#### *Dunlop & Co. v. Keith and Others.

June, 1829.

[19 Am. Dec. 755.]

(Absent Bjíookjs, P., and Garb, J.*)

Foreign Attachment — Absent Deicndassts† — Case at Bar. — A claim arising out of tile official neglect of the clerk of a county court in Virginia, against the officer a non-resident of Virginia at the time the claim is asserted, is not a claim for debt, for which a. foreign attachment in chancery lies.

Same — Sa»ne—Same.— Neither is the non-resident officer, in such case, amesna.ble to jurisdiction of the court of chancery as an absent defendant.

Dunlop & Co. alleged, that they had sustained heavy loss, by the official negligence or fault, either of Keith, clerk of the county court of Erederick, or of Stephenson, late sheriff of Berkeley. Keith, the ■ clerk, had never given any official bond for the faithful discharge of the duties of his office; and he was now residing in the town of Alexandria in the district of Columbia. Dunlop & Co. proceeded by way of foreign attachment; exhibiting their bill in the superiour court of chancery of Winchester, against Keith, as an absent debtor, against Tidball, his agent having money in his hands belonging to him, as garnishee, and against the representatives of Stephenson, the sheriff; setting forth the amount of loss they had sustained, and the official misconduct to which they imputed it: charging, that, though it might be disputed in actions at law, whether the loss were properly imputable to the official misconduct ox the clerk, or to that of the sheriff, yet Keith the clerk appeared to be I the officer really chargeable; and praying a decree against Keith for the amount of the loss, and the attachment and application of the moneys belonging to him, in the hands of the garnishee, to the satisfaction thereof.

Keith, and the representatives of Stephenson, in their respective answers, denied the official misconduct imputed to them. And Keith insisted, that he was not amesnable, in such a case, to the jurisdiction of the court of chancery.

*Tbe chancellor seemed somewhat inclined to sustain the jurisdiction ; but he did not decide the point; for, finding it impossible, upon the prooffe, to fix the imputed misconduct upon either officer, he for this reason dismissed the bill.

■ Dunlop *&*Co. appealed to this court.

Johnson, for the appellants, and Leigh, for the appellees,

argued the cause upon the merits, as well as the question of jurisdiction. But, in the event, it turned wholly on the point of jurisdiction; and this depended on the construction and effect of the statute concerning proceedings in chancery against absent debtors and other absent defendants, 1 Rev. Code, ch. 123, p. 474.

*

Carr. did not sit. beca.use he bad decided tbe cause in the court of chancery.

†

Debt — Claim Arising (Jot of Official Neglect of Clerk —Attachment. In Maysville, etc., Co. v. Marvin, 59 Fed. Kep. 93, it is said, a claim arising out of the official neglect of a county court clerk was held not to be a "debt.” within the meaning of the statute authorizing an attachment for "debt.” Citing *Dunlop v*. *Keith,*1 *Leigh*430. See monographic *notes*on Debt. The Action of” appended to Davis v. Mead, 13 Gratt. 118: “Attachments” appended to Lancaster v. Wilson, 27 Gratt. 531.

CABELL, J.,

delivered the resolution of the court. If the chancellor had not jurisdiction of the case stated in the bill, it will be unnecessary to look farther.

As early as the year 1744, an act passed (5 Hen. stat. at large, p. 220), authorising a suit in chancery against persons out of the country, and others within the country having in their hands effects belonging to the absent defendants. But that act was intended to apply to those cases only, in which the plaintiffs and the absent defendants stood, towards each other, in the relation of creditor and debtor: for the act recites, as the motive for its adoption, the great difficulties that had arisen in the recovery of debts due to the inhabitants of this country, from persons residing out of it. At a long subsequent period, in the year 1787, (12 Id. 466, 7,) the legislature authorised proceedings against other absent defendants, similar to those which the preceding law had given against absent debtors. The provisions of both these laws, with some others on the same subject, are brought together in the Revised Code.

The hill of Dunlop & Co. states the case of a misfeasance of Keith in office; a mere tort, the action for which dies with the person. It is similar, in this respect, to the case of an escape of a person in execution, by negligence of a x'sheriff or jailor, which makes him personally responsible for the amount *oí*the debt; but he was answerable at the common law, not as a debtor, but as a tortfeasor; and the action died with the person, upon the maxim actio personalis moriiur cum persona. 11 Vin. Abr. 244, 5; Executors, H. a. pl. 1.

Is the case, as stated in the bill, within either that branch of the statute which gives relief against absent debtors, or that which gives against other absent defendants, relief similar to that which is given against absent debtors? The court thinks it comes within neither. Not within th first: for, although the term debtor shoul *154in the construction of this statute, be taken in its largest sense, as embracing every person against whom another has a claim for breach of contract, even where the compensation sounds in damages;* yet Keith cannot be embraced by it, since his case is that of a mere tortfeasor. If he had given an official bond, that would have varied the case. But it does not appear that he gave any. Nor can it come within that branch of the statute, which authorises the same proceedings against other absent defendants, that are allowed against absent debtors. This part-of the statute was not intended to extend the jurisdiction of equity to subjects oyer which it had not jurisdiction before; but, to enable the court of chancery to exercise over’ persons abroad a jurisdiction to which they would, if they were here, be jointly amesnable with the home defendants, in cases in their nature proper for the jurisdiction of equity, such as partners, legatees, joint contractors, &c. Nobody would contend, that Keith, if in Virginia, would be liable to be sued in equity, on the case stated in the bill, either separately, or jointly with the other defendants. And the same remark applies to the representatives of the sheriff.

On this ground, the decree is affirmed.