
    Elizabeth Bowden, Executrix of William Bowden, v. John P. Schatzell, John & Curtis Bolton, and William S. Smith.
    The funds of a copartnership consisting of four persons, all of whom were absent from the State, were attached, by writ of foreign attachment, in the Court of Common Pleas, for the separate debt of two of the co-partners ; and the funds having been paid into Court by the garnishee, one moiety of them was, by order of the Court, paid out to the plaintiffs in attachment, upon their entering into bond, with security, to refund, if it should appear,, that they were not legally intitled to retain it, and the other moiety remained in the custody of the clerk of the Court, subject to its order. On a bill by a creditor, who had recovered judgment against thé copartnership in another State, held, that the complainant, as a creditor of the copartnership, was intitled to satisfaction out of the fund attached, in preference to creditors .of the individual copartners ; and that as the only surviving member of the copartnership was beyond the limits of this State, so that he could not be made a party to any proceeding in the Court of Common Pleas, the Court of Equity would relieve, so far as to establish the complainant’s title, as against the surviving copartner, and that the latter was amenable to the jurisdiction for that purpose, in respect of his interest in the fund attached: that the plaintiffs in attachment might also be properly made parties, although not within the limits of the State, by reason of their interest in relation to the fund; but that no decree could be made against them to refund, as they were liable by their bond to another jurisdiction : and that the clerk of the Court of Common Pleas could not be made a party in respect of his custody of the fund, as his possession was the possession of the Court, and therefore not subject to the jurisdiction of the Court of Equity.
    A party having a clear legal right, in matter of property, and no remedy by means of any other jurisdiction, is intitled to be relieved in equity; provided, the party, against whom relief is prayed, can be properly made amenable to the jurisdiction, and effectual relief can be afforded, conformably to the ordinary method of the proceedings of the Court.
    The property of a copartnership is liable to the debts of the copartnership, before any part of it can be applied to the individual debts of the copartners.
    Money in the custody of the law, is not subject to process of foreign attachment ; nor can the owner of funds in the custody of a Court of Law, who is absent from the State, be made a party, by reason of his interest in the fund, to a proceeding in that Court, by his creditor, to subject it to the payment of his demand: neither can that Court relieve the creditor, unless the absent owner is a party, or the creditor’s right has been established by the decision of a competent tribunal within the State.
    
      The clerk of the Court of Common Pleas cannot be called upon to an■swer for funds, which are in his custody, as the officer of that Court, and subject to its order. His possession is the possession of the Court, and .the Court of Equity can make no order to bind that Court.
    Under the 12th section of the act of1784, P. L. 338, a person who is absent from the State, but has property within it, may be made a party to a suit in equity in this State, in respect of that property, although there be no other party to the suit: and he may be made a party in respect of a fund within the jurisdiction, although not in the possession of any individual, who can be made a party; and even when the Court, itself, can exercise no direct control over the fund, as where it is in the custody of ■another Court. And where the owner of the fund is properly made a party, all persons having any interest in relation to it, may, in respect of that interest, be made parties, although not personally within the jurisdiction.
    The Court of Equity can make no order for the disposition of a fund in the custody of the Court of Common Pleas, except by controlling the parties, who would, otherwise, be intitled to it; and where money has been paid out to an attachment creditor, by order of the Court of Common Pleas, upon his entering into bond, with security, to refund, if it •should appear, that he was not intitled to it, Equity will not order Mm to refund, although it appear that he. is not intitled, as it cannot protect him by injunction against his liability on his bond. A suit may, however, be entertained, to establish the title to the fund, if there be any impediment to a proceeding at law for that purpose.
    Equity will exercise a jurisdiction ancillary to the' Courts of Law, by removing impediments, or establishing rights, where impediments exist toa trial in the Courts of Law; and it is no objection to the exercise of this jurisdiction, that the Court of Equity does not possess a direct control over the subject matter, so as to be able to give complete relief
    John P. SchatzeH, Andrew Alexander, Alexander Cranstoun, and James Woodward, trading together, at Lexington, in Kentucky, under the firm of John P. SchatzeH <Sz Company, became indebted to William Bowden, of Petersburg, Virginia, in the sum of $50,000; and after his death, his executrix, Elizabeth Bowden, the present complainant, recovered judgment against them, in Kentucky, for that amount. Two of the partners, Alexander Cranstoun, and Andrew Alexander, carried on business, on their own account, in the city of New York, under the firm of Alexander Cranstoun & Com. pany; and becoming indebted to John & Curtis Bolton, of New York, the'latter sued out a writ of foreign attachment against them, from the Court of Common Pleas in Charleston, and levied it on certain funds of John P. SchatzeH & Company, in the hands of John Robinson, of Charleston, as garnishee. On the return of the writ, the garnishee paid the money into Court; and the Court, on Bolton, the plaintiffs in attach-sum paid in, should be-paid to them, on their entering into bond, with sufficient security, to refund amounb if it should’ afterwards appear) that they were not legaily intitled to retain it. A moiety of the fund' was paid out to them accordingly, upon their giving bond, as required by the order; and the other moiety remained in the custody of the clerk of the Court, subject to its order. See the proceedings reported, 2 M’C. 478, and 3 Id. 33. the application of John & Curtis ment> ordered that a moiety of the
    
      v l°338784'
    John P¡ ■ Schatzell & Company proved to be wholly insolvent, and the complainant, being unable to obtain payment’ of her judgment in Kentucky, but learning of the proceedings by attachment in Charleston, filed this bill, in order to subject the fund attached, to the payment of her demand. John P. Schatzell, sole survivor of the firm of John P. Schatzell & Company, John & Curtis Bolton, and William S. Smith, the clerk of the Court of Common Pleas, were made the parties defendants to the bill; which charged the fund attached to be the property of the firm of John P. Schatzell & Company, and subject to the payment of their debts, before any part of it could be applied to the debts of the individual partners : and the bill prayed, that John & Curtis Bolton might refund the amount paid to them, conformably to the condition of their bond ; and that the same, together with the residue of the fund attached, in the hands of the defendant, William S. Smith, might be paid over to the complainant, in satisfaction of her. judgment.
    The defendant, William S. Smith, demurred to the bill, on- the ground, that as the money in his hands had been placed there by order of the Court of Common Pleas, and was subject to its order, he could not be called upon to answer for it in this Court.
    The defendants, John P. Schatzell, and John & Curtis Bolton, were not within the limits of the State, and were made parties by Pu^°^on a ru^e) conformably to the Act of Assembly. A demurrer was nevertheless filed on behalf of. John & Curtis Bolton, on the ground, that as the defendants, were beyond the limits of the State, and were possessed of no funds or property within it, they were not amenable to the jurisdiction of the Courts of this State ; and further, that if they were, the complainant had plain and adequate remedy at law.
    Neither plea, answer, or demurrer, was filed on behalf of the defendant, John P. Schatzell, and the bill was taken fro confesso against him.
    The cause was heard upon the demurrers, at Charleston, in February, 1829, by Harper, Chancellor, who made the following decree.
    Harper, Ch. ' This is a case of new impression, and it is in vain to look for authority bearing directly upon it. The proceedings at law, out of which this suit has arisen, seem also, to be of a new character. The complainant must rest her claim to relief on the general ground, that a part$ having a right, and no .remedy by means of the ordinary jurisdictions, may properly claim the aid of this Court. The general- principle I think is sufficient,' if it be taken with the proper qualifications. The party having a clear legal right, in matter of property, and no remedy by means of any other jurisdiction, is intitled to the aid of this Court; provided the party, against whom the relief is prayed, can be properly made amenable to the jurisdiction of the Court,-and effectual relief can be afforded, conformably to the ordinary methods of the proceedings of the Court.
    ■There is no question as to the legal right of the complainant, taking the allegations of the bill to be true. As a creditor of the insolvent firm of John P. Schatzell & Company, she has-a right to be paid out.of the assets of that firm, in preference to the creditors of the individual partners; and the bond in the hands of the Clerk of the Court of Common Pleas, is-substituted for the funds of the firm. The questions are, Whether the complainant has any other remedy: whether the parties named in the bill, are properly before the Court; or can be brought before it by the process of advertisement : and whether the Court can, by its decree, afford ef. fectual relief.
    The complainant seems to have exhausted the means of relief in Kentucky. She has obtained her judgment, and can find nothing to satisfy it. If she should arrest the surviving partner, there, and compel an assignment under any insolvent debtors law, her remedy would not be advanced ; and resort must still be had to the tribunals of this State, to obtain the benefit of this fund. The remedy was suggested, of an application to the Court of Common Pleas; but in making such an application, the complainant would be under the necessity of establishing her demand against the firm of John P. Schatzell & Company; and in order to do this, she would be under the necessity of making the surviving partner,' Schatzell, a party before the Court. The Court would not act on a surmise, or an ex farte shewing, that the firm was indebted to her. The surviving partner would have a right to contest the fact, of such a judgment having been rendered in Kentucky. He might, perhaps, enter 'nto tbe consideration of the judgment; and, at all events, would be intitled to an opportunity of shewing that it was satisfied, or any part of it paid. But how could he be brought before the ^ourt ^01' that purpose ? Or how could the Court determine any questions, that might arise in relation to the demand 2 I can conceive of no other method than the ordinary proceeding by a suit. The surviving partner, Schatzell, being out of the State, he could only be made a party to a suit at law, by the process of attachment ; but it .was admitted in the argument, that an attachment could not be levied on this fund, or on the bond, in the hands o>f Mr. Smith, the clerk of the Court. The English cases are, that money, in the custody of the law, is not subjept to attachment; and I understand this rule to be recognized by the Court of Appeals, in the case of Hamilton, Executor of Dart, v. M’Kinne, decided at Columbia, in the Spring of 1827. I may observe here, that it seems to be to the advantage of the Boltons, that the complainant should come to establish her demand in this Court, where they, being parties to the suit, may contest the demand against Schatzell & Company. Suggestions were thrown out, of a remedy for the complainant, by a suit in New York, against Cranstoun and Alexander, either for money had and received, or by a bill in equity ; but it is plain, that no such suit could be sustained there. I think it clear enough, that the complainant is without remedy, unless she can be aided by this Court.
    The next question is, whether the parties named in the bill, are properly before the Court, or can be brought before it. I think that Mr. Smith is not properly made a party, and that his demurrer must be sustained. Any one, who, from the bill itself, appears to have been unnecessarily made a party, may demur. The general rule is, that no one need be made a party, against whom you can have no decree. De Golls v. Ward, cited 3 P. Wms. 311, note (Í.) Cookson v. Ellison, 2 Bro. C. C. 252. M’Namara v. Williams, 6 Ves. 142. Fenton v. Hughes, 7 Ves. 287. In cases where an individual is in possession of funds of an absent party, he may properly be made a party to the suit, because he is compellable to perform the decree of the Court, in relation to those funds ; but Mr. Smith is not in possession of the fund in this case, as an individual. It is in the possession of the Court, whose organ he is. This Court can make no decree to bind the Court of Common Pleas ; nor can it compel Mr. Smith to make any disposition of the fund. It is true, that this Court frequently disposes of funds in the hands of officers of other Courts; but that is by controlling the parties, who, but for the interference of this Court, would be intitled to the funds.
    All the other persons named in the bill, as defendants, reside without the State ; and the question is, whether they can properly be made parties. I will inquire more particularly, in the first place, as to the surviving partner, Schatzell. The 12th section of the act of our legislature, of 1784, for making absent persons parties, is as follows. “ If in any suit in the said Court, a defendant, against whom process shall issue, shall not cause an appearance to be entered thereupon, as it ought to have been, if such process had been duly served, and affidavit shall be made, to the satisfaction of the Court, that such defendant, is without the limits of this State, or that on inquiry at his or her place of abode, he or she could not be found, to be served with such process, &c.” the Court may make an order for his or her appearance, by publication of a rule. P. L. 338. The terms of the act are very indefinite, but they can hardly mean, that any person, who is not domiciliated, or residing in the State, and who has no property within it, nor has made any contract to be performed here, is liable to be sued in our Courts of Equity. The question is, how the generality of its terms is to be limited.
    The English practice is stated, by Lord Redesdale, in the case of Smith v. The Hibernian Mine Company, 1 Sch. <fc Lefr. 240, to be,, when one party is out of the jurisdiction, and other parties within it, to charge the fact, by the bill, that such a person is out of the jurisdiction; and then the Court proceeds against the other parties, and if the disposition of the property is in the power of the other parties, the Court may act upon it. Lord Redesdale observes, that the subject is proper for the interference of the legislature. According to the rule thus laid down, it was necessary that some party, or parties, and the property, should be within the jurisdiction; to authorize the Court to dispose of the interests of an absent party. I take this to be the true rule, notwithstanding there seems to be some diversity in the English cases. In the case of Fell v. Brown, 2 Bro. C. C. 276, for instance, where the bill was by asecond mortgagee, against a first mortgagee, in possession, to redeem, and the mortgagor was out of the jurisdiction, the Court refused to proceed. In Williams v. Whinyates, 2 Bro. C. C. 393, the Court ordered the sale of real estate for the payment of debts, where the devisee was insane, and the heir at law was out of the jurisdiction. And see Travers v. Bulkeley, 1 Ves. 385, and Darwent v. Walton, 2 Atk. 510. I am inclined to infer, that if the claim were to an es*afe’ or a bands of an agent, or trustee, within the jurisdiction, the agent, or trustee, might be made a party, and the Court would dispose of the estate, or the fund, notwithstanding the absence °f the owner, or cestuy que trust. According to this rule, if Mr. Smith had been in possession of this fund, as the agent of Schatzell & Company, he might be made a party. But the fund is in possession of the Court of Common Pleas, which cannot be made a party, nor compelled to perform a decree.
    The question is, whether, under our act, a person, without the jurisdiction, may be made a party, in respect of a fund within the jurisdiction, the fund being in the possession of no individual who can be made a party. There exists the additional difficulty, that the Court cannot, by its decree, exercise any direct control over the fund.
    In the case of Telfair v. Telfair, 2 Desaus. 271, the Court decreed the specific performance of an agreement, to convey land in this State, against a defendant, who resided without the State. It is observed in the case, that “ this Court would enforce its decree, by putting the complainant in possession of the land, if the defendant should prove contumacious.” Ib. 275. I do not perceive that there can be any difference, in principle, if the claim were to a personal fund, within the State; if we can conceive of such a fund, derelict, in the custody of no individual, who can be made a party, but of which the complainant cannot avail himself, but by the aid of this Court. The terms of the act are general, and will admit of such an interpretation. The act was made to remedy the defect of the English practice. By the English practice, the interests of the absentee might be disposed of, if the property was within the juris, diction; provided there were other parties, by controlling whom, the Court might effect a disposition of the property. But our Courts do not always act in personam. It seems that they may act directly on the property, without the intervention of other parties; and the title may be changed, by the mere act of the Court, without any act of the party. The act provides for making the absent person himself a party; and further authorizes the Court to “issue the process necessary to enforce the execution, or compel the per. formance of the decree.” P. L. 338. Such a construction is convenient, and I do not see that it is likely to operate surprise, or hardship on individuals. An absent person, who has property within the State, may be fairly presumed to look after it, a'nd to know what has become of it. The proceeding is made very notorious by advertisement. A complainant, before he can avail himself of the decree, must give security to abide such order as may be made, ou the defendant’s appearing to the suit; and the absent defendant is allowed four years after the passing of the decree, to petition to be heard, on which all the proceedings shall be set aside, and the cause proceed de novo. I thjnk an absent person, who has property in the State, may be made a party in respect of that property, though there be no other party in the State. The fund that was paid into Court, was the property of Schatzell & Company, and if it had remained unchanged, would have belonged to the surviving partner, Schatzell. The bond of the Boltons, is substituted for it, and he has a similar interest in that. Schatzell being properly made a party, it seems to follow, that the Boltons, who have an interest in the subject of the suit, are properly made parties also.
    But the further difficulty exists, that the Court cannot exercise' any control over this fund, being in possession of an equal jurisdiction ; and the question is, what effectual relief can it give by its decree. Supposing the parties to be properly before the Court, it cannot order the bond to be assigned, nor to be sued on, and the fund when received to be paid over : neither do I think that it can order the Boltons to pay the money secured by the bond, because it cannot protect them by its decree from paying it over again. If a suit should be afterwards brought on the bond, it could not injoin the Court of Common Pleas from proceeding to enforce the recovery of the bond by suit. But this Court is, in many instances, ancillary to the Courts of Law, as by compelling a discovery, or putting outstanding terms out of the way, when the title is to be tried at law. I think the Court may be ancillary in the present instance. It may try, and adjudicate, the fact, whether the complainant is a Iona fide creditor of the firm of Schatzell & Company, and intitled to pay. ment out of its funds. It may direct an issue at law for that purpose ; or if the proper proofs are offered, it may establish the demand by its decree : and thus lay the foundation for an application to the Court of Law to order an assignment of the bond, or the transfer of the fund. These facts, the Court of Law cannot try, because it has no means of bringing the parties before it.
    I am not well satisfied with this decree; but the case was a new one, and I have taken the best view of it, in my power.
    It is ordered, and adjudged, that the demurrer of William S. Smith be sustained, and the bill as to him be dismissed ; and that the demurrer of John & Curtis Bolton be overruled.
    The demurrer of John & Curtis Bolton having been overruled, they subsequently filed an answer, and the cause came on to be ^earc* *n January> 1831, before Johnston,Chancellor, who deliver. ed the following decree.
    Johnston, Ch. The allegations of the bill are either admitted ^y ansvver» or established by the proof. The complainant produced the exemplification of a judgment recovered by her, as executrix of her husband, against John P. Schatzell & Company, fully sustaining the allegations of the bill on that point. And the question is now, what should be the decision of this Court. I shall not bestow the pains, which l should otherwise have taken, in the examination of this case, as it will go to the Court of Appeals, where it will be fully argued in connexion with the decree of Chancellor Harper. I will obey my first impressions, which are, that the Boltons, who have received the shares of the firm of Schatzell &. Company, to which Cranstoun and Alexander were intitled, not as a payment by those partners of their debt to the Boltons, but as undivided shares of the funds of Schatzell &. Company, upon terms stipulated, and with notice that the firm claimed, and was intitled to, an account, before Cranstoun and Alexander’s interests could be ascertained and set apart, must stand, in relation to the firm, and its creditors, in the same situation as Cranstoun and Alexander themselves would, were they in possession : and I can see no reason, on principle, why a decree should not be pronounced against them, to the extent of the funds in their hands.
    It is therefore ordered, and decreed, that John & Curtis Bolton do pay over to the complainant, the amount received by them under their attachment against Alexander Cranstoun, and Andrew Alexander, as set forth in the bill, with interest thereon from the time when they received it, and the costs of this suit.
    The defendants, John & Curtis Bolton, appealed from the several decrees of Harper, Chancellor, and Johnston, Chancellor ; and now moved, that the same might be reversed, and the complainant’s bill dismissed as to them, the said defendants, with costs.
    Grimke, for the motion.
    King, contra.
    
   Harper, J.,

delivered the opinion o£ the Court.

This Court concurs in opinion with both the Chancellors, and affirms their respective decrees, except so far as the last decree orders the payment, by the defendants, John & Curtis Bolton, of the money secured by their bond to the clerk of the Court of Common Pleas.

There is no doubt, but that the complainant is intitled to the fund in the custody of the Court of Common Pleas, as well as to an assignment of the bond ; and that upon a proper shewing, that Court will order them to be transferred. But the complainant’s equity is founded upon this ; that she cannot make her title to appear to that Court. She cannot establish her demand against Schatzell, inasmuch as she cannot make him a party before the Court. It is useless to say, that she might establish her demand, and shew a title to the fund, by producing to the Court a properly attested copy of her judgment in Kentucky. No demand can legally be established in this State, against any person, without affording him an opportunity to contest it; and that opportunity, in contemplation of law, can only be afforded by making him party to a suit. That opportunity afforded, the judgment of every competent tribunal within the State is equally valid. That the complainant could not make Schatzell a party, was her impediment in proceeding at law; and it is the business of the Court of Equity to remove such impediments. According to the opinion, in which we concur, he might be made a party in equity.

But it was argued, that, however it might be with respect to Schatzell, yet the Boltons were improperly made parties. The rule of equity is, that all persons who have an interest in the subject of .the suit, must be made parties ; and it seems to me, that the interest of the Boltons is sufficiently palpable. Certainly they have an interest in the question, whether the bond to the clerk of the Court shall be transferred to the complainant, so as to enable her to sue on it; and if the establishment of her demand against Schatzell is to lead to such transfer, they have an interest in respect to that. The bond was made payable on a contingency, and it is probable, that when it was executed, neither the parties, nor the Court, looked forward to its ever being enforced. Have they no interest in the question, whether it shall be put in a course of being enforced ? They have an interest in the bond, and it would be refining to say, that they have no interest in the question of the complainant’s recovery against Schatzell. It is true, that if the fund, and the bond in the hands of the clerk of the Court, had been subject to attachment, the complainant might have sued Schatzell alone, and recovered judgment against him ; and it would have been unnecessary to make the Boltons parties. As I have observed, however, the rules of law, and of equity, are different with respect to the proper parties to a suit; but even then it may be questioned, whether the Court of Law would have ordered a transfer of the bond, without affording the Boltons an opportunity to shew cause against it. Is not justice more completely done by making them parties in equity, and affording them an opportunity to contest the complainant» whole claim? It seems to me, that the Boltons complain,, that an injury has not been done them. If the present suit had been against Schatzell alone, I have no doubt, but that on their application, the Boltons might have been admitted, as parties, to defend. Admitting the complainant’s claim against Schatzell & Company, they might have shewn other funds to satisfy it; in which case, the decree of the Court would have laid no foundation for an application to the Court of'Law, for this fund. I cannot declare, that they were unnecessarily, or improperly, made parties to this suit.

We do not think, however, that we can-decree the payment of the money, for the reasons I have before assigned. The Court of Equity cannot order the Court of Law to cancel the bond, or in-join it from enforcing, or transferring it ,• and cannot, therefore, by its decree, protect the defendants from being compelled to pay the amount over again. We can only establish the complainant’s demand against Schatzell.

It is therefore declared, adjudged, and decreed, that the absent defendant, John P. Schatzell, as survivor of the firm of John P. Schatzell <Sz Company, is justly indebted to the complainant to the amount of the judgment mentioned, and set forth in the proceedings, and that he pay the said amount accordingly. And it is ordered, that the decree of the Chancellor be modified in conformity to this decree.

Johnson, J., and O’Neall, J., concurred.

Decree modified.  