43 A. 564 | Conn. | 1899
The demurrer to the first count of the complaint was properly sustained. That count states no cause of action against the demurring defendants.
Counsel do not differ very materially as to the conditions which must exist in order that a creditors' bill may be maintained. Such a bill is one brought to enforce the payment of a debt out of the property of the debtor, under circumstances which impede or render impossible the collection of the debt by the ordinary process of execution. 3 Pomeroy's Equity, § 1415; 2 Beach on Equity, § 883; Vail v. Hammond,
In respect to the second count, the demurrer calls in question, not so directly the sufficiency of the averments therein, as it does the relief claimed. The specifications on which the demurrer is based are, in substance, that upon the facts alleged the plaintiff is not entitled to have the relief he asks, because (1) no judgment has been rendered in this State; *50 (2) the plaintiff has adequate remedy at law; and (3) the said trustees have an uncontrollable discretion over the fund in their hands, both as to the principal and as to the income. Let us examine these reasons separately.
As to the first: In this State it is not necessary that a judgment should be rendered before the creditors' bill is brought. The judgment may be rendered in the very action in which the equitable relief is asked. Vail v. Hammond,
The second: It is alleged in the complaint that the trustees are combining with the said William P. to pay over to him the income in advance, so that in no event could it be reached by process of garnishment. It is certain that the remedy at law is not an adequate one, and that the demurrer should not have been sustained on this ground.
The third reason: So for as the principal sum of the fund is in question, the claim of the trustees seems to be supported by the authorities they have cited. Smith v. Wildman,
There is error and the judgment is reversed.
In this opinion the other judges concurred.