
    *Kelso v. Blackburn.
    December, 1831.
    Foreign Attachments  — Nonresidence of Debtor — Averment— Proof. — In a bill ia chancery, against a debtor as an absent debtor or defendant, and other defendants resident, holding lands by voluntary or fraudulent conveyances from the debtor, to have a decree against the debtor for the debt, and against the home defendants to subject the lands to the debt; the bill, in order to give the court jurisdiction, under the statute concerning attachments and suits against absent defendants, 1 Rev. Code, ch. 123, must distinctly aver the non-residence of the debtor; and, if the home defendants in their answers say that the debtor is a resident, though they do not plead that matter in abatement to the jurisdiction, the plaintiff, to sustain the jurisdiction, must prove the fact of the debtor’s residence abroad; and if his non-residence be not distinctly averred in the bill, or, if so denied by the home defendants, be not proved, the court has no jurisdiction, and a decree for the plaintiff will be reversed on that ground.
    Fraudulent Conveyances — Right of Creditor at Large to Impeach. — A creditor at large, not having obtained judgment or decree against his debtor, cannot resort to equity, to set aside a fraudulent conveyance of his debtor.
    A bill was exhibited in the superiour court of chancery of Staunton before the commencement of the revised statute of 1819, concerning attachments and suits against absent defendants, by Blackburn against James Kelso, and John, Hugh, Elizabeth and Mary Kelso, sons and daughters of James, setting forth, That James Kelso. the father, *was indebted to him 420 dollars by bond, and about 57 dollars on open account: That the debtor was, at the time the debts were contracted, a resident of the county of Bath, on land he owned there ; but since, had very seldom appeared in that county, having married in Bouisa or some other of the lower counties of the state ; and on very diligent inquiry he could not be found in the county in which he was said to reside: That, at length, he disappeared in-tirely, and at the time of the commencement of this suit, was said to have left the state and gone to parts unknown, and reported to be an inhabitant of Kentucky; at least, he was said to have been sometimes seen there: And that he had made conveyances of his lands in Bath, on which he had lived, to his children John, Hugh., Elizabeth and Mary; which conveyances were, at best, merely voluntary ; but, in truth, they were fraudulent in fact, being executed with design to defraud his creditors. Therefore, the bill prayed, that the conveyances should be set aside, and that the land be subjected to the payment of the debt due the plaintiff; and general relief.
    The defendants, John, Hugh, Elizabeth and Mary Kelso, promptly put in answers to the bill, all insisting, that the conveyances made by their father to them, were fair ; that their father had, at the time the conveyances in question were made, and yet had ample means besides the property thereby con-vet ed, to pay this debt; and that he resided and had resided, for four years next before, in the county of Eouisa, Virginia, where he was a housekeeper and farmer.
    Ho steps were taken in the cause, against the defendant James Kelso, as an absent •defendant, under the statute giving remedy by bill in chancery against absent defendants. Process was, from time to time issued against him, but it did not appear in the record, to what county it was sent: it was never executed. Two years after the bill was filed, he appeared voluntarily, and, without being held to give security to abide the decree, put in his answer ; in which he admitted *the justice of the debt claimed by Blackburn on the bond, but contested the claim upon the open account; and he denied that his conveyances to his children, were fraudulent. He did not deny, that at the time the bill was filed, he was a non-resident.
    To this answer, as well as the others, the plaintiff put in a general replication.
    There was no plea in abatement, to the jurisdiction of the court, put in by any of the defendants.
    It was proved by the depositions of several witnesses, particularly Francisco and Sitt-lingion, that for some time before the bill was filed, James Kelso, the debtor, being much embarrassed with debt, was in the habit of carefully avoiding the officers of justice, in order to prevent the service of process upon him ; and Sittlinglon deposed, that, at the time the bill was filed, it was reported and generally believed, that he had removed to and was living in Kentucky, and never expected to return. And, in a letter which he wrote to Blackburn, some time after he had filed his answer to the bill, (the principal object of which was to effect a compromise for his children), he said, “I was sorry, as the matter has turned out, that you did not serve the common process at law upon me, which was always in your power, only the time I was in the western country ; for the debt would have been paid long ago, as there was property enough to have paid three such debts, before and long after you brought the present suit.”
    There ensued a contest as to the fairness of the conveyances made by the debtor to his children ; and the chancellor directed an issue to be made up and tried at the bar of the circuit court of Bath, to ascertain whether they were fraudulent or no. The jury found that they were fraudulent as to the plaintiff Blackburn.
    Then, a new contest arose, as to the title of the lands conveyed by the defendant James to his children, these claiming an interest in the subject paramount to their father.
    *In the event, the court declared the conveyances fraudulent as to Blackburn; adjudged, that the defendant James Kelso should pay him the bond debt of 420 dollars with interest, and the costs of this suit; and in case hq should fail to pay the same within three months, directed the marshal of the court to sell the land so fraudulently conveyed, and apply the proceeds to the payment of the debt, interest and costs.
    From this decree the defendant John Kelso appealed to this court.
    Johnson, for the appellants,
    said, The bill did not shew a case proper for relief in equity. It was now settled, that a creditor at large, not having recovered a judgment or decree against his debtor, cannot be entertained in equity to set aside fraudulent conveyances of the debtor. Tate v. Eiggat &c., 2 Eeigh, 84, 99. The bill stated, indeed, that upon diligent inquiry, James Kelso could not be found in the county of Bath, so that process of law might be served upon him, and that he was said to have left Virginia, and it was reported he was an inhab'-itant of Kentucky. But, at the time the bill was filed, real estate was not subject to foreign attachment; it was only made so, by an amendment at the revisal of 1819. Statute of 1792, Rev. Code of 1794, ch. 78, § 2; Pleasants’ edi. p. 115, 1 Rev. Code of 1819, ch. 123, § 1, p. 474. It was expressly stated in the answers of John, Hugh and Elizabeth Kelso, that their father was, and had for years been, a resident of Eouisa ; and there was no proof that he was or ever had been a nonresident. There was no affidavit accompanying the bill, or afterwards filed, as the statute required, that he was absent, or not to be found: neither was he afterwards, in any respect, proceeded against as an absent defendant: he appeared and put in his answer as a home defendant. Therefore, no ground was laid to sustain the jurisdiction of the court of chancery, under the statutes giving remedy against absent debtors or defendants.
    *Eeigh for the appellee,
    referred to the provision of the statute concerning proceedings in chancery (which was as old as 1787) that “ after answer filed, and no plea in abatement to the jurisdiction of the court, no exception for want of jurisdiction, shall ever afterwards be made, nor shall any court of chancery ever thereafter delay or refuse justice, or reverse the proceedings, ior want of jurisdiction, except in case,? of controversy respecting lands lying without the jurisdiction of the court, and also of infants and femes covert.” 1 Rev. Code, ch. 66, § 86, p. 214. The construction of this statute was well settled— that it has no application to the case of a bill shewing, on its face, a case not proper for relief in equity ; but, where the bill shews a case proper for relief, and the objection to the jurisdiction arises from a state of facts extrinsic of and different from that shewn by the bill, and the defendant without pleading in abatement to the jurisdiction, puts in his answer, there, whatever may appear in the sequel, the statute precludes all objections to the jurisdiction, either in the court of original' or of appellate cognizance. Pollard v. Patterson, 3 Hen. & Munf. 67 ; Hickman v. Stout, 2 Heigh, 6. And this construction of this statute, which was intended to disembarrass the substantial justice of the case oí technical objections tb the form of remedy, as much as possible, was, he thought, narrow enough in all reason. Then, the question here was, Whether this bill, on its face, shewed a case proper for relief in equity ? It was not a foreign attachment: it was a suit against an absent defendant and resident defendants, at once to recover judgment against the absentee for debt he owed, and to have his fraudulent conveyances of his property removed out of the creditor’s way ; a suit founded on the Sth section of the statute of 1792, retained, unaltered, in the revised statute of 1819, 1 Rev. Code, ch. 123, p. 476. The design of both statutes was to give the remedy in chancery, wherever, in consequence of the defendant’s absence from the state, of his being'without the reach of legal process, no action at law could be prosecuted against him ; and to give *the remedy in all cases, where there is a subject within the jurisdiction of the court, of which it can lay hold, to accomplish the ends of justice. It was true, that the revised statute of 1819 was the first that gave the foreign attachment of real estate belonging to an absent debtor; but the only effect of that amendment was to make the very process of foreign attachment a lien on the land. It never had been doubted, before the statute of 1819, that the courts of chancery might subject the lands of an absent debtor, lying within their jurisdiction, to his debts, at the suit of the creditor; but then, it was not the process of attachment, but the decree of the court, that bound the lands. Then, let this bill be fairly examined. The court.would not require all the precision and certainty that would be necessary in special pleading : it would disregard form, and look to substance. The bill alleged, in substance, that the debtor could not be found to serve process upon him ; that he was reported, and therefore believed, to have left the state, and to be an inhabitant of Kentucky : and this, indeed, was all that a plaintiff at home could, with strict truth, aver as to an absent party : his absence from the state, his residence in any particular place abroad, cquld not be positively known. The bill, therefore, on its face, laid a ground for the jurisdiction of the. court, under the statute concerning absent debtors and defendants. The debtor defendant did not deny, that he was an absentee when the bill was filed ; and he was the person against whom the judgment was asked ; the person, therefore, to object to the jurisdiction. If the home defendants might have pleaded in abatement to the jurisdiction, that the debtor defendant was at home and amesnable to legal process, they did not plead that matter in abatement; they answered the bill, and contested the claim upon the merits; and no matter how the fact afterwards turned out to be, they could not except to the jurisdiction ; and neither the chancellor nor this court could regard exceptions to jurisdiction. The plaintiff’s bill placed him rectus in curia. There was no necessity for him to accompany his bill with an affidavit of the debtor’s *absence: in common practice, and correct practice too, the affidavit is only required as the foundation of a special order of court to attach the absent defendant’s effects, or of an order of publication against him. For proof of this, he remarked, that the strongest process against an absentee, the process of foreign attachment, is only an ordinary subpoena in chancery, with a restraining order indorsed, which may be indorsed by the clerk or the plaintiff’s attorney ; and this is regular and effectual, provided the attachment turns out, in the progress of the suit, to be just: no one ever heard of an affidavit at that incipient stage of the proceeding. When it was alleged by the home defendants in their answers, that the debtor defendant was at home, within reach of legal process, it was right to forbear farther proceedings against him as an absent defendant, and to send process after him, as was done here. At any rate, he insisted, that this court could not touch the decree as to the debtor defendant James Kelso, who had not appealed from the decree : the judgment for the debt thereby rendered against him must remain in full force, and that would bind his lands. Tate v. Liggat, 2 Leigh, 84, 108.
    
      
       Foreign Attachments — Statute—Construction. —In Barksdale v. Hendree, 2 Pat. & H. 47, the principal case is cited to the point that, the statute allowing attachments against absent debtors is an innovation on the common law, and should be carefully watched and strictly confined to the ground covered by the statute. To the same effect the principal case is cited in Bank of U. S. v. Merchants’ Bank of Baltimore, 1 Rob. 585.
    
    
      
       Same — Same—Same—Nonresidents.—And in Long v. Ryan, 30 Gratt. 721, it is said: "Whatever doubt or ambiguity there may have been in former laws on the subject, it is clear that since the revisal of 1849, a party cannot be proceeded against under the foreign attachment law unless he be actually a nonresident of the state at the time. Kelso i>. Blackburn. 3 Leiah 299; Daniel on Attachments, • p. 242.” See monographic note on “Attachments" appended to Lancaster v. wilson, 27 Gratt. 624.
    
    
      
       Fraudulent Conveyances — Creditor at Large — Right to Impeach. — On this question the principal case is cited vo. foot-note to Poindexter v. Green, 6 Leigh 504; foot-note to McCullough v. Sommerville, 8 Leigh 415; Wallace v. Treakle, 27 Gratt. 486; Zell Guano Co. v. Heatherly, 38 W. Va. 415,18 S. E. Rep. 612; Guggen-heimer v. Lockridge, 39 W. Va. 457,19 S. E. Rep. 874. See monographic note on “Fraudulent and Voluntary Conveyances” appended to Cochran v. Paris, 11 Gratt. 348.
    
   CARR, J.

It was contended by the counsel for the appellant, that this case was wrong from the foundation, because the plain tiff,, a creditor at large, had filed his bill for the sale of his debtor’s land ; that this was done upon the pretext, that Kelso was an absent defendant, when in truth he was not; but that if he was, the law as at that day, gave no such remedy against the debtor’s land ; and. if it had, Kelso, in the progress of the suit, having appeared and filed his answer, could not be decreed against as an absent defendant. For the appellee, it was insisted, that the bill made a case clearly within the jurisdiction of the court; that, namely, of an absent defendant having land here, which he had fraudulently conveyed to his children and as there was no denial of the absence of the debtor when the suit commenced, by plea in abatement to the jurisdiction, his appearance ^afterwards, could not affect the jurisdiction, or the decree to be rendered.

The proceeding by foreign attachment against absentees, is an innovation upon the common law ; a proceeding in rem, founded on the necessity of the case, lest there should be an absolute failure of justice ; and, like all ex parte proceedings, it is liable to great abuse, unless carefully watched, and strictly confined to the ground covered by the law. It is not under their general jurisdiction, that courts of equity take cognizance of these cases, but under particular statutes; and these, it will be found, have, with special care, marked out the extent, and described the manner, of the proceeding. Our earliest act upon this subject (that I have met with> was passed in 1744, and may be found in 5 Hen. stat. at large, p. 220. It has remained the law ever since, with few alterations, until the revisal of 1819 ; when an important change (to be noticed presently) was made. The preamble to the act of 1744, states, concisely and clearly, the mischief to be remedied. “Whereas creditors have experienced great difficulties in the recovery of debts due from persons residing without the jurisdiction of this commonwealth, but who have effects here, sufficient to satisfy and pay such debts: for remedy whereof, be it enacted” &c. We see here, that the very foundation of this jurisdiction is the non-residence of the debtor, and his having effects here. The next section shews more particularly, the meaning given to the word effects : it speaks of a suit in equity against a defendant who is out of this country, and others within the same, “having in their hands effects of, or otherwise indebted to, such absent defendant.” Thus the law stood from 1744 to 1819. The language here used, plainly evinces, that the remedy did not reach 1he real estate of the absentee; and the uniform practice under the law, so far as I have seen, proves lhat such was the understanding. At the revi sal oí 1819, we find, the words just quoted as existing in the old law, and immediately following are these, “or against every such absent defendant, *having lands or tenements within the commonwealth.” And in an after part of the statute, we find a clause providing with special care, for the mode of proceeding, in order to subject the land of absent defendants to sale. Until this law took effect, it may be safely affirmed, that no land of an absent defendant could be decreed to be sold under a foreign attachment. Let us return to the form in which the suit is to proceed. The law prescribes, that if, “in any such suit, the appearance of the absentee be not entered, and security given, to the satisfaction of the court, for performing the decree; upon affidavit that such defendant is out of the country, or that upon inquiry at his usual place of abode he could not be found, so as tobe served with process then, the court is to 1 ake proper steps for the safety of the debts or effects ; then also, it is to appoint some day in the next term, for the absent defendant to enter his appearance, and give security for performing the decree ; and this order is to be published. If the absentee shall fail to comply with this order, by appearing and giving security, the court may then proceed to a final decree ; subject to be opened within seven years, by the appearance of the absentee &c. and such proceedings are then to be had, as if he had appeared at the first filing" of the bill. It will be observed how careful the law has been in these provisions, to guard against abuse : 1. the defendant must have failed to appear to the subpoena ; 2. there must be an affidavit that he is out of the country, or that upon inquiry at his usual place of abode, he could not be found, so as to be served with process ; 3. there must be a day of appearance given ; 4. this must be published, both in the newspapers for two months, and at the door of the courthouse. Without these proceedings, there can be no foreign attachment ; no decree against an absentee ; no sale of his effects or estate. The affidavit, especially, lies at the very root of the proceeding ; without it, the court cannot take a single step. It seems to be the idea of some, that this affidavit comprehends as well him who absconds and conceals himself, as *him who is out of the country ; but this appears clearly to me to be a mistake. This part of the statute is dealing wholly with persons residing without the jurisdiction of the commonwealth. The legislature knew, that a person indebted, and about to leave the state, would often remove so secretly as to put it beyond the power of his creditor, to prove whither he had gone : in such case, it was considered, that an affidavit, that upon inquiry at his usual place of abode, he could not be found, was sufficient evidence of non-residence, to found and commence the proceeding. That this is the meaning, seems still more clear from the 6th section of the same law, which authorizes a justice of the peace, to issue an attachment against a debtor, who “is removing out of the county or corporation privately, or absconds or conceals himself, so that the ordinary process of la w cannot be served on him.” This is a proceeding very different from a foreign attachment, and made for the express case of a debtor, who, without leaving the state, keeps out of the way of process.

Let us now briefly examine the case made by the record. The plaintiff, and the defendant James Kelso, had, it seems, for a number of years, resided in the county of Bath. The plaintiff alleges, in his bill, that after the debts due him by Kelso were contracted, and became due, Kelso very seldom appeared in Bath, having married in Louisa, or some of the lower counties of this state ; and on very diligent inquiry, he could not be found in the county in which he was said to reside, and at length disappeared intirely, being said to have left the state and gone to parts unknown ; that, at the commencement of this suit, he was reported to be an inhabitant of Kentucky, or at least, he was said to have been sometimes seen there. The bill then states several fraudulent conveyances of his land made by Kelso to his children, with intent to defraud his creditors ; and prays the court to set aside these conveyances, and subject the lands, or so much of them as shall be found sufficient, to the satisfaction of the plaintiff’s claim. Taking this bill simply upon its face, is it *not demurrable ? I am clearly of opinion that it is. It is most defectively drawn, and so vague, that it is difficult to decide, whether the draftsman expected by the force of his bond alone, to attack the deed to the children, set it aside, and sell the land, or whether he thought to come to the same results, by treating the defendant as an absconding" debtor; or whether the object was to proceed against him as an absent defendant. If he meant the first, we know that no creditor at large, can come into equity to impeach the conveyance of his debtor. To me it is equally clear, that the fact of a debtor’s so absconding or concealing himself, that the ordinary process of law cannot be served on him, confers no jurisdiction on a court of equity to sell his land. I think so, not only because I find no law giving such power, but because I find a law giving, in that express case, process of a different kind, against the personal goods, not the land of the debtor; to bring him before a legal not an equitable tribunal. But, even if equity would, under any circumstances, entertain a bill of this kind, against an absconding debtor, such bill must at least be accorn-panied by an affidavit that the debtor was absconding-: here there is none such : and for this defect, the bill was demurrable. But the third hypothesis, to wit, that Kelso was an absent defendant, seemed most relied on. Does the bill so state him ? I say no. There is no such averment. It says, indeed, (but even this, not sworn to), that at the commencement of the suit, he was reported to be an inhabitant of Kentucky, or at least, to .have been sometimes seen there. This surely will not be said to be an averment of any thing : it is the .statement of a vague rumour, that Kelso was sometimes seen in Kentucky, which might happen from a transient visit; and this, no one will contend, would justify a proceeding against him as an absent defendant. The bill then was demurrable, for this defect. But, again, at the time this bill was filed, there was no law (as I have already shewn) subjecting the lands of .non-residents to sale for debt; and, therefore, if the bill had positively averred that Kelso was an absentee, it would have been demurrable.

*The proceeding was wholly irregular in other respects. There was no affidavit, either that the defendant was an absentee, or that on application at his usual place of abode, he could not be found ; and this, we have seen, is necessary. There was no day of appearance given him-; no publication ; in truth no one step, which the law directs to be taken against an absentee ; but process after process was issued, and the cause continued from rules to rules as to Kelso, just as it would be against a resident defendant. Again; suppose we consider the allegation that Kelso was an absentee, properly and directly made by the bill, there are the answers of three defendants, put in promptly after the bill was filed, directly contradicting the allegation, and averring that Kelso was and had been living in Louisa, where he was a housekeeper and farmer, for four years ; which would make him a resident there, before the commencement of this suit, and one of the defendants denied, that he ever lived in Kentucky. Will it be said that these defendants had no concern with this fact, and that their answers cannot be evidence for the other defendant ? The reply is, that they are concerned, and deeply interested, in the fact: for the sole pretence on which this creditor at large, could call them into court, was the non-residence of their father. If they had brought into court, full proof that their father was, at the commencement of the suit, and had been ever since, residing on his farm in Louisa, amesnable to process, can any body doubt, that the court, without any appearance or answer of the father, should have dismissed the whole proceeding ? And, though they have not brought in this plenary proof, they have, by answers responsive to the bill, disproved the allegation ; and that is enough, until the plaintiff countervail it by sufficient proof, which he .has not done. But afterwards Kelso himself appeared, and filed his answer : if the plaintiff had considered him still a non-resident, he would, of course, have objected to this appearance, unless he gave bond and security to perform the decree; and, if he had so objected, the court would have ^required such bond and security, unless the residence of the defendant had been proved to its satisfaction. But, so far from objecting, the plaintiff assents, by taking at once a replication to the answer. This changed the aspect of the case : the defendant was no longer an absentee, but rectus in curia : the attached property was discharged ; and the cause would proceed, like any other, to a hearing. If, on the hearing, the court considered, that the case made by the bill gave it jurisdiction, it would render a personal decree for the debt, which the plaintiff might enforce as he could any other decree or judgment. It is admitted, on all hands, that an appearance discharges the attachment, where the property attached is personal. Surely, the same effect follows where land is attached, both from the reason of the case, and the care with which the land of an absentee is protected from sale, while there is any personal fund in the power of the court. And this very point was decided in Tiernans v. Schley &c., 2 Leigh, 25. In that case, the appearance of the absent defendant was ‘what, in the judgment of this court, changed the nature of the suit, and discharged the land. In the case before us (as I have said) the plaintiff may fairly be taken to have assented, since, without objection, he took a replication to the answer; or, if he did not assent, the court might have had full proof before it, that the defendant had never been an absentee, in which case it ought not to have required security ; and, as it might have had such proof, we are bound, until the contrary appears, to presume, that it did have it, if such presumption be necessary to justify its proceedings.

I have been thus particular in my examination of this case, because my experience, especially in the western chancery court, has convinced me, that this process, unless narrowly watched, is liable to great abuse. I think the case wrong from the foundation, and that the decree should be reversed, and the bill dismissed.

*CABELL, J.

It has been repeatedly decided by this court, that a creditor at large, having no judgment or other lien on the property of his debtor, cannot prosecute a suit in equity, for the purpose of setting aside a fraudulent conveyance of property by the debtor. To this general rule, there is, however, one exception ; and that is where the debtor by removal out of the state, or by evading the process of the law, puts it out of the power of the creditor, to obtain a judgment at law. But, in such case, the fact of non-residence, or of evasion of legal process, must be averred in the bill, and proved to the satisfaction of the court. If the fact be not proved, it is the same as if it had not been averred, and then there is''no ground to support the jurisdiction of the court as against the fraudulent alienees. In the case before us, the fact of residence beyond the limits of the state, was expressly denied and put in issue by the answers ; and there is no proof to support the averment in the bill, except the testimony of a witness, who speaks of a vague report, that the debtor had removed to the state of Kentucky. This testimony cannot prevail against the answers. As to the evasion of the process of the law, there is no evidence whatever, ex,-cept as to the difficulty of serving process in the county of Bath. But the debtor was not an inhabitant of that county, according to the allegation of the bill itself. To justify the interference of a court of equity, on this ground, it is necessary, that it should be proved to the court, that the defendant, upon inquiry at his or her usual place of abode, could not be found. There is no such proof in this case. Nor did the plaintiff proceed, in any respect, as directed by law in the case of absent defendants, or defendants evading the process of the law. He has not, therefore, entitled himself to proceed against the alienees of the debtor’s property ; and as to them, the bill ought to have been dismissed, whatever decree the plaintiff may have been entitled to as against the debtor himself. But, in truth, he was not entitled to any decree, even as against the debtor ; for even according to the bill, the claim was purely of a legal *nature. A general demurrer to the bill, as between the plaintiff and the debtor, would have been sustained. Therefore, I am of opinion, that the decree should be reversed, and the bill dismissed.

BROOKE, J., concurred in the opinion of judge Cabell.

TUCKER. P.,

dissented. He said, I am satisfied in this case, that the appellee had a right to consider the defendant, James Kelso, as within the provisions of the statute prescribing the mode of proceeding against absent debtors. That statute authorizes a proceeding by foreign attachment, where it appears that the defendant is not a resident of the commonwealth, or that, upon inquiry at his or her usual place of abode, he could not be found so as to be served with process. Here, the bill sufficiently alleges, I think, that the defendant was believed to be nonresident, and at any rate, to use its language, that he could not be found. It is too late, in this stage of the cause, to bring this matter into question, after an appearance and answer by James Kelso, without putting the matter fairly in issue. But if it were not, I think enough appears to sustain the bill. Sittlington deposes, that it was generally believed, that he had removed to, and was living in, Kentucky, about the time the suit was brought; and he himself, in a letter, alludes to the fact that he had been in Kentucky after the right of action accrued. Moreover, Sittlington and Francisco, with several other witnesses, conspire to fix the fact that he systematically kept out of the way of the process of the law; and the record shews, that process after process issued against him in this suit, unavailingly, for several years. He was, then, precisely such a defendant, as is permitted to be sued in equity upon a law demand, because he cannot be arrested upon legal process. In equity, he was liable to be proceeded against by order of publication, and after decree, by such order as the court might think proper. Had he never appeared, the decree against him would have been erroneous, without an *order of publication duly executed. But, as he appeared and answered, that measure was not necessary, and, indeed, would not have been proper. Had he, upon appearing, pleaded in abatement, to the jurisdiction, that he had not absconded, and was not a non-resident, and that fact had appeared, the bill must have been dismissed. But it was essential that that matter should be so pleaded, according to the statute, 1 Rev. Code, ch. 66, § 86, which applies in all cases, where the objection to the jurisdiction depends upon circumstances extrinsic. After answer filed, and no plea in abatement to the jurisdiction, the exception to jurisdiction, founded on a state of facts different from that alleged in the bill, cannot be heard. For this, there are sound reasons ; 1. to prevent the plaintiff, when he comes to hearing upon the merits, from being surprized by an objection which he could not anticipate ; and 2. to prevent the gross abuse (as in this case) of awaiting the last stage of a controversy, before an objection is presented, which, without touching the merits, turns the plaintiff ro.und to a new course of litigation. This is, in my opinion, a gross abuse. The objection would seem to be made, for the first time, in this court; and to allow it, would be to repeal a most wise and salutary statute; a statute whose provisions, instead of being narrowed and confined, deserved to have been construed with the greatest liberality.

The court then, was, in my opinion, properly possessed of the cause. Kelso submitted himself to the jurisdiction without objection, and filed an answer to the merits. That did not oust the jurisdiction. The filing of the answer, whether with or without security, and resting upon the merits, has no other effect than to discharge the attachment. It does not abate the suit. The only effect of the answer is, to make up an issue on the merits, and present the case to the court for its decision ; for, as its jurisdiction well attached at first, it must proceed to settle the matter between the parties. This is too plain to be contested. If A. attaches B.’s goods in the hands of C. for a bond debt, *and B. enters his appearance, answers, and gives security ; the attachment is discharged, indeed, but the chancellor proceeds to decree the amount of the bond, though it is obviously a legal demand. For, in truth, though the proceeding is had in equity, the question between the debtor and creditor, in these cases, is, generally, a legal demand, to which the defendant may plead such matter as would have been good in a court of law. Wilson v. Koontz, 7 Cranch, 202.

The court thus having jurisdiction of the case regularly, at least as to James Kelso, proceeded to a decree, which is not assailed upon the merits : so far from it, James Kelso has acquiesced in it. He took no appeal. John Kelso is the only appellant.

By the decree thus rendered, and which is in its character definitive, if not technically final, the plaintiff’s demand is decreed him. And it cannot be denied, that that decree would have bound the lands of James Kelso, and indeed does bind the lands of James Kelso, as he did not appeal from it. The instant this lien on his lands attached, the right to assail the fraudulent deeds sprung into existence, according to the strictest principles. That right now unquestionably exists, I presume, under this decree ; and although this court should reverse the whole proceedings as to the fraudulent grantees, yet the plaintiff may commence against them de novo, on the foot of this decree, and demand the rescission of their deeds. The utmost, then, to be effected is, that the parties will be turned around to a new race of litigation, to try again a question' already settled by the verdict of a jury ; and settled, too, to their satisfaction, for no new trial has been solicited. If this oppressive and vexatious course is indeed required by the rules of the court, we must, I acknowledge, acquiesce in it. But, while on the one hand, I think no direct authority can be produced in its favour, it is not difficult to shewf that, in equity, parties may be brought before the court, along with the debtor of the plaintiff, with a view to charge them, when *the demand shall have been first established, against the principal defendant. Thus, although it is admitted that, as a general rule, an executor and his sureties could not, without a previous suit establishing a devastavit, be sued in equity for the purpose of subjecting them; yet, if the executor is out of the state, or is dead, leaving no representative, such suit will be entertained. Spotswood v. Dandridge, 4 Munf. 298. In such case, as the law formerly stood, they would only have been liable at law, after a judgment should have been recovered against him. And yet equity held the innocent surety in court, until it could pronounce that judgment; and, in the same instant, decreed also against them. How much more reasonable, in this case of a fraudulent and absconding debtor, to bring him and his accomplices before the court together, the court having full jurisdiction as to him, and to hold them in court until it could pronounce judgment against him? If, indeed, the creditor was without this remedy against an absent defendant and his fraudulent donees, then it is obvious, that nothing more was wanting to consummate a fraud, before the statute authorizing lands to be attached, than that the fraudulent donor should hasten to quit the state, before a suit at law could be prosecuted against him. In that event, as no judgment could be rendered, no lien could be obtained. The creditor must have been without remedy ; and the perpetrators of the fraud would have been protected by this nicety, in the enjoyment of their nefarious gains. I cannot readily accede to propositions, which would lead to such consequences.

If it be sai.d, that a demurrer to the bill by the fraudulent donees, would have been sustained, I answer, it would not lie with more propriety, than a demurrer by the sureties of the executor, in the case above cited. The same answer would be given to the sureties who are privies in contract, and to the do-nees who are privies in fraud ; namely, that the establishment of the plaintiff’s demand against their principal, would, in the same instant, justify a decree against ^themselves. Having connected themselves with him, they are joined with him in action, to abide his fate.

Upon the whole, I am of opinion, that the court had jurisdiction of this case, and that the decree is correct, except in one particular. A sale of the land is decreed, which should not have been directed, unless it had appeared that the rents and profits would not keep down the interest; and moreover, the sale of the whole is decreed, instead of a moiety, which upon principle, and on the authority of Stileman v. Ashdown, 2 Atk. 608, is all that the plaintiff had a right to charge. The fraud does not add to the extent of his power to charge the land. Nor will this court add to it. It only removes the fraudulent deed out of his way, and leaves him to the effect of his elegit, which is to charge the moiety only ; with this difference, that a sale, instead of an extent of that moiety,, will be directed, where it has been ascertained that the rents and profits will not keep down the interest. The court, therefore, should have decreed the debt to the plaintiff ; and, upon that foundation, should have further decreed the deeds to be void. They being removed out of the way of the' plaintiff, he might then have been at liberty to sue out his elegit on the decree; and, had it appeared, that the rents and profits would not keep down the interest, then and not till then, a sale should have been decreed of the moiety.

Decree reversed, and bill dismissed.  