
    *Gibson v. White and Company.
    March, 1812.
    I. Chancery Practice—Attachment against Absent Defendant—Decree against Garni.slice,:;:— n a suitin Chancery, against a defendant, who Is out of this country, and another, within the same, having in his hands effects of, or otherwise indebted to, such absentee, a decree cannot be entered against the defendant in this country until, by legal and regular proceedings, the plaintiff has established his claim against the absentee,
    a. Same—Same—Liability of Garnishee.—In such case, if the defendant in this country appear not to be a debtor of the absentee, but hold effects belonging to him, by a title not effectual against creditors, or without any title at all; he should be considered personally responsible, only for so much as he may have “consumed; or appropriated to his own use, so as not to be forthcoming, or for the profits he may have received; but for that amount, a decree may be made against him personally, in the first place; holding the property in his hands ultimately bound, if he be insolvent; and for the balance of the plaintiff’s claim the court may proceed in the first place against the property itself, either by considering such defendant a trustee for the use of creditors, a directing a sale, unless the debt be paid by a given day; or by sequestering it, (under the Act of Assembly,) as the property of the absentee.
    This was an attachment in Chancery in the County Court of Prince BMward, on behalf of William White and Company against Thomas Gibson an absent defendant, and Robert Gibson, a resident of that county, charged as fraudulently holding effects of the said absentee, sufficient to satisfy the claim of the plaintiffs, which was partly founded on a bond for 511. dated the 24th of May, 1803, and partly on an open account of goods sold and delivered, &c. ; beginning July 4th, 1801, and ending October 24th, 1803; total 1381. 0s. Od.; including, as it seems, the same 511. for which the bond was given ; that sum being entered in the account, under date of May 24th, 1803, as “a difference in exchange of horses.” This account was supported by the deposition of a certain Thomas Anderson, taken with notice to Robert Gibson, but without any publication of notice to Thomas Gibson,  The deponent stated, that “he came to live with William White about the 1st of September, 1801, and continued with him until about the 1st of September, 1803, as a store keeper; that Thomas Gibson, one of the defendants, was in the habit of buying goods of the said White; that he, the deponent, believed the articles in the said account, (which was annexed to his deposition,) between the first of September, 1801, and the first of September, 1803, were correct; that he delivered the greater part of them, and had no doubt of the correctness of the balance. ”
    The defendant, Robert Gibson, by his answer declared, that he had purchased, for a full and adequate price, all the property which had belonged to Thomas Gibson, and *had paid the whole of the purchase money, amounting to 4911., after deducting therefrom the sum of 6831. 16s. due to him from the said Thomas, to secure which was, indeed, his principal inducement to the purchase.
    Sundry depositions were taken, with notice to Robert Gibson only; proving circumstances concerning Thomas Gibson’s running away from his creditors, with the privity and assistance of Robert; and that, in a conversation with one witness, Robert said, “he was very much troubled about his brother Thomas’s affairs in this country; that his brother would be in, shortly, to settle them himself, for that he had property here to pay his debts. ’ ’ It was also proved that the property which Thomas owned before his departure, and of which Robert took possession, consisted of a tract of land, (the number of acres, and value, not mentioned,) and four slaves and ■other personal property, worth about six •or seven hundred pounds.
    The defendant, Thomas Gibson, not having entered his appearance, and given security according to the Act of Assembly,  an order rvas made, at May Court, 1801, “that he appear here, on the first day of August Court next, and answer the plaintiff’s bill, and that a copy of this order be forthwith inserted in some one of the newspapers printed in the City of Richmond, for two months successively, and also posted at the front door of the Courthouse of this County.” A certificate, (not •on oath,) of Ritchie and Worsley, editors of the Enquirer, “that the above advertisement was inserted in that paper once a week for two months,” was filed ; but no proof appeared that it had been posted at the front door of the Court-house.
    The cause was heard the 20th of August, 1807, on the bill, answer, and exhibits; on consideration whereof, it was decreed and ordered, that the complainants recover *against the defendants 1381. 9s., with interest from the 20th of .November, 1803, till payment, and their costs.
    A petition of appeal was presented to Chancellor Taylor, on behalf of the defendant, Robert Gibson, who had been prevented, by necessary absence, from appealing at the time the decree was pronounced ; suggesting the following errors in the proceedings; viz.
    1st. There is no evidence exhibited to justify the decree; the.depositions filed to establish a debt against Thomas Gibson, not being taken with notice, published, as by the Act of Assembly is required.
    2d. There is no proof that impeaches the petitioner’s title to the property in his possession, purchased from the defendant Thomas, which is sought to be subjected to his debt.
    3d. The answer of the petitioner, responsive to the plaintiff’s bill, could not be disallowed by a Court of Chancery, arless impeached by the verdict of a jury, in a suit of this description.
    
    4th. The process required by law was not used in the commencement and prosecution of this suit.
    
    5th. The decree is pronounced against the defendants, without discriminating the relation in which they stand, regards the debt, and the property that ought to be subjected thereto.
    6th. The plaintiffs have not been ruled to give bond and security, as the law requires. 
    
    The Chancellor granted the appeal, and auxiliary supersedeas, upon the usual terms; and afterward reversed the decree; and, proceeding to make such decree as, in his opinion, the County Court ought to have pronounced, decreed, that Thomas Gibson do pay to the appellees *1381. 9s. with interest as aforesaid, and their costs in the County Court; and that the appellant pay them the amount of their said recovery, on their entering into bond, without sufficient security, to be approved by the clerk of the Superior Court of Chancery, in the penalty of 3501. with condition to restore the said money, with interest, to the said Thomas Gibson, in case he shall, within the time prescribed by law,  claim the same, and be adjudged entitled thereto.
    To this decree a writ of supersedeas was awarded by a Judge of this Court; the reasons stated in the petition being, 1. Because there was no sufficient proof that the petitioner was indebted to the said Thomas Gibson, or had effects belonging to him in his hands, to any amount whatever; and, 2. Because, if such were the fact, no decree ought to have been entered against the petitioner for any specific sum, as there was no proof that supported any such decree; but an account should have been directed of the moneys, or effects, of the said Thomas in his hands, and a decree entered, only for the balance of the moneys appearing due, or for the sale of the effects; whereas, by the decree as rendered, the petitioner is made immediately chargeable with a fixed sum of money, although it is not proved that he is indebted to the said Thomas to any certain amount.
    Wickham, for the plaintiff in error, and Samuel Taylor and Hay, for the defendant, submitted the case.
    
      
      Chancery Practice—Absent Defendant—Want of Due Publication—Who May Object.—The objection for want of due publication against an absent defendant, may be taken by other defendants who may be affected by the decree against him, and if made in the appellate court, will prove fatal, though the absent defendant were nota party in the appeal. Craig v. Sebrell, 9 Gratt. 133, citing the principal case. See principal case also cited in McCoy v. McCoy, 9 W. Va. 445.
      Same—Same—Decree—Recital of Due Publication— Effect in Appellate Court. In Steenrod v. Railroad Co. 27 W. Va. 12, it is said: “‘The decree of June 5,1880, states that the cause came on tobe heard, among other things, upon the order of publication against the nonresident defendants ‘duly executed.’ This according to the settled law is conclusive as to the due publication of the order, so far as the appellate court is concerned. Hunter v. Spotswood, 1 Wash. 145; Gibson v. White, 3 Munf. 94; Moore v. Holt, 10 Gratt. 284.” To the same effect, the principal case icited in Moore v. Holt, 10 Gratt. 291.
    
    
      
      Judgment against Garnishee.—There can be no - final judgment subjecting the money or effects in 1 the hands of the garnishee in advance of judgment | for the plaintiff against the defendant. Coda v. Thompson, 39 W. Va. 71, 19 S. E. Rep. 548, citing the principal case; George v. Blue, 3 Call 455, and Withers v. Fuller, 30 Gratt. 547.
      Lien of Decree—Statutes.—The conclusion arrived at by Judge Staples in Lee v. Swepson, 76 Va. 173, that entirely independently of §§ 1 and 2, ch. 118 of the Va. Code of 1873 (which are also in force in West Virginia), a decree, entered directing a commissioner of sale out of the funds reported in his hands to pay certain creditors named has under §§ 1 and 2 above mentioned, the effect of a judgment and is a lien on the lands of such commissioner of sale, was declared by the court, in Rickard v. Schley, 27 W. Va. 628, to be unsustainable in light of the Virginia cases decided prior to the passage of these sections, and cites, in support of his contention, Gibson v. White, 3 Munf. 98, and Enders v. Board of Public Works, 1 Gratt. 364. See further, monographic note on “Decrees” appended Lo Evans v. Spurgin, 11 Gratt. 615.
    
    
      
       See Rev. Code, 1st vol. p. 280, sect. 17.
    
    
      
       Rev. Code, vol. 1st, p. 115, c. 78, sect, 2.
    
    
      
      Note. The terms of this order, under the Act of Assembly, should have been, “that the absent defendant appear, &c. and g-ive security for performing the decree." — Note in Original Edition.
    
    
      
      Note. Quaere. As to the correctness of this position, see Rowton v. Rowton, í H, & M. 91, pi. 4; Nice v. Purcell, Id. 872; Paynes v. Goles, 1 Munford, 373, pi. 2 and 3; Marshall v. Thompson, 2 Munford, 412, pi. 2. — Note in Original Edition.
    
    
      
      Note. No order restraining the defendant, Robert, from paying away the effects in his hands, was either endorsed on the writ, or made by the Court. But, quaere, had he a right to complain of this omission? — Note in Original Edition,
    
    
      
       Rev. Code, vol. 1st, p. 115, c. 78, sect. 3.
    
    
      
       Id. sect. 4.
    
   Friday, March 6th, 1812,

JUDGE ROANE

pronounced the following opinion of the Court.

“The Court is of opinion, that there is no error in so much of the decree of the Superior Court of Chancery as reverses that of the County Court with costs; but that the residue thereof is erroneous, in this; that, to entitle the appellees to a decree against the appellant, Robert Gibson, they should have proved themselves, in a legal way, to be creditors of Thomas Gibson; first, by "proceeding regularly against him, under the Act of Assembly, as an absentee, which neither appears from the record, nor is stated in either of the decrees to have been done; and secondly, by exhibiting legal and sufficient proof of their debt.

“The deposition of the witness, Anderson, neither appears to have been regularly taken, on due publication of notice to the absentee, Thomas Gibson; nor does his deposition, as taken, prove any specific sum due, or give any explanation of the bond of said Thomas Gibson, found in the record; although he is the subscribing witness thereto, and might, perhaps, have given a satisfactory account thereof, had he been examined touching the debit, in the account, under date of the twenty-fourth of May, 1803.

“The decree of the Superior Court of Chancery is also erroneous, in this, that as the appellant does not acknowledge himself a (Jebtor of the absent defendant, but claims the property in dispute as his own, no decree ought to have been pronounced against him, personally, for the paj'ment of money, unless it had appeared that he had consumed, or appropriated, part of the property to his own úse, so that the same was not forthcoming, or had derived profits from the use thereof; and then only to the amount of the value of the property so consumed, or appropriated, and of the profits so received; but that if the title of the property appeared to be in the appellant, though not in a way to be effectual against creditors, or not to be in him at all, but in the absent defendant, (of which this Court gives no opinion,) the Court, after taking an account (agreeably to the principles before stated) of the sum for which the appellant was personally responsible, ought to have proceeded against the property itself, either by considering the appellant as trustee thereof, for the use of creditors, and directing a sale, unless the debt was paid by a given day; or by sequestering it (under the Act of Assembly) as the property of the absentee; holding it, (in either case,) ultimately, bound for *the sum decreed against the appellant personally. Therefore, it is decreed and ordered, that so much of the said decree of the Superior Court of Chancery, as is before mentioned to.be correct, be affirmed; that the residue thereof be reversed and annulled; and that the appel-lees pay to the appellant his costs by him expended in the prosecution of his appeal aforesaid here. And it is ordered that the cause be remanded to the said Court of Chancery, and from thence to the County Court of Prince Edward, to be regularly proceeded in, to a final decree, agreeably to the foregoing principles and opinion.”  