
    Theophilus Freeman vs. William H. Malcom et al.
    
      Comstock v. Rayford, I S. & M. 423 cited, and confirmed.
    In a case in chancery under the foreign attachment law, where the creditor’s demand, to the payment of which he sought to subject the property of the absent defendant in the hands of the home defendant, consisted of a bill of exchange, accepted by the absent defendant, it was held, on a pro confesso against the absent defendant, to be sufficient evidence of the indebtedness to the complainant, to produce before the master the original bill of exchange.
    In the case of a foreign attachment in equity, the decree of the court should, in obedience to the statute, require the complainants to give security for abiding such future order, as mightbe made for restoring the estate or effects to the absent defendant upon his appearing and answering the bill; or in default of the complainant’s giving such security, the court should make the alternative order required by the statute.
    The case of Benoit v. Brill, 7 S. & M. 37, deciding it to be error for the probate court to decree a distributive share, without requiring a refunding bond with surety, in cases coming within the' purview of the statute, cited and confirmed.
    In a case where the decree in a creditor’s attaching bill omits to require security to be given by the complainant, for the restoration of the estate to the absent defendant on his appearance, it seems that the high court of errors aqd appeals will, instead of entering the proper decree, remand the cause, to give the absent defendant the opportunity, by his appearance and entering security for the costs, of opening the decree.
    In error from the decree of the superior court of chancery; Hon. Robert H. Buckner, chancellor.
    On the 9th of April, 1844, William H. Malcom and Cornelius M. Gaul filed their bill in the court below against John Goodin, Theophilus Freeman, Benson Blake, and Caroline, his wife, William H. Martin, and John P. Oldham; in which they state that they are citizens and residents of the state of New York, Goodin and Freeman of the state of Louisiana, and partners, under the style of John Goodin & Co., and the other defendants citizens of Mississippi; that on the 6th of September, 1843, at the city of New York, Martin & Oldham drew their bill of exchange on John Goodin <fc Co., citizens of Louisiana, and out of the state of Mississippi, in favor of the complainants, for $ 1731-57, due six months after date. That Goodin & Co. accepted the bill, and failed to pay it when presented to them at maturity, and thus became indebted in the amount of the bill of exchange to complainants, and also the interest, damages, protest fees, and postage.
    That Benson Blake, and his wife, Caroline M. Blake, the former in right of his wife, late Caroline M. Ferguson, are executor and executrix of the late will of Thomas Ferguson, deceased, having duly qualified in the probate court of Warren county, in this state. That the estate of Thomas Ferguson had been declared insolvent by that court, commissioners of insolvency appointed, and their final report received and allowed. That Theophilus Freeman presented a claim in his favor to the commissioners for $6683-24, due on the first day of January, 1838, which claim was allowed by the commissioners in full, of which Freeman was entitled to his distributive share, which, amounting to upwards of two thousand dollars, was then in the hands of Benson Blake and wife, defendants in this state, ready to be paid to Freeman. That Martin & Oldham have also effects in their hands, or are otherwise indebted to Goodin & Co. The bill prays that Martin & Oldham, and Blake and wife, may disclose what effects they severally have belonging to Goodin & Co., or either; may be restrained from paying them over to Goodin & Co., or removing them; that an account may be taken of what is due complainants; and Blake and wife, and Martin & Oldham be decreed to pay it.
    Affidavit was made to the indebtedness and non-residence alleged in the bill; and a restraining order was granted, on the execution of a bond in double the amount of the debt, conditioned to be void, if, in case the injunction should be dissolved, the complainants would, within thirty days thereafter, pay all damages which might result from suing out the injunction and costs, and abide by, and perform the decree of the chancery court.
    Process was duly served on Blake and wife, and on Martin & Oldham.
    Oldham answered, denying-his indebtedness to Goodin & Co., or having effects of theirs; pro confessos were entered against the others.
    Proof of publication in the Southron under an order of the court was duly made and filed by the publisher, and of the posting of the notice at the door by'the clerk. Upon this the bill was taken for confessed against John Goodin & Co., and set for hearing. The original bill of-exchange and protest were filed as proof. The chancellor directed the commissioner to report the amount due the complainants; the report was made and confirmed, and the chancellor gave a final decree that the defendants, Blake and wife, defendants in this state, should pay the sum of $1844 to the complainants out of the money in their hands due Freeman, within twenty days from the date of the decree, and in default thereof, execution should issue. The bill was dismissed as to Martin & Oldham.
    Freeman, proceeding by summons and severance, has prosecuted á writ of error from this decree.
    
      Sanders and Haggin, for plaintiff ip. error,
    contended,
    1. That the court of chancery had no jurisdiction of the case.
    2. That no bond had been given, as required by the statute, (How. & Hutch. 556,) with security, that if the defendant should appear in a year and a day, and disprove or avoid the debt, the plaintiff would restore the effects, &c.
    3. There was no proof whatever that Goodin and Freeman were partners; or, that Goodin & Co. ever executed the bill of exchange.
    4. The complainants had a remedy at law.
    5. There is no law, either of common law, or chancery proceedings, which permits the individual claim or property of one partner to be attached in a foreign state, for the payment of a debt due by the partnership.
    6. This decree orders Blake and wife, executor and executrix of Ferguson, to pay a distributive portion of the estate of Ferguson due Freeman, to Malcom and Gaul. This is a matter solely for the decree of the probate court, and not within the powers of the chancellor, who cannot require a refunding bond.
    
      tSrnedes and Marshall, for defendants in error.
    1. The proceedings were under the 63d section of the law regulating the practice in the superior court of chancery. H. & H. 520. All the facts necessary to give the court jurisdiction, are distinctly stated in the bill. The record shows that the home defendants were duly served with process; an order of publication requiring the absent defendants to enter their appearance,. and give security for performing the decree of the court, was regularly made and published; proof of publication, and also of posting up a copy of the order before the door of the court room for sixty days, <fcc., was made and filed among the papers of the cause; a commissioner was appointed to state an account between the non-resident defendants and complainants; the indebtedness of the former to the latter not satisfactorily proved; the report of the commissioner who stated the account, was received and confirmed; and in short, every step required by the statute to entitle the complainants to a final decree, appears by the record to have been strictly taken.
    2. If the court below erred in not requiring the complainants to give security for abiding such future order as might thereafter be made, for restoring the funds attached to the absent defendants upon their appearing and answering the bill, 1. we submit to the court whether such security was necessary, and whether the bond previously given by the complainants to pay all such damages and costs, &c., as might be sustained in consequence of the suing out of the attachment, &c., was not sufficient. 2. If not, then we respectfully insist that this court “proceeding to render such decree as the court below should have rendered,” (see H. <fc H. 532, sec. 9,) will only correct the decree in that particular. There is obviously no necessity for remanding the case for further proceedings in the court below; there is neither “.any matter of fact to be ascertained, or damages to be assessed by a jury, or any uncertain matter to be decreed,” without some one of which the statute does not seem to contemplate that any case shall be remanded.
   Mr. Justice Clayton

delivered the opinion of the court.

This is a writ of error to a decree of the supreme court of chancery, rendered upon proceedings had against an absent, debtor, under the statute enacted to regulate the method of proceeding in courts of equity against absent debtors. In all its essential features, the case is not distinguishable from that of Comstock v. Rayford, 1 S. & M. 423. The jurisdiction of the court of equity was there fully sustained; and there as here the complainants were non-residents. We shall not go again into the reasoning, to sustain the jurisdiction, as we see nothing, when the parties are situated as in these cases, to shake our confidence in the conclusion we then reached.

There was proof of publication in the Southron newspaper, and of the posting of a copy of the order, at the front door of the court room, in pursuance of a-direction of the court in conformity with the statute. The bill was taken for confessed, the bill of exchange produced on which the indebtedness arose, and all the requisites of the law, previous to the decree, complied with.

In the decree itself there is an omission on the part of the court, to require the complainants “ to give security for abiding such future order as might be made for restoring the estate or effects to the absent defendant, upon his or their appearance, and answering the bill.” The decree should have required this security to be given, or upon failure to do so should have made the alternative order required by the statute. For this error, the decree will be reversed. We have heretofore decided, that it is error for the probate court to decree a distributive share, without requiring a refunding bond with surety in cases coming within the purview of the statute. Benoit v. Brill, 7 S. & M. 37.

We have felt some hesitation whether, on reversing the decree, we should not direct the proper decree to be entered here, instead of remanding the cause. But as the plaintiff in error may be within the provisions of the statute, authorizing the opening of the decree, by appearance and entering security for the costs, we conclude it is better to remand it for farther proceedings. See Hutch. Code, 765.

Decree reversed and cause remanded.  