
    Milward, &c. vs Cochran, &c.
    Error to the Fayette Circuit.
    Chancery.
    
      Case 94.
    Case stated.
    
      Attachment in chancery. Lien. Execution lien. Lis pendens.
    
    
      July 3.
   Judge Bkeck

delivered the opinion of the Court.

Cochran & Co. filed their bill seeking to subject two slaves to the payment of a note which they held upon James W. Cryer:

1st. Upon the ground that after the slaves had been given to Cryer by his father in-law, Spencer Cooper, and had vested in him absolutely as his property, he had, for the purpose of hindering and preventing Ills creditors from levying upon them, contrived a deed of loan, by which the title to the slaves had vested in said Cooper, but the possession had still remained with Cryer.

2d. Tftey alledge that after the death of Cooper, the wife of Cryer had claimed the slaves as her separate property, and they were then in possession of Mary Cooper, who was holding them in trust for Mrs. Cryer; and in the event they should be decided to be her separate property, the complainants sought to subject them, upon the ground that the note, which they exhibited upon James W. Cryer, was given for necessaries furnished for the support of Mrs. Cryer and family.

Cryer'and wife and Mary Cooper were made defendants, and subpoena served upon them, endorsed, that the object of the bill was to attach the two slaves therein named, and their hire, for the payment of the complainant’s demand.

The complainants aflenvards filed an aménded bill, in which they alledge that the slaves had been decided to be the property of James W. Cryer. That the slaves had been both sold under executions which had a prior lien to that which attached upon the exhibition of their bill. That the proceeds of the one had been entirely absorbed by executions having such prior lien, and also a portion ©f the other. That a portion, however, of the proceeds of the slave Maria, had been paid over to the plaintiffs in terror, Milward and Ennis, and to Robert King, J. & W. R. Chew for the use of R. Pindell and J. G. Morrison, or to Constables for their use. They alledge that Milward had received $41 50, Ennis $49 03, and also certain sums had been paid over to the other named individuals. They make them all defendants, alledge that their liens were acquired subsequent to the lien of complainant in virtue of their original bill, and pray that they may be decreed to pay over to them such sums as may be necessary for the payment of their claim. King having died, the suit abated as to him.

Decree of the Circuit-Court.

The second section of the statute of 1838, (3 St. Law, 1Í6,) appieable to this case.

Process as to Morrison, was returned, no inhabitant, and in regard to the Chews, Pindell answered, showing that what had been received by him upon executions in their name, had been paid over by him as assignee in bankruptcy, agreeably to a decree of the Fayette Circuit Court. The Court decreed that Milward and Ennis pay over to the complainant the alledged sums in their hands, and that they also pay complainants their costs. The Court, however, continued the cause, with leave to Mil-ward and Ennis to be substituted to any claims of complainant on Cryer, or to have contribution or indemnity from any others, to which they might be entitled.

To reverse that decree, Milward and Ennis prosecute this writ of error.

The first inquiry is, whether a lien attached upon the slaves in favor of the complainants, upon the filing of their bill.

The jurisdiction of a Court of Equity to grant relief upon the first ground relied upon in the original bill, is given by the act of 1838, (3 Stat. Law, 116.) The 2d section of that act vests a Court of Chancery with power and jurisdiction, upon the application of a creditor, whether his debt be or be not in judgment, to set aside a sale or conveyance made for the purpose of hindering and delaying creditors in the collection of their debts, and to subject the properly to the payment of the debt of the applicant. And in aid of the execution of this power, the Court is authorized to order an attachment, and to make all other neeessary ordérs for the safety and forthcoming of the property.

Ill a proceeding under thestatute of 1838, (3 Stat. Law, 116,)- the power of the Chancellor to subject property to the payment of the debts of the defendant, does not depend upon the actual levy of an attachment, a lien attaches on the property sought to be made subject, on filing the bill and service of process.

If the property sought to be subjected under the statute of 1838, by bill in chancery be previously levied upon by execution, the Chancellor may follow any surplus, after the execution is satsified, into the hands of third persons, who may receive it after the Us pen-dens exists.

In this case no attachment was sued out, but we are of opinion the power of the Court to subject the property did not depend upon the actual levy of an attachment. ( A lien upon the slaves attached, upon the exhibition of the complainant’s bill and the service of process. .The only object and effect of an attachment and levy, would have been to secure more effectually the slaves against removal, and have them forthcoming to abide the decree of the Court. The suit was a Us pendens, and no subsequent sale or after acquired lien would destroy or affect the prior lien and right of the complainants.

The bill of the complainants, it is true, was framed with a double aspect: First, to subject the slaves under the statute, and secondly, if proved to be the separate property of Mrs. Cryer, to reach them upon the equitable principle that the consideration of the claim set up was necessaries furnished for the use of Mrs. Cryer and her family. The last ground thus contingently relied upon, did not, we think, affect the lien and right of the complainants to relief upon the first ground under the statute.

Assuming then that a lien in favor of the complainants, attached upon filing their bill, and it appearing that both slaves were sold under executions previously levied, and the entire proceeds of the one and part of the other, applied in discharge thereof, the question arises whether the Chancellor was right in following the residue of the proceeds into the hands of the defendants, and decreeing them to pay it over to the complainants in discharge of their claim. We think he was. It is expressly alledged in the amended bill, that the conveyance from Cryer to Cooper had been decided to be fraudulent, and that the slaves were subject to the payment of Cryer’s debts. Such appears to have been the decision of this Court. The defendants, Milward and Ennis, in their answer, do not deny the allegation as to the amount of the proceeds of the slave Maria, received by them respectively, but they say they had executions against Cryer, and they received the money thereon from the Constables, and that they axe ignorant of the matters and things set forth by the complainants. They refer kTtbeir judgments and executions, but do not exhibit them. All the material facts to entitle the complainants to a decree, appear in the record. It was not necessary for them to have brought the representatives of King before the Court, nor Morri. son. There appears to have been no such connection between them and Milward and Ennis, as rendered them necessary parties to entitle the complainants to a decree for the funds in their hands. They in their answer pray to be substituted to all the rights the complainants may have to any other fund, and the Court very properly continued the cause, with leave to them by cross bill, to set up their right to substitution, or to contribution from any other party.

Pindell for plaintiff; Robinson fy Johnson for def’ts.

Wherefore, the decree is affirmed.  