#### *Moses White and James Alexander*vs. *Samuel*Floyd, *Administrator of John*White, *and James*Nesbitt.

1. Bill filed by the son and only heir of an intestate, against his administrator, for an acceunt of his estate, and for an injunction to restrain the enforcement of a judgment obtained by the administrator, against the complainant, the judgment being founded on an action of trover, for the conversion of a negro, and commenced by a foreign attachment to which complainant never appeared. The attachment wa« levied on a tract of land belonging to complainant, which was sold. The administrator had in his hands a sum: of money, as ascertained by the report of the commissioner, to whom the matters of account had been referred, to which complainant was entitled ;; and the administrator claimed to be entitled to set off his judgment against, this demand; but, *held*by the court, that the judgment could not be received for this purpose, as it was neither prima facie nor conclusive evidence of a debt due by complainant to the administrator.

2. The principle upon which those cases proceed, in which it has been, held that a judgment in attachment in one State, is not conclusive in am action brought upon it in another State, is, that nothing is evidence against a party except what he, himself, makes so by some act or word, either positively or negatively; and that never can be when he is wholly ignorant of the matter, or when he would be heard if he knew it; which is the case in> foreign attachment, unless the party put in bail to the action. *Vide*Sear-geant on Attachment, 2.

3. That part of the Attachment Act, (1 Brev. Dig. 35,) which provides, that unless the defendant shall appear and make his defence within a year and a day after declaration filed, final and absolute judgment shall be given and awarded for the plaintiff, is fully answered by allowing the judgment to be final as to the thing attached.

4. A proposition, that it be referred to the commissioner to ascertain the fact of the trover and conversion, and the amount of the damages, or that an issue at law should be ordered for that purpose, to furnish defendant with matter of defence to his suit, on the ground that complainant resided out of the State, and had no other effects within it, refused by the court.

*5.*Complainant, by an amendment to his bill, prayed that the sale of the land which had been attached, might be set aside, on account of inadequacy of price, the land having been bid offby defendant, N., for ten dollars, whem it was in proof that it was worth one thousand dollars, as well as on the ground that defendant, F., the administrator, had in his hands nearly a sufficient amount, belonging to complainant, to satisfy the demand for which, the attachment issued; but before the sale, complainant had conveyed, the' *352land by deed, without warranty, to one W., and W. to G., in like manner. Defendant N. brought trespass to try titles against G., and had a Verdict, on the ground that complainant had conveyed to W. with an intent to defraud defendant F. Held, that the effect of setting aside the sale, would be to give complainant the benefit of his own fraud.

6. Mere inadequacy of price, not enough to set aside the sale. Fraud is the ground, and inadequacy the evidence of it, which could not be predicated on a judicial sale.

7. Even if the sale were set aside, complainant would not be benefitted, as he had conveyed to W. and W. to G., to whose benefit it would enure, and he was concluded by the recovery against him at law.

*Before*Johnson, Ch., *at iSpartanburgh, June*Term, 1843.

*Bill for Account and Injunction.*

Johnson, Ch. This bill was originally a bill for an ac-cbunt against defendant, Floyd, as administrator of the estate of defendant’s intestate, John White, of whom complainant, White, was the son and only heir, for an account of his estate, and for an injunction to restrain defendant, Floyd, from enforcing a judgment at law, obtained against complainant, White, in an action of trover, for which complainant, Alexander, was bound as his bail. All the matters arising out of this bill were disposed of by the decree of the court, at June term, 1842, except the matters of account, and as to these, the commissioner reports that defendant, Floyd-, has in his hands $275 90, to which complainant, White, is entitled, computed up to the 17th Nov. 1838; and as to this, the only question is, whether Floyd is entitled to set off against it a judgment for $592 89, which he obtained against complainant, White, at law. The judgment was founded on an action of trover for the conversion of a negro, which was commenced by a foreign attachment, levied on a tract of land belonging to complainant, White, to which he never appeared. After judgment, execution issued, and the land was sold under it, and purchased by defendant, Nesbitt; and the true question is, whether this judgment can be received as conclusive or *prim,a facie*evidence of a debt due by complainant, White, to defendant, Floyd.

*353The question is a novel one here, nor have I been able to find that it has been any where directly decided. The proceeding by foreign attachment, was intended to give a creditor a remedy against his debtor who had fled or was absent from the State, leaving property within it, and is against the thing itself, and whilst from necessity it must be suffered to operate upon it, extreme danger would result from suffering it to operate beyond it. No one would leave a large estate,' for any length of time, without procuring some one to superintend or take care of it, from whom he might expect to receive all the information necessary to the preservation of it; but the most trifling articles of property are the subjects of attachment, and if one claiming to be a creditor, could entitle himself to a judgment on attachment, by levying it on a stray pig or pocket handkerchief which belonged to the absent party, and to have that judgment regarded as conclusive or even *prima facie,*evidence of a debt, it might lead to the most injurious consequences. If that be so, there is no relative proportion between the amount of the debt claimed, and the value of the property attached. If that be of the amount of one dollar, the judgment maybe for an unlimited amount, having no better foundation than fraud and perjury, and that too, without the actual knowledge of the party chargeable. The wealth of the Indies could not sustain the absent party against the demands that might be created against him by these means. Say that it is only *prima facie*evidence of the debt or demand, and the absent party may rebut or disprove it; that is, requiring of the defendant to prove a negation, a thing always difficult, and most frequently impossible. If, for example, the declaration in attachment charged money lent, or a trespass on the person of the plaintiff, (for it appears that in the interpretation of our Attachment Act, it has been held that attachments lie for trespass,) how could the defendant prove that he had never borrowed the money or beat the plaintiff 7

According to the custom of London, on which our Attachment Act is based, there can be no judgment against the absent debtor, on foreign attachment. It goes against the ¿roods and effects actually attached, or against the gar*354nishee. Seargeant on Attachments, 111; 2 lb. 121; and it has been again and again decided, that a judgment in attachment in one State, is not conclusive in an action brought upon it in another State. See *Phelps*vs. Holker, 1 Dale, 261; *Betts*vs. Death, Addison’s Rep. 265; and in *Kilburn*vs. *Woodworth,*5 Johnson’s Rep. 37, it was held that a judgment in Massachusetts was inadmissible in evidence of a debt in the courts of New York, because the attachment of an article of property could not bind the defendant, and only bound the goods attached as a proceeding in *rem;*and the case of Kebbe\s. *Kebbe,*Kirby’s Rep. 119, is to the same effect. These were judgments obtained in .other States than those in which the records were offered in evidence, and it may be said are not analogous; but the 1st section of the 4th article of the Constitution of the United States provides that full faith and credit shall be given in each State to the public acts, records, and judicial proceedings in every other State; and if they were evidence, either conclusive or *prima facie,*in the courts of the State in which they were obtained, they would be so in all the other States. The principle on which the cases proceed, is that nothing can be evidence against a party, except what he, himself, makes so by some act or word, either positively or negatively, and that never can be where he is wholly ignorant of the matter on which he would be heard, if he knew it, and such is the case in foreign attachments, unless the party put in bail to the action. Sear-geant on Attachments, 21.

We are here met with the Attachment Act, 1 Brev. Dig. 35, which provides, that unless the defendant shall appear and make his defence within a year and a day after declaration filed, “final and absolute judgment shall be given and awarded for the plaintiff in attachment.” The demands of the Act are, I think, fully answered by allowing the judgment to be final as to the thing attached ; and I will not force a construction to operate upon a person not a party, and over whom the court had no jurisdiction, in violation of the plainest principles of common sense and common honesty. The judgment in attachment offered in evidence in this case, cannot, therefore, be admitted,

*355In anticipation of this result, it was proposed that it he referred to the commissioner to ascertain the facts of the trover and conversion, and amount of the damages, or that an issue at law should he ordered for that purpose, to furnish the defendant with matter of defence to this suit; and the ground of it is, that complainant, White, lives out of the State, and has no other effects within it. But I know no precedent for such a proceeding, and I am not disposed to make one, which would have the effect of introducing into court a matter entirely foreign to its jurisdiction. The defendant has all the rights and remedies for a wrong done which any one else would have against one absent from the State.

The land attached, as before stated, was hid off by de--fendant, Nesbitt, at ten dollars, and the proof is, that it was worth $1000. By an amendment to the bill, the complainant prays that this sale may be set aside, on the ground, 1st. Inadequacy of price. 2d. That defendant, Floyd, had in his hands a sufficient, or nearly a sufficient amount of money, belonging to the complainant, White, to satisfy the demand for which the attachment issued.

This bill cannot be sustained. Before that sale, complainant, White, had conveyed the land, by deed, without warranty, to Jos. Wofford, and Wofford had conveyed in like manner to one Samuel Gentry, and in an action of trespass to try titles, brought by Nesbitt, a verdict was found for the plaintiff, on the ground that the complainant, White, had conveyed the land to Joseph Wofford, with an intent to defraud the defendant, Floyd, and was, therefore, void. That circumstance was calculated to prevent, and probably did prevent, the land bringing a fair price, and to set aside the sale would be to give the complainant, White, the benefit of his own fraud. Besides, the mere inadequacy of price, is not enough to authorize the court to set the sale aside. Fraud is the ground, and inadequacy the evidence of it, and I do not know how that could be predicated on a judicial sale. It would not be presumed, and there is no evidence of actual fraud. There is another reason equally conclusive. White could take nothing by setting aside the sale, for he had conveyed to Wofford, and Wofford to Gentry, and if the sale was set aside, it must *356enure to the benefit of Gentry, and he is concluded by the recovery against him at law. Defendant, Nesbitt, was no party to the original bill, but was made so by the amendment, and according to his own answer, all the litigation has been brought about by his own procurement, for the joint benefit of himself and his co -defendant, Floyd, on an agreement that he should pay all the expenses and divide the profits with Floyd, a transaction which, if not strictly legal, is of most mischevious tendency and wholly irreconcilable to sound morality, and he will hardly complain if he is held jointly liable with Floyd for the costs of the original bill. The amendment to the bill, except so far as was intended to make Nesbitt a party to the original bill, has been shewn to be without foundation, and of this, complainant, White, must pay the costs.

It is, therefore, ordered and decreed, that the defendant, Samuel Floyd, do pay to complainant, Moses White, $275 90, with interest from the 17th November, 1838, and that defendants, Samuel Floyd and James Nesbitt, do pay the costs which have accrued on the original bill and the costs of the answer of defendant, Nesbitt, to the amendment to the bill. Complainant, Moses White, to pay all the other costs of the amendment.

The defendants appealed, on the grounds that the judgment in attachment was properly a subject of discount, and ought to have been admitted.

That the decree of Chancellor Dunkin was conclusive upon the admission of the judgment.

That Floyd ought to have been allowed his expenses, and fees paid as executor.

That no exceptions having been filed to the report which admitted the judgment in discount, the complainants had no right to strike it out on objections at the hearing.

That the costs ought to have been paid by complainants ; or, at least, out of the funds in dispute.

That the decree is in other and many respects contrary to law, and the practice of courts of equity.

*Henry*& Bobo, for the appellants,

cited 3 Brev. Rep. 34; 3 McCord, 251 ; 1 Stark. 215; 7 Stat. at Large, 116 : 9 Mass. Rep. 473. (a.)

*357Young, contra,

cited 1 Bail Rep. 242; 13 Johnson’s Rep. 203; 5 Id. 37.

*Per Ouriam.*

The court concur in the decree of the circuit court. The matters referred to in the 2d and' 4th grounds of appeal, were not before the circuit court, and are inadmissible here. Appeal dismissed.