The opinion
"Waldo, C. J.,
concurring.—This is a suit brought in the interest of certain alleged creditors of James Coffey, to set aside certain conveyances of personal property made by Coffey to defraud, as alleged, the said creditors. There is a fatal objection *519 to the suit in its inception. The claims of the complaining creditors have not been reduced to judgments, and executions returned unsatisfied.
They are all simply contract creditors, alleging a simple indebtedness to them on the part of the alleged debtor. Such suits cannot be maintained. The ground of equitable jurisdiction in such cases is fraud in the disposal of the debtor’s property, and which, unless equitable remedies are applied, will defeat the collection of the debt. But before the fraud can be set up, the legal facts which are conditions precedent must be established. That they must be established at law is implied in the nature of the facts themselves. I¡fc is exclusively the province of a court of law to say that there is a legal debt, and that it cannot be made at law. Therefore a creditor’s bill “must be preceded by a judgment at law, establishing the measure and validity of the demand of the complainant for which he seeks satisfaction in chancery.” (Smith v. R. R. Co. 99 U. S. 401 . And see Baxter v. Moses, 77 Me. 465 .) So in Parish v. Lewis, Freem. Ch. Miss. 306, the court say: “But if you wish to reach equitable assets, or other things not subject to execution at law, you must show that you have exhausted your remedies at law by a return of an execution unsatisfied, as the foundation of your right to come into this court. In such case, the complainant’s right to relief in this court depends upon his having run his execution at law without being able to satisfy his judgment. It is not a mere technical objection, but goes to the very foundation of the suit, and is not waived even by a general answer. The complainant must show an execution returned unsatisfied, and no state of facts will excuse such a
return.” (Brinkerhoff v. Brown, 4 Johns. Ch. 671, 687 ; McElwain v. Willis, 9 Wend. 548 ; Scriver v. Bostwick, 2 McCord Ch. 416 ; Hadden v. Spader, 20 Johns. 554 ; Moore v. Young, 1 Dana, 516 .)
Hodges v. Silver Hill Mining Co. 9 Oreg. 200 , was not a suit to reach equitable assets of the debtor. There the stockholders were primarily liable in equity. Their liability may be likened to that of a guarantor after insolvency of the principal debtor, *520 in which insolvency may be proved like any other fact in the cause of suit. (Pars. Notes and Bills, 142, and cases cited.)
The judgment must be affirmed.