion when, § 17, p. 41. not attacked by general creditor, § 163, p. 189 n. Kinds of. conveyance to third person, § 8, p. 15; § 8, p. 16. voluntary conveyance, § 8, p. 16. probate of claim sufficient ground to attack, § 14, p. 26. by corporation, ground for creditors' bill, § 15, p. 26. INDEX. 461 FRAUDULENT CONVEYANCE— Continued. Necessary averments. that plaintifE had lien, § 42, p. 66; § 100, p. 123; § 103, p. 134. ■when sufficient, § 100, p. 124 n. not necessary to allege defendant has no other property ■when, § 103, p. 136. general allegation of fraud, -wlien sufficient, § 103, p. 129. Judgment required. in suit to set aside fraudulent conveyance, § 153, p. 176. need not be a lien ■when conveyance made, § 242, p. 250. fraudulent recital in deed not obstruction, § 155, p. 178. to -wife void ■when, § 8, p. 16 n. land purchased by ■wife ■with husband's money reached, § 16, p. 33. from husband to "wife element of fraud, § 12, p. 22. to ■wife not subject to creditors' bill ■when, § 17, p. 40. from husband to ■wife valid In Ga., $ 12, p. 23 n. from parent to son, § 10, p. 20. from father to son in good faith sustained, § 17, p. 44. Evidence to set aside. evidence required to set aside, | 26, p. 50, proved by preponderance of evidence, § 103, p. 134. parol evidence may establish fraijd, § 103, p. 129. burden of proof in, § 100, p. 126. declarations of vendor ■will not impeach, § 26, p. 51. declarations of grantor not sufficient, § 100, p. 125 n. evidence required to set aside, § 17, p. 40. depends on existing circumstances, § 100, p. 126. purpose of ■where not material, § 6, p. 13. grantor and grantee necessary parties, § 62, p. 81, ■upheld to extent of consideration paid ■when, § 16, p. 31. •what must appear in addition to exhaustion of legal remedies, § 44, p. 68. iaking title in third person, § 4, p. 9. void as to subsequent creditors ■when, § 16, p. 37 n. property in hands of innocent purchaser not reached, § 16, p. 28. attacked on bill to quit title, § 7, p. 15. cloud on title, ho^w removed, § 39, p. 62; § 39, p. 63. not necessary that precise property remains in grantee, § 16, p. 28. effect of insolvency, § 100, p. 126 n. subsequent insolvency of grantor not sufficient, § 100, p. 126 n. grantee not heard on question of priority, § 117, p. 152. conveyance of homestead not, § 6, p. 14. conveyance of exempt' property not, § 6, p. 13. sale by grantee no defense, § 16, p. 28. 462 INDEX. FRAUDULENT CONVEYANCE— Continued, death of grantee no defense, § 12, p. 23. assignment for creditors not a defense, § 16, p. 27. effect of bankrupt act on, § 418, p. 381. before bankruptcy, bow reached, § 8, p. 18 n. debtor not permitted to say what conveyance shall be attacked, § 16, p. 29. creditor need not attack all, § 16, p. 29. two or more may be defendants, § 89, p. 115. Receiver in. grounds of, § 358, p. 315. in supplementary proceedings receiver attacks, § 201, p. 224. suit by, receiver must be special, § 202, p. 225. power of receiver in, § 365, p. 320. under Wis. Rev. Stat. § 3835, § 12, p. 24. proceedings in Pennsylvania at law when, § 39, p. 62 n. property in third person, proceedings in Wisconsin, § 202, p. 225. decree in scope of, § 117, p. 151. may be against proceeds of sale, § 16, p. 28. decree may direct payment out note of grantor, § 117, p. 157. personal decree against grantee, § 117, p. 152. FUTURE PROFITS— when assigned, § 8, p. 18 n. GARNISHMENT— when have effect of creditors' bill, § 49, p. 73. against executor or administrator, § 167, p. 199. right of not part of legal remedies when, § 13, p. 24. GENERAL CREDITORS— have no standing in equity, § 152, p. 172 n; §163, p. 189; § 203, p. 226. statutory rights of, § 29, p. 53. are sometimes given right of action by statute, § 167, p. 202. may file bill under statute, § 167, p. 194. when may maintain bill, § 167, p. 192 n. effect of joining with judgment creditor, § 159, p. 186. not concerned in debtor's frauds, § 183, p. 219. cannot attack validity of judgment, § 178, p. 216. may set aside an assignment when, § 167, p. 194. cannot attack assignment, § 187, p. 221 n. not entitled to file bill, § 42, p. 66. right to have conveyance adjudged an assignment, § 158, p. 185. may sustain assignment, § 155, p. 179. before judgment, not entitled to action for waste, § 165, p. 191. INDEX. 4&3, GENERAL CREDITORS— Continued. before judgment, not entitled to accounting for rents, § 165, P. 191. not entitled to injunction against debtor, § 165, p. 190; § 330. d, 297. no rlgbt to injunction, § 330, p. 299 n. rights of in Alabama, § 163, p. 189. cannot participate under decree when, § 68, p. 93 n. GIFT— FRAUDULENT— what is, § 4, p. 9. GOOD FAITH— required by equity in all cases, § 28, p. 52. GOOD WILL— not subject to creditor's bill, § 17, p. 44. GRANTOR FRAUDULENT— necessary party when, § 89, p. 115. when not necessary, § 62, p. 81. GRANTEE— when necessary party, § 60, p. 79. property in hands of followed, § 117, p. 151. when liable for value of property, § 117, p. 152. when liable to personal decree, § 117, p. 152. liable if property exchanged for other property, § 16, p. 28. chargeable with proceeds of property sold, § 16, p. 28. fraudulent cannot take assignment of mortgage and defeat pur- chaser, § 16, p. 28 n. fraudulent, plaintiff's priority over, § 117, p. 158. no interest in question of priority, § 117, p. 152; § 243, p. 251. several may be defendants, § 62, p. 82. two or more fraudulent grantees joined, § 74, p. 104. notice of fraud not to be shown when, § 100, p. 124. not required to act on mere suspicion, § 100, p. 125 n. participation of in fraud to be shown, § 100, p. 124. character of evidence against, § 103, p. 134. admissions by not estoppel when, § 103, p. 135. of corporation takes cum onere when, § 15, p. 26. with notice takes subject to rights of creditors, § 15, p. 26. priority in dealing with when, § 248, p. 253. fraudulent, equity knows no favorite, § 16, p. 29. sale by, no defense, § 16, p. 28. free from fraud, subsequent creditors must pay for improve- ments, § 17, p. 41. GUARDIAN— cannot sue in his own name, § 86, p. 111. 464 INDEX. H HAZARDOUS BUSINESS— renders conveyance void when, § 16, p. 27. HEIRS— when necessary parties, § 60, p. 79. proceedings against, § 4, p. 12. suit against, when maintained, § 324, p. 294. when suit against, voluntary conveyance, § 12, p. 23. cannot impeach conveyance of ancestor, § 68, p. 94. necessary allegations against, | 103, p. 138. HINDERING, DELAYING AND DEFRAUDING CREDITORS— three methods voluntary conveyances, § 8, p. 16. conveyance to another, § 8, p. 15. taking title in another, § 8, p. 16. HOMESTEAD— not subject to creditor's bill, § 17, p. 43. not a subject of fraudulent conveyance, § 6, p. 14. decree should order set off, § 117, p. 155. affect of waiver between creditors, § 117, p. 155. abandonment of, § 6, p. 14. HUSBAND AND WIFE— wife may sustain bill against husband, § 181, p. 218. necessary allegation in voluntary conveyance, § 103, p. 136. money of husband deposited in wife's name subject to, § 16, p. 36. not a competent witness, when, § 208, p. 230. property conveyed to wife not subject, when, § 17, p. 40. when void from husband to wife, § 12, p. 22. conveyance to wife fraudulent, when, § 8, p. 16. I INADEQUACY— common law remedies, meaning of, 5 41, p. 6B. INCOME— from life estate subject to creditors' bill, § 16, p. 33. INCUMBRANCE. (See mortgages.) assumed by wife, extent of protection, § 12, p. 22. paid oft by grantee must be repaid, when, | 17, p. 41. IMPROVEMENTS— made by wife on husband's property protected, § 12, p. 22. must be paid for, When, § 17, p. 41. INJUNCTION— when granted. against removal of property, § 330, p. 298. against disposition of choses in action, § 330, p. 298. where action is brought to rescind sale for fraud, § 330, p. 299. in attachment, when proper, § 167, p. 198. INDEX. 465 INJUNCTION— Continued. against a conspiracy to defraud, § 331, p. 300. against foreign assignment, when, § 332, p. 202. to prevent tying up funds of receiver, § 332. p. 303. after winding up order of corporation, § 332, p. 303. against foreclosures, when, § 416, p. 375. Where court has jurisdiction of the parties, when, § 332, p. 303. in case of fraudulent judgments, § 330, p. 299 n. power of court to enjoin transfers, § 207, p. 230. against creditors, § 332, p. 301. to restrain attachment in foreign state, § 332, p. 303. creditor may be enjoined from prosecuting suit in foreign jurisdiction, § 332, p. 301. to restrain suit by resident in foreign state, § 36, p. 59 n. against suit in foreign state to evade exemption laws, § 332, p. 304. against suit in foreign state on claims barred by limitations, § 332, p. 303. may affect property in foreign jurisdiction, when, § 17, p. 38. When not granted — right to does not exist before judgment, § 207, p. 230. not granted except on judgment, § 165, p. 190. not granted on application of general creditor, § 165, p. 190; § 165, p. 191. against debtor on application of general creditor rarely granted, § 330, p. 297. not granted under bill not verified, § 105, p. 139. to restrain foreclosure in foreign state, § 332, p. 303. to enjoin a foreign suit, when, § 332, p. 301. against debtor's alienation of property rarely granted, S 330, p. 297. against transfer of property not granted, when, § 165, p. 191. not granted by reason of fraudulent conveyances, § 330, p. 298. creditor proving claim against estate may be enjoined, when, i 332, p. 303. In bankruptcy proceedings, § 416, p. 371. bankrupt court may restrain levy, § 405, p. 352. against supplementary proceedings, § 416, p. 376. against judgment in bankruptcy proceedings, § 416, p. 373. in bankruptcy against proceedings in state courts, § 416, p. 373. commissioner no power to restrain, § 206, p. 229. effect of as to lien of creditors' bill, § 221, p. 236 n. INSANE PERSON— guardian of cannot sue in own name, § 86, p. 111. 466 INDEX. INSANITY OF DEBTOR— not ground for failure to obtain judgment, § 69, p. 96. INSOLVENCY— in voluntary conveyances, § 100, p. 124. not an excuse for not obtaining judgment, § 152, p. 174 n. of surviving partner, allegations of, § 103, p. 138. of executor ground for creditors' bill, § 13, p. 25 n. as element in bankruptcy, § 420, p. 388. discharge renders debts falling due subsequently not subject, § 17, p. 44. allegation of not sufficient, § 65, p. 87. presumed from facts and circumstances, § 103, p. 136. necessary to show, wlien, § 103, p. 136. INSOLVENT ESTATES— proceedings against, § 4, p. 12. suit against by general creditor, § 167, p. 192. INSOLVENT LAWS— effect of bankrupt law upon, § 417, p. 377. INSOLVENT DEBTOR— excuse for not obtaining judgment, § 167, p. 194 n; § 167, p. 195. insolvency of debtor no ground for injunction, § 330, p. 300. INSOLVENT BANK— deposits in recoverable, § 314, p. 289. INSOLVENT CORPORATIONS— proceedings against, § 4, p. 12. relief against in equity, § 2, p. 6. creditors' bills in case of, § 2, p. 6. relief against trust fund, § 2, p. 6. assets are trust fund, § 29, p. 52. subscriptions to, how reached, § 2, p. 7. INNOCENT PURCHASER— not liable for purchase of fraudulent grantee, § 16, p. 28. INSOLVENT ASSIGNEE— cause for receiver, § 354, p. 312. INSOLVENCY OF STOCKHOLDER— excuse for not making party, § 29, p. 54. INSOLVENCY PROCEEDINGS— defense to suit, when, § 113. p. 147. INTENT FRAUDULENT— what Is, § 4, p. 9. meaning of, § 100, p. 124. allegations of, when sufficient, § 100, p. 124. INDEX, 467 INTERVENTION— ■when creditors may intervene, § 81, p. 108. plaintiff in one bill may attack decree in another, but not by intervention. § 72, p. 102 n. INTEREST— decree for basis of, § 117, p. 152. IRREGULARITY OF JUDGMENT- not assailed by other creditors, § 177^ p. 215. JOINDER OF PARTIES— defendants who may be, § 74, p. 104. JOINDER OF SUITS— when not, § 75, p. 105 n. general creditor not joined with judgment creditor, § 159, p. 186. JOINT TENANTS— order of proceedings against and surety, § 185, p. 220. JUDGMENT— When Required General — as a basis of jurisdiction, § 150, p. 169, p. 170. reason for general rule, § 151, p. 171; p. 172; § 158, p. 184; p. 185. is basis of recovery, § 159, p. 186. in order to exhaust legal remedy, § 158, p. 184. essential to establish plaintiff's claim, § 158, p. 184. creditor's suit is ancillary, § 158, p. 184. When Required Special — in U. S. Courts though waived by statute, § 167, p. 195. necessary as a basis of creditors' bill, § 42, p. 66. creditor must have to file bill against corporation, § 2?, p. 55. on bill by wife against husband, § 181, p. 218. though actual fraud charged, § 182, p. 218. to reach fraudulent conveyance, § 150, p. 169; § 153, p. 175. by surety to set aside fraudulent conveyance of principal, § 155, p. 181. to reach equitable assets, § 155, p. 177. to reach equitable estate, § 150, p. 169. though corporation has surrendered charter, § 155, p. 179. in proceedings against stockholders, § 155, p. 178. a basis for injunction, § 165, p. 190. to administer assets of Insolvent firm, § 155, p. 181. to set aside an assignment as fraudulent, § 155, p. 178. to reach partnership property, § 155, p. 178. to reach money due debtor, § 155, p. 180. 468 INDEX. JUDGMENT— Continued. to attack fraudulent judgment, § 155, p. 180. to reach stock of goods fraudulently sold, § 155, p. 180. to obtain relief against fraud, § 155, p. 180. except -where statute otherwise provides, § 150, p. 170 n; § 158, p. 185. not an excuse that debtor might put property out of hands, § 167, p. 201. not excused by insolvency of debtor, § 152, p. 174 n. failure to obtain may be waived, § 167, p. 197. required under Mass. Gen. St. Ch. 113, § 16, p. 32 n. When Not Required — not required exception, § 167, p. 192. where property not subject to attachment, § 167, p. 200. where property held in trust for creditors, § 167, p. 197. where plaintiff's claim is based on equitable element, § 167, p. 199. where corporation is insolvent and in hands of receiver, § 167, p. 202. where fund sought is trust fund, § 167, p. 197. where debtor is dead, § 14, p. 26; § 167, p. 192. where impossible to obtain, § 167, p. 192. where debtor is non-resident, § 167, p. 200. where debtor absconds or conceals himself, § 167, p. 200. to uphold an assignment, § 155, p. 179. in suit by administrator, when, § 69, p. 95. rule In U. S. Court and N. Y., § 167, p. 194. not required when (Indiana), § 69, p. 97 n. rule in Alabama, § 167, p. 196 n. not required where administrator refuses to sue, i 167, p. 201. not required where adminstrator refuses to act, § 16, p. 30. Sufficiency of Judgment — rule in U. S. courts, § 152, p. 172. practice not affected by state statutes, § 152, p. 172. in Federal court basis for proceedings under statute, § 178, p. 217. in Federal court basis for proceeding in State court, § 178, p. 216. of Federal court when treated as domestic, § 178, p. 217. in State court basis for creditors' bill in U. S. court, § 178, p. 216. proof of debt against estate foundation for bill, § 167, p. 193. claim against estate if allowed sufficient, § 180, p. 218. against executor discharged not ground for creditors' bill, § 17, p. 45. INDEX. 469' JUDGMENT— Continued. against administrator not basis of creditors' bill, § 17, p. 38. decree in chancery is as basis of creditors' bill, § 164, p. 190. of justice of the peace basis of creditors' bill, § 178, p. 216 n. before J. P. not sufficient, § 178, p. 217. against principal not basis for proceeding against surety, § 178, p. 217. acquired subsequent to filing of bill by confession no juris- diction, § 166, p. 191. need not be of same court, § 178, p. 217. judgment against two out of three not sufficient, § 13, p. 25 n. assigned may be basis of creditors' bill, § 87, p. 112. against as assignee does not bind personally, § 80, p. 107. satisfaction of a defense to suit, § 103, p. 132. need not be lien when conveyance made, § 242, p. 250. lien must be existing lien, § 162, p. 188. need not be such that immediate levy made, § 172, p. 211. based on tort is basis of creditors' proceeding, § 184, p. 219. nature of, § 157, p. 183. conclusive against stockholders, when, § 176, p. 213. not questioned by stockholders, when, § 176, p. 214. amount due on judgment not material, § 20, p. 46. Lien of Judgment— when expires, § 162, p. 188 n. not affected by bankruptcy, when, § 162, p. 189. on land in name of debtor's wife, § 162, p. 188 n. need not antedate act complained of, § 179, p. 217. payment of abates suit, § 103, p. 138. allegations must show, § 100, p. 123. necessary to attack another judgment creditor, § 27, p. 51. only attacked by judgment creditors, § 177, p. 216. may be attacked by cross bill, § 115, p. 149. irregularity in rendition, § 176, p. 213. amount due on judgment not material, § 20, p. 46. upon judgment effect of, § 174, p. 212. not merged in judgment in another State, § 174, p. 212. Judgment by Confession — by confession if valid sufficient, § 175, p. 212. when void as preferential, § 268, p. 265. when debt not due void, § 8, p. 18 n. before assignment valid when, § 8, p. 18 n. not set aside when, § 8, p. 18 n. Fraudulent Judgment— what is, § 4, p. 9. void as to creditors, § 8, p. 17. relief against, § 8, p. 17 n; § 8, p. 18 n. 470 INDEX. JUDGMENT— Continued. fraudulent if debt not due, § 8, p. 18 n. liability of purchaser under, § 117, p. 157. valid and lawfully enforced may operate as fraud, § 9, p. 20. debtor precluded from setting up fraud in, § 176, p. 213 n. How Attacked — only attacked on ground of collusion, § 176, p. 214 n. impeached for collusion and fraud, § 176, p. 215. not collaterally attacked, § 176, p. 213 n. not conclusive where there is collusion, § 176, p. 213. By Whom Attacked — not conclusive as to other creditors, | 177, p. 215. must be bona flde as to other creditors, § 177, p. 215. how assailed by other creditors, § 177, p. 215. one creditor may attack judgment of another, § 187, p. 221 n. prima facie against grantee, § 176, p. 213. satisfied relief against, § 8, p. 18 n. evidence of exhaustion of legal remedies, § 42, p. 67. when restrained, § 8, p. 17 n. JUDGMENT CREDITOR— only entitled to file bill, § 42, p. 66. plaintiff must be, § 68, p. 93. only can attack validity of another judgment, § 177, p. 216. may avoid fraudulent conveyance, § 8, p. 16 n. may proceed in law or equity, § 39, p. 62. cannot join with general creditor, § 159, p. 186. must be such at time of decree, § 68, p. 93 n. judgment creditor in tort may file bill, § 68, p. 93 n. judgment in another State not sufficient, § 68, p. 94. entitled to reach equity of redemption, § 16, p. 33. right of action against corporation, § 29, p. 53. may reach mortgage fraudulently assigned, § 12, p. 21 n. may reach property not liable to execution, § 9, p. 20. may impeach chattel mortgage, § 8, p. 16 n. rights of as to property of debtor in third person, § 11, p. 23. JUDGMENT DEBTOR- death of suspends suit, when, § 104, p. 139. necessary party, § 89, p. 114. when may be omitted as parties, § 64, p. 84. JUDGMENT LIEN— required in creditors' bill, § 42, p. 66. effect of bankrupt act upon, § 414, p. 361. not basis of equitable jurisdiction, § 25, p. 49. as a basis of creditors' bill in Iowa, § 50, p. 74 n. INDEX. ^71 JUDGMENT AND EXECUTION— Hen of, § 4, p. 11 n. ■when not admitted must be proved, § 103, p. 132. operate on legal rights only, g 4, p. 11 n.' JUDICIAL PREFERENCE— effect of, § 25, p. 50. JURY— verdict of as basis of decree, § 117, p. 158. JURY TRIAL— under creditors' bills, § 158, p. 185. JURISDICTION— jurisdiction in equity, defined, § 35, p. 56. statutory source of, § 37, p. 60. equitable basis of, § 42, p. 67; § 44, p. 68. scope of, § 49, p. 72. advantages of, § 48, p. 71, United States Courts — have, except where citizenship prevents, § 40, p. 63. citizenship when not involved, § 40, p. 64. amount determined how as to jurisdiction, § 40, p. 64 n. over administrators and executors, § 40, p. 63 n. after dissolution of corporation, § 408, p. 354. of Federal court based on judgment, § 152, p. 172 n. to attack fraudulent conveyance, § 407, p. 353. over fraud in State court, § 40, p. 63 n. obtained by assignment of judgments to one, § 40, p. 64 n. in matters of estates when, § 40, p. 63 n. in administration of insolvent corporation estate, § 40, p. 64 n. not defeated by statutory remedy at law, § 40, p. 64. ■where receiver brings suit, § 40, p. 64. ancillary suit by receiver, § 40, p. 64 n. not ousted by admitting new parties plaintiff, § 40, p. 64 n. removal of creditors' bill to, § 40, p. 63 n. Statutory Jurisdiction — sometimes limited, § 37, p. 61 n. property limit in N. Y., § 37, p. 61 n. in N. J., § 37, p. 61 n. to reach property of debtor in Mass., § 37, p. 61. statute source of general, § 39, p. 63. equity not excluded by statute, § 37, p. 61 n. conflict of, § 36, p. 60 n. co-ordinate in law and equity, § 39, p. 61. concurrent does not oust chancery in proceedings against stock- holders, § 47, p. 71. 472 INDEX. JURISDICTION— Continued. courts of law and equity have concurrent jurisdiction, when, § 153, V. 175. concurrent in conveyance of real estate, § 47, p. 70. in suit by trustee in bankruptcy, § 40, p. 64 n. as between courts, § 43, p. 67. bar at law is bar in equity, § 39, p, 62. defense at law will bar in equity, § 39, p. 62. whether in law or equity how and when raised, § 39, p. 62 n. of bankrupt court, § 402, p. 35 n. of State courts in bankruptcy matters, § 411, p. 357. probate court not exclusive, when, § 16, p. 29. equity over estate in probate, § 290, p. 281. Jurisdiction as to Subject Matter — generally, § 35, p. 56. basis of under creditors' bill, § 41, p. 65. equity basis of debt must be clear, § 44, p. 68. depends on some Injury shown, § 44, p. 68. does not depend on difficulty of enforcing decree, § 36, p. 59 n. of res. binding on owner when, § 36, p. 58. must be alleged, § 42, p. 66. objection to not raised on appeal, when, § 39, p. 62 n. not conferred by supplemental bill, § 166, p. 191. equity jurisdiction of the subject matter of fraud, § 3, p. 7; § 45, p. 68. fraud in obtaining title, § 36, p. 59 n. fraud before assignment, § 44, p. 68 n. to restore property obtained by fraud, § 45, p. 67. to prevent fraud, § 45, p. 69. of trusts, § 36, p. 60 n; § 44, p. 68. trust funds, § 36, p. 57 n. to reach fund illegally distributed to stockholders, § 16, p. 31 n. to reach shares of stock, when, § 16, p. 31. to reach salary of officer, § 16, p. 31. where fund reached only in equity, § 167, p. 201. in case of fraudulent purchase, § 313, p. 288. In estates, § 320, p. 290. to reach fraudulent mortgage in another county, § 51, p. 75. to distribute assets of corporation, when, § 29, p. 55. as to fraudulent alienation of personalty, § 39, p. 62. to reach money placed in improvements, § 16, p. 31. equity to reach partnership funds misapplied, § 43, p. 67. in re waste by tenant in common, § 36, p. 59 n. as to property not subject to execution, § 37, p. 61; § 41, p. 65. may remove fraudulent conveyance as cloud on title, | 39, p. 62. to apply property in payment of alimony, § 16, p. 31. INDEX. 47a JURISDICTION— Continued. equity to divest title, § 36, p. 57 n. equity partition In foreign state, § 36, p. 57 n. limited to real and personal property, where, § 36, p. 57 n. Territorial Jurisdiction- territorial, § 36. p. 57. property in foreign jurisdiction, § 36, p. 58 n. estate of non-resident partner, § 67, p. 92 n. of property in foreign state, § 291, p. 281. over non-resident, -when, § 36, p. 58. territorial, extent of, § 36, p. 57. over person of defendant may affect property in foreign jurisdiction, § 17, p. 37 n. over property in foreign state wlien debtor a resident, § 17, p. 37 n. injunction to restrain suit in foreign state, § 36, p. 59 n. jurisdiction to restrain residents and non-residents, § 36, p. 59 n. equity as to property beyond state, § 36, p. 60 n. fraudulent conveyance in foreign state, § 36, p. 58. confined to land in county, § 36, p. 57 n. as to land where jurisdiction of person, § 36, p. 57 n. Jurisdiction as to the Person — of person, § 35, p. 56. of parties gives jurisdiction as to subject matter, § 36, p. 60 n. personal in its nature, when, § 38, p. 61. of person, how enforced, § 36, p. 58. equity what must appear to give, § 39, p. 63. decree in pursuance, when, § 36, p. 59 n. Jurisdictional Prerequisites — inadequacy of common law, § 3, p. 8; § 41, p. 65. judgment required, § 42, p. 66. exhaustion of legal remedies, § 50, p. 73; § 172, p. 208. use of common law process as formality does not give, § 41,. p. 65. exhaustion of legal remedies not sufficient, § 44, p. 68. what must appear in addition to exhaustion of legal rem- edies, § 44, p. 68. creditors' bill based on obstruction to legal process, § 41, p. 65. return of execution jurisdictional, § 172, p. 209. lien must be shown at time of filing bill, § 42, p. 66. equity not sustained ■vyhen, § 43, p. 67. refused if favoritism shown, § 172, p. 208. refused where oppression results, § 172, p. 208. Jurisdictional Incidents — death of administrator not basis of creditors' bill, § 17, p. 39.. 474 INDEX. JURISDICTION— Continued. amount when not a defense, § 40, p. 64 n estoppel of debtor estops codefendants, § 40, p. 64 n. equity takes for all, when, § 46, p. 69. equity adjusts the rights of all parties, § 89, p. 115. decree limited to person and property^ § 36, p. 57. equity where legal title Involved, § 36, p. 59 n. creditors' proceeding, effect of change of residence, § 36, p. 60 n. fraudulent conveyance, residence of parties, § 38, p. 61. creditors' bill, not local, § 36, p. 60 n. real estate, local, § 36, p. 60 n. mala fides of defendant gives, § 36, p. 59 n. under decree on insufficient evidence, § 117, p. 153. over property and parties, § 384, p. 339. equity where bill in behalf of plaintiff only, § 46, p. 80. fraudulent conveyance removed as cloud on title, when, § 39, p. 62. JUS DISPONBNDI— applied to trust property, § 284, p. 272. in relation to rights of creditors, § 10, p. 20. limited by public policy, § 8, p. 16. KNOWLEDGE OF CIRCUMSTANCES— constitutes notice, § 26, p. 50. L lACHES— as a defense, § 121, p. 164. reason for rule, § 121, p. 164 n. may be taken advantage of by demurrer, § 121, p. 164. should be set up in answer, § 121, p. 164. impediments to suit must be alleged, § 121, p. 166. reasons for delay must be alleged, § 121, p. 164. not necessary to be pleaded, when, § 121, p. 165 n. not raised for first time on appeal, § 121, p. 164 n. not imputed until knowledge of fraud, § 121, p. 164. not available against bona fide purchaser, § 121, p. 164 based on changed conditions, § 121, p. 165. addressed to sound discretion of court, § 121, p. 166. LANDLORD— entitled to priority, when, § 419, p. 387. LEGATEES— when necessary parties, § 60, p. 79. may file cross bill, when, § 116, p. 149. INDEX. 475 LEGACY— ■when reached in equity, § 321, p. 290. may be reached In equity when it is subject to demand, § 321. P. 291. LEGAL PROCESS— inadequacy as to equitable intent, § 48, p. 72 n. LEGAL PROCEEDING — levy, sale, and ejectment, § 7, p. 15. LEGAL REMEDY— when exhausted, § 13, p. 24. LEGAL TITLE— equity has jurisdiction When, § 36, p. 59 n. LEVY— restrain by bankrupt court, § 405, p. 352. LIABILITY OF STOCKHOLDERS— how enforced, § 4, p. 12. LIABILITY OP CORPORATE OliTICERS- ■ proceedings for § 4, p. 12. LIABILITY OF RECEIVER— when, § 371, p. 327. LIEN OF CREDITORS' EQUITABLE PROCEEDINGS— of creditors' bill general, § 220, p. 234. effect of as to creditors, § 220, p, 234. effect of, § 221, p. 236. extent of, § 222, p. 238. only applies to property held by debtor at the time, § 222, p. 239. when it commences, § 220, p. 235 n. dates from what time, § 224, p. 240'. equitable how obtained, § 25, p. 49. of creditors' bill as to real estate, § 221, p. 237. priority of as between joint plaintiffs, § 223, p. 240. no priority as to other creditors, when, § 222, p. 239. not affected by sale under subsequent bill, § 221, p. 237. does not embrace property liable to execution, § 222, p. 238. superior to subsequent attachment, § 221, p. 238. made effective through possession of receiver, § 220, p. 235. prevents assignment of, § 221, p. 236. effect as to property in wife's name, § 221, p. 237. not lost by judgment becoming dormant, § 221, p. 237. effect of as to purchasers pendente lite, § 221, p. 237. not affected by sale under execution, § 221, p. 237. superior to subsequent judgment, § 221, p. 236. as to rents accruing, § 221, p. 236. not affected by bankruptcy, when, § 162, p. 189. 476 INDEX. LIEN OF CREDITORS' EQUITABLE PROCEEDINGS— Continued. effect of by debtor's bankruptcy, § 221, p. 236. where no injunction issues, § 221, p. 236. as to mortgage prior to judgment, § 222, p. 239. as to fraudulent conveyance after judgment, § 222, p.239. as to property in hands of receiver, § 222, p. 239. not affected by death of debtor, § 220, p. 23*4. does not abate by death of judgment debtor, § 224, p. 240. on subsequently acquired property how acquired, § 224, p. 241. a lien may be obtained on a debt due by the debtor, § 171, p. 205 choses in action and equitable assets, § 220, p. 234. receiver appointed to preserve, § 361, p. 318 n. none acquired on trust property, when, § 287, p. 288. As Basis of Suit — not prerequisites to creditors' bill, § 25, p. 49, § 14, p. 26. must be existing as basis of suit, § 17, p. 38, § 17, p. 45, | 162, p. 188. Of Creditor- how acquired, § 4, p. 12 n. enforced in State court, when, § 406, p. 353. secured in State court void as to bankrupt act, § 403, p. 352. required as basis of creditors' bill, § 42, p. 66; § 157, p. 183. judgment need not be when conveyance made, § 242, p. 250. equity will protect, § 46, p. 70. in supp. proc. generally, § 225, p. 241. LIENS ON REAL ESTATE— when enforced, § 37, p. 60, LIEN, FRAUDULENT— impeached by creditors, | 8, p. 16 n. LIEN OF LANDLORD— effect of bankruptcy on, § 414, p. 368. LIEN BY PARTIES— created by the parties not disturbed in equity, § 241, p. 249. LIENS IN RELATION TO BANKRUPTCY— power of bankrupt court over, § 414, p. 368. how affected by bankruptcy, § 414, p. 360. of creditors' bill, effect of bankruptcy on, § 414, p. 365. LIEN ATTACHMENT— foundation for creditors' bill, § 167, p. 198. LIFE ESTATE— may be sold on application of creditors, § 285, p. 274 n. Income from subject to creditors' bill, § 16, p. 33. INDEX. 477 LIFE INSURANCE— money due on policy subject to creditors' bill, § 16, p. 34. LIMITATIONS— not a defense to creditors' bill, when, § 120, p. 163. applies to both legal and equitable actions, § 120, p. 163. when a bar at law is a bar in equity, § 39, p. 62. is a personal defense and optional, § 120, p. 164. failure to plead judgment not void, § 8, p. 17 n. LIS PENDENS— purpose of doctrine of, § 140, p. 140. when commences to operate, § 108, p. 140. effect of as to real estate, § 221, p. 237. effect of as to parties not before court, § 324, p. 294. property must be described, § 108, p. 140. affects only property in litigation, § 108, p. 140. M MARRIED WOMEN— estate of subject to creditors' bill, § 16, p. 34. money of husband deposited in wife's name subject to, § 16, p. 36. notes turned over to wife of partner of insolvent firm subject to creditors' bill, § 16, p. 34. land purchased by wife with 'husband's money subject to cred- itors' bill, § 16, p. 33. when protected as to husband's creditors, § 12, p. 22. earnings of not liable when, § 8, p. 16 n. MASTER IN CHANCERY— may maintain bill when, § 84, p. 110. MISAPPROPRIATION— by officers of corporation, § 4, p. 12. MORTGAGE FRAUDULENT— what is, i 4, p. 9. colorable only is void, § 8, p. 16. MORTGAGE FORECLOSURE— impeached by judgment creditor, § 8, p. 16 n. holder of not barred of creditors' suit, § 21, p. 47. suit to set aside allegations in, § 103, p. 138. MORTGAGE, VALIDITY OF— how attacked by judgment creditor, § 8, p. 17 n. MORTGAGE— validity of after assignment, § 8, p. 17 n. voluntary assignment of when void, § 12, p. 21 n. effect of bankruptcy on, § 414, p. 366. effect of bankrupt act on, § 415, p. 369. 478 INDEX. MORTGAGEE— not necessary party when, § 67, p. 91. cannot sustain without surrender of security, § 16, p. 37. fraudulent may be joined with fraudulent grantee, § 74, p. 104. not entitled to he plaintiff when, § 68, p. 93. MULTIPLICITY OF SUITS— to prevent two or more may join, § 60, p. 79. prevented by joining several plaintifCs, § 72, p. 102. how avoided, § 13, p. 24. MUNICIPAL CORPORATION— not gamisheed, § 16, p. 31. N NECESSARY PARTIES— who are, § 60, p. 79. who are as defendants, § 89, p. 114. fraudulent grantor when, § 89, p. 115. fraudulent grantee when, § 89, p. 115. all persons having interest in property or fund, § 89, p. 115. person in possession when, § 89, p. 115. corporation when, § 89, p. 116. judgment debtor when, § 89, p. 114. personal representative when not, § 89, p. 116. may be non-residents, § 61, p. 79. holders of legal title or equitable interest, § Gl, p. 80 n. absence of must be averred, § 64, p. 84. nonjoinder is error, § 63, p. 82 n. NEGLIGENCE OP OFFICERS— relief against, § 4, p. 12. NON-RESIDENT— jurisdiction over when, § 36, p. 58. assignment by may be attacked, § 167, p. 194. NOTICE— circumstances when, § 26, p. 50. what sufficient, § 100, p. 125 n. facts and circumstances impute, § 100, p. 124. to vendee effect of, § 26, p. 50. constructive applied in America, § 100, p. 125 n. facts sufficient to put on enquiry sufficient, § 100, p. 125. O OFFICERS OF COURT— may maintain bill when, § 84, p. 110. OFFICERS OF CORPORATIONS— proceedings against, § 4, p. 12. INDEX. 479, OFFICERS, NEGLIGENCE OP— relief against, § 4, p. 12. OMNIBUS BILL— what is, § 4, p. 10. ORDER TO PROVE DEBTS— ■who are included by, § 69, p. 98 n. OWNER OF LIFE ESTATE— necessary party when, § 65, p. 86. P PARTIES— Necessary Parties — necessary parties, § 61, p. 79. general rules as to, § 60, p. 78. are not affected by decree, § 65, p. 89. reason for omission of necessary parties must be averred, § 64, p. 84 n. disclosed by answer must be, § 61, p. 80 n. who are necessary parties, § 61, p. 80; § 62, p. 80. difficulty of determining necessary, § 60, p. 78. fraudulent grantor and grantee necessary, § 62, p. 81. grantees in several conveyances, § 62, p. 82. all parties interested in or claiming interest in must be, § 60. p. 79. all parties in interest must be, § 61, p. 79. all persons having interest in property or fund, § 89, p. 115. absence of must be averred, § 64, p. 84. judgment debtor in suit to determine who may collect judg- ment, § 65, p. 85. judgment debtor in suit between creditor and mortgagee, § 65, p. 85. non-resident heirs when necessary, § 324, p. 294. tenant by courtesy necessary, § 65, p. 88. debtor of debtor when, § 65, p. 85. all joint judgment debtors are necessary, § 64, p. 83. corporation necessary, § 63, p. 82. one holding legal title necessary, § 62, p. 81. assignor and assignee necessary, § 62, p. 81. claimants are necessary — may oppose each other, § 61, p. 80 n. executor or administrator must be, when, § 60, p. 74. non-residents must be when necessary, § 61, p. 79. cestui que trusts, when, § 67, p. 91 n. trustee when, § 67, p. 91 n. heirs in suit to set aside deed of ancestor, § 65, p. 85. codefendants with deceased judgment debtor, § 65, p. 86. 480 INDEX. PARTIES— Continued. assignee in proceeding to impeach assignment, § 65, p. 86. owner of life estate, when, § 65, p. 86. wife when, § 65, p. 86. mortgage and judgment creditors when, § 65, p. 86. creditors In suit to reach fund in hands of trustee, § 65, p. 88. creditors in suit to enforce assignment, § 65, p. 87. obligors are bound, when, § 65, p. 87. participants in fraud, § 65, p. 87. assignee (trustee) in bankruptcy, § 65, p. 88. assignee of grantee, § 65, p. 89. purchaser of grantee, § 65, p. 89. all parties in interest exception to rule, § 61, p. 80 n. Parties Not Necessary — when not necessary, § 67, p. 91. purchasers when not necessary, § 67, p. 91 n. assignor of chose in action not necessary, § 67, p. 91. creditors not necessary when assignee party, § 67, p. 91. personal representatives when not, § 89, p. 116. joint debtors when omitted as parties, § 64 p. 84. stockholders not necessary in proceeding to dissolve, § 63, p. 82. all stockholders need not be, § 63, p. 82. vendor when not necessary, § 62, p. 81. grantor when not necessary, § 62, p. 81. judgment creditors not necessary defendants, S 65, p. 87. president of bank, when, § 67, p. 92. partner when, § 67, p. 92. customers of bank, when, § 67, p. 92. cestuis que trust, § 67, p. 93. prior mortgagees in action to set aside deeds, § 67, p. 91 n. distributees in suit against administrator, § 67, p. 93. corporation in suit by receiver, when, § 67, p. 93. administrator when, § 67, p. 92. personal representatives, when, § 67, p. 92. mortgagee when, § 67, p. 91. all stockholders not necessary in suit for illegal dividends, § 69, p. 98. Plaintiffs— who may file bill, assignee, purchaser, etc., § 88, p. 113; § 69, p. 96. when plaintiff not bound by judgment against him, § 80, p. 107. general rule plaintiff must be judgment creditor, § 60, p. 79; § 68, p. 93. general rule plaintiff must be free from fraud himself, § 60, p. 79. INDEX. 481 PARTIES— Continued. injury to plaintiff must appear, § 60,- p. 79. plaintiff must be bona fide creditor, § 60, p. 79; § 68, p. 93; § 103, p. 133. plaintiff must show an injury, § 60, p. 79. must not have participated in the fraud, § 60, p. 79. attaching creditor may be, § 68, p. 94. mechanics' liens may be, § 68, p. 93 n. surety may be when, § 68, p. 95. assignee of judgment may be, § 68, p. 95. creditor may be when administrator refuses, § 68, p. 95. may be single creditor when, § 69, p. 95. administrator de bonis non may be, § 68, p. 95. Joinder of Plaintiffs — plaintiffs, two or more may join, § 60, p. 79; § 72, p. 102 n; § 72, p. 163. bill by two not demurrable, § 72, p. 103 n. may be in behalf of others who may come in, § 69, p. 97. joining must be judgment creditors, § 72, p. 102. when not joined as plaintiffs, § 75, p. 105 n. Defendants — all parties interested in subject matter, § 60, p. 79. all interested parties must be, § 61, p. 79; § 65, p. 85. on death of debtor, his heirs, executors, etc., must be, § 60, p. 79. all parties participating in fraud must be defendants, § 60, p. 79. judgment debtor must be defendant, § 60, p. 79. several grantees may be defendants, § 89, p. 115. maker and indorser of notes may be, § 89, p. 115. several grantees may be defendants, § 89, p. 115. judgment debtor must be defendant, § 60, p. 79. judgment debtor in suit by receiver, § 64, p. 84 n. who may be defendants, § 74, p. 104. who must be joined as, § 61, p. 80 n. interest may be legal or equitable, § 61, p. 80 n. who may be joined as, i 61, p. 80 n. all parties interested in fund, § 61, p. 80 n. joint debtor properly defendant, though no judgment, § 65, p. 88. When Suit for All Creditors— by general creditor bill must be for all, § 77, p. 106 n. proceedings against administrators must be for all, § 78, m cSe of assignment voluntary or by operation of law, § 70, 2. P-79. 483 INDEX. PARTIES— Continued. proceedings in assignment for all creditors, § 78, p. 107. suit against corporation must be for all, § 69, p. 97; § 69, p. 98. suit to recover stock liability must be for all, § 68, p. 98 n; § 70, p. 99. under deed of trust for benefit of creditors' suit for all, § 69, p. 98 n. if trust fund is to be reached suit must be for all, § 69, p. 97. when fund in court for distribution, § 70, p. 99. •where one may sue for all, creditors or legatees, § 61, p. 80 n. suit for all falls with payment of plaintiff, § 69, p. 98. against administrators to administer estate, § 70, p. 99. when bill will be treated as for all, § 77, p. 106. if filed in behalf others they must have common interest, § 69, p. 97. may be made parties when, § 25, p. 49. one party may contest claim of another, § 61, p. 80 n. proof of claims binds party, § 79, p. 107. Want of Parties — course if taken advantage of by demurrer or answer, § 29, p. 54. not raised on hearing, when, § 66, p. 89. taken advantage of by plea or answer, § 66, p. 89. raised by the court, when, § 66, p. 90 n. how and when raised, § 66, p. 89. PARENT AND CHILD— conveyance between when valid, § 12, p. 22 n. generosity to in its relation to creditors, § 10, p. 20. PARTNER- non-resident estate of reached, § 67, p. 92 n. may recover from deceased partner's estate, when, § 43, p. 67. PARTNERSHIP— funds of misapplied reached in equity, § 43, p. 67. each partner's interest subject to creditors' bill under joint ex- ecution, § 16, p. 34 n. executors of deceased partner may be partners, § 16, p. 34 n. equitable relief for transfer of property to member, § 16, p. 3D. secretion of property ground of equitable jurisdiction, § 16, p. 30. partner's interest in firm reached by creditors' bill, when, § 16, p. 34. insolvency of surviving partner necessary, when, § 103, p. 138. assignment by one partner void, when, § 8, p. 18 n. priority between creditors of, § 239, p. 247. partnership property to be exhausted first, § 170, p. 205 n. INDEX. 483 PARTNERSHIP— Continued, receiver in, § 359, p. 317. power of receiver in, § 366, p. 322. fraudulent conveyances of members attacked by firm creditors, § 100, p. 126. heirs of necessary allegations, § 103, p. 138. PARTICIPATION IN PROCEEDS— who may, § 76, p. 106. PAROL EVIDENCE— may establlsli fraud, § 103, p. 129 n. PATENT RIGHT— may be reached by creditors' bill, § 16, p. 32. not subject to creditors' bill, § 17, p. 41. PAYMENT— just before assignment, effect of, § 8, p. 18 n. PENSION— may be reached by creditors' bill when, § 17, p. 43 n. not subject to creditors' bill, § 17, p. 43 n. PENDENCY OP SUIT— not bar to another suit, when, § 19, p. 46. PERSONAL PROPERTY— concurrent jurisdiction In fraudulent alienation of, § 39, p. 62. fraudulent sales of, § 300, p. 282. vendee not in possession not liable, § 16. p. 28. if suit to reach execution must issue, § 156, p. 182. PERSONAL ESTATE— not followed if administrator and sureties responsible, § 324, p. 295. PERSONAL DECREE— against grantee, when, § 117, p. 152. when rendered and against whom, § 117, p. 157. not rendered against debtor when discharged in bankruptcy, § 119, p. 163. PERSONAL INJURY- verdict for not subject to creditors' bill before judgment, i 17, p. 45. PERSONAL REPRESENTATIVES— may sue, when, § 85, p. 110. when not necessary parties, § 89, p. 116. 484 INDEX. PETITION— general nature of, § 100, p. 122. scope of, § 100, p. 122. must allege jurisdictional facts, § 42, p. 66. prayer of, § 106, p. 139. PLAINTIFF— must have judgment, § 60, p. 79; § 68, p. 93. must have judgment to sue corporation, § 29, p. 55. must have judgment, exception to rule, § 68, p. 93. judgment creditor in tort may be, § 68, p. 93 n. attaching creditor may be, § 68, p. 94. who has proved debt in probate may maintain bill, § 167, p. 193 n. mechanic's lienor may be, § 67, p. 93 n. must not have participated in the fraud, § 60, p. 79. must be free from fraud, § 103, p. 133. must be bona fide creditor, § 68, p. 93. must be creditor in good faith, § 60, p. 79. priority of In equity, § 25, p. 49. entitled priority as against fraudulent grantee, § 117, 'p. 158. general creditor cannot join with judgment creditor, § 159, p. 186. right of to control litigation, § 107, p. 140. who may be joined with fraudulent grantee, § 74, p. 104. when not bound by judgment against him, § SO, p. 107. state may be, § 88, p. 114. who may not join, § 75, p. 105. mortgagee not entitled to sue when, § 68, p. 93. assignee of judgment may be, § 68, p. 95. surety may be when, § 68, p. 94. may maintain bill against co-surety, § 68, p. 95. who may be co-plaintiffs, § 69, p. 95. simple contract creditors cannot join with judgment creditors, i 69, p. 96 n. entitled to solicitor's fees when, § 117, p. 160. PLEA— want of parties raised by, § 66, p. 89. PLEADING— object of, § 102, p. 128. general nature of, p. 121. parties, difficulty of determining, § 60, p. 78. bill must show jurisdiction in equity, § 42, p. 66. PLEDGE— jurisdiction fraudulent, § 39, p. 62. effect of bankruptcy on § 414, p. 368. POWER OF RECEIVER- source of, § 364, p. 320. to sue, § 368, p. 324. INDEX. 485 POWER OF RECEIVER— Continued. in fraudulent conveyances, § 365, p. 320. no power to attack judgment when, § 367, p. 323. to attack fraudulent confession of judgment, § 366, p. 322. to set aside fraudulent sale of personalty, § 366, p. 323. no power to annul contracts when, § 367, p. 323. to avoid assignment of choses in action, § 366, p. 322. to avoid mortgage, § 366, p. 322. in partnership matters, § 366, p. 322. co-extensive only with court, § 366, p. 323. limited notice of, § 366, p. 323. if foreign, § 367, p. 323. miscellaneous, § 366, p. 321. under N. Y. Stat., 1894, § 366, p. 322. POSSESSION— of receiver not disturbed, § 373, p. 329. POWER OF COURT— may apply property to satisfy plaintiff's judgment, | 22, p. 47. PRAYER OF BILL— specific relief desired, § 106, p. 139. alternative relief asked when, § 106, p. 139. under general what recovered, § 23, p. 47 n. PREFERENCES— defined, § 260, p. 256. general rule allowed, § 260, p. 255. protected in equity, § 25, p. 50; § 46, p. 69. how made — payment — security, etc., § 261, p. 258. must not he in violation of agreement, § 261, p. 257. prohibited by statute, § 262, p. 258. statute applies only to assignments, § 267, p. 264 n. statute applies to domestic preferences, § 267, p. 264. prohibited by statute construction of in Dakota, § 267, p. 264 n. none in distribution of lunatic's estate, § 324, p. 295. attitude of preferred creditor, § 262, p. 259; § 263, p. 259. taking judgment notes not preference when, § 268, p. 266. prohibited by bankrupt and Insolvent laws, § 260, p. 256. under bankrupt act of 1898, § 267, p. 264 n; § 419, p. 385. When Valid. when in good faith and ordinary course of business, § 264, p. 260. sustained in absence of statute, § 264, p. 260. when made to trustees, etc., § 264, p. 261. when valuation reasonable, § 264, p. 261. when placed in hands of attorney for distribution, § 264, p. 261. when to pay creditor and others, § 264, p. 261. 486 INDEX. PREFERENCES— Continued. money loaned by father to son when, § 264, p. 261. mortgage to secure bona fide debt, § 264, p. 262. In New York when, § 269, p. 267. When Invalid. where fund sought is a trust fund, § 167, p. 197. stipulations in assignments as to preferences void, | 269, p. 267. secret agreement to pay in full, § 268, p. 266. by judgment — what must appear, § 267, p. 265. judgment confessed when, § 268; p. 265. several judgments confessed preferential when, § 268, p. 266. if all debtor's property mortgaged, § 266, p. 263. if to hinder and delay other creditors, § 266, p. 263. if designed to assist debtor in covering up property, § 261, p. 256. where property disproportionate in value, § 266, p. 263. if with view of insolvent proceedings, § 266, p. 263. when given for fraudulent purpose, § 266, p. 263. void if made in anticipation of statute, § 262, p. 263. wTien part of indebtedness not bona fide, § 261, p. 257. if claim secured not bona fide, § 261, p. 257. with reservations invalid, § 261, p. 256. invalid burden of proof, § 267, p. 265. PRESUMPTION— of insolvency when, § 103, p. 136. execution when presumed to be regular, § 103, p. 135. creditor not presumed to know laws of foreign state, § 8, p. 19 n. not presumed that debt existed when conveyance made, § 103, p. 136. PRIORITY— definition of, § 235, p. 242. secured by creditor when, § 8, p. 19. in equity proceedings, § 25, p. 49. general rule as to, § 236, p. 243. reason for rule, § 238, p. 245. secured by diligence protected, § 240, p. 248. subject to existing liens, § 25, p. 49. is purely an equitable question, § 239, p. 248. as between several plaintiffs and general creditors, § 236, p. 244. maturity of claim does not give, § 236, p. 244. based on legal or equitable lien, § 236, p. 224. not based on priority of judgment, § 238, p. 246. creditor's bill does not give in case of corporations, § 29, p. 55. plaintiff entitled as against fraudulent grantee, § 117, p. 158. not questioned by fraudulent grantee, § 243, p. 251. INDEX. 487 PRIORITY— Continued. grantee not interested in, § 117, p. 152. among creditors generally, § 235, p. 242. distinguished from preference, § 235, p. 242. where bill filed for all, § 239, p. 247. may be -waived by filing bill for all, § 237, p. 245. not secured in violation of agreement, § 247, p. 253. under bankrupt act, § 419, p. 387. may be obtained under creditor's bill in Alabama, § 76, p. 106 n. none where bill filed in behalf of all, § 239, p. 247. secured by filing bill must be in good faith, § 239, p. 247. if to defeat or delay other creditors will not be sustained, § 239, p. 247. as between individual and partnership creditors, § 239, p. 247. in relation to other liens, § 240, p. 248. not given over other creditors when, § 222, p. 239. given by law not disturbed in eq.uity, § 240, p. 249. over foreign creditors, § 241, p. 249. supplemental proceedings same as under creditors' bills, § 244, p. 251. effects of discontinuance of assignment, § 245, p. 251. none where statute places all on equal footing, § 246, p. 252. in dealing with fraudulent grantee, § 248, p. 253. PRINCIPAL— suit against by surety when, § 103, p. 136. PROBATE COURT— exclusive jurisdiction When, § 43, p. 67. jurisdiction in equity when, § 43, p. 67. PROBATE JUDGE— may not file creditor's bill, § 88, p. 114. PROBATE OF CLAIM— sufficient where debtor is dead, § 14, p. 26. PROCEEDINGS IN AID— distinguished from creditor's bill, § 4, p. 10. usually in original action, § 4, p. 11. PROMISSORY NOTE— of resident partner to non-resident not subject, § 17, p. 42. PROOF OF CLAIM— made at any time before distribution, § 70, p. 100 n. must correspond with allegations, § 103, p. 136. binds party so doing, § 79, p. 107. PROPERTY— insignificant value no basis of, § 6, p. 14. PUBLIC POLICY— governs jus disponendi, § 8, p. 16. Its relation to rights of creditors, § 10, p. 20. 488 INDEX. PURCHASER— of grantee necessary party, § 65, p. 89. when not necessary party, § 67, p. 91 n. under fraudulent judgment, liability of, § 117, p. 157. money paid by debtor may be recovered, § 23, p. 47. with notice takes subject to rights of creditors, § 15, p. 26. may file creditor's bill, § 88, p. 113. of fraudulent vendee, rights of, § 312, p. 288. pendente lite, subject to lien of creditor's bill, § 221, p. 237. fraudulent grantee cannot defeat, § 16, p. 28 n. on fraudulent representation void, § 16, p. 27. R RECEIVER— Jurisdiction. statutory not exclusive, § 353, p. 311. power to appoint unquestioned, § 351, p. 307. power of court '"over, § 385, p. 339. by what court appointed, § 354, p 312 n. appointed by commissioner in Wis., § 209, p. 331 n. Appointment of, | 361, p. 318. appointment of general, § 350, p. 306. appointment in discretion of court, § 350, p. 307; § 351, p. 307. effect of appointment as to lien of creditor's bill, § 221, p. 238. under English Judicature Act, § 352, p. 310, Basis of Appointment. under what circumstances appointed, § 354, p. 311. grounds for appointment depend on each case, § 350, p. 307. sometimes depends on amount involved, § 351, p. 308. must be assets to be applied, § 352, p. 309. refused if property may be brought into court, § 351, p. 308. must be danger of loss, § 352, p. 309; § 352, p. 311. application must be to proper court, § 352, p. 310. property must be within jurisdiction, § 352, p. 310. when a matter of right, § 352, p. 311. answer that debtor has no property not sufllcient, § 354, p. 312 n. general creditor not entitled to, § 27, p. 51. not on application of general creditor, § 361, p. 308. necessity for depends on allegations, § 350, p. 307. appeal from order appointing, § 363, p. 319. Prerequisites to Appointment. prerequisites to, § 352, p. 309. must be actual bona fide indebtedness, § 352, p. 309. legal remedies must be exhausted, § 352, p. 309. for corporation four prerequisites required, § 352, p. 309. INDEX. 489 RECEIVER— Continued. Appointment in particular cases. in the administration of an estate, § 354, p. 312. ■where necessary to preserve property, § 354, p. 312. where assignee under assignment insolvent, § 354, p. 312. ■where assignment to hinder, etc., creditors, § 354, p. 313. ■where sought to reach debtor's interest in deceased partner's estate, § 354, p. 313. in assignments, § 357, p. 314. In assignments ■when valid, § 354, p. 313. in assignments fraudulent, § 354, p. 313. in actions to rescind for fraud, § 355, p. 313. in attachment proceedings, § 356, p. 314. may be for foreign corporations, § 352, p. 310. corporation, grounds of, § 357, p. 315. ■ of insolvent corporation proper ■when, § 63, p. 83 n. in case of fraudulent transfers, § 358, p. 315. in case of fraudulent conveyances, § 358, p. 316. to impeach fraudulent conveyances, § 360, p. 317. in case of fraudulent incumbrance, § 358, p. 316. in building and loan cases, § 363, p. 319. In supplemental proceedings, § 201, p. 224; § 209, p. 231; § 360, p. 317. in supplementary proceedings represents creditors, § 360, p. 317. title in supp. proc, none to property fraudulently conveyed,, § 211, p. 232. po^wer of in supplemental proceedings, § 210, p. 231. in partnership matters, § 359, p. 317. in bankruptcy matters, § 386, p. 344. in state court procedure against by bankrupt court, § 404, p. 352. not where legal title involved, § 354, p. 313. Power of receiver. power of, § 364, p. 320. power of general, § 367, p. 323. in supplemental proceedings, § 366, p. 322. in fraudulent conveyances, § 365, p. 320. to avoid mortgages, § 366, p. 321. suit may be maintained when, § 81, p. 109. may file creditor's bill, § 88, p. 113. power to make assessments, § 29, p. 54. power to sue, § 368, p. 324. suit by in TJ. S. court no limitation on amount, § 40, p. 64 n.. power to sue in foreign jurisdiction, § 210, p. 231. in foreign jurisdiction, § 369, p. 325. miscellaneous, § 366, p. 321. 490 INDEX. EBCEIVER— Continued. no power to collect statutory liability, § 29, p. 35. no power to recover debts due in foreign state, § 17, p. 43. when estopped by acts of creditors, § 210, p. 232. limited by acts of creditors when, § 210, p. 232. Possession of. possession of, § 373, p. 329. subject to all liens, § 354, p. 312 n. right of recovery depends on debtor's right when, § 24, p. 47. title of, § 372, p. 327. to preserve lien of creditor's bill, § 360, p. 318. liability of, § 371, p. 327. suits against, § 370, p. 326. expense of when allowed, § 383, p. 338. distribution of funds of, § 387, p. 344. Claims against. when not preferred, § 382, p. 336. when preference allowed, § 381, p. 335. validity of, § 379, p. 333. not allowed when, § 380, p. 334. defenses to, § 376, p. 331. when presented, § 378, p. 332. claims against, allowance of, § 375, p. 330. HEPBRBE— power of in Iowa, § 206, p. 229. RELIEF IN EQUITY— in case of insolvent corporations, § 2, p. 6. RENTS— when apportioned, § 17, p. 46. REPLEVIN SUITS— pendency of no defense, § 113, p. 147. RESIDENCE— fraudulent conveyance, grantor and grantee, § 38, p. 61. RES ADJUDICATA— validity of judgment is, § 176, p. 214. consideration of debt is on creditor's bill. § 103, p. 137. defense at law is res adjudlcata in equity, | 39, p. 62. RESIDENT CREDITORS— entitled to priority over non-resident, § 241, p. 250 n. RESCISION OF CONTRACTS— receiver in, § 355, p. 313. for frauds, § 303, p. 284. conditions of, § 304, p. 285. conditions of — must be in reasonable time, § 306, p. 285. re-assignment of notes and mortgage required, § 305, p. 285. based on fraudulent representations, § 307, p. 286. INDEX. 491 RESULTING TRUST— rescinded contract not, § 310, p. 287. reached in equity, § 288, p. 279. RESTRICTIONS— on estates in fee, § 286, p. 275. RETURN OF EXECUTION— must be before bill filed, § 172, p. 210. must be to county from which it issued, § 172, p. 210. irregular may be amended, § 172, p. 210. requisites of, § 172, p. 209. by order of plaintiff's attorney, § 172, pp. 209, 204. admitted, must be overcome, § 172, p. 211. no uniform rule as to formal parts, § 172, p. 211. imports verity, but must be no collusion, § 172, p. 211. must be on responsibility of sheriff, § 205, p. 227. in supplementary proceedings, § 203, p. 226. reason for requiring execution to run full period, § 172, p. 206. execution must run full statutory period, § 172, p. 206. within statutory period, § 172, p. 207. when made, § 172, p. 206. when sufficient, § 176, p. 205 n. nulla bona basis for equitable proceeding, § 170, p. 204. nulla bona, must not be mere formality, § 170, p. 205. nulla bona, must be made where property not subject to levy, § 170, p. 204. reason why execution need not rule full period, § 172, p. 207. bona fide at any time gives jurisdiction, § 172, p. 208. prima facie evidence, when, § 172, p. 208. general rule is necessary prerequisite, § 155, p. 176. necessary in purely equitable proceedings, § 154, p. 176. required to react equitable assets, § 155, p. 177. relief based on lien does not require return, § 156, p. 182. need not be shown in haec verba, § 103, p. 131. must be alleged, § 100, p. 123. must show bona fide exhaustion of legal remedies, § 172, p. 208. forms of, § 172, p. 211 n. RIGHT OF ACTION— for injury to property subject to creditor's bill when, § 17, p. 43 n. for tort not subject to creditor's bill, § 17, p. 43 n. S SALARY— when may be reached in equity, § 16, p. 31. SALE— confirmation of, § 117, p. 153. 492 INDEX. SATISFIED JUDGMENT— relief against, § 8, p. 18 n. SECURITY— of creditor not a bar to creditors' bill, § 21, p. 46. of mortgagee must surrender when, § 68, p. 93. SETTLEMENT— by husband for wife when valid, § 12, p. 22 n. SET OFF— against debtor may be under creditors' bill, § 24, p. 47. SHERIFF— may not file creditors' bill, § 88, p. 114. return of, prima facie evidence, when, § 172, p. 208. SOLICITOR'S FEES— when plaintiff entitled to, § 117, p. 160. STATUTE- IB Eliz., history of, § 5, p. 12. purpose of, § 5, p. 13. scope of, § 5, p. 13. construction of, § 48, p. 72 n. declaratory of common law, § 48, p. 72 n. application to personalty, § 300, p. 282. § 38 of 2 N. Y. Rev. Stat, construed, § 12, p. 23 n. Ky. Civ. Code, § 439 construed, § 13, p. 24. Me. Rev. Stat. Ch. 76, § 13 construed, § 12, p. 23. § 3835 Rev. Stat. Wis. applied, § 12, p. 24. Mo. Rev. Stat. 1889, § 571 construed, § 13, p. 25 n. STATUTORY RESTRICTIONS— on preference, construction of, § 267, p. 264. STATUTORY PROCEEDING— summary notice of, § 4, p. 16. STATUTORY REMEDIES— against insolvent corporations, § 29, p. 53. STATUTE OF FRAUDS— in relation to trusts, § 287, p. 277. STATUTE OF LIMITATIONS— effect In bankruptcy, § 421, p. 390. STATE LAWS— suspended when, by bankruptcy law, § 410, p. 354; § 412, p. 358. STOCK. (Corporate.)— in insolvent corporation — how reached, § 2, p. 7. may be reached by creditors' bill, § 16, p. 32. in corporation unpaid reached by creditors' bill, § 29, p. 53. fraudulent transfer of, § 301, p. 283. concurrent jurisdiction against, § 47, p. 71. INDEX. 493 STOCK LIABILITY. (Corporate.)— equity has power to assess, § 29, p. 54. how enforced, § 4, p. 12. liability of is general, § 63, p. 83. right of creditor to collect, § 374, p. 330. creditors need not litigate rights between stockholders, § 69, p. 98. STOCKHOLDERS— not necessary in proceeding to dissolve, | 63, p. 82. generally should be made parties to creditors' suit, § 29, p. 54. all need not be parties, § 63, p. 82. insolvent need not be party, § 29, p. 54. ' liability for fund illegally distributed, § 16, p. 31 n. cannot question validity of judgment, § 176, p. 214. subscription to stock collected by receiver, § 29, p. 54. statutory not collected by receiver, § 29, p. 55. SUBSEQUENT CREDITOR— may file creditor's bill, § 88, p. 114. may attack conveyance when, § 16, p. 27 n. SUBSEQUENTLY ACQUIRED PROPERTY— how reached, § 116, p. 149. SUBROGATION— assignee of judgment having paid same may file bill, § 87, p. 112. SUIT BY RECEIVBR— limited when, § 210, p. 232. SUIT AGAINST RECEIVER— on what conditions allowed and when, § 370, p. 326. SUIT BY THIRD PARTY— against debtor may be fraudulent, § 28, p. 32. SUIT PENDING— between same parties no defense, § 113, p. 147. SUPPLEMENTARY PROCEEDINGS— summary, nature of, § 4, p. 10. grounds of jurisdiction, § 44, p. 68 n. jurisdiction, statute source of, § 39, p. 63. nature of, § 202, p. 226 n. are in lieu of creditors' bills, § 201, p. 224. scope of coextensive with creditors' bills, § 211, p. 233. distinguished from creditors' bill, § 4, p. 10. nature of statutory, § 4, p. 10. usually in original action, § 4, p. 11. are ancillary in their nature, § 211, p. 232. are supplemental to suit in which judgment rendered, § 201, p. 224. defects in lack of parties, i 201, p. 224. Examination of debtor — must be in reasonable time, § 206, p. 230, 494 INDEX. SUPPLEMENTARY PROCEEDINGS —Continued, examination of debtor under, § 201, p. 224. examination of debtor, § 205, p. 227. scope of, § 206, p. 229. Receiver in, § 201, p. 224; § 360, p. 318. power of in supplemental proceedings, § 209, p. 331. purpose of, § 209, p. 231. depend on exhaustion of legal remedies, § 202, p. 225. not a bar to suit in equity, § 201, p. 225 n. court no jurisdiction to take possession summarily, § 201, p. 225. when instituted with reference to return, § 203, p. 226. husband not a competent witness, when, § 208, p. 230. against foreign corporation, § 209, p. 231 n. against foreign corporation, § 209, p. 331 n. power of court to compel transfer, § 211, p. 233. judgment for alimony enforced In, § 211, p. 233. recognize same priorities as under creditors' bills, § 244, p. 251. lien of, § 225, p. 241. order for examination does not create lien, § 225, p. 241. priority acquired by appointment of receiver, § 225, p. 241. service of order takes place of filing creditors' bill. effect of bankruptcy proceedings on, § 416, p. 376. SUPPLEMENTAL PETITION— purpose of, § 116, p. 149. scope of, § 116, p. 149. SUPPLEMENTAL BILL— scope and purpose of, § 116, p. 149. jurisdiction not conferred by, § 166, p. 191. may be filed to reach subsequently acquired property, § 17, p. 43 n; § 116, p. 149. SURPLUS— on mortgage foreclosure reached by creditors' bill, § 16, p. 33. when creditors participate in, I 81, p. 108. SURETY— may maintain creditors' bill against principal, § 103, p. 136. may maintain suit against co-surety, when, § 68, p. 95. may file creditors' bill, § 88, p. 113. order of proceeding against and joint tenants, § 185, p. 220. bill against maintained, when, § 324, p. 295. SURVIVING PARTNER— may reach misapplied funds, § 43, p. 67. T TAX— may be basis of creditors' bill, § 18, p. 46. TENANTS IN COMMON— jurisdiction, property in foreign country, § 36, p. 59 n. INDEX. 495 TENDER— as preliminary to recision, § 304, p. 285. THREATS— agreement procured by not enforcible, § 186, p. 220. TITLE OF RECEIVER— notice of, § 372, p. 327. TORT— Judgment in basis of creditors' bill, § 184, p. 219. TRIAL BY JURY— mortgagee cannot raise defense, § 13, p. 25. debtor can waive, § 13, p. 25. TRUSTS— when equitable assets are, § 25, p. 50. jurisdiction of equity in, § 36, p. 60 n. no legal remedy in, § 167, p. 199 n. as ground for jurisdiction, § 44, p. 68. jurisdiction of equity, § 45, p. 69. when equity will not relieve against, § 45, p. 69; § 45, p. 69 n. difference between created by debtor and third person, § 287, p. 276. may be reached by creditors' bill, § 16, p. 32 n. TRUST ESTATE— not subject to creditors' bill, when, § 16, p. 33 n. TRUST FUND— What is in case of corporation, § 69, p. 97. assets of insolvent corporation, § 2, p. 6; § 24, p. 52. when secured gives plaintiff no priority, when, § 8, p. 19 n. reached without judgments and execution, § 167, p. 197. unpaid capital stock is when corporation insolvent, § 155, p. 179 n. for benefit of all creditors not appropriated by one, § 17, p. 38. when subject to creditors' bill, § 16, p. 35. TRUST PROPERTY— may be real or personal, § 285, p. 275. statutory provisions, § 281, p. 269. rights of creditors to generally, § 280, p. 268. subject to creditors' bill, when, § 17, p. 42 n. right of donor to dispose of property, § 282, p. 270. resulting trust, § 288, p. 279. if mixed with other funds whole liable, § 289, p. 280. if conveyed or converted may be followed, § 289, p. 280. When Reached by Creditors — may be reached by creditors, § 285, p. 273. money payable on demand may be reached by creditors, § 273, p. 272. subject to rights of creditors, when, § 288, p. 278. right of creditors to surplus, when, § 288, p. 278. 496 INDEX. TRUST PROPBRTT— Continued. if conveyed to pay debts is, § 288, p. 278. whether reached by creditors or not, § 283, p. 271. property in trust for creditors reached without judgment, § 167, p. 197. debtor must not participate in placing in trust, § 282, p. 270. When Not Reached by Creditors — general rule such property not reached by creditors, § 284, p. 272. when not reached — test of rule, § 284, p. 273 n. in foreign state, not subject to court of equity, § 291, p. 281. Inalienable by will not subject to creditors' bill, § 17, p. 42. When Liable for Debts — money in hands of attorney when, § 288, p. 280. money in hands of executor due on demand, § 288, p. 280. devisee's share in equitable remainder not, § 288, p. 280. pure trust, when, § 288, p. 280. annuity that is due, § 288, p. 279. surplus income of express trust, § 288, p. 279. life estate if fraudulently conveyed, § 288, p. 279. when it is alienable, § 288, p. 279. land purchased by heirs is, when, § 288, p. 278. public policy in regard to, § 282, p. 270. rule in New York, New Jersey, etc., § 281, p. 269. rule in England in regard to, § 282, p. 271 n. rule of U. S. Sup. Court, § 282, p. 271 n. rule in Illinois, § 282, p. 271 n. rule in Massachusetts, § 282, p. 271 n. when neither principal nor income liable, § 283, p. 271. alimony not reached, § 288, p. 280. jurisdiction in when property in foreign county, § 36, p. 58 n. no lien on by creditors' proceeding, § 287, p. 278. in its relations to statute of frauds, § 287, p. 277. restrictions on estates in fee, § 286, p. 275. provision in deed or will against alienation void, § 285, p. 275. TRUSTEE— when necessary party, § 67, p. 91 n. in possession of property of a corporation may sue, § 29, p. 55. TRUSTEE (BANKRUPTCY.)— a party in State court, § 411, p. 357. may set aside fraudulent conveyance where, § 40, p. 64. TWYNE'S CASE— construction of stat., 13 Eliz., § 300, p. 282. U UNITED STATES COURTS— jurisdiction in, § 40, p. 63. INDEX. 497 UNITED STATES COURTS— Continued. over executors and administrators, I 40, p. 63 n. in creditors' proceedings, § 40, p. 63. in matters of fraudulent conveyance, § 407, p. 353. in administration of insolvent corporation estate, § 40, p. 64 n. citizenship -when not jurisdictional, § 40, p. 64. obtained by assignment to one of several judgments, § 40, p. 64 n. have concurrent jurisdiction with state courts when, § 40, p. 64 n. jurisdictional amount how determined, § 40, p. 64 n. legal and equitable claims not blended in, § 152, p. 174. practice In not affected by State legislation, § 152, p. 172. enforce new equitable rights created by States, § 152, p. 173. rule as to requiring judgment liberal, § 152, p. 172. USURY— recovered by creditor under statute, § 16, p. 36. VALUABLE CONSIDERATION— does not render transaction involving secret trust valid, § 16, p. 32 n. VENDOR— declarations of not evidence, § 26, p. 51. when not necessary party. VENDOR'S POSSESSION— continued makes sale void, § 16, p. 28. VENDEE— fraud of, § 302, p. 283. effect of notice, § 26, p. 50. knowledge of may render transaction void, § 26, p. 50. when party to fraud, § 26, p. 50 n. VERIFICATION— of bill, when necessary, § 105, p. 139. VESTED REMAINDER- subject to creditors' bill, § 16, p. 36. VOID decree:— how may be attacked and when, § 117, p. 154. VOID DEED— reached by creditors' bill, § 16, p. 27 n. VOID CONTRACT— obtained on apparent ownership, § 16, p. 27. VOID ASSIGNMENT— partly void and partly good, § 8, p. 19 n. VOLUNTARY CONVEYANCE— allegations required to impeach, § 100, p. 123 n; § 100, p. 125. necessary allegations in case of, § 103, p. 136. 498 INDEX. VOLUNTARY CONVEYANCE— Continued, relationship to be alleged, § 100, p. 126 n. evidence required to avoid, § 12, g. 22 n. burden of proof in, § 100, p. 126 n. effect of gift in, § 103, p, 136. void as to existing creditors, § 12, p. 21. when suit maintained against heirs, § 12, p. 23. property not reached by levy, § 12, p. 23. property purchased on strength of ownership void, § 12, p. 23. husband to wife void when, § 8, p. 16. before indebtedness accrued not void, § 12, p. 22. insolvency must result, § 100, p. 126 n. subsequent insolvency of grantor not sufficient, § 100, p. 126 n. not necessarily void as to creditors, § 12, p. 21. voidable if attacked in reasonable time, § 12, p. 21. when debt contracted not material, § 100, p. 123. participation of grantee not to be shown, § 100, p. 124. fraud of grantee need not be shown, § 100, p. 126 n. W WAIVER OF DEFENSE— defendant may waive' defense by not answering, § 113, p. 48. failure to obtain judgment may be waived, § 167, p. 197. of execution inferred when, § 169, p. 204. WANT OF PARTIES— taken advantage of by demurrer, § 66, p. 89. not raised on hearing if formal, § 66, p. 89. raised by court when, § 66, p. 90 n. may be waived, § 66, p. 89 n. WASTE— jurisdiction in by tenant in common, § 36, p. 59 n. not restrained on application of general creditor, § 165, p. 191. WIFE OF DEBTOR— may file creditors' bill, § 88, p. 113. of debtor examined in supplemental proceedings, § 205, p. 228. WITHHOLDING PROPERTY— renders assignment void, § 8, p. 18. KF 1526 365 /^|"^^^'^^°^Smith7joli^ Wilson Vol. ^'"^he ;^:;iSaS;^'^^^^^^ ;-\ ■r.r. A .TO^^^: