Johnson & Co. v. O'Donnell & Burke , 75 Ga. 453 ( 1886 )

Blandford, Justice.

The bill filed in this case (which is set out in the report) was demurred to for want of equity. The court sustained the demurrer and dismissed the bill, The plaintiff excepted, and error is now here assigned on said exception.

The allegations in the bill are to be taken as true. Where a party purchases goods, who is insolvent, and, not intending to pay, conceals, his insolvency and his intention not to pay for them, he.is guilty of a fraud which entitles the vendor, if no innocent third party has acquired an interest in them, to disaffirm the contract and recover the goods. 93 U. S., 633; 1 Hill, 302, 311; 53 N. Y., 462; 79 Id., 255; 15 M. & W., 216; 70 Ga., 417; 68 Id., 138; 42 Id., 46; Qode, §§2635, 3175, 3173. Under the- allegation in the bill, a court of equity has jurisdiction, and the remedy in equity is more adequate and complete than at law. Code, §2635. The bill shows that plaintiff’s goods, thus fraudulently acquired by O’Donnell & Burke, have been fraudulently transferred to the other defendants in the bill. The subject-matter, is the goods of plaintiff, and to avoid a multiplicity of suits, a court of equity would have jurisdiction, there being no objection of multifariousness or misjoinder of defendants. •

The complainant has the rights of a creditor to test the validity of preferred debts, and to require, an accounting from the assignee. 70 Ga., 313, 321.

There was error in sustaining the demurrer and dismissing the bill.

Judgment reversed.