Beall v. Brown

7 Md. 393 | Md. | 1855

Tuck, J.,

delivered the opinion of this court.

We are not to determine, on this appeal, whether the points of law submitted to the court, in the trial at law, were properly decided or not. Indeed, the counsel for the appellant contends that these rulings, whether correct or not, must he taken as the law of this case, and the present bill is framed on the assumption that they are correct, and that he hpd no remedy, except by a proceeding in equity, after the jury, under directions from the court, had found that the beef was sold to the appellant, and not left with him as bailee. But, as this view of the case concedes that he has .a cause of action at law upon the warranty as to the quality and condition of the beef, for the purpose of giving this court jurisdiction of the case, he shows that the appellee has always resided in another State, and cannot be reached by the process of the courts of Maryland, and the relief he asks is, “that Brown may be restrained, by injunction, from collecting his judgment, until he shall have come within this State and signified his presence and willingness to have a suit instituted against him, and have the matter adjusted at law or in this case.”

The point, then, on which the question of jurisdiction turns is, whether the appellant is without adequate remedy at law, in the sense in which that doctrine of equity is to be understood. We have found no cases touching the question before us, except those from Kentucky, referred to on the part of the appellant; in some of which relief was granted, upon the principles of set-off, where one party proved insolvent, or was absent, by reason of which the remedy at law might be obstructed. It is not a general doctrine of that State, though enforced in special cases. Collins vs. Farquar, 4 Littell, 154. Upon the authority of these decisions it is quite probable that the present bill might be supported there, but we are not aware that the chancery jurisdiction here has ever been extended to such cases as the present.

The failure of remedy is not the want of jurisdiction at law over the subject matter, but because the party to be sued cannot be served by process in a proceeding in personam, and not in rem. It is true that the appellee belongs to another jurisdiction, hut so did the appellant in respect to the appellee and his cause of action, yet he was obliged under the law to contend with the same difficulty which the appellant seems unwilling to meet—the prosecution of his debtor in the courts of his own State. It is a very grave suggestion that when a citizen of another State comes here to enforce a right, he shall be restricted to terms not common to our own citizens. Where the question relates to the law of the forum it depends on a different principle. But here the appellee has a judgment, rendered by a State court, which he seeks to collect by process of the same court, and this is denied to him, merely because being a non-resident of this State, he will not consent to be sued here by the defendant in his judgment. Before the present constitution such a demand, if allowed, might have subjected him to the greatest inconvenience or hardship, for he might not have been able to have given the requisite bail in this State. The present state of the fundamental law does not alter the principle. Our laws have devised remedies in some cases, where the party charged absconds or is a non-resident; but it is not the office of a court of equity to supply all cases of omission by the statute or common law. The appellee rests upon his judgment at law. He does not ask the aid of equity, in which case a complainant will be required to do equity. Having come here to enforce a right and obtained a judgment, we do not perceive by what authority a court of equity can deny him the fruits of his judgment, because the defendant in that judgment has a cause of action at law against him, growing out of the same transaction on which the judgment was founded. If he had a subject matter of set-off, or a defence in mitigation of damages, or in bar of the action, he might have relied on it in the action against himself, and taken his appeal, if improperly, rejected by the court, but if he prefers to treat it •,as,.¡a^ substantive cause of action, the non-residence of the party'eánrfot give him a standing in court, as upon an equitable .-claim, when otherwise his remedy would be at law.

Decree affirmed.