14 Ala. 198 | Ala. | 1848
The only question we need examine is, has a court of chancery jurisdiction under the circumstances declared by the bill. The judgment recovered by the United States, was joint, against all, and the payment extinguished it, the complainants are therefore simple contract creditors. See 1 Dev. & Bat. 366; Foster v. The Athenæum, 3 Ala. R. 302; 6 Ala. Rep. 797. Being simple contract creditors, their debt is purely legal, and they have no lien on the property sought to be subjected to its payment. The ground on which it is attempted to sustain the jurisdiction of the court is, that Richard P. Watson is a non-resident. In Kentucky, it has
I have not been able to find any case where the mere absence of the debtor from the country, has been held to give a court of equity jurisdiction, independent of statute provisions, and according to the general rule on the subject, if the matter was cognizable in equity, but the defendant was not within the jurisdiction of the court, no suit could be entertained, or relief afforded. See Mitford’s PI. 30, note, a. To remedy this defect, various statutes have been passed, in the several States of the Union, and also in England ; and it is by virtue of these statutes, that courts of equity proceed against absent defendants, who are necessary parties to the bill, even where the subject matter is of a pure equitable nature. And if a court of equity must look to statute aid, to enable it to proceed against an absent defendant, when the subject matter is properly within the jurisdiction of a court of equity, it would follow, that the mere absence of a defendant from the jurisdiction, could not enable a court of equity to take jurisdiction of a matter of pure legal cognizance, as the collection of a simple contract debt.
The bill in this case was filed before the passage of the act of 5th February, 1846, nor is it in conformity with the provisions of that act — it cannot therefore be aided by it.
The decree of the chancellor is affirmed.
