17 Tenn. 244 | Tenn. | 1836
delivered the opinion of the court.
From the facts in this case, it appears that the complainants Wm. A. Gasget& Co., and the defendants, Scott and Tract, who are the persons indebted, are non-residents; that no judgment has been obtained at law; that the demand is of a legal and not of an equitable character, and that no personal service of process has been had in this case. The question then arises, had the Court of Chancery power to entertain jurisdiction of this cause and to give the decree complained of? Clearly there is no principle of equity jurisprudence which ¿ives this jurisdiction, and if it can be sustained, it must be by legislative enactment, which it is said is to be found in the act of 1832, c 11.
Before proceeding to construe this statute, let us examine what will be the result of the construction contended for by Ae complainants. There is no principle of the common law more sacred, than that no man shall be deprived ofhis property by the judgment of a court, without personal notice that he has 'been impleaded therein. This great principle, which has always been considered so important to the safety of the citizen, has been violated in but few instances, and in those only, where Ae evils resulting from requiring the notice, would more than counterbalance those arising from proceeding without it-; or when some peculiar privilege is intended to be given to the citizen of the State, as in the eases of attachments against absconding or non-resident debtors; motions against the public officers of the State, and of securities against their principals. Attachments against absconding debtors are given, because it is the policy of the law and the honest right of the creditor, that his contract shall be tried where it was made. Attachments against non-residents are given as matter of favor to our own citzens, without regard to the right, in order that they may not be compelled to go abroad for the collection of their debts if the means of satisfaction can be had at home; and all judgments on motion without notice are given merely from what is considered to be the sound policy of the country.
Such violations of the common law are watched with great
In the' cities of New York, Philadelphia and New Orleans, there is perhaps scarcely a merchant who is not the owner of either property, stocks or debts to a large amount in the State of Tennessee; under this construction of the statute, every man to whom they may be indebted, may harrass them with suitó’in our courts, compel them to submit to injustice, or litigate their rights at an immense consumption of time and money;'and all this for whose good? Not for the citizens of the State of Tennessee, for their rights are protected without this construction; but, as is argued, solely for the benefit of citizens of other governments, who .stand in no need of our protection, and so far as this statute is concerned, might well exclaim, “let us and our goods alone.” A construction from which
This brings us to the construction of the statute. On the 14th day of December 1831, a statute was enacted, abolishing imprisonment for debt, and on the 18th day of October 1832, the statute under consideration, entitled “An act to amend an act entitled an act to abolish imprisonment for debt, except in cases of fraud,” was passed. It contains four sections. The first provides, “that whenever an execution against the property of a defendant, shall have been issued ori a judgment at law or a decree in equity, and shall have been returned unsatisfied in whole or in part, the party suing out such execution, may file a bill in Chancery against such defendants, and any other person or body corporate, to compel the discovery of any bank stock or other kind of stock, or of any property or thing in action due to him or held in trust for him, and to prevent the transfer of any such stock, property, money or other thing in action, or the payment or delivery thereof to the defendant, except when such trust has been created by, or the fund so held in trust has proceeded from some person, other than the defendant himself, and is declared by will duly recorded, or by deed duly proved and registered.”
The second section provides, “that the court of Chancery shall have power to compel such discovery and to prevent such transfer, payment or delivery, and to decree satisfaction of the residue on such judgment or decree, out of any property, stock, money or things in action, belonging to the defendant, or held in trust for him, with the exception above stated, which shall be discovered by the proceedings in Chancery, whether the same were originally liable to bejakea in execution at law or not; and the court shall have power to order such bond or other securities to be given by either plaintiff or
The evil to be remedied by these sections is manifest. The legislature were apprehensive, that, inasmuch as they had abolished the right td issue an execution against the body of the debtor as a matter of course, upon application, an inducement might thereby be held out to dishonest debtors to vest their property in stocks or debts, which were not liable to execution at law, and out of which satisfaction could not be decreed by a Court of Chancery, as the law stood. To prevent this, the power is expressly given to the Courts of Chancery to decree satisfaction out of stocks and ehoses in action, in the same manner as they had previously done out of an equitable interest in real or personal property; but still the same diligence at law is required before this ban be asked, which is understood to be a judgment and an execution thereon returned unsatisfied in whole or in part.
The 3d section makes provision for the registration of a memorandum of the judgment, in the county where the real estate sought tobe subjected is situated, and in all other cases, in the county where the debtor resides, within sixty days from the time of the rendition of the judgment, without which it shall not bind equitable interests in real estate or other property, or legal or equitable interests in stocks or ehoses in action, and that the lien shall cease unless a bill be filed within ten days from the time of the return of the' execution unsatisfied.
The fourth and last section provides, “That in all cases when personal service of process cannot be made at law, and when no original attachment at law will lie, and no judgment at law canbe obtained, and also in cases where the demand is purely of an equitable nature, a Court of Chancery shall have jurisdiction to subject legal and equitable interests in every species of stock and other property, with the exception herein before stated, and also in real estate, provided that in case of a legal demand, the amount due shall be ascertained by the verdict of a jury, summoned in the same manner as for other trials’ of issues of fact before a Court of Chancery.
The first and second5 sections require- a judgment and an execution, and' the fourth only dispenses with them, where a judgment at law cannot be obtained, because personal service of process cannot be made, or where an attachment at law will not lie. In all other cases judgment must"1 be obtained, and an execution upon it returned unsatisfied in whole or in part, before a bill in Chancery can be filed. It is said by the counsel for complainant, that the case under consideration, falls within the very words of this statute, because here they say, no personal service of process can be made, inasmuch as the defendants are non-residents, and' that no attachment at law will lie, because the complainants are non-residents, and we have no statutes permitting non-residents to sue in our courts by attachment. This is true, but it is so manifestly out of the spirit of the statute and the evil intended to be remedied by it, that unless we can find no other class of cases to which it may be made to apply, without doing such injustice to what we think to be its true spirit and meaning, we cannot consider this case within it.
Our courts of justice have always been open for suits by foreigners against our own citizens and others within our boundaries, upon whom personal service of process can be made. This is surely as much as they have a right to demand. We have found it necessary for the protection of our citizens in some few instances, to open them against those upon whom personal service of process cannot be made, but it is believed in but two cases, those of non-resident and absconding debtors; and this has fipen done upon the principle that, inasmuch as some person is to be injured by having to litigate his suit at a distance from his home, and inasmuch as in the case of the absconding debtor, the contract was made in the State, and in the case of the non-resident debtor, the property is in the
In this case it is said, personal service of process cannot be made. Why? Because the complainants have thought proper to sue it out in a State where the defendants never resided. Personal service may be made, if the process be sued out in the State where the defendants reside. But then it is said the statute gives the right to sue without the service of process. If this right exist it is ustricti juris,” and is not to be inferred from any just construction of this statute; and as has been said, unless no other construction can be given to it, we must determine that the case does not fall within its provisions.
As we have seen, the intention of the legislature was (inasmuch as they had freed the body of the debtor from execution) to make all of his property of every kind and description liable for his debts; and that in order so to do, they vested the Courts of Chancery with an extent of jurisdiction never before exercised by them, by which stocks and debts, were put upon the same footing with equitable estates, and made liable by decree to execution.
The intention, then, was to subject this description of property to execution, and in the first and second sections provision is made for creditors who can obtain judgments at law, but
The decree will be reversed and the bill dismissed at the .cost of the complainants.
Decree reversed.