120 A. 86 | N.H. | 1923
The plaintiff's bill avers that the defendant William is indebted to him; that William's only attachable property consists of tract of land which he had caused to be deeded to Mabel in fraud of his creditors. The prayer of the bill is that the court order judgment against William for the balance due the plaintiff, decree the land to be the property of William, and subject it to the payment of said judgment. The plaintiff had not, prior to the filing of his bill, sought to establish his debt by an action at law, but after filing the bill, he caused the land to be attached under P. S., c. 205, s. 11, to secure the performance of any decree or order which might be entered upon said bill.
The defendants contend that a creditor must show that an execution has been issued and returned unsatisfied before he can invoke the assistance of equity to reach property conveyed by a debtor in fraud of his creditors. In support of their contention, defendants rely upon a statement of the court in Thompson v. Esty,
As the plaintiff was a simple contract creditor and as the property sought to be reached by his bill was subject to levy upon execution, it was necessary, under the doctrine of the foregoing authorities, for the plaintiff, as a basis for invoking the equity powers of the court, to first obtain a specific lien upon said property by attachment in an action at law brought to establish his claim against the debtor. Such appears to have been the invariable practice, based upon the recognized distinction between the common law and equity powers of our courts. An action at law affords the appropriate machinery for the determination of the primary fact of the existence of the debt. The lien secured by attachment brings the attaching party into privity with the property. The jurisdiction of the court of equity attaches by virtue of the lien. Even if such prior lien were not regarded as essential to equitable jurisdiction in such a case, no sufficient reason appears for departing from the usual appropriate and orderly procedure. Winnipiseogee Paper Co. v. Eaton,
It does not follow, however, that the plaintiff's bill should be dismissed, if, upon consideration, it should appear that the objection to the form or order of procedure can be cured by amendment and that justice would be promoted thereby. As plaintiff's counsel, at the argument, expresses his intention to apply for leave to amend, the plaintiff's right in this respect has been considered. The plaintiff's bill was filed January 13, 1921, and on the same day, a writ of attachment under P.S., *583
c. 205, s. 11, was issued to secure the performance of any decree or order that might be made in the bill. On the following day, January 14, pursuant to the mandate of said writ, a specific attachment was made of said land, and service was completed upon the defendants January 15. Every essential to the correct procedure appears to have been followed except the order in which the several steps were taken. A copy of the bill was annexed to the attachment writ as a part of the declaration, and contained the substance of a good common-law declaration, viz., that "your complainant at the special instance and request of the said William McCarroll sold and delivered to said defendant . . . large amount of milk and cream; that on the 18th day of November, 1918, there was due and owing your complainant from the said defendant the sum of one hundred and fifty dollars ($150.00) for milk and cream so sold, which sum has never been paid, though the said defendant . . . has been requested to pay the same." No reason appears from the record why the plaintiff should not, upon motion, be permitted to amend his bill in equity by adding a count in assumpsit. P.S., c. 222, ss. 7, 8; Trustees of Dartmouth College v. Cameron,
Having thus a specific lien by attachment in an action at law, the plaintiff is entitled to the aid of a court of equity to reach the property. If the original bill cannot be maintained for this purpose, because prematurely brought (Eastman v. Batchelder, *584
As it seems probable that the question reserved will be disposed of in accordance with the foregoing suggestions, it is not deemed necessary to examine plaintiff's claim that, under Laws 1919, c. 63, enacted since plaintiff's cause of action accrued, his bill is maintainable without bringing an action at law; and the same has not been considered.
Case discharged.
YOUNG, J., was absent: the others concurred.