
    Richmond.
    Farmers Bank v. Day & als. Same v. Gwathmeys. Same v. Ralstons. Same v. Broom & als.
    
    1849. October Term.
    
    (Absent Cabell, P. and Brooke, J.)
    1. Among attaching creditors proceeding by foreign attachment, the creditor whose subpoena is first sued out and served, is entitled to priority of satisfaction.
    2. But the attachment only operates as a lien upon the debts and effects of the absent debtor, in the hands of the home defendants against whom, and upon whom, it is served.
    On the 13th day of December 1836, the Farmers Bank of Virginia sued out of the clerk’s office of the then Circuit court of Henrico, two subpoenas against Musco L. Day as an absent defendant, and several persons as home defendants, which were returnable to the first Monday in the next January, and were endorsed, to attach the debts and effects of the defendant Musco L. Day in the hands of the home defendants, and to attach the lands and tenements of the said Day within the Commonwealth of Virginia, and particularly in the counties of Henrico and Hanover, and the City of Richmond. One of these subpoenas went into the hands of the sheriff' of Henrico, and the service thereof on the 14th of December was acknowledged by some of the home defendants, and the sheriff returned that he had served it on the others, some on the 14th and one on the 17th of December 1836. The other subpoena went into the hands of the sheriff of Hanover, who served it on the home defendant in that county on the 16th of December 1836, and he returned that the defendant Day held lands in that county.
    
      On the 20th of December 1836, Robert & Temple Gwathmey sued out an attachment from the same office against Musco L. Day and' others, which was endorsed to attach the goods and effects of said Day in the hands of the home defendants, and also to attach the lands of the defendant Day. In this case, William A. Gillispie and Flood & Nowlin were made defendants, who were not defendants in the case of the Farmers Bank. The attachment was served on the home defendants on the 20th, 21st and 30th of December, and on the 2d and 9th of January 1837.
    On the 22d of December 1836, the Ralstons sued out their attachment against Day and certain others as home defendants, endorsed as the previous attachments were ; and it was served on the home defendants on the 30th and 31st of December 1836, and the 2d of January 1837.
    On the 31st of May 1839, Broom, Bond & Co. sued out an attachment against Day and the Farmers Bank, which was served on the president of the bank on the 3d of June 1839. This attachment having issued after the lands of Day had been sold under an interlocutory decree in the case of the Farmers Bank v. Day, did not seek to attach the lands of the absent debtor,
    It does not appear in this record when the bill of the Farmers Bank was filed, though it was not later than the rules for January 1837. At this time the Gwathrneys’ bill was filed; and the Ralstons’ bill seems to have been filed in the office on the 22d of December 1836.
    It appears that there were no effects of the absent debtor in the hands of any of the home defendants, which had not been levied on under attachments issued against Day as an absconding debtor, except Gillispie and Flood & Nowlin, who were defendants only in the case of Gwathmeys v. Day & als. The amount in the hands of these defendants was 75 dollars 24 cents.
    
      In February and July 1838, decrees were made in the case of the Farmers Bank v. Day, for the sale of his lands, and for the payment, out of the proceeds of sale, of prior liens upon the lands for purchase money. In November 1839, the causes came on to be heard together, when the Court held that all the attaching creditors who should establish their debts against the absent defendant Day, were entitled to share ratably in his effects under the control of the Court, and it was ordered that the causes should be consolidated; and the purchasers of the land, and Gillispie, and Flood & Nowlin were directed to pay the amount due from them respectively, into the Farmers Bank to the credit of these causes.
    At another day R. M. Blackwell was allowed to come in by petition, and make himself a party plaintiff in these causes, and a commissioner was directed to take an account, first, of the debts due to the different attaching creditors; second, of the proceeds of the attached effects; and third, to apportion the fund ratably among said creditors. The commissioner made his report, to which there was no exception. And then the causes came on to be finally heard, when the Court made a decree distributing the fund ratably among the attaching creditors. From this decree the Farmers Bank applied to this Court for an appeal, which was allowed.
    
      Nicholas, for the appellant, and Harrison, Johnson and Morson, for the appellees, submitted the case.
   Allen, J.

delivered the opinion of the Court.

The Court is of opinion, that the Farmers Bank being the first attaching creditor, is entitled to priority of satisfaction over subsequent attaching creditors who sued out attachments after the appellants had sued out their subpoena, and after the service of said process on the home defendants. The Court is further of opinion, that as by the attachment of R. & T. Gwathmey, a certain William A. Gillispie, and Flood & Nowlin were made defendants, as having effects of the absent debtor in their hands, who were not made defendants in any of the other attachments: and it furthermore appearing that the sum of 75 dollars 24 cents was paid by these defendants, and constituted a part of the sum of 2446 dollars 87 cents, for distribution, the said R. & T. Gwaihmey are entitled to the said sum in exclusion of the other attaching creditors. It is therefore ordered and decreed, that so much of said decree as conflicts with the foregoing opinion be reversed, with costs to the appellant, and that the cause be remanded, &c.  