#### S. S. Farrar & Brothers *vs.*H. G. Haselden and others.

H. Gr. being member of a firm, removed from *the State,*and, after *his*removal, the creditors of the firm brought suits against it, making H. G-. a party under the Act of 1792. Judgments were recovered, but the partnership and the members in this State being insolvent, *the ji. fas.*were returned *nulla bona:*— Held, that the creditors of the firm might file a bill to subject to their claims certain funds in the hands of administrators and the Commissioner in Equity, to which H. G-. was entitled as a distributee, and also certain other funds in the hands of his attorney in fact.

Where an absent debtor is entitled as distributee to funds in the hands of an administrator or the Commissioner in Equity, as such funds cannot be reached by process at law, a bill in equity will lie to subject them to the claims of his creditors.

Where one of several members of a firm removes from the State, equity has jurisdiction to subject his individual estate to the claims of the creditors of the firm — such estate not being bound by any judgment at law which the creditors might recover against the firm.

Where a bill is filed to subject the estate of an absent debtor to the claims of his creditors, all the creditors should be called in by notice.

BEFORE D ARCAN, CH„ AT MARION, FEBRUARY, 1857.

This case will be understood from the decree of his Honor, the Circuit Chancellor, which is as follows:

Hargah, Ch. The bill in this case was filed to subject certain funds of defendant, Hugh Gr. Haselden, in the hands of defendant, C. D. Evans, as Commissioner in Equity for Marion District, arising from sales made, under the order of this Court, of the estate of the late Mrs. Sarah Godbold, of whom the defendant, William Evans, was administrator; and also of the estate of the late William Haselden, of which the defendant, H. Gr. Haselden, was distributee- in right of his .deceased father, John Haselden, of whom the defendant. *332James Haselden, was administrator; and also to subject any funds in tbe bands of either administrator to wbicb H. Gr. Haselden was entitled, as well as certain funds and cboses in action wbicb were in tbe bands of tbe said defendant, C. D. Evans, as attorney in fact of tbe said H. Gr. Haselden, wbo bad removed from, and resided out of tbe State, at tbe filing of tbe complainants’ bill.

Tbe complainants are judgment creditors (and were so at tbe filing of tbe bill in July, 1855,) of tbe firm of Moody, Einklea & Co. Tbe firm of Moody, Einklea & Co., consisted of Josiab *W.*Moody, H. Gr. Einklea and H. Gr. Haselden, tbe defendant. After tbe dissolution of tbe firm, and after tbe said H. Gr. Haselden bad left tbe State, actions were commenced in tbe Court of Common Pleas for Marion District, against tbe firm, by complainants, on notes of tbe same, in wbicb tbe parties, Moody and Einklea, were served witb process, and tbe defendant made a party by a suggestion on tbe record, under tbe Act of tbe Legislature passed in 1823, tbat be was out of tbe State. Judgments were obtained against tbe firm in this way, upon wbicb writs of *fieri facias*were issued, and returned by tbe sheriff “ *nulla*bona.”

J. W. Moody and H. Gr. Einklea were made parties, defendants, to tbe bill, and an order *pro confesso*bad been taken against them, as well as tbe two administrators, Wm. Evans and James Haselden. '

Tbe bill charged tbe recovery of their judgments as above mentioned, tbe total insolvency of J. *W.*Moody and H. Gf. Einklea, as members of tbe firm in this State, as well as of tbe firm of Moody, Einklea & Co:, and tbat tbe assets of defendant, H. Gr. Haselden, were only available to satisfy their debt, and that' as to any part of said assets, tbe complainants had no remedy at law, nor could they reach tbe same by any process of tbe Court of Common Pleas, and prayed tbat tbe funds respectively named be paid over to *333them, unless funds of the partnership should be discovered by the firm of Moody, Einklea & Co., to pay their debt.

The answers of C. D. Evans and H. G. Haselden denied the jurisdiction of the Court until complainants had exhausted their remedy at law, by taking the persons of Moody and Einklea into custody — the defendant, Haselden, alleging that there was, or ought to be, enough realized from the partnership to pay the debts of the firm, and that defendant, Moody, was in possession of a tract of land.

The answer of 0. D. Evans stated that in respect to the funds in his hands, as attorney, the complainants had their remedy at law; that the same were already attached in his hands by individual creditors of said Haselden, &c.

It was proven satisfactorily to the Court that both Moody and Einklea were utterly insolvent — judgments to a large amount were recovered against them, and many executions older than complainants’ had been returned *nulla bona*by the sheriff. Einklea had taken the benefit of the prison bounds Act in the spring of 1856, and had left the State, and Moody is now an applicant for the benefit of the insolvent debtor’s Act. He had been sold out by the sheriff, and the land he lived on had been bought by one John H. Moody, without reaching complainants’ judgments. It further ■ appeared that the attachment, on which the defendant, C. H. Evans, was made garnishee of H. G. Haselden, had been dissolved by Haselden on putting in special bail to the action since the filing of the bill; that Haselden returned from Elorida, where he had removed with his family, and lived at the filing of the bill, and had lived in the District of Marion since the fall of 1855.

The Court is of opinion that complainants have made out a case for relief in this Court.

As to the funds in the hands of the Commissioner in Equity, or in the hands of the administrators, Vm, Evans and James Haselden, they could not proceed by attachment at law, and could reach it by no process of a Court of law.

*334As to tbe funds in the hands of 0. D. Evans, as attorney of said Haselden, it does not appear how the complainants are in a better situation by the process of the Court of Common Pleas.

The firm, of which he was an absent partner, was sued to judgment under the provisions of the Act of 1823, which provides that in a case like this, the judgment shall be effectual against the parties resident in the State, who had been served, and against the partnership property, but shall not be binding upon the absent partner, who has not been served. It was a partnership debt, and the Court is at a loss to perceive how the complainants could reach the funds of the absent partner by attachment or other process of the Court of Common Pleas.

It is, therefore, adjudged and decreed that complainants are entitled to be paid out of the funds which were in the hands of defendant, C. D. Evans, as Commissioner in Equity, and as attorney for said Haselden, at the time of filing said bill, but that the said Evans is'entitled to retain for any sums due him by said Haselden at that time, for advancements or otherwise, but that he is not so entitled for payments made to him or his use after the filing of the bill, as he was then fixed by notice. It is also adjudged that complainants are entitled to any amounts due the defendant, H. Gr. Haselden, in the hands, power, or control of the said ¥m. Evans, administrator of Sarah Grodbold, and James Haselden, administrator of John Haselden, at the filing of the bill, to which said H. Gr. Haselden was entitled as distributee, or otherwise as grandson of Sarah Grodbold, or son of John Haselden, deceased.

It is, therefore, ordered and decreed, that it be referred to C. *W.*Miller, Esq., special referee, to inquire and report the amount of funds and choses in action in the hands of the defendant, C. D. Evans, both as Commissioner in Equity, from the proceeds of sales of property made under the order *335of tbis Court, as described in tbe pleadings, and also as attorney of defendant, Hugb Gr. Haselden, wbicb were coming to and due said Haselden at tbe time of filing of complainants’ bill, allowing said Evans all discounts and payments prior to tbe filing of tbe bill. That tbe special referee also report tbe amount due tbe said H. Gr. Haselden by tbe defendant, ¥m. Evans, administrator of Sarab Grodbold, and James Haselden, administrator of Jobn Haselden, deceased, at tbe time of filing of complainants’ bill or service, or tbe amounts coming to tbe said H. Gr. Haselden from either of said administrators.

It is further ordered that tbe said special referee do report tbe amounts due upon the judgments of complainants, and of James Hazlit and C. C. Morse against Moody, Einklea & Co.

Tbe defendants, Hugb G. Haselden and C. D. Evans, appealed and moved tbis Court to reverse or modify tbe decree for error in tbe following particulars, to wit:

1. That, upon an issue made by tbe pleadings, between tbe complainants and tbis defendant, Haselden, as to tbe ascertained insolvency of tbe resident partners in tbe firm of Moody, Einklea & Co., bis Honor admitted in evidence the schedule of Josiab W. Moody, filed upon bis application for tbe benefit of tbe insolvent laws.

2. That before tbe complainants were entitled to tbe aid of tbe Court, in order to subject tbe equitable estate of tbis defendant, Haselden, to tbe payment of tbe debts of tbe firm of Moody, Einklea & Co., they ought to have exhausted all remedies furnished by tbe process of tbe law coutts against tbe partners who were resident within tbe State, by service upon whom judgment bad been obtained against tbe firm at law.

*3363. Tbat tbe complainants were not entitled to tbe aid of tbe Court, in order to subject to tbe payment of tbeir claims against tbe firm of Moody, Einklea & Co., tbe cboses in action of tbe defendant, Haselden, wbicb bad been deposited witb tbe defendant,- Eyans, as bis attorney for collection.

4. Tbat a part of tbe funds of tbe defendant, Haselden, in tbe bands of defendant, Eyans, as bis attorney, baying been by Haselden appropriated to tbe payment of bis individual creditors, wbo bad a superior equity to be satisfied thereout, tbe decree should have protected tbe defendant, Eyans, to tbat extent, against tbe claims of tbe creditors of tbe firm on tbe funds in bis bands as attorney.

*Inglis,*for appellants.

Harllee, contra.

Tbe opinion of tbe Court was delivered by

HüNKIN, Ch.

Where a debtor is absent from this State, baying property within tbe State wbicb cannot be reached by tbe ordinary process of law, it has been a practice, much older than *Kinloch*vs. Meyer, (Speer Eq. 427), to grant relief in this Court as against such property, to tbe creditors of such absent 'debtor. In such case be may have taken no steps to recover, or establish, bis demand at law, because tbe law afforded no process by, which be could make' bis debtor a party in Court. Attachment will not lie against executors or administrators in possession of funds of tbe absent debtor; and, in *Bank of the United States*vs. Boatwright, 4 McC. 30, it was ruled tbat attachment could not be maintained where any member of the co-partnership was resident within tbe State and amenable to tbe ordinary process. In such case tbe Act of 1792, bad provided a legal remedy; and tbe Act *337of 1823, referred to in the decree, was to give a remedy against joint contractors, wbo were not partners, and, therefore, not witbin the purview of the Act of 1792.

In the recent case of *Gadsden*vs. *Carson,*(MSS. Charleston, January, 1857,) the Court had occasion to consider the relative rights of individual and co-partnership creditors. The prior right of the co-partnership creditor to be paid out of the co-partnership assets- was there recognized, and it was declared that the right of the individual creditor extended only to his debtor’s interest in the balance after the adjustment of the co-partnership accounts. It was further held that the co-partnership creditor was also a creditor of each member of the firm. Under such circumstances it may well be, that, upon the familiar principles of this Court, one, who is only an individual creditor, might require the co-partnership creditor to look first to the co-partnership assets. The plaintiffs have prosecuted their demand to judgment at law against the co-partnership, and their execution has been returned *nulla bona.*This is *prima facie*evidence of a want of assets. The defendants do not aver that any co-partnership assets exist. The schedule of Moody, (one of the partners,) when arrested on a?ca. *sa.*was only cumulative proof, and corroborating the presumption arising from the sheriff’s return on the execution against the co-partnership.

Under the fourth ground of the defendant’s appeal the Court is of opinion that the appellant is entitled to a modification and enlargement of the decretal order. In all the recent decisions upon this subject, viz: *Heath*vs. Bishop, 4 Rich. Eq, 46; *Carlton*vs. Felder, 6 Rich. Eq. 58, and *Brennan*vs. Burke, Id. 200, the Court determined that in a fund, thus brought under the control of the Court, all the creditors of the absent debtor should be permitted to participate, and should have an opportunity to present and establish their demands. In both the latter cases it was held that the form *338of tbe original proceedings was not material, provided a proper notice was given to creditors prior to a final decree.

It is ordered and decreed that notice be published in the Marion Star, to the creditors of Hugh G-. Haselden to present and establish their demands before the special referee, appointed in this case, within three months from the publication of said notice, and that the special referee report upon such claims or demands, (including that of defendant, C. D. Evans, for debts paid by him,) with leave to report any special matter ; the decretal order of the Circuit Court is enlarged and modified accordingly, and in all other respects, the same is confirmed.

JOHNSTON and Wakdlaw, CC., concurred.

Dabgakt, Ch., absent at the hearing.

*Decree modified*