
    *Williamson and Others v. Bowie and Others.
    Decided March 13th, 1818.
    1. Chancery Practice — Endorsement on Subpoena — Operation as an Attachment. — Agreeably to the practice in this State, a Subpoena in Chancery with an endorsement thereon “to stop the debts and effects of the absent defendants in the hands of the defendants within the State,” (mentioning their names) “to satisfy a debt due from the absent defendants to the plaintiff,” operates from the time of the service of that process on the defendants within the State, as an attachment to stop the payment by them of monies due from them to the absent defendants, and to inhibit a transfer thereof from the said absent defendants to other persons.
    2. Same — Dismissal of Bill — Damages. — Damages ought not to be given upon the affirmance of a decree dismissing a bill with costs; such decree not being- rendered, "for any sum of money or quantity of tobacco," except the costs.
    See Acts of 1808, c. 110, Edition of 1808, c. 39, s. 2, p. 29; R. Code of 1819. c. 60, s. B9, p. 208.
    3. Same — Attachment—To Secure Note Not Yet Due.  — An attachment in Chancery lies to secure a debt payable at a subsequent day, or to relieve the indorser of a note which has not become payable at the date ot such attachment, which binds the property in the hands of the garnishee from the time of its service, so as to inhibit the absent defendant's making a transfer thereof, even for the benefit of a creditor whose claim is already due and payable.
    4. Same Same — Foreign Debtor and Creditor. — A Creditor residing in Maryland, may sue out an attachment in Chancery in Virginia, against his debtor, residing also in Maryland, and others residing in Virginia, indebted to, or having in their hands effects of, such debtor.
    The parties stood in the same situation, as to residence, in M’Kim v. Pulton, M. S.
    On the 9th of December 1799, Washington Bowie, a Citizen and resident of the State of Maryland, sued out of the Clerk’s office of Fairfax County in Virginia, a Writ of subptnna and Attachment in Chancery against William B. Magruder and Thomas L. Washington, Merchants and partners trading under the tirm and style of William B. Magruder & Co., (both of whom were inhabitants of Maryland,) and William H. Washington and John Duke residents of the said County of Fairfax, defendants; which writ was endorsed, “to stop the debts and effects of the defendants Magruder and Washington in the hands of the defendants William H. Washington and John Duke, to satisfy a debt due from them to the plaintiff. ” The Sheriff’s return was, “Executed on John Luke, December 9th, 1799.” “Executed on William H. Washington 18th January 1800:— the others not found.”
    On the 21st of December 1799, a Deed of assignment was executed by William B. Magruder and Thomas L. Washington to David Williamson and others, trustees on behalf of themselves and others creditors of the said Magruder and Washington; purporting to convey and transfer to the said trustees, for certain uses and purposes therein mentioned, “all and singular the goods, wares, merchandize, sea vessels of every kind, either in ports or at sea, with their tackle, apparel and furniture, with the cargoes to them respectively belonging, and all *'debts, sum and sums of money, due, owing and belonging to the said William B. Magruder and Thomas L. Washington, and all their property whatsoever of every kind, which belongs to them in partnership, and all-securities had, made or obtained for the same, whether by bond, bill, note or in any other manner whatsoever, together with all Books of Accounts of the said partnership, and necessary papers and vouchers relating to the same, and all the right, title, interest, claim and demand whatsoever, of them the said William B. Magruder and Thomas L. Washington, and each of them, of, in and to the same, and to every part thereof. ” This deed was executed by the trustees, also, but not by any of the creditors, and was recorded in Baltimore county Court, Maryland.
    It appeared by the Bill and Exhibits filed by the plaintiff Bowie, that part of his claim against William B. Magruder & Co. was founded on negotiable notes endorsed by hitó for them before the date of the said subpoena and attachment, but, payable afterwards; viz, on the 13th of December 1799, and the 1st of January 1800; and that the residue of the said claim was for cash previously paid, at the Bank of Columbia, on their account.
    The suit having abated as to the defendant William H. Washington Dy his death;, and orders having been duly published against the absent defendants; after some other proceedings, a final decree was entered on the 20th of February 1805, in favour of Walter Smith and Charles Wey-man assignees of the plaintiff (who pen-dente lite had become a bankrupt,) against the said absent defendants, for the principal and interest appearing due to him, and the costs of suit; and the other defendant John I-iUke having by his answer confessed that he was indebted to the said absent defendants in a certain sum of money secured by a mortgage, on which a decree of foreclosure and sale of the mortgaged promises had been obtained, but not executed, in a suit instituted by the said Wm. B. Ma-gruder & Co. for that purpose, in the same-County Court, it was farther decreed and ordered that the said Smith and Weyman assignees of the plaintiff Washington Bowie should *have the benefit of the-said decree of foreclosure and sale, and receive the money raised thereby.
    On the 23d of November 1803, (before which day an interlocutory decree had been pronounced in favour of Bowie, nearly to the same effect with the final decree last mentioned,) David Williamson and others, filed their Bill in the same county Court, setting forth their claim to the said mortgage by virtue of the Deed of Trust, which they contended was entitled to preference to Bowie’s claim, on the grounds chiefly, that he, as well as the said William B. Magruder and Thomas L. Washington, being citizen» of, and residents in, Mary-land, he ought not to be permitted to institute an attachment in Chancery in Virginia against them, for a claim which also had its origin in Maryland, and that the whole of William B. Magruder & Co.’s property was transferred by the Deed of Trust, for the purposes therein expressed, before any claim was actually due to him from the said William B. Magruder & Co. and also prior to the filing of the Bill by the said Bowie in the aforesaid suit. They said also that the suit should have abated by the plaintiff’s becoming a bankrupt during it’s progress.  They prayed therefore, that the interlocutory decree before mentioned be set aside as erroneous; and that the benefit of the decree of foreclosure and sale of the property mortgaged by the defendant John Duke be vested in them the said trustees; making the said William B. Magruder and Thomas B. Washington, and the assignees of Bowie, (in consequence of his bankruptcy) as well as himself, defendants to their Bill.
    The defendant Bowie by his answer, insisted, that the same principle of justice, which declares a creditor whose debt is due and payable may secure it by way of attachment, will support an attachment the object of *which is to secure a debt páyable at a subsequent day; and averred that the notes, endorsed by him for William B. Magruder & Co. which were not' yet payable, on the 9th of December 1799, when he obtained the attachment, were afterwards paid, when they became due, by himself, and by a certain W. C. Smith on his account. — He admitted that, at the time the attachment was issued, both himself and the said William B. Ma-gruder & Co. resided in the state of Maryland ; but he contended that the law of Virginia concerning absent debtors, made no difference among creditors and debtors, but put them all on the same footing without regard to the particular place of their residence; and, if it did not, the Constitution of the United States did. — He neither admitted nor denied that the Complainants were trustees as they alledged, but prayed the Court to require them to prove, by competent testimony, their trustee-ship.
    The defendants Smith and Weyman assignees of Bowie, relied on his answer, being, in other respects, ignorant of the matters set forth in the Bill.
    The County Court, on hearing the Bill, Answers, (to which there was no Replication,) and Exhibits, (the cause being set for hearing as to Bowie and his assignees,) dismissed the Bill with Costs, on the 20th of February 1805; and that decree was affirmed, in October following, by Chancellor Wythe, who adjudged, also, “that the appellants pay to the appellees damages according to law for retarding the execution of the said decree, together with the costs by them expended, in defending the appeal.”
    From this decree the Complainants appealed to this Court.
    Nicholas for the appellants.
    Call and Wicknam for the appellees.
    
      
       Chancery Practice — Foreign Attachment — Endorsement on Subpoena — Effect.—It is not necessary that the plaintiff in a foreign attachment shall file with the clerk an affidavit of the nonresidence of his debtor before the process is issued, in order to constitute it, with the endorsement in the nature of a'n attachment, a lien when served. Moore v. Holt, 10 Gratt. 284. Lee, J., in delivering the opinion of the court, said (286), “It is objected on the part of the appellants that the appellee’s attachment was issued irregularly and was void because no such affidavit of the nonresidence of the debtor as is required by the statute, had been made and filed before the subpoena with the endorsement of the attachment issued. It has never been the practice. so far as I have been able to learn, to file an ai/ida-vit of nonresidence with the clerk, in order to authorize him to issue the subpoena and to make such an endorsement in the nature of an attachment thereon as the plaintiff’s counsel may direct. According to the long established usage of the state, such an endorsement without a previous affidavit, serves as a notice to the home defendantnot to part with the effects of the debtor in his hands without leave of the court, and when served upon the home defendant, creates a lien in favor of the creditor, of which neither the absent debtor nor the garnishee, by any act of theirs, nor any third person, by any attachment or other process of law subsequently levied, could deprive him. This practice has been repeatedly recognized as regular, both by the chancery courts, and the court of appeals. Smith v. Jenny, 4 Hen. & Munf. 440; McKim v. Pulton, 6 Call 106; Williamson v. Bowie,, 6 Munf. 176; Erskinev. Sta-ley, 12 Leigh 406." To the same effect, the principal case is cited in Erskine & Eichelberger v. Staley, 12 Leigh 421, 424; Chapman v. Railroad Co., 26 W. Va. 814. But the present statute. (Va. Code 1887, ch. 141, sec. 2964), seems clearly to require that the affidavit shall be filed before the clerk Is authorized to endorse the attaching order on the summons. See 4 Min. Inst. (4 Ed.) 410. See further, monographic note on “Attachments" appended to Lancaster v. Wilson. 27 Gratt. 624.
    
    
      
       Same -Same — To Secure Note Not Yet Due. — To the point that an attachment will lie to secure a note executed by the absentee and endorsed by the attaching creditor, although, at the time of suing out the attachments, the note has not been paid and is not due, the principal case is cited in Bank of U. S. v. Merchant's Bank, 1 Rob. 585.
      To the same effect, the principal case is cited in Moore v. Holt, 10 Gratt. 293, 294.
    
    
      
       Note. In opposition to this objection, Mr. wick-ham said, the uniform practice in the Federal Courts, has been for the suit not to abate by the plaintiff’s becoming' a bankrupt, but to go on for the benefit of his assignees. 'Chis practice (he observed,) is sanctioned by the express words of the Act of Congress. But, if it were not so, the bankruptcy could notbe relied on unless it were pleaded in abatement puis darrein continuance: such objection can not be taken by a third person. — Note in Original Edition.
    
    
      
       Note. It was said in argument, that, in McKim v. Fulton, (M S.) the attachment in Chancery was in the nature of a Bill quia timet, for relief on a future and contingent event; nothing being due at the tim e; and it was supported by the Court. — Note in Original Edition.
    
   March 13th 1818,

JUDGE ROANE

pronounced the Court’s opinion, as follows:

The Court, not deciding, as a general proposition, what is to be considered, in this Country, a lis pendens, *binding on purchasers without actual notice, yet, considering this case by analogy to attachments against absconding debtors, whose credits as well as effects may be arrested, and alienations thereof prevented; and being of opinion that the Subpoena, with the indorsement thereon, operated, agreeably to the practice in this State, to stop the payment by the Garnishee of the monies due from him to the" other defendants Magruder & Co., and to inhibit a transfer thereof, from them to others, from the time of the service of that process on him, and that service having taken place before the conveyance in this case, — is further of opinion that the proceedings in the suit instituted by Bowie, in the Bill mentioned, gave that creditor a preference over the claim of the appellants.

On this ground, (and without deciding-upon the validity of the Conveyance aforesaid,) the Court is of opinion that the Decree of the Chancellor, so far as it affirms that of the County Court is correct; but that that decree is erroneous in giving damages against the appellants. The said Decree is therefore reversed with costs, and the cause remanded, with directions to the Court of Chancery to affirm the decree of the County Court. 
      
      Note. The deed of trust was objected to in argument, on several grounds; 1, as fraudulent, and therefore void, because, by its terms, the partnership effects were to be applied to pay private debts of Magruder, as well as debts of the Company: and 2, as not having been recorded in Virginia, without which it could not convey real estate here, so as to bar a creditor. It was contended by Mr. Nicholas, that a mortgage of land is considered in a Court of Equity as personal estate; but it was sai d on the other side, that this rule applies only between the Executor and Heir; that all assignments under seal, of such mortgages, pass the land itself, and therefore must be recorded. — Note in Original Edition.
     