44 Miss. 406 | Miss. | 1870
The bill is brought against Jas. D. Blair and Jno. J. Blair, resident citizens of the state of Louisiana, and the unknown heirs of A. J. Rugby, and W. J. Britton, W. T. Withers, and Lloyd R. Coleman, non-residents, except W. T. Withers, who resides in Hinds county, Miss., and alleges that on the 4th of January, 1859, Rugby, Jno. A. and Jas. D. Blair, partners, under the firm name and style of Rugby, Blair & Co., doing-business in New Orleans, La., purchased, with the partnership assets, a parcel of land in Holly Springs, in this state, set out in the bill, for which a deed was taken in the partnership name; that after this, the firm name, though consisting of the same persons as members, was changed to A. J.
That on account of the death of Rugby, and the non-residence of the defendants, they cannot recover at law.
Prayer is for an equitable writ of attachment, and for decree for sale of the land.
The question is whether the complainants have a remedy in a court of chancery. It is quite evident that a creditor cannot proceed by.attachment in equity to make his debt out of the effects or credits or lands of a non-resident, absent, or absconding debtor, on the ordinary principles that obtain in that court. There must be some equity to put in motion this or similar remedial machinery, such as an unsatisfied judgment at law, and inability to appropriate a fund or assets by execution, which may be reached in chancery. Can the relief be granted by virtue of the statute ? The proceedings authorized by the Rev. Code, art. 60, § 3, p. 549, against non-resident and absent debtors, was derived from Virginia statutes of 1744 and 1819. The former of these limited the remedy to cases “ where the non-resident debtor had effects in the hands of a resident party, or a resident party indebted to the non-resident. ” The enlargement made by the latter act, was in addition to the above. “ or against every absent defendant having lands or tenements within this commonwealth.n. There were two classes of cases in which the creditors could resort to a court of equity. The first was to reach the u effects” or “ debts ” in the hands of, or owing by the resident party. The second was -to subject the lands of the non-resident or absent debtor.
Comstock v. Rayford et al., 1 S. & M., 437, arose under the first branch of the statute, to subject property in the hands of the resident defendant to the debts of the absent defendant. It was held that before a creditor at large, without specific lien or judgment at law, could bring the bill, there must be, a resident, and non-resident or absent party defendant; an attachment was irregular, but a proper order for securing the fund should be made. Trotter v. White, 10 S. & M., 012, was much like the preceding case. Trotter, the absent debtor, owed a large sum to the plaintiff, and by means of a false , and fraudulent sale, had passed large property into the possession of the home defendant; it was distinctly announced that the intimation, thrown out in Comstock v. Rayford, that a preliminary attachment might be awarded, was a proper remedial agency. Freeman v. Gwin, 11 S. & M., 62, was in all important particulars, like the former cases, except that the complainant creditor was a non-resident. The main contest Avas as to the jurisdiction. It was urged at the bar that the remedy Avas full and adequate at law, and that there was no element of equity in the bill. The response of the court to this, Avas that they Avere administering a statutory redress, and that in the state from Avhich we derived the remedy, the courts had never required the creditor to ground his bil-1 upon any special predicate of equity congnizance. The case of Zachariah & Kerr v. Bowers, 3 S. & M., 644, sought to subject the lands of the non-resident debtor, and was sustained as a proper bill; 33 Miss.
The difference which once existed in the court, as to Avhether
The decree of the chancellor, sustaining the demurrer and dismissing the bill is reversed, and decree here overruling the same, and leave given to plead or demur in forty days, with leave to chancellor to enlarge the time.