cases, where a prior judgment was held unnecessary:

Ratekin v. Droge Elevator Co. (1920) 190 Iowa, 596, 180 N. W. 654, where it was held that it was not necessary for a creditor to reduce its claim against a nonresident debtor to judgment before questioning the bona fides of his assignment to a third party, but that all that was essential as a basis for assailing the purported transfer was that the creditor have a lien on the property assigned, such as might be obtained by garnishment proceedings under a writ of attachment;

- Parmenter v. Lomax (1903) 68 Kan. 61, 74 Pac. 634, where it was held that a suit in the nature of a creditors' bill to set aside an alleged fraudulent conveyance of the debtor might be maintained by a creditor who had attached the property in question, and procured a judgment in the attachment suit on constructive service, although no judgment had been rendered against the debtor based upon personal service, and no execution had been issued or returned unsatisfied;

- Kennard v. Hollenbeck (1885) 17 Neb. 362, 22 N. W. 771, in which it was said that the doctrine that proceedings in the nature of a creditors' bill can be maintained only by judgment creditors cannot be held strictly to apply to cases of nonresident defendants who had made fraudulent conveyances of property in the state, as otherwise their general creditors would be without legal remedy, but that in such cases the plaintiff, having obtained his attachment and a special judgment thereon, can enforce his lien by action in the nature of a creditors' bill;

- Kimbro v. Clark (1895) 17 Neb. 403, 22 N. W. 788, which follows the Kennard Case (Neb.) supra, on this point.

And see the statements supra, under III., with regard to First Nat. Bank v. Eastman (1904) 144 Cal. 487, 103 Am. St. Rep. 95, 1 Ann. Cas. 626, 77 Pac. 1043, and Lackland v. Smith (1878) 5 Mo. App. 153.

Compare also the cases supra, under IV., and infra, under VI.

VI. Possibility of reaching property by attachment.

The possibility of relief by attachment has been assigned in a number of cases as a ground for refusing to permit the fact of the debtor's absence or nonresidence to abrogate the rule requiring creditors to reduce their claims to judgment before seeking the aid of equity.

Thus in Greenway v. Thomas (1853) 14 III. 271, it was held that the general rule requiring a creditor to reduce his debt to a judgment before calling upon a court of equity to aid in its collection would not be relaxed when it is within the power of the party to comply with it, and hence that a creditor would not be permitted to come into a court of chancery, in the first instance, to set aside an alleged fraudulent conveyance of his debtor, even though the debtor had left the jurisdiction so that a personal judgment against him could not be obtained, where the creditor might have proceeded by attachment.

And in Ladd v. Judson (1899) 174 Ill. 344, 66 Am. St. Rep. 267, 51 N. E. 838, it was held that a bill in the nature of a creditors' bill to reach an equitable interest in lands, or the proceeds thereof, could not be maintained without first procuring a judgment at law within the state, even though the defendant was a nonresident of, and absent from, the state; since a suit by attachment could be maintained whereby the interest of the defendant in the property might be reached and a lien created against it.

Similarly, in Dewey v. Eckert (1871) 62 Ill. 218, it was held that a creditor cannot first proceed in equity to reach property alleged to have been fraudulently conveyed by a debtor who has left the state, where he might have proceeded by attachment against the property, obtained a judgment, and then gone into equity to remove the conveyance out of the way of his execution, or to subject the property to sale and satisfaction of his judgment.

In both Bigelow v. Andress (1863) 31 Ill. 322, and Detroit Copper & Brass Rolling Mills v. Ledwidge (1896) 162

Ill. 305, 44 N. E. 751, it was alleged by the creditor that the debtor had absconded, and was out of the state, but the court refused to accept jurisdiction because the remedy by attachment had not been exhausted.

And in Dodd v. Levy (1881) 10 Mo. App. 121, it was held that a creditor whose demand is purely legal must reduce his claim to judgment at law before he can maintain a suit to reach real estate alleged to have been fraudulently conveyed by the debtor, even though the latter is a nonresident, since he has a remedy by attachment.

And in Smitherman v. Allen (1860) 59 N. C. (6 Jones, Eq.) 17, it was held that a creditor could not maintain a bill to have his debt satisfied by a socalled attachment in equity, under the provisions of a statute, where the debtor, after conveying all his property with an intent to defraud his creditors, had left the state, since he might treat the property as if it still belonged to the debtor and proceed by attachment at law.

In Knox v. Farguson (1916) 97 Kan. 487, 155 Pac. 929, it was held that land conveyed in fraud of the rights of creditors cannot be subjected to the payment of their claims until the claims have been reduced to judgment, or, if the debtor is a nonresident of the state, until the lands have been attached and held subject to the payment of such judgment as may be rendered in the action.

And in Stock Growers' & Ranchers' Bank v. Milisich (1925) Nev. 233 Pac. 41, it was held that the fact that a debtor was a nonresident, and had no property in the state other than that involved in the controversy, would not enable the creditor to maintain a suit, ancillary to an action at law, to set aside an alleged fraudulent conveyance of certain notes and mortgages to the debtor's wife, without previously reducing his claim to judgment or securing a specific lien on the property by attachment or otherwise.

In James v. Schafer (1924) — Cal. App., 233 Pac. 70, it was held, after a review of the California cases, that under the California statute which provides that "a creditor can avoid

the act or obligation of his debtor for fraud only where the fraud obstructs the enforcement, by a legal process, of his right to take the property effected by the transfer or obligation," the creditor, before he can proceed to set aside an alleged fraudulent transfer, must have brought himself into a position where the legal process to which he is entitled is obstructed, and, consequently, that even though the debtor is a nonresident, so that no judgment can be obtained against him, the creditor must, at least, have prosecuted his action so far as to obtain a specific lien on the debtor's property.

And on this ground of the necessity that the creditor first prosecute his action, at least far enough to obtain a specific lien on the property as by attachment, it was held in Roberts v. Buckingham (1916) 172 Cal. 458, 156 Pac. 1018, that an allegation in the complaint in a suit to set aside an alleged fraudulent conveyance, that the debtor was a nonresident, would not remedy the omission of allegations showing that the plaintiff had established his debt by reducing it to the form of a judgment.

In Weaver v. Cressman (1877) 21 Neb. 675, 33 N. W. 478, it was held that a creditor who has not recovered a judgment at law cannot invoke the aid of a court of equity in a proceeding in the nature of a creditors' suit, on the ground of the debtor's nonresidence, where it is not made to appear that there is no attachable property of the debtor within the state.

In First Nat. Bank V. Randall (1897) 20 R. I. 319, 78 Am. St. Rep. 867, 38 Atl. 1055, where a creditor who had obtained a judgment in another state against a nonresident debtor sought to set aside an alleged fraudulent conveyance of land within the state, the court distinguished between cases where the assets sought were purely equitable, and hence no service. of process could be made either upon the debtor himself or by attachment of his property in an action at law, and cases like the one at bar, where, if the transfer was fraudulent as to crèditors, then as to such creditors the

debtor retains his interest in the property notwithstanding the conveyance, and it can, therefore, be attached in an action at law leaving no ground for the assumption of jurisdiction by equity.

But see Taylor v. Branscombe (1888) 74 Iowa, 534, 38 N. W. 400, supra, under III.

And compare the cases supra, under IV. and V.

VII. Remedy in another jurisdiction.

The fact that the creditor had pursued his legal remedy as far as possible in another jurisdiction is referred to in the following cases, where a local judgment at law was not required:

Bank of Commerce & Trusts v. McArthur (1919) 167 C. C. A. 326, 256 Fed. 84, reversing (1918) 248 Fed. 138, which is set out supra, under IV.;

Earle v. Grove (1892) 92 Mich. 285, 52 N. W. 615, holding that a statute giving creditors a right to proceed in equity whenever an execution against the property of the debtor had been issued or a judgment at law had been returned unsatisfied in whole or in part, even if properly held to apply only to domestic judgments, would not bar equitable relief in cases where compliance with the statute was rendered impossible by the death, absconding, or removal from the state, or nonresidence, of the debtor; and hence that a bill averring that a judgment had been regularly obtained upon personal service in another state and the legal remedies exhausted there; that the debtor was insolvent and a nonresident; that the fund sought to be reached to satisfy the debt was within the jurisdiction, and that there was no way in law in which to reach such fund, was sufficient to maintain the suit;

-McCartney v. Bostwick (1865) 32 N. Y. 53, reversing (1860) 31 Barb. 390, holding that the resulting trust created by statute in favor of creditors of one with whose money land is purchased in the name of another may be enforced in a court of equity without previously obtaining a judgment at law within the state, where the debtor

is a nonresident and judgment has been obtained in the state of his residence, so that the creditor has exhausted all the legal remedies open to him; but attention is called to the fact that such an action does not stand upon the footing of a creditors' bill, where the right of the judgment creditor to the ancillary aid of a court of equity depends upon his compliance with the statutory condition requiring him first to exhaust his legal remedy;

Fidelity Sav. & L. Asso. v. Reese (1919) 41 S. D. 546, 171 N. W. 812, holding that a creditor who had secured a judgment in another state, and who had attached property within the state which the debtor had conveyed to his wife, might, without first. securing a domestic judgment against the husband, bring suit against both the husband and wife in one action to recover not only a money judgment against the husband, but also a judgment vacating the conveyance to the wife and adjudging that the money judgment be satisfied out of the property in question;

- Ward v. McKenzie (1870) 33 Tex. 7, 7 Am. Rep. 261, where it was held that a creditor who has recovered judgment in another state against a nonresident debtor need not obtain a judgment in the courts of the state before assailing the conveyance by the debtor of land within the state as fraudulent, but that he may maintain a single action against the debtor and the debtor's grantee, and in such suit obtain service by attachment of the land, if the defendants are nonresidents, and in one and the same judgment recover upon his demand against the debtor, set aside the fraudulent conveyance, and obtain a decree for the sale of the land to satisfy his demand.

In Gasget v. Scott (1836) 9 Yerg. (Tenn.) 244, while it was held that a statute providing that in all cases where personal service of process cannot be made at law, and when no original attachment at law will lie, and no judgment at law can be obtained, and also in cases where the demand is purely of an equitable nature, the court of chancery shall have jurisdic

tion to subject legal and equitable interests in every species of stock and other property, and also in real estate, would not operate in favor of a nonresident creditor so as to enable him to maintain a suit against a nonresident debtor and his fraudulent grantee to subject the property transferred to his debt, where no judgment at law had been previously obtained, it was stated that under another statute a nonresident creditor might, upon the production of a judgment and execution from the courts of the state where his debtor resides, obtain the aid of the courts of chancery in the state to subject the debtor's property to the satisfaction thereof, without obtaining a judgment in the local courts.

And in the following cases, equity refused to take primary jurisdiction on the ground of the nonresidence of the debtor, because of the possibility of relief by judgment at law in another state:

Thus, in Hess v. Horton (1893) 2 App. D. C. 81, a bill in equity by a nonresident creditor against a nonresident defendant to set aside an alleged fraudulent conveyance, and to subject the property to the creditors' claim, was held demurrable, where it alleged merely that the defendant had no property in the jurisdiction which could be reached by any known process, since such an allegation did not exclude the possibility that he might have property sufficient to satisfy the creditors' claim in another jurisdiction where it might be reached by execution.

And in Supplee Hardware Co. v. Driggs (1898) 13 App. D. C. 272, although equity assumed jurisdiction, it was intimated that it did so only because it was made to appear that the nonresident debtor had no property, either within or without the jurisdiction, except the equitable interest which was sought in the suit at bar;

and that if he had possessed property in the state where he resided, the creditor would have been compelled to proceed at law there before his suit in equity would have been entertained.

And in Brumbaugh v. Jones (1904) 70 Neb. 786, 98 N. W. 54, it was held that the nonresidence of the parties would not relieve a creditor of the necessity of reducing his claim to judgment before commencing an action in the nature of a creditors' bill, where no reason was shown why he did not obtain a judgment in another state in which both parties resided.

And in Ballou v. Jones (1878) 13 Hun (N. Y.) 629, it was held that the complaint in an action by a creditor against his debtor and one to whom property paid for by the debtor had been fraudulently conveyed, to set aside the conveyance and subject the proceeds of the property to the plaintiff's claim, must show that the plaintiff had recovered a judgment against the debtor and exhausted all available legal remedies against him; and that the lack of such allegation is not supplied by allegations that the debtor is a nonresident of the state, and has no property therein, where it further appears that he lives in another state and may be proceeded against there by the ordinary forms of law.

But compare Dollman v. Moore (1892) 70 Miss. 267, 19 L.R.A. 222, 12 So. 23, where it was held that the fact that the creditor might have obtained a judgment at law in another jurisdiction was no reason for refusing him relief in equity, and Bateman v. Hunt (1905) 46 Misc. 346, 94 N. Y. Supp. 861, where it was held that the fact that the creditor held a foreign judgment did not put him in any different position, so far as the question under annotation is concerned, than that of any general creditor.

M. A. L.