Henderson v. Hall

134 Ala. 455 | Ala. | 1901

Lead Opinion

MoCLELLAN, ‘C. J.

The bill in this case is filed by Joseph L. Hall and Louis B. Farley, the assignees of a judgment recovered for the Farley National Bank, against, the Alabama Terminal and Improvement Company — hereinafter ' called the Terminal 'Company. Within a year after the rendition of this judgment, and before the filing of the bill, execution issued on it and was duly returned “no property.” The bill was filed March 17, 1894. As originally exhibited and as prosecuted until after the evidence had been taken; the sole purpose of the bill was to collect from certain persons who are made: respondents the amounts which they had! severally subscribed to the capital stock of the Terminal Company, the defendant in judgment, which the bill alleged they respectively claimed to have been paid!, but which it further alleged they had not paid, and to apply the sums so. collected to. the satisfaction' pro tanto of said judgment; and the original prayer for relief, which has never been amended, nor attempted to be amended, is “that the said defend ants,-severally and-respectively, be required to pay for the satisfaction of ■ said judgment 'in’ favor of the said Hall, receiver, (of the Parley National Bank) against the said Alabama Terminal and Improvement 'Company-their-said subscription to the said capital stock of the said company • and their said' several promises in writing. And for such other and further relief as to your Honor may seem meet and the facts of'the cause require.” In respect of the claims of payment-asserted • by the several respondents it is averred in the bill, by-way of anticipating the defenses which it was supposed would he relied upon, that Wool-folk, who- was president of the Terminal Company, pretending that- als such ■ president he was. thereunto duly authorized! but not having in! fact any -such- authority proposed to the respondents severally that if they would- pay to the company them subscription notes the said company would thereupon -purchase their shares of stock at par and pay for the same in some instances, in money and ini other instances- in bonds of the Alabama Midland! Railway Co. at the market value thereof, eighty-five cents on the dollar of their face value, that, accepting and acting upon this proposition- the respondent subscribers paid their subscription notes, and thereupon sold their stock to- the Terminal Company1 and some of them took such bonds in payment therefor, and others took notes executed, by Woolf oik for and in the name of the company secured by the stock which they had thus sold, left with them for that purpose, and also secured! in some- instances, by bonds of said Midland Company, which bonds were assets of the Terminal Company. That-the point-w-e are upon- may be inore fully presented we quote the general averment of the bill with reference to all those, parties, and. the .special averment as to one of each, of the classes indicated above. The general averment .constitutes paragraph 20 of the bill, which is as follows: “Your orators further state that the defendants Charles Henderson, Jere O. -Henderson, LaFayette Henderson as surviving partner- of the late firm and partnership of L. and AY. J. Henderson, Fox Henderson and James M. Henderson, partners under the firm name and style of J. M. Henderson & Co., Gustavus Hendricks, John S. Carroll, and said John S. Carroll and Thomas E. Murphree, partners in trade under .the firm name of Carroll, Murphree & Co.,, severally and respectively, claim-that they have paid .their said subscriptions to the capital stock of the Alabama Terminal and Improvement Company, and -that -the promises in writing that they severally made as. aforesaid for the payment thereof, have been cancelled- and surrendered to them respectively. But your-orators aver that- there was not in fact any payment of the said subscriptions, or of said promises in writing, or of either- of them. Audi if said promises1 in writing, or either of them, have been cancelled and surrendered to the.said defendants, or either1 of them, s-ucli cancellation and surrender was unauthorized and illegal, and said- ‘subscriptions aud promises in writing remain dlue and unpaid.” And in paragraph 23, the. - foregoing averment is repeated -as to -the respondents- Brantley & Son. ■ Such-are the general averments as to the payments-claimed to have been jpade. The special averments- as-, to such of them as received Midland bonds for their stock are as follows : “21. Your ora torsi further aver on information and belief that the said defendant AVoolfolk, .pretending that as president o-f the Alabama. Terminal and Improvement Company, he was authorized! thereunto, hut no-t having such authority, proposed fio purchase of the said defendants!, L. & AY J. Henderson, James M.- Henderson & Co., Gustavus Hendricks, John S. Carroll, and Carroll, Murphree & Coi, severally and.-respectively, for the said company, their several and- -respective shares of stock in said .company, giving them therefor the .bonds of the Alabama Midland- Railway Co., a corporation organized and existing under the laws of the State of Alabama, known as the Alabama Midland Extension Bonds, at eighty-five per cent of the- par value of said bonds. These bonds Avere the property and assets of the said Alabama Terminal and Improvement Company, and that fact was Avell known to said parties respectively and) severally. And it was further proposed by said Woolfolk that said parties should pay him the amount of their said seAreral subscriptions and promises in Avriting and he Avould cancel and surrender' to them their said promises in Avriting, and. deliver to them the said! Alabama Midland Extension bonds. The said parties severally and respectively accepted the said proposition of said Woolfolk and gave, him sums of money equal to the amounts of their said several subscriptions and promises in writing, and he delivered! to them marked “can-, celled’ their several promises in Avriting and bonds of said Alabama Midland Railway Company,- known as the Alabama Midland Extension Bonds, for an amount of 85 cents on the dollar of the par value thereof, equal to the amount of money received from them. And this is the transaction in-and by which the said! parties severally and respectively claim to’ have paid their subscriptions'and promises in Avriting.” As to one of the class of persons Avhose stock was purchased by Woolfolk for money, the following is the further averment of paragraph 21: “Orators further aver on information and belief that the said defendlant Woolfolk, pretending that as president of the Alabama Terminal and Improvement Company he was thereunto authorized, but not having such authority, proposed to' purchase of the said1 defendant Charles Henderson, for the said company, his shares of stock therein at and for the sum of lien thousand dollars (the par value of said shares) to be paid for out 'of moneys belonging to said Alabama Terminal and Improvement Company, and it was further proposed by the said Woolfolk that the said Charles Henderson should pay him the amount of such subscription and promise in writing and he'would cancel and surrender to him his said promise in writing and would deliver to him the note of the said.' Alabama Terminal and Improvement Company for the sum of ten thousand dollars payable three months after its date secured by a deposit of ten thousand dollars or other large sum of said Alabama Midland Hallway bonds, the property and assets of the saidl Alabama Terminal and Improvement Company. The said Henderson accepted said proposition of said Woolfolk and gave him the sumí of money equal to the amount of his subscription and promise in writing, and the said Woolfolk delivered to> him marked ‘cancelled’ his said promise in Avriting, and also- the note of the Alabama Terminal and Improvement Company payable as. above stated and secured by a deposit of the said extension bonds; and this is the transaction in and by Avhich the said defendant Charles Henderson claims to have paid his said subscription and promise in Avriting. Orators are not informed as to- whether the said note has been paid, hull they aver that if the same has not been paid the said Henderson has in his possession the said bonds delivered to him as aforesaid and that saidl bonds are the property and assets of the said Alabama Terminal and Improvement Company; and orators aver that said transaction Avith the said Charles Henderson on the part of said Woolfolk was. a mere device on. their part to shield the said Henderson from payment of his subscription for stock, and was and is fraudulent -as to orators.” Like averments are made in. respect of the claim of payment on the part of Jere C. Henderson, except that! it is alleged- in the alternative that he was to receive and did receive -either money or1 bonds for his stock. And in respect of Brantley & Son the averment. is that upon and in acceptance of the aforementioned unauthorized proposition of Woolfolk, they .paid their subscription and sold their stock to him for the company, taking the company’s notes for the par value thereof, and that these notes were afterwards paid by Woolfolk with funds of the company.

It is noAArhere nor in any way averred in the hill that the Terminal Coanpany ever authorized Woolfolk to make these settlements, or any of them, with said subscribers to its stock, or that it ever ratified his action therein; but to the contrary such authorization is expressly negatived, as we have seen, by the averments- 'of the bill, and no fact is therein stated1 upon which could be rested a conclusion that the company itself was or is in any way bound - by either of thos-e transactions. Especially is- this true when the rale requiring the averments of the bill to' be construed on demurrer most strongly against the complainants is applied in the premises to the exclusion of every po-s-sibility of a construction whereby the averments of want of authority might be held to refer to the Terminal Company itself and not to* Woolfolk. But even without this rule the bill leaves no- room for the conclusion that the claimed payments are attacked because the transactions in which they Avere made Aver© ultra* vires the corporation itself. The passing of the money for these subscription notes to Woolfolk is conceived by the complainants to be- ineffectual as. payments thereof to the corporation because Woolfolk as president of the company had no authority to* receive such money as payments under the conditions which obtained and AAdiich he assumed to carry out. and did carry out as president: and in the name of the company. It is not even averred that the company ever received the money which Avas paid. Not having authorized these transactions, nor ratified them, nor been beneficiary of their issues so as to preclude itself, the Terminal Company Avas- in no degree hindered or estopped at the time this bill Avas; filed tot treat Wool-folk’s unauthorized action as a nullity, to repudiate the transactions as payments to it, and to institute suits at law in its OAvn name and behoof upon the subscription notes Avhich had been illegally and inefficaciously can-celled, and surrendered by Woolfolk to the makers. The Terminal Company having this- right at that time, it, of course, necessarily follows that tire complainant's had a plain, adequate and complete remedy at law for subjecting the amounts d!ue from the subscribers named to the satisfaction of their judgment! by the process of garnishment authorized by section 2972 of-the Code of 1886, then of force, and that their bill of complaint was subject to' the objections taken, in. this connection by the demurrers of the several respondents to whom we have referred. And even if complainants did not ha,a e this remedy at la.AV. it would by no means follow that they could come into chancery. To the contrary, on the facts a¡v< ared, as we construe them, but for the statute providing the proceeding by garnishment they would: be entirely remediless in the premises.

Against this conclusion counsel for appellees Urge several considerations which we will examine and discuss. Chief among these contentions is this: That1 the chancery court has and all along has had jurisdiction to enforce at the suit of a creditor of a corporation the payment of subscriptions to its capital stock, and that having this original and inherent jurisdiction it was not and is not ousted of its exercise by statutes which confer like power on courts of law by process of garnishment; and, as they insist, it is well settledi, that “the enlargement of jurisdiction of courts of law, or the recognition aud enforcement by them of equitable rights and interest, even when conferred in terms by statute, does not, in the absence of statutory prohibition, take away or impair the original jurisdiction of the chancery court-.” But it is not well or at all settled, and it is not true in point of legal fact, that the chancery court ever had or has original jurisdiction at the suit of a corporation creditor to, coerce the payment by stockholders of their subscriptions to its capital. Such debts to a corporation stand upon the same footing as indebtedness generally. In.the absence of statutes on the subject, no court, whether of law or equity, has any power1 to reach and "subject this class of a debtor’s property to the satisfaction of demands against him. At the common law choses in action of the debtor were not leviable, and the. process of garnishment was unknown. There was under that system an indirect method of reaching such assets by the attachment of the debtor-defendant’s person and his incarceration until the judgment against him was satisfied, the theory being that this process would coerce him into a realization upon choses in action belonging to him and to the application of the funds arising from their collection to- the judgment under ■which he is attached and imprisoned. But that proceeding has no place in our law; and if a creditor relies upon any other process as a means of applying the choses in action of his debtor to the payment of his claim he must be able1 to point out some statutory provision giving the process or remedy he invoices, and he must pursue such remedy either according to the terms of the statute and in the form prescribed! by it, or he must show that the legal right conferred upon him by the statute has been so clogged and impeded of enforcement in the statutory forum, the court of law in garnishment proceedings, as that he is entitled upon some recognized principle of equity jurisdiction in aid of legal. rights to call to his assistance the powers of the chancery court. And when chancery is thus invoiced it is not upon any theory that such court has or had original jurisdiction in the preanises, or could have been resorted to before the statute. giving the right at law, but upon the idea that, by reason, of fraud and the like the legal remedy to enforce the right conferred by the statute has become inadequate thereto, some ground of equity interposition has arisen. Of course, if a chose in action, belonging to the debtor has become impressed with a trust in favor of the creditor, chancery in the absence of statute has jurisdiction to subject it to the debt; and it is upon that principle, as we shall see, that the present bill is really sought to be maintained, but, as we shall further se:e, that doctrine does not obtain in this case. Recurring to' the main proposition, that chancery had no original jurisdiction to' subject choses in action of a debtor to the claims of his creditor, we refer to and collate some of the authorities1 sustaining it. In Donovan v. Finn, 1 Hopkins, Ch. 59, s. c. 14 Am. Dec. 531, there is a most able and elaborate examination and consideration of the authorities and discussion of the question, leading up to and sustaining the proposition embodied in the head note that “property not subject to execution at law, such as choses in action, cannot, be reached in equity, unless the case is otherwise of equitable, jurisdiction, as where the property was fraudu- ■ lently converted into choses in action to defraud creditors.” The whole oí the very learned; opinion in that caso might be embodied here with advantage, but we content ourselves with some of the most pertinent parts of it. In stating the case before the court and the question for decision, the opinion proceeds thus: “The cause thus considered presents these facts: A creditor has obtained judgment, against liis debtor in a court of law, an execution has issued against the property of the debtor, and the sheriff has returned that none is. found. The debtor has property, consisting in a. debt, due to him, and the. creditor by judgment now asks this, court to compel the debtor of his debtor to make payment- to him in satisfaction of the judgment. Has this court jurisdiction in such a case; or power to give relief? To apply existing law's to new cases is- the duty of courts of justice, and it is not an encroachment; and the application of established principles of equity to new cases in this court, is not an extension of its jurisdiction. But this court has no povrer to assume any jurisdiction really new, and extending beyond the limits of its established authority. It. is apparent that this case does not. belong to any general head of equitable jurisdiction, such as frauds, trusts, accidents, mistakes, accounts, or the specific performance of contracts, Ilere is neither fraud, nor trust, nor accident, nor any other ingredient of equitable jurisdiction. It, is simply the case of turn debtors and two creditors, of whom one is both debtor and creditor ; a. case in which the rights and remedies of the respective parties have hitherto been enforced exclusively in the courts of law.” And after discussing English and American cases hearing on the point, Chancellor Sanford proceeds: “According to our distribution of jurisdictions, suits for the recovery of ordinary debts are appropriated to the courts, of common law; and the proceedings for enforcing the judgments rendered in such suits are alike allotted to1 those courts. In any such, case where the subject of the suit is exclusively of legal cognizance, a court of equity has no jurisdiction to enforce the judgment by its, own. methods of proceeding, or to- give a better .remedy than the law gives. If the remedies of the law are imperfect, equity, as lias been often said in the English chancery, has noi jurisdiction to give execution in aid of the in-, firmity of the law. When any fact giving equitable jurisdiction intervenes in, the transactions between creditor and debtor, such a fact becomes a foundation of relief in this court; but in any ordinary case, free from fraud or injustice-, the execution of the judgment and the methods of compelling satisfaction, are confined to the courts of law. When a creditor comes to this court for relief, he must come, not merely .to obtain judgment or satisfaction of a judgment, but he must present facts which foam a case of equitable jurisdiction. He must show that the debtor has made some fraudulent disposition of his property, or that the case stands, infected with some trust, collusion or injustice, against which it is the province of this court 'to give relief, in such cases this court has jurisdiction, not for the purpose of giving a species of execution which the courts of law do not afford, hut for the purpose of giving relief in the particular cases allotted to- its jurisdiction; and when the cause, by reason of such facts, is properély here, the court proceeds, upon all the, circumstances of the case, to give final and equitable relief. * * * When it is said that a debtor may now convert all his effects into stocks, credits, or other tilings in actions, and may in his own name, or in the name of a friend; hold his property in these forms, in defiance of his creditors, our laws arc reproached by a vague, assertion, which is partly true, and is to a. much greater extent erroneous. All conveyances made to defraud creditors are void both in law and equity. When the fraud appears to a court of law, the conveyance is there adjudged void. When such a fraud is presented: to- this court, it is of equitable jurisdiction; and the property of the debtor, fraudulently transferred, is subject- to the satisfaction of his dlehts, in favor of a creditor complaining of the fraud.

* * * In all such cases, this, court vacates the fraud, sets aside the conveyance in trust, and, acting both upon the debtor and his trustee, it does complete justice to the creditor. Thus, the jurisdiction of this court reaches, and reaches effectually, those cases of fraudulent conveyances and assignments in trust, which form the great and most vexatious impediment in the course of justice between creditor and debtor. * * * But this court has no power to cause stocks, credits and right's of action, held by a debtor, without fraud, to he sold or converted intO'.mjoney, to> he transferred to the creditor, or to be applied to the payment of debts. The English courts of equity have never exercised any power like Ihat now proposed, over the rights of a debtor; and it is certain that on such power has ever been exercised by any court in this State. But. is said that a failure1 of justice must take place, if such a jurisdiction should not be exercised, by some of our courts of justice. How, it is asked, is all that class of personal effects, consisting in stocks, credits and property in action, in various forms, a, class of property, which, in this community, is very great, to he subjected to the payment of debts? That such property should be made subject to the payment of the debts of its owner is not denied. That such property cannot, he seized or sold by the sheriff upon an execution, is the existing law of the State. That in the present state of our laws, a debtor sometimes holds and enjoys this species of property, while his debts remain unpaid, may he true. These reasons may show that the existing laws are imperfect; and that some convenient method of subjecting this, class of property to the payment of debts would he a desirable amendment; but they do not show that this court or any other tribunal has power to make such an amendent. The argument so strongly urged, that justice requires some new remedy in these cases, is an argument to’ be addressed to the legislature, and not to the courts of either law or equity. Our ancient law was not destitute of remedy in such cases. That law was intended and! adapted to compel the application of a,ll the property of the debtor to the discharge of judgments against him;'and for that purpose different kinds of executions were provided. By executions against his property in. possession, that species of effects was subjected directly to the discharge of a judgment; hut his things in action were reached only by an execution ■ against his person, upon which he was imprisoned until he should'! satisfy the judgment The execution against the person was a method of coercion intended to bring forth for the satisfaction of the judgment, all such effects of the debtor as could not be subjected to the other execution; and it was a powerful remedy. That remedy has -been gradually relaxed by the legislature until it has nearly lost- its efficacy; and while this great change respecting executions against the person has been made, the rules concerning executions' against property have remained without alteration. Thus the imprisonment of the debtor, as a remedy, has been, in effect, taken away; no effectual method of execution against his property in action has been substituted, and this change in our laws- lias been made by the legislature itself. * * * Our law of relief against absconding and absent debtors, is a law of attachment. This special statute, containing a system of provisions in detail, is alone a sufficient proof that the proceeding by attachment can be authorized only by the legislature' and that such a process of power, belongs not to- any court of this- State, in virtue of its general jurisdiction. The attachment given by this statute embraces all debts due to the debtor, is for the benefit of all his creditors; and is authorized only against absent, absconding, and concealed debtors. The legislature has not given this remedy against debtors residing or found within the State, and subject- to the full operation of its general laws. The attachment now proposed is against a, single debtor of the judg-' ment-dehtor, for the benefit of the judgment-creditor; and all the parties’ reside in the. State. Thus it is- proposed that this- court shall institute a new species of attachment against debtors within the State, a new method of justice in favor of creditors, differing’ greatly from any attachment or any execution hitherto- known, and which, however it may be recommended, has not yet been adopted by our lav-’. In several of the States of the Union there are laws of attachment, by which a creditor may sequester or attach, for his exclusive benefit, a debt due to his debtor; and it is said that tírese laws are useful and efficacious, in promoting the ends of justice. But in all those States, these attachments have been introduced and -established by special acts of their legislatures; this proceeding being unknown equally to the common law and! to the equity of England. But while- the attachment of the debt due to a debtor for the benefit of the creditor instituting the-suit, is a proceeding unknown to- the general system of English law and equity, it is fully established in the-city qf London, under the name of the custom of foreign attachment, and it there takes place in a local court of special jurisdiction. Thus stand both the general laAV and the exceptions to it, in England; and equity has never altered but has always followed the general law. The court is now, for the first time, asked to do- what, in England, is done, only in London, by a special custom of that ci%, what in other States of this Union is done only under the provisions of special statutes, and what, in this State, has never yet been done or authorized by any 1 aw. * * ' * Under the constitution, the course of common law, the tidal by jury, and the system of equity, must all he maintained in their respective spheres of operation. If the existing difficulty in these cases ai-ises from the rule of law, that stocks, credit, and .rights of action cannot he sold by the sheriff, is that rule salutary, since the remedy by imprisonment of the debtor has been so greatly relaxed? If some new proceeding by way of attachment or execution against the rights in action of a, debtor is requisite, on what courts or officers shall such a power be conferred, and in what, cases, and under what regulations shall it be exercised? But I forbear to pursue these inquiries and reflections; and these are suggested! merely to- show the magnitude of the innovation now proposed. Should this court take cognizance of these cases, they would form a chapter of jurisdiction far more amp-le than any one which, it now possesses, and the assumption would he a¡ holder stride of power than ivas ever made by the English chancery in any single age. The maxim which finches us that a judge should amplify his own jurisdiction, has no- place, in our1 institutions. The utility of this court, so> important in- the general structure of our system, will be best consulted and preserved by preserving its jurisdiction within the limits which are now established. My views of this question tempánate in the following results: 1. The cases of authority in which relief has been given to judgment-creditors were, in themselves, cases of equitable jurisdiction, involving fraud or trust, or seeking to subject to the satisfaction of a judgment property in itself liable to execution' by removing a conveyance which operated as a fraudulent impediment to- the execution. 2. This court has no power to compel the debtor of a judgment-debtor to make payment to the judgment-creditor1, in satisfaction of the judgment.”

This caise of Donovan v. Finn was decided in 1832. In 1880 it was published in 14 Am: Dec. pp. 531 et seq., with the following note, by Mr. Freeman: “It, is doubtful, where there has been no legislation upon the subject, whether in the absence- of fraud, or any other'well known ground for supporting the 'exercise of its jurisdiction, equity will assist a creditor to reach those assets of his debtor which under no circumstances could have been subject to- execution at law. This- question has been most debated with reference to- stocks and dioses in action. Notwithstanding a- contrary opinion expressed by some very eminent American jurists, we' judge that the weight of the authorities is in support of the view that equity-has no power in ordinary cases to compel the appropriation of dioses in action to- the payment of their owner’s debts.- — Watkins v. Dorsett, 1 Bland. Ch. 533; Stewart v. English, 6 Ind. 176; Wallace v. Lawyer, 46 Ind. 501; McFerran v. Jones, 2 Litt. 219; Dundas v. Dutens, 1 Ves. Jr. 196; Nantes v. Carrock, 9 Ves. 188; Rider v. Kidder, 10 Ves. 368; Grogan v. Cook, 2 Ball & B. 233.’’

Another able and exhaustive opinion on this subject was delivered1 by the Supreme Court of Rhode Island (1884) in the case of Greene v. Keene; (14 R. I. 38, s. c. 51 Am. Rep. 400), in which the authorities are examined, the case of Donovan v. Finn, supra, is discussed and approved, and the- conclusion is reached that “in the absence of fraud, trust or other ground of equitable relief, or special statutory jurisdiction, judgment creditors cannot reach dioses in action of their debtors by equity proceedings.” The same doctrine is announced in tlie carefully considered case of Shaw v. Aveline, 5 Ind. 380; and in Dayle v. Sleeper, 1 Dana. (Ky.) 531, 534, in McFerran, v. Jones, 2 Litt. (Ky.) 219, and. doubtless in many other cases; and its soundness is so obvious upon elementary principles that it 'would seem, lo require no citation of adjudged cases to demonstrate and sustain it.

As under our statutes dioses- in action belonging to a debtor a.re leviable in a sense by process of garnishment, they may be reached in equity, as we have intimated and as follows from the principles declared above., when they have been fraudulently disposed of -by the debtor in judgment to hinder, delay or defraud his creditors, because such fraud gives equity jurisdiction whether-there he a remedy at law or not by which the chose in action could be reached in the hands of the transferee. But as a transaction in form a transfer or disposition of dioses in action and even made in the name of the defendant in judgment, hut which is wholly unauthorized! by him and hen.ce of no- binding efficacy upon him, can neither involve fraud on his part nor prevent him to proceed to reduce the chose» in action to possession disregarding the transfer, there is in such case no ground of equitable interference — there is no fraud imputable to the defendant in judgment — nor is there any obstacle between the judgment creditor and the subjection of the dioses in action to_ liis judgment by process of garnisment at law: He not only has no remedy in chancery, nor -would have in the absence of statute1, but lie has an adequate, plain and complete remedy at law. Assuming that the present bill shows that Woolfolk ini fact cancelled the notes of Henderson and others as paid and surrendered them to the makers without consideration, the case supposed is the case presented by this bill, with a distinction without a difference to 'be presently considered. And, Woolfolk having no -authority fromi the Terminal 'Company to d!o what he. did, his act is not binding on the company, it can now sue ithe makers of these notes just as if no such action had been taken by Woolf oik, and complainants had their remedy by garnishment. And, not only so, but as the judgment debtor, the'Terminial Company, has been guilty of no fraud, has.not disposed of its chases in action, has done nothing in fact, complainants have no standing in equity, and would) have none even- if there was no statute giving them a remedy by garnishment.

The c.ases cited and collated above were cases of individual parties, of natural' persons' whose dioses in action were sought toi be subjected in equity to the satisfaction of judgments- against them.

'Tire party here whose dioses in action a,re sought to be subjected to complainants’ judgment against it is a oorporatiomi, and the claim in its favor to be readied are debts which the other respondents, the Hendersons and others, owe the corporation as subscription for or to its capital stock, evidenced by promises under seal to pay stipulated sums severally. And this is the distinction adverted to next above, and which at the time the present bill was filed wais supposed, indeed) had been held to be a material one. It was at that time supposed and had been in effect held that the capital stock of a corporation was a trust fund for creditors, and it is fair to assume that this bill was filed anld prosecuted on that theory. Of course, if the theory is sound, if the capital stock of a. corporation is a trust fund, subscriptions to the stock, dtehts due the fund have a, trust character impressed upon them also, and courts of equity, whether there be a remedy at law or not, may under their general jurisdiction to administer trust estates- enforce the payment of such debts to the cestui que trust} the creditors of the corporation. This doctrine considered in and of itself has- in times past received the recognition of this court in dicta at least, and, as part of the broader proposition that the property of a corporation under certain conditions constitutes a trust fund for its creditors, it was at one time supported by express decisions of this court. It is- the established doctrine now in many jurisdictions. But not so with us. To- the contrary, the proposition as a whole and in every part has been repudiated by this cc-urt, and it lias been directly ruled, adjudged! and settled: that the assets of a corporation— anal its capital and subscriptions due to its capital are in part its assets — under no circumstances constitute a trust fund for its creditors, but that so far as creditor's are concerned all its property inclu ling its chose» in action of all kinds, is held and owned by it just as property — dioses in action or wins not — is held and owned by an individual debtor, subject to no trust resting on the artificial character of the debtor entity. — O’Bear Jewelry Co. v. Volfer, 106 Ala. 205, s. c. 28 L. R. A. 707, 54 Am. St. Rep. 31; Corey v. Wadsworth, 118 Ala. 488.

There being then no such fraud averred in the- bill as gives equity jurisdiction, and no- element of trust in favor of the complainants being presented, the case made is not one of which the chancery court ever had jurisdiction, not one of which it, would now have jurisdiction if there were no. remedy at law, and, there being a remedy at la,w, the bill cannot be maintained on the doctrine that original chancery jurisdiction of a subject matter, or to administer a remedy is mot taken away or impaired by the statutory provision of a, legal remedy in the premises.

We are of course considering the question of the equity vcl non of this bill with reference- to our statutory law as it existed at the time the bill was filed. The act of February 18, 1895, (Acts, 1894-5, p. 881) now embodied in p-art in section 823 and, for the rest, in section! 1282 of the Code, was not then of force, this bill having been filed March 17, 1894. That act, therefore, can have no application, here, and would not have even without its express provision, that it should not apply to any suits pending at the timie of its enactment. The bill in the case of Hall & Henderson, Trustees, v. Fox Henderson was filed under that act o-n June 23, 1896; and so far as any point! decided in that case on the first appeal, (114 Ala. 601), or upon fihe second appeal, recently -dletermined, boars an analogy to the point under consideration, the decisions of it on those appeals favorable to- the equity of that bill must he rested upon that act

It is comtenjded further that even if the present bill did not have equity when iti wasi filed, or has, no equity now abstractedly speaking, equity has injected into it, soi to say, or the respondents have estopped themselves to- now deny its equity by having on motion in the court below procured an order putting the complainants to an election whether they would further prosecute this suit or certain garnishment proceedings then pending a.t their suit against the respondents in a court of law and compelling them to dismiss this bill curt those proceedings, which order complainants complied with by dismissing the garnishment proceedings. We do not think there is any merit in this position. It would seem to be necessary to say only, in the first place, that jurisdiction of the subject matter cannot be conferred upon any court by estoppel or even by affirmative agreement. But if that could be done, tire exercise by a respondent, of his right to comped the complainant, to dismiss one of two proceedings against him on the same cause of action cannot operate to, cut him off from, any defense he would otherwise have against the suit the complainants elect to prosecute. The right is given the respondent solely as a means of protecting himself from double prosecution, and he is entitled to that protection wholly irrespective of and apart from the character of his defenses against either suit and without prejudice to them,1. The night would he of little’, if any, value in any case, and a, resort to it in many cases at least would be fatal to the x^espondeut’s, ultimate rights, if he is to be held by its exercise to insure the jurisdiction of the court in which the complainant elects to proceed, or to forego any other defense. He canot be so held. He insures nothing. He waives no defense. The complainant elects at his peril. His: choice is free and unfettered; and he must take the consequences of making it ill-advised and unwisely.

The fact that complainants a,re assignees of the judgment to the satisfaction of which they seek to subject unpaid stock subscriptions does not prevent their suing at law or give them a standing in equity. — Farmers & Merchants Bank et al. v. Hall, 120 Ala. 14, s. c. 122 Ala. 668. It is of no consequence tbait! they would have to use the name of the assignor in the legal action. They hald the absolute right to do this; and though resorting ’t!o this form, they would be in contemplation of law the sole parties to the record. — 'Code, § 29.

The bill is not multifarious or objectionable for misjoinder of parties ¡respondent. The rights complainants attempt to assert are the same against .each one of the respondents against whom appropriate relief is sought and the obligation, if any, of each of them is to pay complainants as creditors, of the Terminal Company their several subscriptions to the capital stock of the corporation. In such case in avoidance of a multiplicity of suits the bill, bad it been otherwise unobjectionable, was properly filed against them all notwithstanding their interests and obligations as among themselves were entirely independent and distinct. — Allen et al. v. Montgomery Railroad Co., 11 Ala. 437.

The chancellor seems to have entertained some 'doubt as to whether the cause was submitted on the demurrers which raise the objections-to the bill we have been d:s-cussing. We think it is clear that the demurrers were embraced in the submission. It is true that, they are not mentioned in the note of testimony of several of the respondents, hut it was not necessary or even proper that they should have been, there set down; and besides they are mentioned in Hie note of testimony of one or more, of the respondents1. But there was a written submission of the cause to a, special chancellor which clearly embraces a,ll questions and issues in the case both of law and fact, as well on the pleadings as on the evidence; and the chancellor properly concltiled that these demurrers were to be passed upon by him.

If the bill had .averred that the payments made by the respondents on account of subscriptions to the capital stock of the company were made to the corporation itself and received by it in such a way as; would preclude the company and estop it to sue at law on the notes evidencing the subscriptions, it is clear, we think, on this assumption, in connection with the averments in the bill that these complainants could not proceed at law or in equity to enforce such payment over again. The subscription notes were past due when they were paid in the manner detailed in the bill. The obligation of immediate payment wa¡s then upon these respondents, lr cannot be'doubted, and is not questioned, that Woolf oik as president of the Terminal Company them had full power and authority to accept and it was his- duty to enforce payment of these notes in money. The bill avers that they were paid in money to Woolf oik. Taking’ this averment, in connection with the obligation of the respondents to' pay money to the company and Wool-folk’s duty and authority to receive the money for the company, as meaning that the payments were made to the company, and looking also to the further averment of the hill that. Woolf oik had no power or authority from the company to induce these payments by agreeing as a parti of the transaction in which they were severally made to purchase thei stock thus paid up from the subscribers- for the company and with the assets of the company, we have the case simply of an officer of the corporation inducing payments to- he; m-alde which the Corporation had the absolute light to have presently made without conditions, and ivhich it was Woolfo-lk’s duty to coerce to be made presently and without conditions, by falsely pretending that he had authority to receive payments upon conditions which he then entered into and thereupon fulfilled and carried out by purchasing the; subscribers’ stock for and in the name of the company and with itis assets without the shadow of authority. On the assumption upon which ive are now proceeding, it is to be considered! that the money thus paid to the company was legitimately used by the company in the prosecution or ivinlding up of its business, in the- payment! of necessary current expenses and the debts of toe corporation, and that toe company and its creditors profitted so far as the money itself is concerned as fully upon toe payments thus rightfully made upon illegal and unauthorized conditions a.s if they had been made absolutely and without such conditions. Audi it is not conceivable that toe rightfulness and efficaciousness of payments so made and so enuring to the benefit of the corporation and its creditors .can be impeached by the circumstance that to induce them to be made the president of the company without authority from it or'the semblance thereof,' fraudulently and unlawfully purchased in its name the stock of these subscribers and, likewise without authority or the semblance of authority, • fraudulently and unlawfully, executed bonds in the name of the company, secured by deposits of dioses in action belongingtothecompany, or appropriated bonds belonging to- the company in payment of the purchase price of such stock. So that the company and its creditors had the full benefit of 'these payments, and the wrong and injury which i-esulted from the transactions to the company and through it to its creditors is referable in no degree to the payment of their subscription notes by these respondents, nor to, the cancellation of said notes, nor to- the manner of such payments, hut solely to the unauthorized and illegal diversion of choses in action belonging to- thei company in payment, or to secure the payment, of the price Woolf oik .agreed to give for the stock. And it necessarily follows upon the construction of the hill which we have assumed for the purposes of this dismission that neither the company nor its creditors have any standing at law or in equity to, enforce the payment over again of this money which has been- rightfully paid to and received by the corporation and used by it, in the legitimate prosecution of its business; hut both the company and its creditors have, or had when, this hill ivas filed, a remedy a.t law to, recover its assets illegally and without corporate authorization or attempted authorization misappropriate! by Woolfolk to the purchase of the shares of stock held by these respondents.

As to some of the respondents, O. O. Wiley and Wiley & Murphree, the averment of the hill is that their subscriptions and promises in writing have, never been paid at all, by anybody or in any way; the allegation being in substance and almost literally that these respondents assert that they sold and transferred their stock in the Terminal Company to, the defendants Saportas, tlie latter promising and agreeing, to1 pay said company their said subscriptions, therefor and the promises in writing made for the payment thereof, that if said sales and transfers were made it was with the intent to defraud the corporation and to' hinder, delay and defraud its creditors, that said, respondents were amply able to pay and satisfy said debts, but were desirous. to relieve thoins-elves. froaw liability to pay the same; and if such sale's and transfers, were made, they wore mere contrivances by which O. O. Wiley and Wiley & Murphree sought to evade and escape from such liability, that they knew said Saportas was not a resident citizen of Alabama, and they did not believe and had no good! reason to1 believe that he was of ability to. pay for said stock, and that said subscriptions and debts of said respondents are yet. due and unpaid to said company, and said company has never- agreed to accept, any other person as debtors in their places and steal!. It is entirely clear on these facts. — so clear- indeed as to render discussion superfluous — that the complainants had! a plain, adequate and complete remedy at law by garnishment against these respondents, and that, therefore, the bill presents no ground of equitable cognizance as to them. The complainants, .at one time conceived that their remedy against O. O. Wiley and tlrei members of the firm- of Wiley & Murphree was at law and summoned them in garnishment. They answered and the; complainants as plaintiffs in- judgment contested their answer. When that cause had taken on this status a judgment teas entered therein discharging the garnishees. That judgment is pleaded here by said respondents in bar of the relief prayed in the bill. Thej plea properly presents the. issue of res adjudicaba: It is claimed for complainants that certain infirmities attach to- and inhere in this judgment growing out of the circumstances under which it was taken. They are not such as. will avail on collateral attack. There was nodirect proceeding to vacate the judgment; and it stands unimpeached on the records of a competent court. On the averments of the present bill to which we have adverted, the plaintiffs in that Cause, complainants; here, were entitled! to judgment against the garnishee. Upon, or after the institution of a contest there judgment was passed for1 the garnishees. The issue in that case was necessarily indebtedness vel non of the garnishees to1 the Terminal Company. And the judgment foreclosed that issue in favor of the garnishees. That adjudication is a bar to the relief now prayed on the case made by the bill, and the plea which set. it up should have been held sufficient. If there are other facts which preclude the conclusion that the issue of indebtedness was determinable in that proceeding, they are not averred in the bill; and the sufficiency of the plea is, of course; to be determined upon its averments: with reference to the allegar linns of the bill.

LaFayette Henderson as surviving partner, etc., was a party defendant to the bill. He died February 24, 1895. J. 1). Henderson was appointed his administrator May 4, 1895. An order of revivor against J. I). Henderson as such administrator was entered May 20, 1895, and notice was served on him May 27, 1895. On August 26, 1895, a, decree pro confesso was entered against him. This was set aside and leave granted him to answer on October 8, 1895. He filed his answer on July 3, 1897, as of April 8, 1897. George B. Shellhorn, a witness for complainants, was examined oaallv on Jnne 3, 1895, under an order made May 27, 1895, after Henderson had been made a party and served with notice and before the decree pro confesso had been entered against him and before he had answered. InteiTogatories- were filed to Woolfolk by complainants August 2, 1895, before answer by or decree pro confesso against said Henderson; he had no notice of these interrogatories. On August 26, 1895, the day on which the decree pro confesso was entered, a, commission issued to take Woolfolk’s deposition, and this commission was executed and the deposition taken on October 18, 1895, after the decree pro confesso against said Henderson had been set aside and before his answer ivas filed. La Fayette Henderson filed no answer to the bill and there was no decree pro confesso against him at the time of his death — none had ever been entered. ■ The depositions of Ghew and Jessup were taken on April 17, 1896, and the depositions of J. L. Hall, Farley, Joseph, Roman and Tennil'le were tala-.n in July, 1896, after the; decree pro confesso against J. D. Henderson, administrator, etc., hadi been set aside and before he had answered. It is clear on the foregoing farts that the several depositions referred to were taken when, the case was not a,t issue as to the respondent J. I). Henderson, as administrator of LaFayette Henderson, deceased, in palpable violation of rule 49 of chancery practice, which provides, with the force and effect of a statute, that “testimony cannot he taken by either party until the cause is at issue by sufficient answer or decree pro oonfosso as to all the defendants.” Code, p. 1211. We do not find1 that the motions made by the several respondents and J. 11. Henderson as such administrator to suppress these depositions were waived,. To the contrary, they were insisted upon, and should have been granted.

It is averred in the bill that the judgment against the Terminal Company was recovered by one Hall, as receiver of the Farley National Bank, and that, said 'receiver was afterwards discharged and all the assets of the- bank were, surrendered and delivered to. it, including this judgment. This turning over of its assets including the; judgment is admitted by most of the. respondent., hurt, one or more deny it, and one or more neither admit nor deny it hut demand proof of the fact. Such proof was not maide. Tn our opinion it should have bemi. We are inclined also to think that the transfer of this judgment by the hank to the complainants should have been proved.

There is a variance between the allegations' of the original bill and the evidence as to the means used by several of the respondents in the alleged satisfaction of their subscriptions and promises in writing. The bill avers that money to the amount of the subscription notes severally was paid to Woolfolk. The evidence shows that in several instances Woolfolk accepted as payments claims Avhich the subscribers had against the Terminal Company for brokerage and* in one or more instances claims which they had against the Alabama Midland. Hallway Company for services rendered to that company. This variance Avould have been cured by the amendment of April 8, 1897, called the “Bed Ink Amendment,” and that is one reason Avhy this amendment should not have been stricken.

There appears also to be a variance betAveen the averments and proof in respect of thei date of the note executed by J. C. Henderson. The bill alleges that this note Ava.s executed March 9, 1887. The answer of said Henderson alleges and the proof shows that it Avas executed March 9, 1888.

Then, too, the bill alleges that the Terminal Company was organized Avith an authorized capital of $100,000. The fact appears to be that at organization the capital, was $250,000 and that soon afterwards it was increased to $500,000. An amendment of the bill should be made in this connection.

The cross-bill of J. M. Henderson & Co. fails to aver any facts AAdiich import a liability to them on the part of J. C. Henderson, the respondent therein. The demurrer to it Avas properly sustained.

The conclusions Ave have reached on the; several questions that have be:en considered on the appeal of Henderson et al. leave the case in such condition that a discussion. of its merits: on the evidence Avould lead to no practical results, and as that AAre deem it more conservative. of justice to render no decree here except to reverse the decree below and to remand the cause.

On the cross-appeal of J. L. Hall and L. B. Farley there are only two assignments of error. The first of these challenges the chancellor’s'action in striking the amendment referred to above as the “Held Ink Amendment” from the files. We construe that amendment to aver that in the settlement of their subscriptions and promises in AAuiting Avith Woolfolk the respondents instead of paying 'exclusively in money as is alleged in the original bill Avere alloAved' as credits thereon claims which they asserted were due them from the Terminal Company as commissions for endorsing the company’s paper and for other alleged services and also claims which they asserted against other corporations for services to such corporations, for Avhich the Terminal Company Avas not responsible. The facts concerning the payments made -by Woolfolk in the purchase of the stock subscribed for by certain of the respondents Avith Midland bonds, etie., belonging to the Terminal Company aré sufficiently stated in the original bill, and this amendment has no reference to- those transactions, and it Avould be superfluous had it referred to them. And assuming for the purposes, of the cross-appeal that the original bill had equity to the coercion of the payment of the stock- subscriptions from the respondents who had settled their- notes with Woolfolk by taking credits thereon for the claims referred1-to- asserted by them against the. Terminal Company or attempted to be allowed by Woolfolk as claims against that company albeit some of them Avere for services rendered to other corporations, and paying the balance in money, and who as a part of the same transactions- sold their stock to Woolfolk for the Terminal Company and were paid therefor with Midland bonds and other assets of said company, this- amendment Avas proper, not alone -for the puipose of curing the variance between the averments of the original-bill and the proof as to how the alleged settlements Avere made with Woolfolk by them in respect of AAhat Farley paid or parted Avith to secure the cancellation and surrender of their notes, but also' foir the further purpose of affording a basis for recovery against them for the amounts of such illegal credits in addition to and cwmUatwe upon the collection of the amounts they had severally subscribed and promised to pay. For not! having paid money to the full amount to. secure the cancellation and surrender of their notes, but, at the same time and as a part of the sarnie transaction, having received assets of the company equal in- AraJue to the face of the stock for Avbick they had thus settled Avith Woolfolk, it is manifest that a decree against them severally for the amounts of their stock notes Avould not' malee the company or its creditors whole, but would leave it and the-complainants out of pocket in each instance in the suin-of- the credits illegally allowed on the notes for the brokerage commissions and claims against other corporations. Hence our conclusions that the amendment should have been allowed to remain in the bill both as curing the variance adverted, to and as a basis for an accounting by these respondents for a sum equal to tire illegal credits allowed them by Woodfolk. And, considering the cross-appeal separately and as distinct from tlm original appeal, the decree striking said amendment will be reversed, and a decree will be here entered overruling and denying the) motion to strike..

Therefore, on the main appeal the decree will be reversed and the. cause remanded, and on the cross-appeal the decree will be reversed- and a decree here rendered.

---

Rehearing

in response to application for rehearing.

McOLÉLLAN, -C. J.

Further investigation and consideration ha.s but served to confirm us in tire opinion that the doctrine so clearly and ably stated and declared in Donovan v. Finn, by Chancellor Sanford, and which Ave adoptedl and followed in the original decision 'of this case, is eminently sound. All the argument that has been submitted against the integrity of that doctrine -pro. ceeds upon tAvo utterly gratuitous assumptions :' First, that at law, in the absence of statute, the judgment creditor has a light to have his debtor’s choses in action applied, to the satisfaction of his judgment, and that, therefore, since he cannot have his execution levied upon them, lie may have this legal right effectuated in equity; and second, that the fact that choses in action are not leviable converts -them into equitable property held by the judgment-debtor, that is to say, thati notwithstanding the title of the owner of a chose in action is purely legal and his rights in respect of it are enforceable only in a court of law, yet it is an equitable estate or property in Mm, amdl for that reason chancery has jurisdiction over it. And it is because Chancellor Sanford declined to adopt these assumptions, as entirely unfounded as any assumptions can he, and1 -to be led off by these palpable sophistries that it is sought to- present him, and. those “misguided” judges who recognize the soundness of his views and conclusions, as tyros in equity jurisprudence and ignorant of its elementary principles. So far’ as Chancellor Sanford is concerned, his statements of legal facts and his clear and inevitable deductions from them may well be left to stand alone and triumphant against all such assaults. As to* other “misguided” judges it would seem to be fair to. let them speak for themselves. : Among these are the Judges of the Queen’s Bench Div. of the High Court of Justice of England, who, speaking by Lindley, L. J., so recently as 1893, declare: “We have simply to deal Avith a case in Avhicli an ordinary judgment creditor sought the aid of a court of equity to enforce his judgment against property not capable of being reached’ by any common law process. The only cases of this Idncl in which courts of equity ever interfered [prior to the Judicature Acts] were cases in which the judgment debtor had an equitable interest in property lohich could have been reached at law, if he had had the legal interest in it, instead of the equitable interest only. This, will be found explained” by Jessel and Cliitty and the Court of Appeals (citing the cases). “It is an old mistake [and perennial it seems] to suppose that, because there is no effectual remedy a.t la.AV, there must be one in equity. But the mistake though old and often pointed out is sometimes inadArertently made even noAV. Courts of equity proceeded upon well known principles capable of great! expansion; but the principles themselves must not be lost sight of. The principle on which alone the order in this case could be supported before the Judicature Acts is Avell explained by Cotton,, L. J., in Anglo-Italian Bank v. Davies, 9 Ch. D. 275; it is that courts of equity gave relief ¡uhere legal rights existed, and there were legal difficulties which prevented the enforcement of that right at law. But. the existence of a legal right is essential to the. exercise of this jurisdiction. The judgment creditor here has a legal right to be paid his debt, but not out of the future earnings of his. debtor; and1 the court of chancery had no jurisdiction to prevent him from earning his living or from receiving his earnings, unless he had himself assigned or charged them. The court could not restrain him from receiving them until his creditor could attach them under the process of garnishment; nor did the court ever presumí? to enlarge the judgment creditor’s rights; nor, under colour of assisting him to enforce those rights, did the court of chancery reach by its process a kind of property which was not liable to execution. Before debt's and money were made liable to execution by statute, they could not be reached by an ordinary judgment creditor in equity any more than at law.” — Holmes v. Millage, 1 Q. B. 551, s. c. 10 Ruling Cases, 604, 608. To the same effect is the language of Jbssel, M. B.: “Priori to the Judicature Act, the courts of equity before granting equitable execution, required to he satisfied of two things, first, that the plaintiff in the action had tried all he could to get satisfaction at law; and then that the debtor mas possessed of that particular equitable interest which could not be attached cut law.” — Salt v. Cooper, 16 Ch. D. 544; and to like effect are the cases of Wills v. Luff, 38 Ch. D. 197, and In re Shepard, 43 Ch. D. 131. And this has for time out of mind been the law of England. Lord Tiiurlow, in Dundas v. Dutens, 1 Vesey, Jr., 196-7, the contention being that the chancery court should give execution against shares of corporation stock, ¡said: “Is there any case where a man having stock in his own name has been sued for the purpose of having it applied to satisfy creditors? Those things, such as stock, 'debts, being cbo-ses. in action, are not liable. TLoy could not be taken upon1 a levari facias. * * I have never lieaibl of such a thing.” Chancellor ThueIiOW may have been a “misleader of youth;” but if so itl is a strange thing indeed that none of the learned judges of England from his day to this has1 discovered the fact, but to the contrary, they all have uniformly followed, reaffirmed and redeclared the doctrine of Dundas v. Dutens, believing in their simple souls that it was the law of the land. Nor was the proposition stated by Lord Thurlow a dictum in that case according either to the apprehension of all subsequent English judges, or to the fact. It is singular to say the least that neither the fact of what Lord Thurlow said being a dictum, nr r the fact of his obtusehess and ignorance should have been discovered until now, and1 has not even yet been realized by any English judge, or American for that matter. Of his declaration of the law in the case referred to, Lord Chancellor Manners, in McCarthy v. Goold, 1 B. & B. 178-9, has this to say: “The claim upon dividends of bank stock has been very properly abandoned. I listened very attentively to Lord Thurlow in the case of Dundas v. Dutens, which was heard upon decree, and not upon motion, and he was clearly of opinion that dioses m action, of which description is stock, could not be reached by the process of this court.” The sarnie judge in Grogan v. Cooke, 2 B. & B. 115, said further: “In the case of Dundas v. Dutens, the question was whether stock that had been, settled could be brought within tire reach of creditors; I have a note of'that case which, on this point, is moire full than the printed'report of it, ■which I will briefly state. Lord Thurlow says: ‘Is there any case where stock 'standing in a trustee’s name can be made available to pay debts, or that debts (and stock is a diose in action) shall be transferred.to creditors for that purpose? You cannot have an execution at law against such effects.’ So in this case, how could the creditors have rnadle their policies of insurance available, either at law or in equity during Cooke’s life? for independent of the objection that a chose in action is neither subject to an execution, or to be attached in equity by creditors in the lifetime of the debtor, • here Cooke himself could recover nothing upon those policies.” Lord Eldon, a chancellor of ¡some repute in his time, referred, upon occasion to Lord Thurlow Avith respect and deference, and held Avith him that dioses inaction Avere not leviable, and could not be subjected in equity to the satisfaction of a judgment at law, (Nantes v. Corrock, 9 Ves. Jr. 182, 188; Rider v. Kidder, 10 Ves. Jr. 360, 368), remarking in the latter case: “It is clear, stock cannot be attached in the life of a party. Such was the language of Lord Thurlow in Dundas v. Dutens; and also in the case of Sir Alexander Leith, where a bill was filed to try whether this court Avould give execution in aid of the infirmity of the law; and it was held that there was no jurisdiction.”

So it stands the law in England to-dlay, apart from recent statutes, and has always been the law there, that a judgment creditor had no right to subject the debtor’s diosas in action to the satisfaction of his judgment, .and that there being no such primal legal right, the court of chancery has not, and has never had, any power or jurisdiction to subject such.property to the judgment a,t law. In addition, to the American courts and judges who hold the same doctrine referred to in the original opinion, the judges of the courts of last resort in the, States of Maryland, New Jersey, Tennessee, and Kentucky, are, according to counsel for appellees youngsters who have been misled by Chancellor Sanford and Lord ThurIjOw along with all the great judges of England.

The Maryland Court, of Appeals, on December 3d, 1896, in an elaborate opinion reviewing all the authorities laid down the doctrine declared by the English courts and by Chancellor Sanford, concluding the discussion with this quotation from., Donovan v. Finn “When a creditor comes into this court for relief, he must- come, not merely to obtain a decree or satisfaction of a judgment, but he must present facts which form a case for equity jurisdiction.” In the course of the opinion,, the court says: “In the early cases in England the jurisdiction here contended for, to' subject chose® in action, to the claim of creditors by a creditor’s bill, was sustained, but generally upon the ground of fraud, trust, or for some, other reaison which it was conceded Avould entitlle the creditor to invoke its aid. Thus Taylor v. Jones, 2 Atk. 600, lays down the doctrine that where a debtor has in. fraud of his creditors assigned to trustees certain dioses in action in trust for himself for life, and then over to his Avife and children, a, Court of Equity will favorably hear the application of such creditors, and decree such trust estate to be sold for the payment of their debt's. And this was held) to be so, notwithstanding such dioses in action were not subject to levy and sale upon execution at law. — Rex v. Marisal, 3 Atk. 192; Edgell v. Haywood, 3 Atk. 352; Horn v. Horn, Ambl. 79; Partridge v. Gopp, Ambl. 578; Smither v. Lewis, 1 Vern. 398. But, even in cases like that of Taylor v. Jones, supra, and the others just cited, which would perhaps be now generally conceded to be within the limits of equity jurisdiction because of the allegation and proof of fraud, it; was subsequently held in England that creditors could get no relief in equity because they had no legal right which equity could enforce. — Dundas v. Dutens, 1 Ves. Jr. 196; Grogan v. Grogan, 2 Ball & Beatty, 210. In the case last cited Lord Manners quoted Lord Thurlow as having said: 'The opinion in Horn v. Horn is so anomalous and unfounded that forty such opinions would not satisfy me. It would he preposterous and absurd to set aside an agreement, which if set aside leaves the stock in the name of the person where you could not touch it.’ And in Bayard v. Hoffman, 4 Johnson Ch. 450, Chancellor Kent, after a most careful and elaborate examination of the English authorities, came to the conclusion that while Lord' Hardwick® had maintained the jurisdiction of equity thus to proceed aigainstl dioses in action, it was afterwards denied and overthrown by both Lord Thurlow and Lord Eldon, although his own opinion as expressed in Bayard v. Hofmann, supra, was that 'the better1 reason is with the earlier authorities.’ But, notwithstanding this expression! of opinion in the case just cited, the more recent cases upon this point in New York and some other States have vigorously announced and maintained! the doctrine that aside from statute, and in the absence of fraud or some (dement of trust, chancery has do jurisdiction to subject chosesAn action to the payment of creditors, because there happens to be no remedy at law, and it would seem that Chancellor himself liad adopted this view, a.s will appear by reference to- his commentaries, vol. 4, page 61, where he refens to the New York statute as authority for the statement that in that State a chose m action may be reached by process in chancery for the benefit of creditors.”

Im the Maryland case it was suggested and insisted, as it is in this, that the creditor’s remedy by attachment of the person of the debtor having been abolished, the jurisdiction of equity to (reach dioses in action at once came into existence as a necessary complement to imperfect legal remedies. .This position the court repudiated iu the following terms: “Nor do we assent to the view that the mere abolition of the extraordinary remedies of outlawry1 and attachment of the person would confer jurisdiction on equity. Such a conclusion would he in conflict with reason, as, well as with modern authority. It would not seem to. follow that if the law had always and consistently refused to give an execution against things iu action, and had allowed only the extraordinary remedies just mentioned, that upon the destruction of the latter, the former would not only thereupon spring into existence, but become remedies appropriate for a Court of Equity. The contrary conclusion would, we think, be more reasonable, namely, that the Legislature having abolished execution against the person which was used for the purpose of getting satisfaction out of the debtor’s effects which could not be reached by other executions, and having failed to provide any new remedy to take its place it was not intenided there should! be any. And so it has been held in Donovan v. Finn, 1 Hopkins Ch. Rep. 59 (N. Y.); Buford v. Buford, 1 Bibb, 305; Greene v. Keene, 34 R. I. 387, 397. ‘Equity follows the. law,’ and as we have seen, a. rule either of statute 'or commion law is as potent in a Court, of Equity as in a. Court of Law. 1 Story Eq. Jur., § 64. Whatever may, at one timé, have been, the vague and general rule as to the limits and extent of equity jurisdiction, it is mow Avell settled that ‘no Court, of Chancery at.this day Avould attempt to supply the defects of la,Av by deciding contrary to its settled rules in any manner, tlo any extent, or under any circumstances, beyond the already settled principles of ■equitv jurisprudence.’ 1 Pomeroy Eq. Jurisp'., section 47.” "

The AAdiole of this able and learneid opinion might be set out, here with advantage to the bench and bar of the State; but we content ourselves with the folloAving additional excerpt: “It Avould seem to be reasonably clear from the authorities already cited and the discussion of them that, in the absence of a statute and in the absence of fraud or some other ground of equity jurisdiction, a Court of Equity has no power to subject the defendant’s unassigned -right of dower to the payment of her debts. But this conclusion will, we think, be placed! beyond doubt by a brief consideration of some of the adjudications of the highest courts of other States. In the case of Maxon v. Gray, 14 R. I. 641, which was decided in 1885, the very question now before us Avais passed upon. That -case, like this, Avas a bill in equity by judgment creditors for a decree for a. sale -of an unassigned right of doAver, anil in an able and elaborate' opinion the court came to the conclusion, after reviewing many of the previous cases, that equity had no1 jurisdiction. To the same effect Greene v. Keene, Ib. 388. In Creswell v. Smith, 2 Tenn. Ch. 416, it Avas held that-chancery has no power to reach stocks or things in action, even in the hands of third persons unaffected Avithfraud or trust without the aid of a-statute. — Keightly v. Walls, 27 Ind. 384; Williams v. Reynolds, 7 Ind. 622. In the case last cited it is said equity will not subject dioses in action to the payment of a judgment creditor, because equity only aids the law, and will, therefore, not” interfere, except as to such property as may be sold' on execution at law. In the case of Buford v. Buford, supra, the same view was enforced in the absence of a statute, and in concluding its opinion the court said, ‘The bare circumstance of a debt cannot be made the foundation of a bill.’ The'views upon the question of jurisdiction- express'd! in all these cases are in accord with the -rule as laid doAvn by Mr. Adams. ‘Equity,’ he says, ‘does not create new rights which the common law denies, but it gives effective redress for the infringement of existing rights, where by reason of the special circumstances of the case redress at law is inadequate.’ — Adams- Equity, p. 6;' Phelps Juridieial' Equity, sec. 158.”

This case is published in 57 Ann St. Rep. 407, and in a note Mr. Freeman again cites Donovan v. Finn, and several other cases, and says: “There is probably a preponderance of authority in favor of the view that equity has no power in ordinary cases to compel the appropriation of choses in action to the payment, of their owner’s debts.” Harper et al. v. Clayton, 84 Md. 346, 355.

The Supreme 'Court' of Tennessee is equally pronounced in support of the 'doctrine of the original opinion in this case. The following is the opinion of that court in the first case which came before it involving this question: “This is a bill filed by the complainant to subject stock in the Nashville Bridge Company to the payanienrt of his debt due from-the defendant. It is not pretended that there is any fraud or-trust in this case to furnish a ground of equity jurisdiction; and the simple question is, whether this court has power to cause stocks, credits and rights of action held by a debtor, without fraud, to be sold or converted into money, or transferred to the creditor in payment of his debt; we think it has not: and without entering into any reasoning on the subject, or review of authorities, we refer as conclusively settling the point to the case of Donovan v. Finn, 1 Hop. Rep. 59. Our act of assembly of 1833, ch. 11, makes ample provision upon this subject; but this bill being filed long before the passage; of that act, cannot be governed by it. Affirm the decree.” — Erwin v. Olham, 6 Yerger, 185.

In the case of Creswell v. Smith, 8 Lea, 688, which was decided nearly fifty years later, the decision in Erwin v. Oldham, was reaffirmed by the Supreme Court of Tennessee; and it ivas further held “that the mere abolishment of imprisonment for debt would not, without more, vest the chancery court with jurisdiction it did not previously possess, however much the creditor might need! additional aid.” This case was heard in the first instance and decided by Chancellor Cooper, a judge of very high repute with most lawyers and jurists, and in a learned opinion reviewing all the authorities and reaching the conclusion that equity was without jurisdiction in the premises, is found a reference to Lord Hardwickf/s position on the question which is peculiarly opposite here in view of the argument of counsel. After referring to the courts and judges ranging themselves on either side of the ■question), he continues: “In this war of giants,'(non mi taoitas componere lites.’ If, however, to« the great names, of Kent and Walworth could be added thei greater name of Lord I-Iardwicke, it would be difficult to° convince a lawyer of the present day that the weight of reason was not with them, whatever" might be the weight of authority. Unfortunately for that side of the question, we have a positive decision of the master mind of English equity, which seems to have been overlooked by Chancellor Kent, and is -directly in accord with Donovan v. Finn. In both cases a judgment creditor after exhausting his legal remedy, sought to reach a legacy due to the debtor in the hands of the executor of the decedent, and in both the decision, so far as it turned' upon the inherent power of the court of chancery, was the sarnie.” The chancellor then reviews the rulings of Lord Hardwicke in Edgell v. Haywood, 3 Atk. 352, and continues: “The language of this decision against the power of the chancery court to reach stock, debts and dioses in action', not leviable by execution, is quite as emphatic as that of Lord Thurlow in Dundas v. Dutens. It was only by virtule of the- statute that the court could act. Donovan v. Finn was precisely the same case without the statute. I conclude, therefore, that this eminent judge wa:s of the same opinion as his successors. — that such property could not be reached directly (in equity, but only through somie other ground of jurisdiction, such as fraud or trust1.”- — Creswell v. Smith, 2 Tenn. Ch. 416, 422-3.

In the original opinion we cited some Kentucky cases supporting the conclusion reached. We will now advert to one or two others decided by the court of last resort of that State. Buford v. Buford, 1 Bibb, 305, is one of them. We copy from the opinion in that case: “'The point being settled, that at Ian the obligation which James Buford held on Calloway, could not have been taken: in execution, n.or the land in the said bond described, it remains to enquire if a court of equity can go beyond the law, and! create a new right. Equity cannot construe a statute otherwise than a court of law can. Both courts are bound by the same rules of construction, insomuch it is a maxim that ‘equitas sequitur legem.’ Equity will remove impediments which are in the way to, legal rights; aanl will give redress where according to tifie forms of procedure at law, the complainant might have a right without a remedy, or where that remedy would he incomplete. Equity will enforce a recognized right, in a manner unattainable at law, but it cannot create a right unknown to the law. What right! then had William Buford, upon which he could bottom his complaint in chancery? At law he could have no lien upon his debtor’s property, by virtue of his judgment, until his writ of execution was delivered to the proper1 officer; but even after delivery he could! have gained no lien thereby on the land or the bond which is the subject of the complaint. The application therefore is not to enforce a right recognized by law, but to create one and give a lien unknown to' the law. Equity cannot sustain the prayer of the creditor upon the suggestion that his debtor has but an individual piece of property, and that his debt must remain unpaid unless the law shall be transcended and that property made liable. If the chancellor is not circumscribed by the rules of law which enter into and constitute the right, what is to limit his discretion? If he can seize the bare circumstance of a debt as the foundation of the bill, andl create a privity or a lien, where the law has given none, then indeed it might be said that justice Avas to be measured, by the chancellor’s foot, his power by his appetite, and his range illimitable. A bond for land give® no vested right to the land. It is but a right to ask for the subject or damages by Avay of compensation for not complying with that right. It is but a chose in action, which execution cannot reach, and Avhich equity cannot reach in behalf of a creditor, without a, privity created by the parties or by the Ian. -The insolvency of the debtor can furnish no ground for the interposition of the chancellor, Avhen in so doing he does not! follow, but outgoes tliei law. As Avell might the creditor ask that his-debtor Avbo was destitute of property, should be compelled to labor and suffer the creditor to receive the proceeds. And yet it is believed the chancellor could exercise no such power, although the law had given, the creditor an execution against the body of the debtor.” And in the late case of Curd v. Letcher, 3 J. J. Mar. the same .court reaffirms the doctrine of Buford v. Buford, and- of the other cases cited in our original opinion.

The New Jersey court, enjoying an especially high reputation, in the field of equity jurisprudence, is-thoroughly committed to' the same doctrine.. The first rase was that of Disborough v. Outcalt, 1 Saxton’s Ch. 298. There was a full.discussion of the question on principle and authority, and an unqualified acceptance and adoption of the doctrine of Donovan v. Finn. In Whitney v. Robbins, 17 N. J. Eq., 360, it is decided that-“the jurisdiction of the c.ou'rt of .chancery to: collect the choses in action of a judgment debtor, and apply them.to,the payment] of his debts, has never been assumed in this State until conferred by the acts of” 1845 and 1864, and this holding was reaffirmed in, Vanderveer v. Stryker, 4 Hals. Ch. 175. Thp case-of Hardenburgh v. Blair, 30 N. J. Eq. 645, was decided by the Court of .Errors and Appeals in 1879: The-court having held .that the relief sought was not grantable under certain statutes of that State, proceeds thus: “But it is-contended, on behalf of the judgment creditor, that,-independently of the acts of 1845 and! 1864, chancery had a jurisdiction which would enable it .to reach the moneys in question and apply them in payment of the judgment debt of the cestui que trust. An examination of the decisions of the English courts avüI show it to be there settled that an original jurisdiction of this kind did not pertain to its courts of equity. The poAA^ers of the court Avere simply in aid of the judgment creditor, where a trust had been interposed which obstructed the operation of the process of a court of law, and extended only to such property as, save for the interposition of the legal obstacle, might have been reached by such process. Speaking on this subject, Lord Cottenham says : ‘What gives a judgment creditor a right against the estate is only -the act, of parliament, for, independently of that, he has no such right. The act of parliament gives him,, if-he .pleases, .the option by the. Avrit of elegit. * * - * . The effect- of the proceeding-under the writ, is to give .the creditor a legal title, which, if no impediment! prevent him, he may enforce at law by ejectment. If there be a legal impediment, lie then comes into the. court, not to obtain a greater benefit- than the law (thaiti is, the act of parliament) has given him, but to have the same benefit which he would have had at law if no legal impediment had intervened.’ Neate v. Duke of Marlborough, 3 Myl. & Cr. 416. Mr. Lewin, after an examination of the cases, uses this language: ‘As equity only follows, and does notl enlarge the law, the-judgment. creditor has no title to- relief where the chattel,^ of which the trust has been created, is not, in itself, amenable to any legal process,’ Lewin on Crusts, 648. In Taylor v. Jones, 2 Atk. 600, which Chancellor Kent said contained; the great and leading doctrine in support of the creditor, the debtor had, in fraud of creditors, purchased stock with his own money, and vested it in trustees for the benefit of himself for life, and of his wife for her-life, and afterwards for tire benefit of his children. On. a bill filed by his creditor's to have his debts paid out of the stock, it, was decreed that the trust estate be sold and applied in payment of the creditors, although the stock was not, at that time, subject to levy and sale under execution at law. The caise was one infected with fraud, and the decision of the master of rolls Avas put on that ground. Now, although fraud is one of the heads of equity jurisdiction, yet Taylor v. Jones, and several other cases of the same kind, have-been denied as contrary to correct principle, by a weight of judicial opinion that entirely destroys their value as precedents. — LeAvin on Trusts^ 648. The subject has since been regulated by acts of parliament, which expressly malee a judgment 'debtor’s equitable interest in lauds, and also stock, funds, and annuities held by him in his o-Avn name, or in the name of another in trust for him, available for the payment of his debts. * * * * * Independently of these statutes, and the statutes relating to insolvent debtors and bankrupts, it is well settled in England, at the present time, that the jurisdiction of chancery ini aid of a judlgment creditor extends no further than to' property of such a nature and description as might have been seized by the process at law if some legal obstacle bad not. been interposed.”

Necurring now to the New York decisions: The case of Hadden v. Spader, 20 Johns Ch. 554, is chiefly relied upon as settling the doctrine in that State that a. judgmen- creditor ’even ini the absence of statute may come into chancery to have satisfaction out of dioses in action belonging to his debtor. There is an opinion in that ease by Woodworth, J., to. this effect. It was concurred in by Spencer, C. J., and dissented from by Platt, J. The statement of facts in the report demonstrates. that the ease was one of fraud and trust and therefore, well within a recognized head of equity jurisdiction wholly apart from the question we are now upon. All which is made entirely clear in the opinion delivered by Justice Platt, who concurred in the affirmance of the decree upon the ground of fraudl and trust, concluding in these words: “But I am not prepared to extend this doctrine to any other cases than those wherein the trustee received goods liable m themselves to execution. under circumstances, which imply fraud, in fact or in law, as against creditors. In an abstract view, it may appear proper to extend the remedy in favor of creditors, to every chose in action of the debtor. But in my judgment such power lias not yet been conferred on our courts of justice; and it will be the appropriate office of a bankrupt law, or some other legislative provision, to afford such a remedy. I feel that we arej treading on new ground, and I am unwilling to commit myself beyond the case now before ns.” What we have thus set forth as being the case before the court, leads inevitably to the conclusion that all that ivas declared by Wood-worth, J., as to the right of a creditor to subject the dioses in action of his debtor was beside the case presented, wholly unnecessary to its decision, and therefore was the merest dicta of that judge. It was so. declared in the subsequent case of Donovan v. Finn, as we have seen; it ivas so considered and esteemed by the lawmakers of New York, else there would have been no occasion for the statute of 1830, expressly passed to “settle” the law in accordance -with Woodworth's opinion, and so expressly lielcl by the Court .for the Correction of Errors in the case of Durant v. Albany County, 26 Wend, 66, decided in 1841. And, beyond this, the opinion is inconsistent with itself, in that it confesses in one part that the remedy proposed to be applied must be; predicated upon a right existing at Icm, but which in the particular case the remedy at law is inadequate to effectuate, and from this sound basis stated in tbe opinion itself, it proceeds to the conclusion that equity may reach andl apply dioses in action when confessedly there was no right at law in any case to so reach and apply theim. In the cast last cited — Durant v. Albany County — the decision was that-the chancery court had no' such jurisdiction' as was attempted to ho declared by Justice Woodworth in Hadden v. Spader, andl the presiding judge of the court in delivering the ruling opinion in the case had the following among other tilings to say of Hadden v. Spader: “It is true in the ca.se of Hadden and Spader, the learned member of the court of errors, who delivered the leading opinion, did advance a doctrine which carried the jurisdiction of chancery beyond its former recognized limits, and extended it to the discovery and application mí ehoses in action and equitable interests, which could not before he levied upon by execution at law.. In these views another learned member of the court expressly concurre:]; and what is very remarkable, the, opinion which had been delivered, is expressly referred to in the preamble to the final decree altered in the case. But, this ease, I apprehend, notwithstanding the extraordinary preamble of the decree, cannot he eonmdered as deciding anything beyond the true point involved in the case. That was clearly within the former acknowledged! jurisdiction of the court of chancery. It was in no respect necessary, therefore, to Us decision and the affirmance of the decree of the chancellor, to assert the. new and enlarged jurisdiction of that court, Avhich was claimed for it in the leading opinion delivered on the final decision of the case. While, therefore, that decision hais been considered as sound law, the reasoning of the leading opinion in it appears not to have been received with equal favor, or to> have been acquiesced in either by the courts or the bar.” Here follows quotations from the opinion of Chancellor' Sanford in Donovan v. Finn, showing the unsoundness of Woodworth's views in Hadden v. Spader, which we do not repeat here as they are set out in the original opinion; and the opinion in Durant’s case proceeds: “I have been the more liberal in my quotations from the opinion of Chancellor Sanford in the case of Donovan and, Finn, not only because that case appears to have been fully argued, and rvell and ably considered, but because they present the views of a chancellor, who was as faithful and enlightened in the exercise of the powers which lie believed himself to possess, as he Avas careful to, abstain from the assumption of those not within his proper jurisdiction; and who, while he was prompt to apply all the legitimate and 'benefieieut prerogatives of equity to the great purposes of justice, viewed with anxiety, and not without painful alarm, the tendency of hisi own court to an undue accumulation and! exercise of powers. New officers of the court of chancery have lived, whose governing principle appears to contrast more strikingly with that embraced in the old saying,' so fully exemplified -in the life and character of Cardinal Wolsey, the chancellor of Henry VIII. of England: ‘That, great men in judicial places will never want authority.’ Views of the case of Hadden and Spader, similar to those of Chancellor Sanford, seem to* have been entertained by Justice Marcy and others, in. the subsequent case of Pettit v. Candler, in this court in 1829. See 3 Wendell, 618. Justice Marcy there says: ‘The relief asked) for and granted in the case of Hadden v. Spader, lay within the uncontasted powers of the court; but the doctrine advanced by some of the judges when that case was reviewed in this court, went greatly beyond the principle necessarily involved in it, and is supposed by Chancellor Sanford not to have the sanction of the court.’ ‘Nothing can be certainly said to be established ais law by this court in a particular 'decision, but what is necessarily involved in the. case decided.’ Chief Julstice Savage concurred in the views presented by Justice Marcy, with the remark, that ‘his impressions- were that, underr" the existing law, a defendant is not bound to answer as to property which never was within the reach of an execution.’ Justice Sutherland concurred,reserving himself upon this latter point. I think, therefore, that it must be conceded that the law of the decision in the case of Hadden and Spader did not extend' the jurisdiction of chancery beyond its former acknowledged limits; and that, previous to the statute of 1830, that court, in the absence of fraud, trust, or other heiadl of equity, had no power to compel the discovery of money, stocks, clio-ses in action, or equitable interests of a debtor, not tangible by execution at law; and to- apply them, when discovered, to the payment of the debt of a creditor, even although such creditor had obtained a judgment at law, issued an execution thereon, and had it returned unsatisfied. If the court had such jurisdiction already, then the passage of the statute of 1830, expressly giving it that jurisdiction, was unnecessary and! is without effect. But I tlake the passage of that statute to- be evidence that, in the opinion of the revisers who proposed it, and the revising legislature who passed it, the court of chancery independent of the statute, had not the jurisdiction in question. Indeed, the revisers in presenting the draft, of the proposed statute, expressly sa,y, that ‘deeming it important to settle the law, and preserve the rule as laid down in Hadden and Spader, they have p-re-paredl the above sections ;’ thereby clearly implying that without them, the law was not so settled.”' It was insisted in Durant’s case, as it is insisted here, that the statute of New York above referred to was merely declaratory of, “and only reasserted jurisdiction which the court of chancery already possessed, but which had been drawn into question and doubt,” and there as here certain declarations of Chancellor Walworth were relied upon to support the position.' Of these deliverances the opinion in Durant’s case treats as follows :• “I am aware that in Tarbell v. Griggs, 5 Paige 207, the present Chancellor — Walworth —'said, ‘It has been repeatedly decided that this- section of the Revised Statutes is not introductory of a new principle, but is only in affirmance of what was considered by the court of dernier resort, the Legitimate jurisdiction, of the court of chancery previous to> the adoption of the Revised Statutes.’ The learned chancellor has not been pleased to refer us to the cases in which it has1 been so repeatedly decided. The statute went into effect in 1830; the chancellor spoke in 1882, and I ami not aware of any decision of any court during- that period, or even down to the- present time, giving to the statute in question the character andl effect ascribed to it by the chancellor. If there be any such decision I have been unable to find it. It is true that in. Child v. Brace, 4 Paige, 309, the chancellor again says,-‘It must, he recollected, however, that this statute is only declaratory of a principle which had before been adopted in this court.’ Again, the chancellor does not refer us, to the cases in which the principle of the statute had been, adopted in our court of chancery ; and I know of no-case in which that principle forms, a, part of the decree andl law of the case.” After referring to all the cases, at all hearing on the matter and demonstrating that none of then) supports Chancellor Walwobth's assertion, the opinion, with, reference to- him, proceeds: ‘‘.Down to 1827, it would appear that, in the opinion of the present Chancellor himself, notwithstanding the decision in the case of Hadden v. Spader, neither the doctrine of the leading opinion in that case, nor the principle of the statute of 1830 Avas the acknowledged Iíiav of the court of chancery of this State; for in the case of Weed and Martin v. Pierce, which in that year came before him, as VicedJlnmcellor of the fourth judicial circuit, be said, T think with the late Chancellor, that in an ordinary cast1, free from till fraud and justice1, this court ought not, on the. application of an execution creditor, to depriw; the debtor of the power of collecting his debts. There must undoubtedly be an unconscientious exercise of that poAv'er on the part of the debtor, or some fraud,’ collusion, injustice, or Avilful neglect on bis part to collect, and apply his debts and dioses to satisfy his creditors; or some other ground of equitable jurisdiction in relation' to such debts or dioses in action, to enable execution creditors, by aid of a court of equity, to reach and apply the same in satisfaction of their judgments and! executions. It must be admitted that the reasoning of Judge Woodworth-’ (in Hadden and Spader) ‘would extend the jurisdiction of courts of equity much beyond wha,t the late 'Chancellor supposed was .allowable.’ Such Avere the views of Vice-Chancellor Walworth in 1827. They seem to me to be entirely sound, and to present truly the law of the: court of chancery down to 1880.” This very able and exhaustive opinion in another part undertakes to summarize! the law of New York on the question und'e.r consideration, prior to the statute of 1830: “The ordinary cases in Avhicli a court of chancery in the exercise of its appropriate powers., and within its own proper and legitimate jurisdiction, might, previous to 1830, interfere in aid of a judgment creditor, may be compris-eld under the two general classes following: 1. To compel the discovery of property improperly concealed, or withdraAvn from the creditor; and which, when discovered, may be taken in execution at law; and 2. To remove impediments, either created by equity, or interposed by fraud, to the due course of proceedings at law. It is belieA’-ed that, previous to- the Revised Statutes of 1830, the cases in Avhich our own court of chancery interfered to relieve judgment creditors, Avere all-embraced1 in these two general classes, and were, of course, all cases of acknowledged equity jurisdiction. They all came, under some general head of equity. The case of Bayard v. Hoffman, 4 Johns. Ch. 450, was a case of fraud, trust, and a conveyance without consideration; that, of Brinckerhoff v. Brown, Id. 671, was a case of fraud; that of McDermot v. Strong, Id. 687. was a case of trust; that of Hadden v. Spader, 5 John. Ch. 280, and 20 John. 554, was a case of trust and fraud; and the ease of Pettit v. Candler, 3 Wend. 618, was also one of trust and fraud. These are the leading cases in our own courts previous to 1830; and it will be seen on examination that they all embrace: some general head of equity, and are thus within the legitimate jurisdiction of chancery. In neither of them was there an attempt on the part of the- court, without facts- or incident's of equitable jurisdiction, to discover and apply to the payment of the debt of a judgment creditor, stocks, credits, choses in action of equitable interests, not tangible by execution at law.”

We will not pursue this'discussion'and citation of authority further. Quite enough has been said and shown upon adjudged cases and texts incidentally quoted! to demonstrate that“Donovan v. Finn was” not “opposed to tire precedents extant from the most distinguished judges,” but was strictly declaratory of the law of England and of the State of New York in the then absence of statutes. Enough has appeared also to demonstrate that “Donovan v. Finn was” not “immediately des nounced, disregarded and overruled,” and that it has been “followed in the State of New York where it originated.” And apart from these statements, quite sufficient of reason and authority has been presented to'demonstrate the soundness of the proposition of Donovan v. Finn as a living principle today. On the other hand, the case of Hadden v. Spader, or rather tire view of Justice Woodworth there evpressed, is a conclusion drawn from a stated! premise which palpably and according to all Avell considered cases does not support it; Arms at most a dictum wholly unnecessary to the determination of the case, and has. been denounced, disregarded and overruled, not only in New York where it originated, but also by courts, whose learning and ability have not before now been drawn in question1, almost from one. end of this, country to the other.

But it is insisted that this court in its early reports— in cases arising before avc had any statutes bearing on the matter1 — ruled in line Avith the views of Justice Woodaa'ORTh expressed in Hadden v. Spader, and against the doctrine declared in Donovan v. Finn; and counsel, for the first time, on the application for rehearing, cite some Alabama cases. Among them is Brown et al. v. Bates, 10 Ala. 432. This Avas a case under the statute of 1844 (to be considered further on), but in the course of his opinion in the case Chief Justice Collier remarked: “It Avas held in this State long previous to 1844, that; a judgment creditor who had exhausted his legal remedies might go into equity for the purpose of subjecting the equitable estate of his debtor, or other interests that could not be malde available at law.” But the learned Chief Justice does not: cite any case in support of this dictum of his, and- none have been cited by counsel or found by us. The only cases prior to Brown v. Bates to which we have been referred are those of Vandegraaf v. Medlock, 3 Porter, 389; Morgan v. Crabb, Id. 470; Roper v. Cook, 7 Ala. 318; and Lyon v. Bolling, 9 Ala. 463. The last nameld case Avas simply a bill filed by a creditor by subrogation to subject to the payment of his debt land which had been purchased and paid for by the debtor, but the title to Avhich, in fraud of complainant and other creditors, had been taken in the name of the debtor’s son. There could have been nothing decided in such a caise bearing upon the matter of consideration, and nothing was attempted1 to be decided nor was anything said having any such bearing. The 7th Ala. case was a bill filed by the assignee of a purchase money note to enforce a vendor’s lien. After deciding that the bill had equity to enforce the lien, Collier, O. J., said that if complainant had not had a lien, he should have had to recover judgment and have execution returned 'nulla bona, before he could have come into equity to subject the equitable estate of his debtor, meaning by “equitable estate” property belonging to the debtor but standing in the name of another person, there having been no conveyance executed to the debtor in the case. In the the case of Vandegraaf v. Medlock, 3 Porter, 389, the case and the decision are embodied in this head-note: “Chancery has no power to decree to mortgagees, the proceeds, of a policy of'insurance, effected by the mortgagor, on the mortgaged property, AAdiere the same has been destoyed by fire — no covenant existing in the deed as to the insurance.” Clearly here was nothing bearing on our point, But Judge Hopkins said wholly outside of the case and the decision: “If he [the mortgagor] be insolvent, his other creditors have as just a claim to the proceeds of the policy as the mortgagee. But no creditor could make them liable by the aid'of a court of equity, to satisfy his demand, who had not before he filed his bill for the purpose, obtained a judgment at law, sued out execution, and pursued the latter to every available extent a,t law,” and he cites in support of this obvious dictum Brinckerhoff v. Brown, 4 Johns. Ch. 671, which does not support it in point of decision,. an);l which so far as its cliota may tend that way has been wholly repudiated. But leaving Brinckerhoff v. Brown out of the question., the casual and incidental remark of Judge I-Iopkins amounts to nothing, and even as dictum it! does not support the dictum of Judge Collier in Brown v. Bates, quoted above. It is only necessary to say of the case of Morgan v. Crabb, 3 Porter, 470, that the dictum of Judge Hopkins just referred to is there repeated by him, and is confessedly as alien to the case and the decision in the one case as in the other. It is most manifest that these dicta do not support Judge Collier's dictum in Brown v. Bates: “It was held in this State long previous to 1844,” etc., etc.; and that they did not by any means establish any doctrine in this State opposed to Donovan v. Finn, prior to the act of the year just named.

We may interject here that as the territorial legislature had, in 1818, passed a garnishment statute, it might well have been decided by this court prior to the act of 1844 that chancery would entertain a bill to reach the dioses in action, of ai judgment debtor1 which because of some legal impediment could not bei reached and subjected by process of garnishment; but this, as we shall see, would have been on the ground that the: statute referral to had given the judgment creditor the legal right to subject dioses in action, and the legal remedy ivas inadequate under the particular circumstances.

Therefore, Ave include Alabama, in repeating and reaffirming the doctrine of the original opinion that, apart from statutes, courts of equity have not and never had any poAver or jurisdiction to subject the ehoses in action of .a, debtor to the satisfaction of a judgment against him.

There is a- statute in Alabama which, it, is insisted, confers this power and jurisdiction in cases of the kind Ave have in hand. This Aims enacted in 1844; that, nart of it doav relied on by appellees was embodied in a changed) farm as section 2987 of the Code of 1852, was section' 3540 of the -Code of 1886 when this case arose, and is section 814 of the Code of 1896. We are of opinion that this statute has no hearing on the case in hand, for the reason that it authorizes bills for discovery only, and the subjection of property discovered in proceedings under bills for discovery and nothing else, and the bill in this case is in no sense a hill for discovery, or within the statute at! all. The statute in. its original form was .as fallows: “An Act authorizing the filing of Bills1* in Chancery in certain cases. Section 1. Be it enacted ” etc., “That whenever an execution against, the property of a defendant shall have been issued on a judgment at law and shall have been returned unsatisfied, aind there shall remain due on said judgment, the party suing out such execution ma.y file a bill in chancery against such defendant, and any other person or persons, to compel the discovery of any property, money, or thing in action, belonging to< the defendant, and if [of] any property, money, or thing- in action due to him or held in trust for him, and to prevent the transfer of any such property, money, or 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 other person than the defendant himself. Sec. 2. And be it further enacted, That the said court shall have power to compel such discovery, and to prevent such transfer, and to decree satisfaction of the sum remaining due on such judgment, out, of any property, money, or thing in action belonging to' the defendant, or held in trust for him, with the exception above noted, which shall be discovered by the proceedings in chancery, whether the same were originally liable to. execution at law or not. Sec. 3. And be it further enacted, That a bill of discovery may be filed, and the defendant shall he compelled to answer such hill, when the defendant is charged with having confessed, or suffered any judgment purporting to he for a sum or debt! due, AAdietu in fact nothing, or, .only a part of the SAim. stated in said judgment is due, with intent to defraud the just creditors of said defendant, or to place the property of the defendant out of the reach of his creditors or to hold the same on some secret trust or confidence, or for the benefit of such defendant.” Acts 1844, pp. 107-8. It is manifest that we need refer in this discussion only to the first and second sections of this act, the third, being entirely alien to the present case; is not involved. So much of sections 1 and 2 of this act as. was the laAv Avhen this bill .Avas filed was embodied in section 2987 of the Code of 1852 taken in connection with section 2 of that Code, anid so it has been embodied in each subsequent Code without amendment and constitutes section 814 of the Code of 1896, with certain provisions of section 2 of that Code read into it. As codified in 1852 the statute reads as rollows: “§ 2987. When, an execution for money from any court has been issued against a defendant, anid it is not satisfied, the plaintiff or the person for whose benefit such execution, is sued out, may file a bill in chancery against such defendant, to compel -the discovery of any property-belonging1 to him, or held in trust for him; and to prevent, the transfer, payment, or delivery thereof such defendant, except Avhen tire trust has been created by or proceeded from some other person than the defendant himself; and the court may.bring any other party before it, and decree such property, or the interest of the defendant therein, to the satisfaction of the sum due plaintiff.” The Avords, “or money, or thing in action”' employed several times following the word “property” in the original statute are not set down in this section, but they are supplied by the definition of the Avord' “property” as used in the Code contained in section 2' of this and all succeeding Codes, so that in this respect the codified statute is precisely the same as the original. Another difference between the original act and its codification consists of the omission from the latter of the prevision' of the formier for tire bill to be filed against “any other person or persons” as Avell as against the defendant in execution. Whatever else may be said of this omission, it is, certainly not supplied by any provision, in any of the Codes, unless the provisions in these words: “and the court may bring any other party before it,” etc. which, was not in the statute originally, but is new to the Code of 1852, be taken to supply in a sense the. omission last referred to.. Doubtless the new provisional does in a sense supply the old, or the occasion rather for the old; but it cannot be said that they are the same or.mean the same thing. To the contrary, the original statute proceeds upon the theory that persons having property of, or owing money to the defendant may ~be Imoicn to the complainant at the time he files a bill to discover them, and being known it undertook to authorize the bill to be filed, the suit initiated against them as well as against the defendant in the first instance. On, the other hand, the codifiers, taking the statute to authorize what only it purports to authorize, namely, the filing of a bill of discovery and the subjection of property discovered under it to complainant’s judgment at law, and recognizing, what the legislature had apparently overlooked, the sheer anomaly, and to say absurdity, of prosecuting a bill to discover property of the defendant which complainant already knows to be in the hands of or due the defendant, from a known person, and recognizing also the existence in; Alabama since before its. admission into the Union of a garnishment statute, which they themselves had incorporated! in previous sections of the Code of 1852, by which all the effects of the defendant in the hands of or OAving by third persons knoAvn to the judgment creditor could be reached and subjected at law, and hence that there Avas no possible occasion for a bill in equity in that behalf, they, the codifiers, in making this change, proceeded upon the only tine theory of a bill of discovery, that is to say, the theory that the complainants could not know before filing his bill and having it answered who held) defendant’s concealed property or might not know who oweld defendant money, and providled, instead of allowing the bill to be filed against other persons, that Avhen such other persons should be discovered by the ansAver to the bill, the court should then bring them before it and sequester the effects of defendant in their hands or OAving by them.’ The change thus wrought by the codifiers is a pregnant one. It is quiter true that-the original statute in terms authorized the filing of a hill of discovery, and expressly limited the remedy given to property “which shall be discovered by the proceedings in chancery;” yet so long as the provision authorizing the hill to he filed against, third persons remained, there was such inconsistency in the act as gave rise to plausible contention that a hill not of discovery could he maintained undier it; and to this may be ascribed whatever of dicta this court may have at any time indulged to that effect: The important change in question; has not been at all times sufficiently taken into' account. With it properly in view there is, and, since the Code of 1852, there has been no room whatever, nor the least justification for saying that under the statute any other than a. bill of discovery can he filed.

■ To the query, Why give this remedy against unknown or concealed property and not against known property of the defendant? the answer is short, complete and perfectly manifest. It is, as we have already indicated, that, in 1844 when this act was passed, and in 1852 when it was codified, the judgment creditor already had and for years had had a plain and adequate remedy at law by garnishment to reach and subject to his judgment all known property, money and dioses in action belonging to the defendant held in trust or otherwise by, or owing from third persons, under the Territorial act of 1818 which was embodied in the Code of 1852 as section 2471, and which has continued to he the law of this State. — 'Aiken’s Ala, Dig. 213. It is the converse question, so to speak, Why should the legislature have given a remedy by bill in chancery to subject known effects of the judgment debtor -when there was already a plain, adequate and complete remedy in that regard at law?’ which cannot he answered at all; and upon which, the only thing that can he said is that no'remedy by bill in equity to reach such known effects has ever been given or attempted to be given. And it was to1 re-' move any semblance of haziness even upon this point that the codifiers of 1852 miade the change in the act of 1844 to which we have adverted. John J. Ormond, the chief codifier of 1852, was on this bench along with Collier, C. J. and Goldthavaite, J., when Brown v. Bates, 10 Ala. 432, was decided. He was also on the bench with the same associates, when the case of Allen et al. v. Montgomery Railroad Co. et al., 11 Ala. 437, was decided; and in this latter ease it was held that a bill seeking to subject choses in action which could be reached by garnishment was Avithout equity, and it Avas this doctrine Avliich he and his co-commissioners sought to relieve from all questions by more clearly and distinctly confining the remedy given by the act of 1844 to property Avliich could not be reached by garnishment because it Avas concealed, and in respect of. which, therefore, a discovery Avas necessary.

But it, is insisted that the statute of 1844 Avas taken from and is substantially the same as the New York statute of 1830, that that statute has been construed by the courts of Ncav York to authorize the judgment creditor to file a bill in chancery to reach, and subject the dioses in action of the -debtor in any case AAdiether discovery is necessary or not, and that, of consequence, our statute's should receive; the same interpretation. The statute-! of New York is a. substantial prototype of the art of 1844, except that it contains no- provision for making others than the judgment debtor defendants to the bill it authorizes; and it differs from the codification of the? act of 1844 in that it does not provide for the court’s bringing in peu-son-s aaíio are discoArered by the answer te> owe' money to or have effects of the debtor defendant. It Ava.s, hoAvesver, expressly enacted AAith reference and se-ttled the huv according to the opinion of Woodworth in Hadden v. Spader, in AA'liich the bill made* another than and along Avith the debtor a, party defendant:, and this circumstance; preibably justifies the construction there- put on the statute in this regard. It is probably a circumstance, too, tending to give plausibility to the- notion that because the -statute of 1844 authorized others than the defendant in judgment to be made respondents to the- bill, such bill need not be strictly one for discovery, but it is a circumstance of no importance in the construction o-f the codification of the act of 1844, which strikes out the provision for making third persons, parties, and provides for the bill being filed against the judgment debtor and the bringing in by order of the court third persons whom the answer discovers to be in possession of the 'respondent’s property or to owe him money. This pregnant change in the statute of 1844 in itself supplies good ground for not applying to it as codified the construction which in this regard was applied to the New York statute. But there are cogent grounds for repudiating the New York construction as the sound one as well for the act of 1844 as for its codification. As wre have said the statute of that State was enacted (expressly to establish as law the view of Justice Woodworth in Hadden v. Spader. That view wras in effect that whenever execution on a judgment at law should be returned nulla, bona, the judgment creditor had a right to come into equity to reach and subject to the satisfaction of his judgment chose® in action belonging to the judgment debtor1. The expressed purpose on the part of the lawmakers to settle this, declaration of Justice Woodworth as the law of the State, naturally, and, it may be conceded, properly overbore and emasculated expressions in the body of the act confining the remedy to' cases in which discovery wras necessary and to bills for discovery. There was no' expression on the part of tire legislature of Alabama in the passage of the act of 1844 of any purpose beyond that set forth in the body of the act itself; and looking to the act itself there can be 'no question, we think, that the thing authorized was tire filing of bills of discovery only, and not the filing of bills generally to reach choses in action of the judgment debtor. In other words, tire consideration which constrained the Newr York courts1 to disregard the terms of the act itself which went to confine it to bills of discovery, never had any existence in respect of the courts of Alabama; and leaving it out of view, the conclusion that our statute has reference solely to such bills cannot be reasonably escaped. But there is> yet another view which to our minds in itself strips the contention for the application of the New York construction to the Alabama statute of all semblance of merit: The deliveranee of Justice Woodworth is expressly rested on the theory that the choses in action of a debtor should be ■applied to the satisfaction of the judgment against him, that there ivas no way to so subject them at law and that ex necessitate equity must supply the remedy to that end. It was not pretended that equity would give such remedy if there was a remedy at law; but his position was that chancery would eke out the deficiencies of the law because it was absolutely necessary to the ends of justice that it should do- so. He merely proposed to apply .a remedy to meet a necessity, and the doctrine he enunciated went, nor ivas intended to go, no whit beyond the necessity. This doctrine of necessity was that the legislature of New York expressly proposed to settle as the law of the State. At that time' there was no remedy at law in that State to reach and subject any of the judgment debtor’s choses in action known or concealed. There Avas no- statute of garnishment nor other mode of levy at la,AV upon choses in action. To carry into effect- the remedy of Woodavorth, J., as he had formulated it, AAhich formulation the legislature expressly undertook to make the laAv of the State, it Avas necessary for the statute to be construed to give •a remedy in equity against all choses in action, because at law there was no remedy against any. If there hadl been a garnishment law in Noav York under which all known choses in action of the debtor could have been subjected at law, the proposition of Justice Woodavorth would not have involved an equity remedy to subject them, and the statute to settle his proposition as law ■couild not have been construed to extend the equity-remedy to them. The Avliole purpose of Woodworth, J., which Avas expressly declared to be the purpose of the legislature, being to give a remedy against chosies in action AAhich could not be reached, and because they could not be reached at law, the statute could never have been construed to give a remedy in equity against choses in •action which could be reached at law, more, especially when such a construction would have done palpable violence to the language of the body of the act dissociated from the otherwise expressed purpose of its enactment. Now in Alabama in the year 1844 the only choses in action of a judgment debtor Avhich could not be reached and applied to the satisfaction of the judgment by legal process, Avefe those Avhich were concealed from the judgment creditor; there was no lack of legal remedy to apply these once found, hut only a Ava.nt of power in the courts of laAV and in the creditor to find them; the doctrine of necessity applied to them only to the extent of supplying a remedy to discover them, to discover in Avhose hands they Avere or Avho OAAred money to the defendant in judgment. To this end the statute is express: it authorizes the filing, of a bill of discovery, and1 not any other sort of bill; it deals Avith property disco acred in the proceedings consequent upon the bill for discovery, and it deals Avith no other property; and by the same judges AAdiO1 decided Brown v. Bates, 10 Ala. 432, it Avas decided in Allen et al. v. Montgomery Railroad Co. et al. 11 Ala. 437, and this after the statute of 1844 and immediately after it had been treated and discussed by them, that the chancery court had no jurisdiction to subject a chose in action which was. leviable by process of garnishment in a court of law. Thej statute of Npav York Avas intended to meet a, necessity, and it was construid to be commensurate Avith that necessity. The Alabama, statute» Avas intended to meet a necessity, and it Avas in effect construed in the last cast»1 cited to» be commensurate Avith that necessity. In New York the necessity covered all dioses in action, and in violence to the language of the body of the enactment it Avas held to' give a, remedy to subject all dioses in action. In Alabama the necessity Avas only as to those dioses in action Avhich Avere concealed or unknoAvn; the terms of the enactment do not embrace any others: every consideration pertinent to the interpretation and construction of the statute ‘drives unerringly and inevitably to the conclusion that it does not and never did authorize anything Avhatever but bills of discovery and proceedings under hills of discovery to subject, the property discovered; and Allen’s case, supra, is to all intents and purposes a decision to that effect. So much for the insistence that the construction placed by the courts of that State on the New York statute should he adopted by our courts with reference to our statute.

But it is further insisted that the New York construction has been applied by this,.court to this statute. Tavo cases, are mainly relied! on ini this, connection. They are Brown v. Bates 10 Ala. 432, and Martin v. Carter, 90 Ala. 96. Brown v. Bates was decided before the change was made in the statute by the codifiers, but that change is not of importance to that case. That bill was strictly one within the, provisions of the statute as, we have canstrued it, and purely for the discovery of concealed property and its subjection Avhen discovered to the satisfaction, of the complainants’ judgment. It was, filed against the judgment debtor and against nobody else. It alleged among other things that defendant had choses in action and other property AAdiich were so secreted and concealed that process of law could not reach them. It did not aver, but to, the contrary showed ignorance in respect of, the names of third persons, having property of or owing money to the defendant, and sought to discover these persons. It was held to be well filed1, and its averments to, be sufficient under the act of 1844. It was simply an impossibility for the court in that case to have construed the statute to authorize any other bill in equity to subject choses in action than a bill to discover Choses in action and to, subject the choses discovered in the proceedings to, the judgment. And we by no means understand that any effort Avas made in that direction. Had it been made in the opinion, it Avould-have been the ■mere saying of Judge Collibb, not the adjudication of the court and of no efficacy for any purpose. That nothing of the sort Avas intended is shown by the ruling of the same judges at toe succeeding term of toe court that no bill in equity Avould lie to reach choses in action leviable by garnishment at law. — Allen’s case, supra.

In Martin v. Carter, 90 Ala. 96, Judge Clopton said: “Under the statute [the reference being to the statute we b ave been considering, then constituting section 3540 of the Code of 1886], a bill may be filed to subject property Avhich cannot be sold under execution, or reached by legal process, or for discovery in aid of the execution at law.” He cites no authority for this broad proposition except Brown v. Bates, which, as we have seen, does n.ot so decide. The hill sought to subject to the claim of the complainant the interest of Martin, one of the respondents, in two notes executed by Wells & Moore to Martin and six other persons jointly, and to foreclose a. mortgage, given by the makers of the notes to the payees, to secure the payment thereof. While assuming that the bill is filed under the statute, the decision is rested on the grounds that the interest of Martin in the mortgaged property could not be levied on, and that- his interest in the notes, could not be reached and subjected by process- of garnishment, because that would be a splitting up of the cause of action against the makers of the notes. Now this was a correct decision, and the only proper grounds to put it upon wholly- apart from the statute. As held and illustrated in many of the cases which we have collated, this case presented a state of facts upon which on all the. authorities relief in equity could be liad without reference to the acti of 1844. It was simply a case of a right given at law which because of a legal impediment could not be effectuated by legal process. As we have seen, long before the act of 1844, a. statute of this State gave to a judgment creditor the riglit to subject the dioses in action of the debtor to- the satisfaction of the judgment. There was- before that time also a statute authorizing attachments to be levied upon dioses in action of the defendant in attachment by process of garnishment. Both these statutes have been of force* ever since their enactment in 1818. But for the legal impediment referred to, the: interest of Martin in the notes given to him and others by Wells & Moore was leviable by process of garnishment at law. The interest belonged to a class of property against which the judgment creditor" was given a right to proceed by legal process. But in this particular instance lie could not so proceed because the makers of the notes could not be forced at law to pay one of the joint payees leaving themselves subject to other suits by the other payees, and the judgment creditor of one of the payees, having no claim against the others, could not coerce the payment of the full amount of the notes; Here there was a, right given at law, a legal impediment to1 its enforcement at law, and! an appeal to chancery to- effectuate the right because though given by the law', the law courts could not effectuate it. And chancery jurisdiction is always properly invoked in such cases on the principle elaborated by Chancellor Sanford and other courts and judges from whom we have quoted in, the course of this' opinion, and thus tersely stated by Lord Lindley : “Courts of equity [before the statute] gave relief where a legal right' existed, and there were legal difficulties Avhich prevented the enforcement of that right at law.”— Holmes v. Millage, 10 Ruling Cases, 608. So that all that Avas said by Judge Clopton in Martin v. Carter as to the statute was but, the merest dicta, outside of the case, and unsound as dicta; and the decision Avas properly rested on considerations Aldrich gave the bill equity and authorized the relief pray eld Avithout any reference to the statute. What Judge Glopton thus mistakenly andl unnecessarily said is of no more importance or effect as a construction of the statute than had it been said in a casual conversation:.

The case of Nix v. Winter, 35 Ala. 309, is also cited in support of the application for rehearing. Nothing was involved or decided or even said in, that case bearing upon the construction of the statute in the respect under consideration,. Brown v. Bates is there cited to the point that it, was not indispensable for' a, bill under the statute to aver that the execution' Avas- issued to, the county of the debtor’s res-idlence and returned “milla bona ” and from- this it may be inferred that the court assumed that that bill Avas filed under the statute. If so, the assumption Avas entirely gratuitous and erroneous. The bill was filed td subject an equitable interest in Hand and thus invoked the exercise of jurisdiction which courts of chancery have independent of statute, the Avell established dloctrine being that equity power may be appealed to to subject the debtor’s equitable interest in property “which could have been reached at la.AV, if he had had the legal interest in, it instead of an equitable interest only.” — Holmes v. Millage, supra.

It is said that Chief Justice-Bricicell, in Ex parte John Hardy, 68 Ala. 303, 323 et seq., expressed views at war with the conclusion we reach as to the original jurisdiction of equity and the construction of the statute of 1844. But the opinion of Judge Brickell in that case was the dissenting, not the ruling opinion, andl it was, therefore, impotent to put a construction on the statute or to settle what the law was before its enactment. What he did say was merely argumentative and incidental in support of his position in the case, and would have been dActa even had his been the governing opinion. Among other things, however, ha did say: “'Thej whole scope of the statute, as is evident from its most casual reading, is to authorize creditors, who have exhausted remedies at law, to resort to a court of equity for the discovery of property subject- to the payment of their debts; and when discovered, its subjection for that purpose by the decree and process of the court. * * * When the principle is established that every species of property, legal or equitable, tangible or intangible, in which a debtor has a beneficial right or interest, not exempt by law, is bound for, and may be reached and applied to the satisfaction of his debts, if legal remedies fail, as they are indisputably shown to have failed, when there is a judgment at law, followed by a fruitless return of the process for its execution, the power of a court of equity must be perfectly adequate to carry the principle into effect, unless with humiliation we confess, that there are legal and equitable wrongs for which there is no.remedy.” After setting this down as the predicate for what was to' follow, what he further said! at war with our conclusion, was equally at war and inconsistent with the impositions, thus- made the baséis of his argument. In the ruling opinion in Ex parte Hardy, which was delivered by Judge Somerville, no views in opposition to our position are expressed, but on the contrary in a general way wei are supported.

We have examined every other Alabama case, it is believed, at all bearing upon either of the questions we have been discussing, and every case in which Brown v. Bates is cited; and we find in none of them anything to stand in the way of either of the conclusions we have reached; namely, -first, that in the absence of statutes the chancery court has no jurisdiction to reach and subject dioses in action of a judgment debtor to the satisfaction of the judgment; second, that the statute of 1844 confers that jurisdiction only in respect of concealed dioses in action to he exercised only by bill of discovery and proceedings thereunder; and, third,, that a judgment creditor having under the garnishment statute the legal right to ievy upon choses. in action of his debtor, may come into equity to effectuate that legal right when because of some impediment it cannot be enforced by garnishment.

This bill is obviously mot finder the statute as we construe the statute and as the statute plainly reads. There is no impediment to the enforcement of the complainants’ judgment, by garnishment at Ijaw, and the case it presents is not otherwise cognizable' in equity apart from statutes.

The importance of this case in principle, and, to the parties in amounts involved, and the ability, learning and industry displayed by- counsel upon either hand in its presentation go somewhat in. justification of the length of this opinion.

Let the application for rehearing be overruled.