creditors' bill

These bills are formally, as well as substantially, creditors' bills, by which the complainants are regularly and properly united in seeking satisfaction from subjects against which, as creditors of the defendants, they can properly claim.

A bill in equity, filed by one or more creditors, by and in behalf of him or themselves, and all other creditors who shall come in under the decree, for an account of the assets and a due settlement of the estate of a decedent. The usual decree against the executor or administrator is quod computet; that is to say, it directs the master to take the accounts between the deceased and all his creditors, and to cause the creditors, upon due public notice, to come before him to prove their debts at a certain place, and within a limited time; and it also directs of the executor or administrator, and the same to be applied in payment of the debts and other charges in a due course of administration. 1 Story, Eq. Jur, 442. CREDITORUM APPELLATIONE NON hi tantum accipiuntur qui pecunlam crediderunt, sed omnes quibus ex qualibet causa debetur. Under the head of creditors are included not alone those who have lent money, but all to whom, from any cause, a debt is owing. Dig. 50. 16. 11.

A bill in equity, filed by one or more creditors, for the purpose of collecting their debts out of assets, or under circumstances as to which an execution at law would not be available. It is a proceeding in rem, to make effective a judgment against the debtor's property which is concealed; Houghton & Co. v. Axelsson, 64 Kan. 274, 67 Pac. 825. Such bills are usually filed by and on behalf of the complainant and all other creditors who shall come in under the decree. They may be either against the debtor in his lifetime or for an account of the assets and a due settlement of the estate of a decedent. They are divided by Bispham (Equity) into two classes, numbered in the order here stated. In bills of the second class, or those which in effect seek for the administration of a decedent's estate, the usual decree against the executor or administrator is quod computet; it directs the master to take the accounts between the deceased and all his creditors, and to cause the creditors, upon due public notice, to come before him to prove their debts, and to take an account of all the personal estate of the deceased in the hands of the executor or administrator, and the same to be applied in payment of the debts and other charges in a due course of administration; 1 Story, Eq. Jur. 546. Generally speaking, this jurisdiction has been transferred to probate courts in most of the states, but in some states the original jurisdiction of equity over the administration of estates remains unabridged by the statutes and is concurrent with that of probate courts. See 3 Pom. Eq. Jur. § 1154. Creditors' suits of the other class are brought while the debtor is living and for of common-law remedies by writs of execution. These writs at common law often did not extend to estates and interests which were equitable in their nature, and creditors' suits were therefore permitted to be brought where the relief at common law by execution was ineffectual, as for the discovery of assets, to reach equitable and other interests not subject to levy and sale at law, and to set aside fraudulent conveyances. Statutes in England and America have extended the common-law remedies and provided adequate legal relief in many cases where formerly a resort to equity was necessary; Pom. Eq. Jur. § 1415. The jurisdiction of chancery in suits brought by judgment creditors to enforce the collection of their judgments, after having exhausted their remedy at law, although it may have previously existed, is in some states expressly declared and defined by statutes. Before a creditor can resort to the equitable estate of his debtor, he must first obtain judgment and seek to collect the debt by execution; exhausting his remedy at law; Scott v. Neely, 140 U. S. 106, 11 Sup. Ct. 712, 35 L. Ed. 358; Taylor v. Bowker, 111 U. S. 110, 4 Sup. Ct. 397, 28 L. Ed. 368; Newman v. Willetts, 52 111. 98; Lawson's Ex'r v. Grubbs's Adm'r, 44 Ga. 466; and it must appear that a judgment has been recoyered, execution issued thereon and returned "nulla bona;" Preston v. Colby, 117 111. 477, 4 N. E. 375; Taylor v. Bowker, 111 U. S. 110, 4 Sup. Ct. 397, 28 L. Ed. 368; but this rule is said to be too general; 3 Pom. Eq. Jur. § 1415; it probably would not apply where the judgment was a lien; id.; Fleming v. Grafton, 54 Miss. 79; and in the federal court the objection that the claim has not been reduced to judgment can be raised only by defendant and may be waived; Pennsylvania Steel Co. v. Ry. Co., 157 Fed. 440. A judgment cannot be questioned upon a creditor's bill brought to secure its payment; Mattingly v. Nye, 8 Wall. (U. S.) 370, 19 L. Ed. 380. In a few jurisdictions the equitable rule has been changed by statute, so that suits to set aside fraudulent conveyances may be maintained by simple contract creditors; Builders' & Painters' Supply Co. v. Bank, 123 Ala. 203, 26 South. 311; Riggin v. Hillard, 56 Ark. 476, 20 S. W. 402, 35 Am. St. Rep. 113; Huntington v. Jones, 72 Conn. 45, 43 Atl. 564;. Phelps v. Smith, 116 Ind. 399, 17 N. E. 602, 19 N. E. 156; Balls v. Balls, 69 Md. 38S, 16 Atl. 18; Sandford v. Wright, 164 Mass. 85, 41 N. E. 120; Dawson Bank v. Harris, 84 N. C. 206; Greene v. Starnes, 1 Heisk. (Tenn.) 5S2; S to vail v. Bank, 78 Va. 188; Frye v. Miley, 54 W. Va. 324, 46 S. E. 135. A judgment of a court of record is ordinarily sufficient: Chalmers v. Sheehy, 132 1105; Thorp v. Leibrecht, 50 N. J. Eq. 499, 39 Atl. 301; but a judgment may be dispensed with when a creditor desires to rea< b assets of a deceased debtor; Mallow v. Walker, 115 la. 238, 88 N. W. 452, 91 Am. St. Rep. 158; or when a debtor has absconded and cannot be found within the state; First Nat Bank of Riverside v. Eastman, 144 Cal. 487, 77 l'ac. 1043, 103 Am. St. Rep. 95, 1 Ann. Cas. 020; Quail v. Abbett, 102 Ind. 234, 1 N. E. 470, 52 Am. Rep. 662; or where the debtor is insolvent and the claim is undisputed; Talley v. Curtain, 54 Fed. 43, 4 0. C. A. 177. An attachment which creates a lien upon real property may be the foundation of a creditor's bill to set aside a fraudulent conveyance; Chicago & A. Bridge Co. v. Packing Co., 46 Fed. 5S4; Evans v. Loughton, 09 Wia 138, 33 N. W. 573. Where execution after judgment is necessary to form part of basis for a bill, it should be directed to and returned either from the county where the judgment was obtained or where the debtor resides; Nashville, C. & St L. R. Co. v. Mattingly, 101 Ky. 219, 40 S. W. 073; Illinois Malleable Iron Co. v. Graham, 55 111. App. 206. Creditors cannot attack the interest of third parties, alleged to have been obtained by fraud, until they have gained a standing in court by legal proceedings; Scott v. Chambers, 62 Mich. 532, 29 N. W. 94; Goode v. Garrity, 75 la. 713, 3S N. W. 150; Tift v. Collier, 78 Ga. 194, 2 S. E. 943; Mc Murt ry v. Masonic Temple Co., SO Ky. 206, 5 S. W. 570. Judgments of the federal court cannot be made the basis of a creditor's bill in a state court; Winslow v. Leland, 128 111. 301, 21 X. E. 5S8; contra, First Nat. Bank of Chicago v. Sloman, 42 Neb. 350, 60 N. W. 5S9, 47 Am. St. Rep. 707; Chicago & A. Bridge Co. v. Fowler, 55 Kan. 17, 39 Pac. 727. The plaintiff in a creditor's bill is not concluded by sworn answer of defendant; Edwards v. Rodgers, 41 111. App. 405. A creditor's bill is not maintainable against a debtor and his fraudulent grantee, after the return of an execution satisfied; Davis v. Walton, SO Me. 401, 15 Atl. 48. A judgment creditor's bill may be framed for the double purpose of aiding an execution and to reach property not open to execution; Vanderpool v. Notley, 71 Mich. 131, 12 N. W. eso. The debtor should be made a party: U. S. v. Howland. 4 Wheat. (U. S.) 108, 4 L. Ed. 526; the person who has possession of the property sought to be reached must be joined; Dobbins v. Coles. 59 N. J. Eq. SO, 45 Atl. 444; and in general all who have interests which will be affected by the decree in the property sought to be reached must be made parties; State v. Superior Court, 14 Wash. 686, 45 Pac. 670; Marshall's Ex'r v. Hall. -IU W. Va. retain the priority thereby gained over other creditors; Senter v. Williams, 61 Ark. 189, 31' S. W. 490, 54 Am. St. Rep. 200; Puliis v. Robison, 73 Mo. 201, 39 Am. Rep. 497; Clark v. Figgins, 31 W. Va. 137, 5 S. i 13 Am. St. Rep. 800 (contra, where other creditors intervene; Johnston v. Papi : L53 Pa. 189, 25 Atl. 560, 885); except in certain suits, where a trust or quasi-trust exists tor all creditors; lauch v. De Socarn N. J. Eq. 524, 39 Atl. 381; Coddingtoo v. Bispham's Ex'rs, 36 N. J. Eq. 574; Raker v. Kinnaird, 94 Ky. 5, 21 S. w. 237; Day v. Washburn, 24 How. (U. S.) 355, 16 L. Ed. 712. It is the tiling of the bill and service of process after the return of execution which gives the plaintiff a specific lien; Iliues v. Duncan, 7'.) Ala. 112, 5S Am. Rep. 580; Keith v. Porter, 119 Mich. 365, 78 N. W.::. Am. St Rep. 402. A court of equity has jurisdiction to sequestrate property in a creditor's suit, where the bill charges fraud as well as incy; Robinson v. Ins. Co., 102 Fed. 794. Intangible property can be reached by creditor's bill, such as patents and copyrights; Stephens v. Cady, 14 How. (U. S.) 52S, 14 L. Ed. 528; Ager v. Murray, 105 U. S. 126, 26 L. Ed. 942; probably the majority rule is that, in the absence of statutory authorization, a creditor's bill cannot reach choses in action unless the case presents some independent ground of equity jurisdiction; Greene v. Keene, 14 R. I. 3S8, 51 Am. Rep. 400. Alimony awarded to a wife cannot be applied by creditor's bill to the payment of a debt contracted before the decree of divorce; Romaine v. Channcey, 129 N. Y. GUM, 29 N. E. S2G, 14 L. R. A. 712, 26 Am. St. Rep. 544; a contingent interest, such as devise under a will, may be subjected to the payment of debts; Jacob v. Howard (Ky.) 22 S. W. 332; so of any equitable interest; Galveston, II. .V

In English practice. A bill in equity, filed by one or more creditors, for an account of the assets of a decedent, and a legal settlement and distribution of his estate among themselves and such other creditors as may come in under the decree.

In American practice. A proceeding to enforce the security of a judgment creditor against the property or interests of his debtor. This action proceeds upon the theory that the judgment is in the nature of a lien, such as may be enforced in equity. Hudson v. Wood (C. C.) 119 Fed. 775; Fink v. Patterson (C. C.) 21 Fed. 602; Gould v. Torrance, 19 How. Prae. (N. Y.) 560; McCartney v. Bostwick, 32 N. Y. 57. A creditors' bill, strictly, is a bill by which a creditor seeks to satisfy his debt out of some equitable estate of the defendant, which la not liable to levy and sale under an execution at law. But there is another sort qf a creditors' bill, very nearly allied to the former, by means of which a party seeks to remove a fraudulent conveyance out of the way of his execution. But a naked bill to set aside a fraudulent deed, which seeks no discovery of any property, chose in action, or other thing alleged to belong to the defendant, and which ought to be subjected to the payment of the judgment, is not a creditors' bill. Newman v. Willetts, 52 III. 98. Creditorum appellatione non bi tantum accipiuntur qui pecuniam crediderunt, sed omnes quibus ex qualibet causa debetur. Under the head of "creditors" are . included, not alone those who have lent money, but all to whom from any cause a debt is owing. Dig. 50, 16, 11.

In English practice. <A billin equity, filed by one or more creditors, for an account of Lhe assets of a decedent, and a legal settlement and distribution of his estate among themselves and such other creditors as may come in under the decree.

In American practice. A proceeding ta enforce the security of a judgment creditor against the property or interests of his debtor. This action proceeds upon the theory that the judgment is in the nature of a fien, such as may be enforced in equity. A creditors’ bill, strictly, is a bill by whieh acreditor seeks to satisfy lis debt out of some equitable estate of the defendant, which is not liable to levy and sale under an execution at law. But there is another sort of a creditors’ bill, very nearly allied to the former, by means of which a party seeks to removea fraudulent conveyance out of the way of his execution. Buta naked bill to set aside a fraudulent deed, which seeks no discovery of any property, chose in action, or other thing alleged to belong tothe defendant, and which ought to be subjected to the payinent of the judgment, is not a creditors’ bill. 52 TL. 98. Creditorum appellatione non hi tantum accipiuntur qui pecuniam crediderunt, sed omnes quibus ex qualibet causa debetur. Under the head of “creditors” are included, not alone those who have lent money, but all fo whom from any cause a debt is owing. Dig. 50, 16, 11.

In England, creditors for an account the estate of a deceased, the decree. A kind of Crepare oculum, I. To