13 R.I. 592 | R.I. | 1882
The bill alleges that Walter Paine, 3d, one of the defendants, is indebted to the complainant by promissory note in the sum of five thousand dollars and interest, and seeks to obtain payment thereof out of certain equitable interests, which came to him under the will of his father, and which he is alleged to have conveyed to one of his co-defendants for the purpose of defeating the claims of the complainant. The bill also alleges that between the making and maturity of the note said Paine absconded, so that he cannot be found either in this State or in Massachusetts, the State of his domicile, and that he has left no property in this State which the complainant can attach and thereby secure service in any action to recover judgment against him, and that the complainant has exhausted all its remedies at law. The defendant demurs to the bill on the ground that it does not appear by the bill that the claim of the complainant has ever been reduced to judgment at law, or that execution has ever been sued out thereon.
The question is whether a suit in equity can be maintained to enforce payment of a purely legal claim out of equitable assets before the claim has gone to judgment and execution at law. The counsel for the complainant admit that as a rule it cannot; but they contend that the only reason why it cannot is because a court of equity will not interpose until the creditor has exhausted his remedies at law, and because the best evidence that he has exhausted them is a judgment, when recoverable, with execution sued out thereon and returned unsatisfied for want of property. And they also contend that, when this evidence cannot be procured because the debtor is absent or has absconded, leaving no attachable estate, the court will proceed without it upon other satisfactory proof. They cite a Kentucky case in which this view is fully sustained by judicial decision. Scott v.McMillen, 1 Litt. 302. They also cite cases which contain favorable dicta, some of which appear to have been expressed after careful consideration. Russell v. Clark's Executors, 7 Cranch, 69, 89; Miller v. Davidson,
Besides these cases, cited by counsel, we have found other cases which emphatically support the same view, cases, indeed, from which it appears that the jurisdiction contended for has been unequivocally affirmed in Kentucky, Virginia, Indiana, South Carolina, and Missouri. Scott v. McMillen, supra; Peay v.Morrison's Executors, 10 Gratt. 149; Kipper v. Glancey, 2 Blackf. 356; O'Brien v. Coulter, 2 Blackf. 421; Farrar v.Haselden, 9 Rich. Eq. 331; Pendleton v. Perkins, 49 Mo. 565. In the last cited case the court, after reviewing the other cases, say, p. 568: "It seems thus to be satisfactorily settled upon authority that when the debtor has absconded, so that no personal judgment can be obtained against him, and there is no statutory proceeding by which his property can be reached, a creditor's bill will lie, in the first instance, and from the necessity of the case. It is analogous to a proceeding to subject the equities of a deceased debtor, or to satisfy a debt from a specific equitable fund, as to enforce a lien, in neither of which cases is a personal judgment required."
If it were true that the only reason for the rule is the exhaustion of legal remedies, we should not hesitate at all to assert the jurisdiction, for very clearly where no legal remedy exists, none can be exhausted, and the reason for the rule would cease, and with the reason the rule itself. "Cessante rationelegis, cessat ipsa lex." There is, however, another reason for the rule, namely, that a court of law is the proper tribunal not only to afford a remedy for legal claims, but also to adjudicate them. It seems to be well settled, however, that a creditor may proceed in equity without first getting judgment at law, if his debtor be dead. And if he can so proceed, if his debtor be dead, there can be no insuperable reason against his so proceeding while his debtor is alive. Thompson v. Brown et al. 4 Johns. Ch. 619; O'Brien v. Coulter, 2 Blackf. 421; Steere v.Hoagland,
NOTE. — The demurrer filed in this case raised other points of law which were neither presented to the court, nor considered by it in the hearing which preceded the above opinion.
