#### *James C. W. Brenan and others*vs. *John M. Burke and Thomas Trout.*

Where a plaintiff in execution, which is in the hands of the sheriff, is absent from the State, his creditor may file a bill against him and the defendant in execution, to subject the fund to the payment of the creditor’s demand.

In such case without amending the title of the bill, so as to make it a creditors’ bill, an opportunity may bo given to other creditors of the plaintiff in execution to appear before the Master, and establish their demands.

All questions as between the creditors are deferred until the coming in of the report upon their claims ; and tho defendant in execution, if he have any claim upon the fund as assignee or creditor, may establish it before the Master under the general order for creditors to present and prove their demands.

*Before*Dunkin, Ch., *at Charleston, February,*1853.

Dunkin, Ch. This cause was formerly heard on demurrer. This admitted all the allegations of the bill, and was overruled by the Court on the authority of *Kinloch vs. Meyer,*Speers’ Eq. 427, and *Bowden*vs. *Schatzell,*Bail. Eq. 360. The answers having been filed, the cause was for hearing in March, 1852, when Chancellor Johnston made an order “that plaintiffs proceed at law with their attachments, there pending, and that the bill be retained until said proceedings be had.” In August, 1852, the proceedings in attachment were discharged by an order of the Court of Common Pleas. The answer of John M. Burke admits his^indebtedness to the complainants, but not to the extent claimed. He says, that he is a citizen and resident of Pennsylvania, that his debts to the complainants were in consequence of a contract which he had made in the Chattanooga Railroad Company, and that his solvency depends on the result of a suit now pending against said Company in reference to that contract; he insists that the complainants have a remedy at law, and that he cannot, in this Court, be compelled to pay one creditor in preference to another, or be controlled in the distribution of his effects amongst his creditors.

It has been stated, that the demurrer in this case was over*201ruled on the authority of *Kinloch*vs. *Meyer*and *Bowden vs. Schatzell.*As early as 1834, it was held in *Young*vs. *Young,*2 Hill, 425, and *Murrell*vs. *Johnson,*3 Hill, 12, that the funds of a distributee of an intestate, in the hands either of the administrator, or the Ordinary, were not the subject of attachment. In *Kinloch*vs. *Meyer,*decided in 1844, it was ruled that proceedings might be had against the administrator, in this Court, on the ground that no remedy existed at law, as the fund was not the subject of attachment. It was argued, .however, that this case might be maintained, perhaps on other grounds than those assumed by the decree. But the general proposition was insisted on, that Equity acts only *in personam,*and that no proceedings in this Court could be maintained to recover a debt due by a person beyond the jurisdiction. From a very early period, it has been the practice of this Court to entertain jurisdiction in cases of Equity cognizance, although the defendant was beyond the limits of the State, provided he had property within the jurisdiction of the Court. Such was the case of *Telfair*vs. *Telfair, 2*DeS. 271, where a defendant residing beyond the limits of the State, was decreed to a specific performance of a contract in relation *to*land in the State; and in *Winstanly*vs. Savage, 2 McC. Ch. 435, Chancellor DeSaussure, who was more familiar with the practice of the Courts in this State than any man then alive, says, that *“*the Act of 1784 did not mean to assume the power of calling *all*foreigners, however remote their residence, before the tribunals of this State ; but that it merely meant to regulate the proceedings in cases where non-residents could be made amenable to the jurisdiction of the Court by holding property within the State, which does, undoubtedly, give jurisdiction both at law and in Equity : at law, by the attachment of the property of the foreign debtor; in Equity, by the mode prescribed by the Statute of 1784.”

So, in *Taylor*vs. Williamson, 1 McMull. Eq. 348, it seems not to have been supposed, either at the bar or on the bench, that the Court was restrained from proceeding, because both the defendants were beyond the jurisdiction of this Court, and that *202Equity could only act *in ‘personam ;*and, in *Garden*vs. *Executors of Sunt,*Cheves, Eq. 42, the bill was dismissed on the ground that both defendants were beyond the State, and that there were no assets of the testator or property of the defendants within the State. In *Kinlocfi*vs. *Meyer,*and *Taylor*vs. *Williamson,*the authority of *Bowden*vs. *Schatzell*is distinctly recognized. The defendant, Schatzell, a citizen and resident of Kentucky, was indebted as survivor of Schatzell & Company, to the complainant, Bowden, on a cause of action, which, in this State, is regarded as a simple contract debt. I. & C. Bolton had attached funds in this State belonging to Schatzell & Company, for a debt due them by certain members of that Company — the whole fund had been paid into Court, and I. and C. Bolton had taken out a moiety thereof, on giving bond as required by the order of the Court. I. and C. Bolton were residents of the State of Georgia. The bill was filed to subject the fund to the payment of the complainant’s demand. It was insisted that the Court had no jurisdiction — that there was plain and adequate remedy at law, and that the defendants were beyond the State. The case was very fully discussed by Chancellor Harper. It was ruled by him, that there were no other defendants than John P. Schatzell as survivor of Schat-zell & Company, and I. and C. Bolton; and that under the Act of 1784, Schatzell was properly before the Court, and the demurrer of I. and C. Bolton was also overruled. He also held that *“*the Court might try and adjudicate the fact whether the complainant was a *bona fide*creditor of the firm of Schatzell & Company, and entitled to payment out of its funds,” that it might establish the demand by its decree, and thus lay the foundation for an application to the Court of Law to order an assignment of the bond, or the transfer of the fund. “ These facts,” says the Chancellor, *“*the Court of Law cannot try, because *it has no means of bringing the parties before*it.”

Accordingly, at the succeeding Circuit Court, the complainant established her demand by the adduction of the proper evidence — and Chancellor Johnston, who presided, ordered I. and *203C. Bolton to pay over to the complainant the fund received by them, with interest. The case had been first heard by Chancellor Harper in February, 1829. An appeal was taken from both decrees, and the cause was heard in May, 1831, by the Appeal Court, then consisting of Chancellor Harper, Judge D. Johnson, and Judge O’Neall. Both decrees were again considered, and were affirmed, except as to the direction, that the amount of the bond of I. and C. Bolton should be paid over to the complainant. But it was decreed, that *“*the absent defendant, J. P. Schatzell, was indebted to the complainant in the amount of her demand, and was entitled to the fund in the custody of the Court of Common Pleas, as well as to an assignment of the bond ; and upon a proper shewing, the Court (of Common Pleas) would order them tobe transferred,” &c. Chancellor Harper had said, in relation to the objection, that John P. Schatzell was beyond the jurisdiction; the Act (of 1784) was made to remedy “ the defect of the English practice.” “ Our Courts do not always act *in personam.” “*An absent person, who has property within the State, may be fairly presumed to look after it, and to know what has become of it. The proceeding is made very notorious by advertisement,” &c. “ I think an absent person, who has property in the State, may be made a party in respect of that property, though there be no other party in the State.” On this point, the judgment of the Appeal Court is explicit, *“*that the complainant could not make Schat-zell a party was her impediment at law; and it is the business of the Court of Equity to remove such impediment. According to the opinion in which we concur, he might be made a party in Equity.”

Whether that decision was well sustained, was expedient, or would, in practice, be attended with inconvenience, is an inquiry which I do not suppose that I have any authority now to entertain. If any fundamental error exists, it may be examined and corrected elsewhere ; I have only to ask whether, on the principles thus declared, the plaintiffs, are entitled to the interposition of this Court. In *Blair*vs. Cantey, *2042 Speer, 34, it was held that the plaintiff’s money in the sheriff’s hands was not the subject of attachment; and in *Burrill*vs. Letson, *2*Speer, 378, that a claim in the hands of the attorney could not be attached, and in the case now before the Court, it was admitted by the demurrer, as it has since been decided, that the plaintiffs have no remedy by attachment. Funds belonging to the absent defendant, Burke, are in the hands of the defendant, Trout. The answer of Burke admits that the plaintiffs are creditors, but not to the amount claimed. Upon the principles, then, heretofore recognized,. John M. Burke may be properly impleaded in this tribunal in respect to this property. It is said this interferes with the control which the absent debtor should be at liberty to exercise; but it may be replied that his absence should not secure him any peculiar privilege or immunity. The case of *Burrill*vs. Letson, and this case, both illustrate the inconvenience to which creditors here may be subjected. Burke makes a contract with the Chattanooga Railroad Company to the extent of $450,000 ; in order to enable him to comply with his contract, he becomes largely indebted to persons in this State. The Company is sued by him, and, on the eve of a recovery, or immediately after the verdict, he goes to Pennsylvania, or California, or Kamtschatka, or “ to parts unknown” (in the language of the bill.) It is insisted that the creditors here, who may very well have relied upon this source for the payment of their debts, (and without it, defendant says he is insolvent,) have no remedy against this fund either at law or in equity, but must go in search of the person of their absent debtor. There may be practical difficulties in rendering this fund available, and there may be difficulty in adjusting the rights of conflicting creditors, but it is not perceived that the absent debtor will be in danger of suffering injustice from the decree of the Court in relation to this fund. See *Heath*vs. *Bishop,.*4 Rich. Eq. 46.

It is ordered and decreed that the defendant, Thomas Trout, pay into the hands of one of the Masters of this Court the amount of the judgment at law obtained against him; that the *205title of the complainants’ bill be amended so as to make it in behalf of themselves and such other creditors of the absent debtor as may think proper to make themselves parties; and that it be referred to the Master to report upon the claims of such creditors as may appear and prove their demands, with leave to report any special matter.

The defendant, Thomas Trout, appealed from that part of the decree which directs him to pay into the Master’s hands the amount of the judgment obtained against him:

1. Because the bill having been by the said decree made a bill for the benefit of all creditors, and that amendment having been made after answer, the defendant is entitled to file a new answer, and make a new defence against the present plaintiffs.

2. Because the bill being by the amendment made a new bill, for the benefit of all creditors, this- defendant, although indebted to the amount of the judgment, is at the same time a creditor of the plaintiff in a larger amount, and is entitled to retain the amount in hand, in preference to other creditors.

*J M. Walker,*for appellant.

*Phillips,*contra.

The opinion of the Court was delivered by

Dunkin, Ch.

No appeal has been taken on behalf of the absent debtor, J. M. Burke. On the contrary, his solicitor insists on the benefit of the decree. The appeal is in behalf of the other defendant, Thomas Trout. Against him Burke had obtained a judgment in the Court of Common Pleas, and the execution to enforce the same is in the hands of the sheriff.

It was said by Lord Eldon, 16 Ves. *327,*that “the Court must be always open to questions upon the carriage of the cause.” And this remark was in reference to the subject of protecting the rights of creditors not specially included in the pleadings, and as to the mode of doing so. See Story’s Eq. PI. *§*903, note 2. In the decretal order, the plaintiffs were directed to amend the title of the bill, so as to make it in behalf of all the other creditors, &c.

*206In the recent case of *Nelson, Carter*& *Co.*vs. *Felder**(a)**,*the Court had occasion to consider this whole subject, and it was then thought, that enough would be done by giving an opportunity to other creditors to present and establish their demands before the proper officer of the Court, although no direct opinion or judgment to that effect was expressed, or demanded by the case.

It is there stated that, of course, all questions as between the tors must be deferred until the hearing of the report upon their respective claims.

So much of the decretal order as directs an amendment of the title of the bill is, therefore, rescinded. If the defendant, Thomas Trout, has, by assignment or otherwise, any claim on the fund ordered to be paid into Court, he will be at liberty to establish his rights under the decretal order, and they will be adjudicated at the hearing of the Master’s report.

It is ordered and decreed that the decree of the Circuit Court as modified, be affirmed, and that the appeal be dismissed.

Johnston and Wardlaw, CC., concurred.

*Decree modified.*

(a)

**Ante.