¶11. The plaintiff’s bill alleged a contract for work and materials with the defendant Thomas, and a conveyance of his property by him to his wife in fraud of creditors, the wife sharing in the fraud. It sought to have the property applied in payment of the debt due the plaintiff. To this there was a general demurrer for want of equity, and on the ground that the plaintiff had an adequate remedy at law by attachment. Pub. Sts. c. 172, §§ 1, 49; c. 161, § 66. The demurrer was properly overruled. A concurrent remedy in equity is given expressly, by the Pub. Sts. c. 151, § 3. Bernard v. Barney Myroleum Co. 147 Mass. 356, 359. The proviso in § 2, “ when the parties have not a plain, adequate, and complete remedy at the common law,” does not apply to § 3, and was done away with to a great extent where it did apply by’what is now § 4. It is unnecessary to invoke the later statutes. St. 1887, c. 383, §§ 1, 3. St. 1883, c. 223, § 17. No question of form is open.
¶22. The bill was filed on August 4, 1890. The demurrer was filed on August 28, and an answer was filed the same day. Afterwards a written agreement was made between counsel that the “ action may be marked for hearing for Thursday, November 13, 1890,” and the cause was set down for hearing, and was heard on December 2d in pursuance of it. The replication was not filed until December 2d. When the case came on to be heard, and the parties were present with their witnesses, the defendants demanded a jury trial. The judge denied the defendants’ right to a jury as the case stood, and in the exercise of his discretion declined to allow issues to be framed, and directed the trial to proceed. We are of opinion that the course of the judge, so far as it is open to revision, was correct. It is true that, when the agreement was made, the demurrer had not been disposed of, and a replication had not been filed. But the filing of the replication is a formal matter, which so habitually is put off until the hearing that its absence cannot be allowed to affect the *313construction of the agreement. We assume, in favor of the defendants, that the answer did not overrule the demurrer, ([Fogg v. Price, 145 Mass. 513, 514,) but still the agreement cannot be confined to a hearing on the demurrer. It is every-day practice to hear the questions of law raised by the demurrer, and the questions of fact raised by the answer, at the same time, and the agreement must be taken to have contemplated this. It is shown to have done so by the fact that both parties had their witnesses present. Therefore, the defendants had manifested their election to waive any right they might have to a jury. Dole v. Wooldredge, 142 Mass. 161, 179.
¶33. The only other question is whether the pleadings sustain the decree. The judge who tried the case reports that he did not find the alleged fraud to have been proved, but he did find that the defendant Thomas contracted with the plaintiff, on behalf of his wife, the defendant Ellen, as undisclosed principal, and that she owed the plaintiff five hundred and fifteen dollars, and made a decree for that amount. The bill is ill drawn, but beside the elements mentioned as sufficient to sustain it against a general demurrer, it alleges in the seventh paragraph that the defendant Ellen is liable for the labor and materials, and prays that the sum due the plaintiff may be decreed to be paid him by that one of the defendants who shall be found to owe the same. In other words, alongside of the case in equity against the husband there is inserted an alternative count at law against the wife. Nothing could be worse in point of form, but no point of form is open. Furthermore, the answer alleges that the contract was made with the defendant Ellen through the agency of her husband. If it were necessary, in order to sustain the so called decree after a fair trial on the merits, we should leave it open to apply to the Superior Court for leave to amend into an action at law. If the decree on a purely common law claim had purported to impose a personal order on the defendant, with liability to process for contempt in case of failure to obey, there might be a question whether it could be sustained. But the decree is, in truth, only a judgment at law, with an order for execution. This being so, in view of the St. of 1887, c. 383, §§ 1, 3, we are of opinion that the decree may be sustained on the pleadings as they stand. Decree affirmed.