Nor do we assent to this view that the mere abolition of the extraordinary remedies of outlawry and attachment of the person would confer jurisdiction on equity. Such a conclusion would be in conflict with reason, as well as with modern authority. It would certainly not seem to follow that if the law had always and consistently refused to give an execution against things in action, and had allowed only the extraordinary remedies just mentioned, that upon the destruction of the latter, the former would not only thereupon spring into existence, but become remedies appropriate for a Court of Equity. The contrary conclusion would, we think, be more reasonable, namely, that the Legislature having abolished execution against the person which was used for the purpose of getting satisfaction out of the debtor's effects which could not be reached by other executions, and having failed to provide any new remedy to take its place it was not intended there should be any. And so it has been held in Donavan [Donovan] v. Finn, 1 Hopkins Ch. Rep. 59 (N. Y.); Buford v. Buford, 1 Bibb, 305; Greene v. Keene, 14 R. I. 387, 397. "Equity follows the law," and as we have seen, a rule either of statute or common law is as potent in a Court of Equity as in a Court of law. 1 Story Eq. Jur., sec. 64. Whatever may, at one time, have been the vague and general rule as to the limits and extent of equity jurisdiction, it is now well settled that "no Court of Chancery at this day would attempt to supply the defects of law by deciding contrary to its settled rules in any manner, to any extent, or under any circumstances, beyond the already settled principles of equity jurisprudence. ["] 1 Pomeroy Eq. Jurisp. section 47.1

It would seem to be reasonably clear from the authorities already cited and the discussion of them that, in the absence of a statute and in the absence of fraud or some other ground of equity jurisdiction, a Court of Equity has no power to subject the defendant's unassigned right of dower to the payment of her debts. But this conclusion will, we think, be placed beyond doubt by a brief consideration of some of the adjudications of the highest Courts of other States. In the case of Maxon v. Gray, 14 R. I. 641, which was decided in 1885, the very question now before us was passed upon. That case, like this, was a bill in equity by judgment creditors for a decree for a sale of an unassigned right of dower, and in an able and elaborate opinion the Court came to the conclusion, after reviewing many, of the previous cases, that equity had no jurisdiction. To the same effect Green [Greene] v. Keene, Ib. 388. In Cresswell v. Smith, 2 Tenn. Ch. 416, it was held that chancery has no power to reach stocks or things in action, even in the hands of third persons unaffected with fraud or trust without the aid of a statute. Keightly v. Walls, 27 Ind. 384; Williams v. Reynolds, 7 Ind. 622. In the case last cited it is said equity will not subject choses in action to the payment of a judgment

1 A discussion of the New York decisions is omitted.

creditor, because equity only aids the law, and will, therefore, not interfere, except as to such property as may be sold on execution at law. In the case of Buford v. Buford, supra, the same view was enforced in the absence of a statute, and in concluding its opinion the Court said, "The bare circumstances of a debt cannot be made the foundation of a bill." The views upon the question of jurisdiction expressed in all these cases are in accord with the rule as laid down by Mr. Adams. "Equity," he says, "does not create new rights which the common law denies, but it gives effective redress for the infringement of existing rights, where by reason of the special circumstances of the case redress at law is inadequate." Adams Equity, p. 6; Phelps Juridical Equity, sec. 158.

The plaintiffs having failed to bring their case within the limits of equity jurisdiction as established and practiced in this State, their bill must be dismissed. "When a creditor," says Chancellor Sanford in Donavin [Donovan] v. Finn, supra, "comes into this Court for relief he must come, not merely to obtain a decree or satisfaction of a judgment, but he must present facts which form a case for equity jurisdiction." Such facts the creditors who filed the bill now before us have entirely failed to set forth, and we therefore agree with the learned Court below that the demurrer to the bill was properly sustained and the bill was properly dismissed.

Decree affirmed.1

SMITH v. RAILROAD COMPANY.

SUPREME COURT OF THE UNITED STATES. 1878.

99 United States 398.

APPEAL from the Circuit Court of the United States for the District of Kansas.

[Smith and Dunn contracted with the Fort Scott & Allen County Railroad Company to grade its line and build necessary bridges from Fort Scott to Humboldt City, Kansas, and the Railroad Company agreed to pay them, in part, in bonds of Bourbon County, Kansas, which the county had agreed to issue. The work which Smith and

1 See, accord, Shaw v. Aveline, 5 Ind. 380 (1854); Greene v. Keene, 14 R. I. 388 (1884). Contra: Pendleton v. Perkins, 49 Mo. 565 (1872); Hadden v. Spader, 20 Johns. 554 (N. Y. 1822); Bigelow's Adm'x v. Congregational Society, 11 Vt. 283 (1839). See Note, Ann. Cas. 1914 B, 945, 956–957. In most of the United States there are statutes allowing debts and other choses in action to be subjected to the payment of judgments. See 3 Freeman, Executions (3d ed. 1900) 2288-2289.

As to whether contingent future interests in property may be reached by equitable execution, see 2 Restatement, Property (1936) §§ 166-168; Note, 25 Harv. L. Rev. 171 (1911); Alexander v. McPeck, 189 Mass. 34, 43–44 (1905) (statutory).

Dunn contracted to do was duly completed and accepted by the Railroad Company; but Bourbon County failed to deliver its bonds to the Railroad Company, which became insolvent. ·

Smith, who had acquired Dunn's claim by assignment, brought a suit in equity in the federal Circuit Court for Kansas against the Railroad Company and Bourbon County, alleging these facts, and praying that the Railroad Company be decreed to assign its claim for the bonds to the plaintiff and that the commissioners of the County be decreed to issue the bonds. The defendants demurred to the bill and the demurrer was sustained by the Circuit Court.] 1

1

MR. JUSTICE SWAYNE delivered the opinion of the court.2 The only question presented for our determination is whether the demurrer was properly sustained.

Our judgment will be confined to a single point.

There is no privity between the county of Bourbon and the complainant. There has been no assignment, legal or equitable, to him by the railroad company of its claim against the county. If there had been an assignment, the Circuit Court could not have taken jurisdiction of the case, because the assignor, if there had been no assignment, could not have maintained a suit upon the thing assigned in that forum. Rev. Stat. 109; Sere v. Pitot, 6 Cranch, 332. The relationship of the complainant to the company is that he is its creditor while the county is assumed to be, and perhaps is, its debtor. The complainant has no lien upon the fund he is seeking to reach. His case is, therefore, a common creditor's bill, - nothing more and nothing less. There is no statutory provision in Kansas touching such bills. The distinction there between legal and equitable remedies has been abolished. 2 Dasslor's Statutes of Kansas, p. 643, sect. 3230.

The law of procedure there recognizes but two forms of action: one is designated a civil, the other a criminal action. The former relates to the assertion of civil rights by suit; the latter, to criminal prosecutions. The Circuit Court of the United States of that district has, nevertheless, full equity jurisdiction. The Federal courts have it to the same extent in all the States, and State legislation cannot affect it. Boyle v. Zacharie, 6 Pet. 648. The States, however, may create equitable rights, which those courts will enforce where there is jurisdiction of the parties and of the subject-matter. Clark v. Smith, 13 id. 195; Ex parte McNeil, 13 Wall. 236. This bill, as regards this point, was well filed in the court to which it was ad

1 The statement of facts is condensed from the opinion.

2 So much of the opinion as sets forth the facts summarized above is omitted.

3 Because of lack of diversity of citizenship, the railroad company apparently being a Kansas corporation. Cf. pp. 12–13, supra.

dressed. But nothing is better settled than that such a bill must be preceded by a judgment at law establishing the measure and validity of the demand of the complainant for which he seeks satisfaction in chancery. Wiggins v. Armstrong, 2 Johns. (N. Y.) Ch. 144; Hendricks v. Robinson, id. 296; Greenway v. Thomas, 14 Ill. 271; Mizzel v. Herbert, 12 Miss. (Smed. & M.) 550; Gorton v. Massey, 12 Minn. 147; Skele v. Stanwood, 33 Me. 309; [Note to] Sexton v. Wheaton [8 Wheat. 229], 1 Am. Lead. Cas. (5th ed. [1871]) 59. There are exceptions to this rule, but they do not affect its application to the case in hand. It is, therefore, unnecessary to pursue the subject further.

Decree affirmed1

WADSWORTH v. SCHISSELBAUER.

SUPREME COURT, MINNESOTA. 1884.

32 Minnesota 84.

PLAINTIFF brought this action in the district court for McLeod county, alleging in his complaint the recovery, on April 25, 1882, of a judgment in justice court in the same county, in favor of one Albrecht and against defendant A. Schisselbauer, for $66.55, the cause of action being a promissory note made by him; the issuing and return unsatisfied of an execution from the justice court; the subsequent docketing of the judgment in the district court for the same county on January 24, 1883, and an assignment to the plaintiff filed in the same court on January 25, 1883. He also alleges the recovery and docketing of a judgment in his own favor against the same defendant, on January 13, 1883, in justice court in the same county for $92.40, in an action founded on express contract; the issuing and return unsatisfied of an execution from the justice court; the docketing of the judgment in the district court for the same county on January 24, 1883.

The complaint also states that on January 25, 1883, and after the assignment to plaintiff, executions on the two judgments issued from the district court, and were delivered to the proper officer for service, who returned them wholly unsatisfied. That on March 24, 1882, and after he had become indebted upon the causes of action on which the judgments were rendered, the defendant A. Schisselbauer and the defendant Barbara his wife conveyed to defendant Dorman lots 1, 2, 3, 6 and 7 in block 7 in the platted portion of Glencoe in McLeod

1 See 3 Freeman, Executions (3d ed. 1900) §§ 426-429.

It has been held that where the defendant has left the state a bill for equitable execution may be maintained against his debtor without execution returned unsatisfied or even a judgment at law. See Pendleton v. Perkins, 49 Mo. 565, 567-568 (1872). Sed quaere, in the absence of statute.

county and containing more than one acre, with intent to defraud the creditors of the former, and especially the plaintiff; that Dorman took the deed with knowledge of the fraud, and on April 15, 1882, conveyed the same property to defendant Barbara, without any consideration; that both deeds were recorded.

Judgment is demanded that each of the deeds be declared fraudulent and void, and be cancelled of record; that each of the judgments be adjudged to be a lien on the real estate, and that it be adjudged to be subject to levy and sale on execution for the satisfaction of the judgments, with the general prayer for relief.

A demurrer to the complaint as not stating a cause of action was sustained by Macdonald, J., and the plaintiff appealed.

MITCHELL, J. There are two classes of cases, both commonly called creditors' suits, which, although closely allied, are clearly distinguishable. The first, a creditor's suit strictly so-called, is where the creditor seeks to satisfy his judgment out of the equitable assets of the debtor, which could not be reached on execution. The general rule is that such an action cannot be brought until the creditor has exhausted his remedy at law by the issue of an execution and its return unsatisfied. This was required because equity would not aid the creditor to collect his debt until the legal assets were exhausted, for, until this was done, he might have an adequate remedy at law. The execution had to be issued to the county where the debtor resided, if a resident of the state. Its issue to another county would not suffice. Reed v. Wheaton, 7 Paige, 663. The second class of cases is where property legally liable to execution has been fraudulently conveyed or incumbered by the debtor, and the creditor brings the action to set aside the conveyance or incumbrance as an obstruction to the enforcement of his lien; for, though the property might be sold on execution notwithstanding the fraudulent conveyance, the creditor will not be required to sell a doubtful or obstructed title. In the latter class of cases, the prevailing doctrine is that it is not necessary to allege that an execution has been returned unsatisfied, or that the debtor has no other property out of which the judgment can be satisfied; for that is not the ground upon which the court of equity assumes to grant relief in such cases, but upon the theory that the fraudulent conveyance is an obstruction which prevents the creditor's lien from being efficiently enforced upon the property. As to him. the conveyance is void, and he has a right to have himself placed in the same position as if it had never been made. The fact that other property has been retained by the debtor may be evidence that the conveyance is not fraudulent; but if the grantee's title be tainted with fraud, he has no right to say that all other means to satisfy the debt shall be exhausted before he shall be disturbed. Botsford v. Beers,

1 Dickinson, J., because of illness, took no part in this decision. - REP.