
    *Erskine & Eichelberger v. Staley and Others.
    November, 1841,
    Richmond.
    (Absent Brooke, J.)
    Foreign Attachment in Chancery — Priority between Attachments in Chancery and at Law, — Creditors of an absent debtor sue out a foreign attachment in chancery against him and a home defendant having in his possession specific goods of the absent debtor, as well as bonds, notes &c. to collect for him as his agent, and this process is served on the garnishee; other creditors of the same debtor, having brought an action at law against him, sue out an attachment against his estate to force his appearance, and this attachment, after the foreign attachment had been served on the garnishee, is levied on the same specific goods which were in the garnishee's hands at the time the foreign attachment was served on him; judgment being recovered in the action atlaw, pending the foreign attachment in chancery, the court of law orders a sale of the specific goods on which the attachment at law was levied: and the creditors in the action at law, being about to have a sale, under the order of the court of law, of the goods on which their attachments was levied, the creditors in the foreign attachment in chancery obtain an injunction to inhibit that sale, claiming a prior lien on the goods by virtue of their attachment previously served on the garnishee: Held, upon the construction of the statute, 1 Rev. Code, ch. 123—
    i. Same — Same.—That the creditors in the foreign attachment, by the service thereof on the garnishee and from the date of such service, acquired a lien on the effects of the absent debtor im the garnishee’s hands; and of this lien, 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 them.
    2. Same — Same—Therefore, the creditors in the foreign attachment, if they shall get a decree, will be entitled to priority, for satisfaction thereof out of the attached effects, over the creditors claiming under the attachment at law subsequently levied,
    3. Same— Same — Injunction.—And the remedy by way of bill of injunction, to which the creditors in the foreign attachment had recourse, was the proper remedy, to protect their rights.
    Same — Subpoena—Endorsement of Restraining; Order-Effect. — In the proceeding by way of foreign attachment in chancery, a subpccna against the absent debtor and the garnishee, with a restraining order endorsed by the clerk, served on the garnishee, is, ^according to the settled practice. as effectual to attach the effects of the absent debtor in the garnishee’s hands, as a formal order of the court to the same purpose would be.
    Erskine & Eichelberger took out a subpoena in chancery from the circuit superior court of Jefferson, against Staley and Johnson, dated the 13th July 1837, and caused an attachment to be endorsed thereon by the cleric, in the following- words: “To stop and attach the debts, if any, due to the absent defendant Staley, from the home defendant Johnson, and to stop and attach the effect® of whatever kind, stock of goods &c. of the said Staley the absent defendant, in the hands or under the charge of the said Johnson, as agent or otherwise, to satisfy a debt due from the said Staley to the plaintiffs, of 1592 dollars, with interest and the costs of this suit.” Upon this process the sheriff made the following return: “Executed, July 14th 1837, by delivering a true copy of the within process to the home defendant Johnson, and a true copy to the wife of the absent defendant Staley, at the storehouse of the said Staley, he being not found within my baliwick. ’’ There was no inventory of the goods and effects of Staley in the hands of Johnson, or in the hands of Staley’s wife, returned with the process. Erskine & Eichelberger exhibited their bill in chancery against Staley and Johnson, at August rules of the court (namely, on the first Monday of the month); wherein they alleged that Staley (described as late of the county of Jefferson) was indebted to them-by two bonds and a promissory note (particularly set’ forth) in the sum of 1592 dollars, and on open account in a further sum of about 300 dollars; that Staley had removed from Virginia, without intention to return, and was now residing in Illinois, whither he'designed soon to remove his wife, and whatever effects he still had in Virginia; and that Johnson, who was Staley’s regularly constituted agent, and who resided in the county of Jefferson, had in his hands, goods, wares and *merchandize, and bonds, notes, and book accounts, belonging and due to Staley, and money by him collected for Staley, sufficient to satisfy the debt due to the plaintiffs: and, therefore, the bill prayed a decree against the absent defendant Staley, for the debt due from him to the plaintiffs, and that the goods and effects of Staley in the hands of the home defendant Johnson, might be attached in the hands of Johnson, and of Staley’s debtors when ascertained, as garnishees, and subjected to the payment of the debt due the plaintiffs. The allegation that Staley was a non-resident was verified by the affidavit of the plaintiff’s attorney; and the bonds and note of Staley to them, for debts amounting to 1592 dollars, were exhibited with the bill.
    
    Hamilton & Cost having brought an action of debt against Staley on the law side of the circuit superior court of Jefferson, for 736 dollars, and the capias ad respondendum sued out in that action having been returned non est inventus, an attachment against the estate of Staley, to force his appearance, was awarded at August rules 1837,' returnable to September rules. The sheriff made return upon this attachment: “Levied, August 9th 1837, on sundry household furniture and the store goods, consisting of cloths &c. .which store goods were previously attached in the hands of J. G. Johnson b3r foreign attachment, and surrendered by said Johnson to me, subject to the said attachment; and a list of the said furniture and household goods returned herewith.” Then followed an in-ventorj7 of the articles of household furniture attached. Hamilton & Cost having filed their declaration, and Staley not replevying’the goods attached by entering his appearance and giving special bail, final judgment (after regular proceedings at rules) was entered, *at November term 1837, for Hamilton & Cost against Staley for the debt demanded in this action, and the costs: and it was then also ordered “that the sheriff should make sale according to law, of the household furniture and store goods attached by him and mentioned in his return upon the attachment issued in this cause and in the list or inventory returned with the said attachment, or so much thereof as should be necessary to satisfy this judgment, and that he should pay the money arising from the sate of the said household furniture, to the plaintiffs towards satisfying this judgment, and pay into court the money arising from the sale of such part of the said goods” (meaning the store goods) “as should be sold by authority of this order, and return to the court an account of the sales.”
    
    Upon this, at the same November term 1837, Erskine & Eichelberger exhibited “an amended bill and petition” (so called in the pleading) wherein, after referring to-their subpoena in chancery of the 13th July 1837, the order of attachment endorsed thereon, and their former bill against Stalej7, the absent defendant, and Johnson the garnishee,- — and referring also to the action at law brought by Hamilton & Cost against Staley, the attachment therein sued out against the estate of Staley to force an appearance, the levy of that attachment subsequently to the service of their subpoena and foreign attachment, the judgment rencfered for Hamilton & Cost against Staley, and the order of court for the sale of the effects on which the attachment in that action was levied, and the disposition of the proceeds of sales thereby directed— they alleged, that Hamilton & Cost had declared their design to cause the furniture and goods of Staley to be sold under the attachment, and the order of the court, in their action at law against Staley, without *respect to the prior and bet- - ter rights of Erskine & Eichelberger under their foreign attachment in chancery. Therefore, the bill made Hamilton & Cost parties defendants; and prayed, that they, and the sheriff of Jefferson, should be restrained and injoined from proceeding to-sell, or otherwise dispose of, the attached effects, under the attachment, judgment and order in the action at law against Staley, and that the attached effects should be sequestrated and sold under the foreign attachment of Erskine & Eichelberger for the satisfaction of Staley’s debt to them. The bill then further stated, that Johnson the 'garnishee was insolvent, so that it would be unsafe to entrust the goods and effects longer in his hands ; and prayed that the court would order the same to be delivered up to them (Erskine & Eichelberger) upon their giving proper security, or that the sheriff should take and hold the same, till further order.
    An injunction was accordingly awarded, till further order. And it being suggested to the court, that the value of the goods &c. might be impaired pending the suit, it was, by consent of Erskine & Eichelberger and of Hamilton & Cost, ordered, that the sheriff should proceed to make sale thereof, as directed by the order in the common law cause, and lend out the proceeds of sales until the next term of the court, taking bond with good security for the same; such consent, however, was nowise to affect the rights of Erskine & Eichelberger in this cause.
    Hamilton & Cost, in their answer, insisted, that the plaintiffs acquired not any prior lien or right by their process of foreign attachment in chancery, and that they themselves acquired a prior legal right under their attachment at law, to have satisfaction out of the goods, which were attached (as the plaintiffs alleged) in the hands of the garnishee by service of the foreign attachment on him, but on which-the sheriff actually levied their attachment. The3r said, that, in point of fact, Staley *was not a non-resident against whom the process of foreign attachment properly lay, for that his absence from Virginia was only temporary, he having left home on business, leaving his family here, residing in a house he rented, and he had not, at the time, any settled residence out of the commonwealth: and that Johnson was not properly made a home defendant and charged as garnishee; that the goods and merchandize were stock in a trade carried on by the wife of Staley (who was himself an artizan in the U. States armory at Harper’s Eerry) and the business was managed entirely-by the wife ; that Johnson was a young man employed by her to assist in the business, under her direction, and had no possession or custody of the goods; and so, the plaintiffs acquired no lien on the goods by the service of their process on Johnson as garnishee.
    Depositions were filed touching the questions of fact raised by the answer — Whether Staley was, in truth, a non-resident against whom the process of foreign attachment will lay? And whether Johnson had charge and possession of the goods and effects of Stalejr as his regular constituted agent, as the plaintiffs alleged, or, as the defendants alleged, was only employed to assist in the business as a salesman and clerk, under the direction of Staley’s wife?
    The court, upon the motion of Hamilton & Cost, dissolved the injunction; thereby deciding, that Hamilton & Cost were entitled to have the proceeds of the attached effects of Staley applied to the satisfaction of their judgment, in preference to any claim or lien of Erskine & Eichelberger under their foreign attachment. And it appeared from the opinion of the court (which was inserted in the record) that it held, upon the evidence, that Staley was-not in fact a non-resident against whom the proceeding by foreign attachment was. proper; and if he was, yet that Hamilton & Cost’s attachment in their action at law, and the proceedings, judgment and order, ^consequent upon it, gave them a right to the proceeds of the attached effects, which the court of chancery ought not, at the instance of Erskine & Eichel-berger, to disturb.
    Etskine & Eichelberger applied by petition to this court for an appeal from the decree; which was allowed.
    The cause was argued here, by Lyons and Stanard for the appellants, and by Robinson for the appellees.
    I. The questions of fact were argued upon the evidence — namely, whether Staley was in fact a non-resident of the commonwealth at the time of the foreign attachment sued out by Erskine & Eichelberger? and whether Johnson was his agent having possession of his goods and effects, and so was properly charged as garnishee? This court held, that the affirmative, upon both points, was proved.
    II. The counsel for the appellants said, it was well established, that a subpoena in chancery against an absent debtor, with such a restraining order upon the home defendant thereon endorsed by the clerk, as was endorsed on the subpoena in this case, was, according to the regular practice, a substitute for the order of court authorized by the letter of the statute regulating attachments and suits against absent defendants, and affected the goods, effects and credits of the absent debtor in the hands of the home defendants or garnishees, in the same manner and to the same extent, as a formal order of the court to the same purpose would; and that such process operated, from the date of the service thereof on the home defendant or garnishee, as a lien on the goods, effects and credits of the absent debtor in the garnishee’s hands, so far, at least, as to arrest them in his hands, and to inhibit and overreach any transfer afterwards made by the debtor himself, though made bona fide and for valuable consideration. M’Kim & al. v. Eultons, 6 Call 106; *Smith v. Jenny & al., 4 Hen. & Munf. 440 ; Williamson & al. v. Bowie & al., 6 Munf. 176. The question, then, was, whether the foreign attachment operated only . as between the attaching creditor and the parties, the absent debtor and the garnishee, to avoid transfers made by them? or, whether it did not also overreach transfers of the attached effects made by operation of law? Whether, if any other, creditor of the absent debtor should think proper to sue out an attachment against the estate of the absent debtor in an action against him at law, to force an appearance, and should get judgment pending the foreign attachment, or should have any other legal process levied on the same goods and effects, he could have the attached effects applied to the satisfaction of his judgment, without regard to the rights of the attaching creditor under the foreign attachment previously served? They said, the .case of Williamson & al. v. Bowie & al. was alone decisive of the point for the appellants : for the court there established the principle, that the effect of the foreign attachment was not to be ascertained by analogy to the doctrine of a lis pendens binding on purchasers without actual notice, but “by analogy to attachments against absconding debtors, whose credits as well as effects may be arrested, and alienation thereof prevented;” by “analogj'to attachments against absconding debtors,” in which cases it never was doubted, that the attachment first served had priority over all the rest. They said, the foreign attachment was a proceeding in rem (per Carr, J., in Kelso v. Blackburn, 3 Leigh 306), a proceeding against the absent debtor’s effects in the hands of the garnishee at home, given when the proceeding in personam, by reason of his non-residence, would be impracticable or unavailing. The statute put the debtor’s effects in the custody of the court for the benefit of the attaching creditor; and it authorized the court to make any proper order; to require security of the garnishees for the safekeeping of the property K"to satisfy the debt; or, to order it to be immediately delivered to the attaching creditor upon his giving security for the return thereof to such persons and in such manner as the court should direct; or, to put it into the hands of a receiver; or, to direct an immediate sale, and the proceeds to be held subject to future "order. Neither was there any way in which the garnishee could get a right to dispose of it, but by giving bond with surety and thus creating a personal and adequate responsibility to the attaching creditor for the value; or any way in which the absent debtor could get control over the attached effects, but by appearing and giving security to abide the decree. The statute gave the power to the court, and in giving the power imposed on it the duty, to take the attached effects into its own custody and care, and to hold them for the satisfaction of the attaching creditor’s claim, if it should be found just; and it could not be material in what form the court exercised its power, or (more properly speaking) performed its duty — whether by ordering the attached effects to be delivered to a receiver, or to the attaching creditor himself upon his giving security to restore an account for them as the court should direct, or b3' leaving them in the hands of the garnishee upon his giving security to have them forthcoming to satisfy the decree, or without requiring security leaving them in his hands upon his own personal responsibility. The lien of the attaching creditor was immediate upon the service of his process, and as complete as any lien could be. Erskine & Eichelberger acquired, by the service of their foreign attachment on Johnson, the garnishee, a lien on the effects of the absent debtor 'Staley in his hands: Staley could not demand them of the garnishee, nor transfer them to any other person : the garnishee could not rightfully sell or dispose of them, or apply them to the satisfaction of any other creditor. "When Hamilton & Cost levied their attachment in their action at law against Staley to force *his appearance, on his effects then in the hands of Johnson, they acquired only such rights as Staley their debtor, and Johnson the garnishee, had in the property: they could acquire no more. Now, the rights of Staley and of Johnson in the effects, were subject to the previous lien of Erskine & Eichelberger under their foreign attachment. In the case of several attaching creditors, prosecuting foreign attachments in chancery against the same absent debtor, and seeking satisfaction out of the same property of their common debtor, if there should not be enough to satisfy all, it had been the practice of the court, upon general principles of equity, to distribute the fund among all, pro rata, without regarding priority of time in the suing out or in the service of the several attachments: but it had never been thought, until the decree was pronounced in this case, that a creditor suing out an attachment at law, and getting judgment there, pending a foreign attachment in chancery against the same debtor, duly served before the attachment at law was even issued, much more levied, was entitled to priority over the foreign attaching creditor, for full satisfaction of his claim. They maintained, that whichever jurisdiction first attached on the subject, to that jurisdiction the disposition of it belonged; whichever attachment was first served, to that attachment the preference was due.
    Robinson, for the appellees,
    first adverted to the cases cited for the appellants. He said, the case of M’Kim & al. v. Eultons merely decided that a foreign attachment issued by the clerk, and served, should not be discharged at the instance of the absent debtor, without requiring bond and security to perform the decree. In Smith v. Jenny & al. Chancellor Taylor expressed the opinion, that in the case of a foreign attachment in chancery, £he plaintiff might make an endorsement on his subpoena in the terms of the statute, and that would be sufficient notice to the home defendant not to part *with the absent debt- or’s effects in his hands without leave of the court. Williamson & al. v. Bowie & al. was the case of an assignment by the absent debtors, of a debt due them from the home defendant or garnishee, after service on the garnishee of the subpoena with the restraining order endorsed in the usual form; and this court held, that the subpoena, so endorsed and served, operated, agreeably to the practice in this state, to stop the payment by the garnishee of the moneys due from him to the absent defendants, and to inhibit a transfer thereof from them (the absent defendants) to others, from the time of the service of that process on him (the garnishee). Those cases, then, did not touch the question presented in this case: they only decided that if an order should be made by the court, to restrain the garnishee from paying, conveying away or secreting the debts by him owing to, or the effects in his hands of, the absent debtor, a subsequent assignment by the absent debtor of such debts or effects would be invalid, and an assignment after service of the subpoena with the restraining1 order thereon endorsed, would be equally invalid. In going to that length, the court had authority for its decisions in the well established doctrine as to the effect of a lis pendens — that the purchase of the subject matter in controversy, pen-dente lite, does not vary the right of the parties in the pending suit: the court would not permit an absent debtor, after service •of a subpoena in a foreign attachment, to assign his debts or effects attached by the creditor, and thus to evade and disappoint the decree in the cause. And in going thus far, the court has gone quite as far as was necessary to effect the object and policy of the statute; the purpose of which, •declared in the preamble, was, to provide a remedy for “creditors who have experienced great difficulties in the recovery of debts from persons residing out of the jurisdiction of the commonwealth, but who have effects here sufficient to satisfy and pay *such debts.” Now, the construction which the appellants’ •counsel contended for, would make the statute work beside and beyond its declared purpose and policy: it would make the resort of one creditor to the foreign attachment in chancery have the effect of anticipating and defeating the plain legal remedies of all other creditors, for the recovery •of debts from a debtor within the commonwealth, or having estate within it which may be attached. The law was surely not dictated by any partiality or preference for one creditor over others, or for a creditor pursuing his remedy in equity, over a creditor pursuing his plain remedy at law. Such a construction would give the statute the effect of hindering and defeating the recovery of just debts by legal means. He submitted that a construction so contrary to the declared purpose and policy of the statute could not be right. Then, by the enacting words of the statute, the foreign attachment was only “to restrain the defendants in this country, from paying, conveying away or secreting, the debts by them owing to, or the effects in their hands of, such absent defendants:” not to interfere with or prevent the operation of the law to take such effects of the absent debtor out of the hands of the garnishees; not to •disappoint the greater or more judicious and more successful diligence of other creditors in pursuing their legal remedies. If the court had made a formal order, and •even required security of the garnishee to hold the effects in his hands subject to its future order, and he had nevertheless parted with the effects to the absent debtor himself or to any others; what would have been the remedy? Clearlj’, all that could have been done would have been to render a personal decree against the garnishee (and his surety, if any) for the value of the effects parted with. The service of the subpoena with the restraining order endorsed, on the garnishee, could not have any other or greater effect than the formal order of the court: it could be nothing *more than a notice to the garnishee not to pay or part with the •debts or effects in his hands, and that if he should do so, it would be at his peril; at the peril, namely, of a personal liability for what he should part writh, in case the plaintiff should succeed. If he should encounter this peril, if he should part with the goods, and they should be taken under an execution sued out against the debtor; then, he said, they must be sold under the execution; since, while the attaching creditor in equity had acquired by his notice to the garnishee, only a right to charge, not the specific goods, but him personally, the creditor in the execution would have had the specific goods taken into the custody of the law, and acquired a lien on the goods themselves. It would be strange, indeed, that a debtor’s goods, not previously assigned away by him, nor levied on by any officer under any process, should not be liable to be taken under an execution against the debtor; and exempted from such liability, merely because another creditor had a pending suit in equity against the same debtor to recover another debt, and that creditor, if he should get a decree, might wish to have those goods applied to satisfy his decree. It should be borne in mind, that the statute of Virginia giving the foreign attachment did not command the officer to attach the specific effects of the absent debtor found in the hands of the home defendant, but only to serve the process on the garnishee personally ; differing, in this respect, from the law of foreign attachment of Pennsylvania (and of some other States) under which the specific goods themselves might be attached; Serg. on Attachm. p. 10-12, 202; Morgan v. Watmough, 5 Wheat. 125.
    The proposition contended for by the appellants’ counsel would be contrary to all the analogies of the law. Thus, it was laid down by Coke, and never doubted, that “if an action of debt be brought against the heir and he alieneth hanging the writ, yet shall the land *which he had at the time of the original purchased, be charged, for that the action was brought against the heir in respect of the land;” Co. Litt. 202, b. And yet it had been adjudged, that where two actions were brought against the heir on two several obligations of the ancestor, the plaintiff who first recovered judgment should have priority of execution, though his action was not first commenced ; Anon. 1 Mod. 253. Our statute of executions, 1 Kev. Code, ch. 134, $ 10, p. 528, provided, that “all executions of ca. sa. shall bind the real estate of the defendant from the time when they shall be levied;” yet this court adjudged, that the statute should be so construed, that the ca. sa. levied should avoid alienations made by the debtor himself, but not the action of the law upon his property at the suit of other creditors; Foreman v. Loyd & al., 2 Leigh 284, overruling Jackson v. Heiskell, 1 Leigh 257. In Payne v. Drewe, 4 East 523, where a wrrit of sequestration had been issued by the court of chancery in June 1800, and the writ had been delivered shortly afterwards to the sequestrators, but the sequestration had never been laid on; and a writ of fieri facias was deliv-I ered to the sheriff in January 1802, who, being apprised of the writ of sequestration issued against, but never executed on, the debtor’s goods, returned nulla bona.; whereupon, Payne, the fi. fa. creditor, brought this action against Drewe, the sheriff, for a false return: it was held, that the sequestration was no excuse to the sheriff for not levying the fi. fa. on the goods, and he was held liable for a false return. Now, it had been decided by Lord Nottingham, “that a' sequestration binds from'the very time of awarding the commission, and not only from the time of executing it and its being laid on by the commissioner;” but Lord Elleriborough explained the sense and extent of that rule to be, that the sequestration bound the property as against the party himself ' against whom the sequestration issued and all" claiming *by assignment from or representation through or under him; but it did not so vest the property in the goods absolutely, as to defeat a sale made by the sheriff . under execution ; Id. p. 537-8. And he concluded by laying down this general principle, “that where there are several authorities equally competent to bind the goods of a party when executed by the proper officer, they shall be considered as (effectually, and for all purposes) bound by the authority which first actually attaches upon them .in point of execution, and under which an execution shall, have been first executed.” In Wallace v. Hanley, 4 J. J. Marsh, 622, slaves of the absent debtor had been taken in the custody of the sheriff, and a judgment having been obtained at law by another creditor, an execution was sued out upon it and levied on the same slaves. In this state of things, an injunction was asked and awarded to inhibit the sale under the execution. But'the plaintiff in equity, though’ the sheriff had had actual c.ustody of the goods under his process, did not think- it enough to rely on that prior custody: he charged, that the proceeding at law was a fraudulent contrivance to secure the proceeds of the property for the absent debtor; this charge of fraud being denied by the answer;' arid the court of appeals of Kentucky held, that the bill should be dismissed. So, in our case, if there had been an allegation, that the proceeding of Hamilton & Cost was a fraudulent contrivance to secure the proceeds of the goods to the absent debtor Staley, the interference of the court of equity to stay their proceeding, might properly have been asked. But in the absence of any such allegation, in the absence too of any proceeding wherein any paraticulár goods had been taken into the custody of the officer of the court of chancery, there was nothing to prevent the levy of Hamilton & Cost’s attachment on the goods, or the sale'of the attached goods under the order of the court of law directing the sale.
    *He submitted, that there was no ground whatever for the interference of the court of equity, at the instance of Erskine & Eichelberg’er, by way of .injunction. There was certainty no ground for such interference, if the property of the goods had not been altered by the service of their process of foreign attachment on Johnson the 'garnishee; and if it had been so altered, then whoever had the right of property might have proceeded at law against the sheriff.
    
      
      Attachment — Fieri Facias — Priority between. — As to the point that the lien of a fieri facias of prior date, has priority over an attachment of subsequent date, see the principal case cited in Puryear v. Taylor, 12 Gratt. 409. The prificipal case is cited with approval in Sandidge v. Graves, 1 Pat. & H. 105; Charron v. Boswell, 18 Gratt. 220.
      
    
    
      
      Foreign Attachment in Chancery — Priority between Attachments in Chancery and at Law — Injunction.—In Moore v. Holt, 10 Gratt. 286, the court said: “The first question presented in this case is as to the regularity of the proceeding by injunction at the suit of the creditor in a foreign attachment to restrain creditors who have attached the same efiects by proceedings at law, from appropriating them to their use. This question is, however, sufficiently answered by the case of Erskine v. Staley, 12 Leigh. 406, in which it is distinctly held that an application to the court of chancery to enjoin a sale in such case under the judgment at law is entirely regular and proper; and the judge who delivered the opinion in the case states that it is the only remedy the plaintiff in the foreign attachment could resort to.”
      Same-Endorsement on Subpoena — Previous Affidavit of Nonresidence. — Formerly, in foreign attachments in chancery, it was not necessary to file with the clerk an aifidavit of the nonresidence of his debtor, before the subpoana issued, with the endorsement thereon forbidding the application of the attached property to any other use until the plaintiff’s demand was satisfied, but such an endorsement without a previous affidavit, served as a notice to the home defendant, not to part with effects of the debtor in his hands without leave of the court, and when served upon the home defendant, created 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. Moore v. Holt, 10 Gratt. 287, citing Smith v. Jenny, 4 Hen. & M. 440; McKim v. Fulton, 6 Call 106; Williamson v. Bowie, 6 Munf. 176; Erskine v. Staley, 12 Leigh 406. See the principal case cited in Chapman v. Railroad Co., 26 W. Va. 314. But see 4 Min. Inst. (4th Ed.) 410, where the author, after stating the above rule, says that the present statute (Va. Code 1887, ch. 141, §2964), however, seems clearly to require that the affidavit shall be filed before the clerk is authorized to endorse the attaching order on the summons. See foot-note to M’Kim v. Fulton, 6 Call 106.
    
   ALLEN,* J.

This is a contest between creditors of an absent defendant; one party having proceeded by foreign attachment, and the other by an attachment on the same property to force an appearance <in an action at law. The foreign attachment was first executed; and the only question of interest presented by the case, is, whether a creditor coming in by operation of law) after the service of the subpoena in chancery on the home defendant, is entitled to priority?

This court has decided, in the case of M’Kim & al. v. Fultons, that the endorsement by the clerk, according to the practice of the country, is sufficient to restrain the application of the effects to any other use, and is a substitute for the formal order required by the words of the statute; and that case, and the case of Williamson v. Bowie, decide, that a subpoena so endorsed, operates, from the date of its service, to inhibit any alienation by the absent debtor. According to these adjudications, the lien acquired by the service of the subpcena cannot be defeated by any act of the debtor, except in the manner prescribed by the statute; namely, the giving bond to abide by the decree. This being the law, it would seem to follow, almost as a' necessary consequence, that no subsequent creditor coming in, not by the act of the party, but under the operation of law, can defeat the lien. As a general rule, the creditor is entitled to those rights only', which the debtor held. Even in the case *of a fraudulent deed, though it is good as between the parties, it is void as against the creditor; as to him the property remains in the debtor, as if no deed had been executed. Therefore, when it is conceded, that the debtor, by no transfer or incum-brance, can defeat the lien of the attachment; that assignees coming in under him must take subject to the rights of the attaching creditor; if it is held, that a credr itor coming in afterwafds by operation of law is to be first satisfied, he will acquire fights which the debtor himself hád not. If the statute is to receive such a construction, cases might, and, in practice, probably would occur, presenting strange anomalies. The attaching creditor’s lien is superior to the claim of the bona fide assignee; the right of a bona fide assignee is confessedly superior to that of a creditor whose execution has not been delivered to the sheriff before the assignment or transfer; but if the principle' contended for by the appellees is law, the creditor by execution, who is subordinate to the assignee, is to be perferred to the attaching creditor, whose claim is superior to that of the as-signee.

It was argued, that the lien created by the service of the attachment in chancery, results from an application Of the doctrine of lis pendens: that this authorizes the court to prevent the party himself from defeating the creditor by any alienation of the subject, but does not extend to the case of a creditor coming in by act of law. The proceeding- by foreign attachment is a proceeding in rem: the jurisdiction rests upon the fact, that the absent debtor has effects subject to the control of the court; and if no effects are found, the court has no authority to proceed. But when its jurisdiction once attaches, the court, according to well settled principles, may go oh to do justice. If, however, the effects of the absent debtor may be taken from under its control by another creditor coming with a fi. fa., the foundation upon which its jurisdiction rested will have been swept *away, and the plaintiff will be without remedy. So that, even admitting we were to look to the doctrine of lis pendens for the source of the lien ■of „ the attaching creditor, it seems to me, in a case like this of a proceeding in rem, where the jurisdiction of the court depends upon the existence of effects subject to its control, if that jurisdiction has once properly attached, it can never be ousted either by the act of the party himself or of any third person. The terms of the statute, it seems to me, will admit of no other construction : “the court may order the debts to be paid, and effects to be delivered, to the plaintiff, upon his giving security for the return thereof, to such person and in such manner as the court shall direct.” He holds them subject to the order of the court alone. Would it be any defence in an action upon the bond given by him to return them, to sa3r they were taken from him by a subsequent execution? On the contrary, is it not a necessary implication from the statute, that as he is to return them in pursuance of .the direction of the court, until such direction is given he must hold them? Again, it is provided, that “if the plaintiff shall refuse or not be able to give such security” (as may be required on pronouncing a final decree in his favour) “the effects shall remain under the direction of the court, in the hands of a receiver or otherwise, for so long time, and finally be disposed of in such manner, as to the court shall seem just.” The statute here speaks of the goods remaining under the direction of the court: they must then have been taken under its. direction, and this by the service of the subpoena. The law also intended to protect the rights of the creditor whose property prevented him from giving the security required in the final decree. Time by the law is given to the absent defendant to shew cause against the decree. The effects can be held by the court until the period expires, and then, I persume, as the decree has become absolute, there could be no doubt of the propriety of applying the ^effects to the discharge of the decree, without requiring security. But under the construction contended for, it would be in the power of any creditor getting a judgment at law, to levy on these effects, and so deprive the attaching creditor of the fruit •of his decree.

The argument is not reported in the case of Williamson v. Bowie; but from the opinion of the court, it would appear that it was there contended that the lien resulted from the doctrine of lis pendens. But the court, as I understand their language, overruled the proposition: . “Not deciding (it said) as a general proposition, what is- to be considered, in this country, a lis pen-dens,. 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” &c.

It was contended, that as there was no actual seizure, no levy on specific effects, which were thus placed under the custody of law, the property in the goods remained in the debtor, and being in him other creditors might levy on them. But granting that no actual seizure is made so as to divest the property of the deb,tor,, the consequence deduced does not follow. The legal propertjr of goods may remain in one, subject to the equitable lien of another; and third persons coming in under the first, must occupy his position and hold subject to the lien. For many purposes the property of the goods may rest in the debtor, notwithstanding the service of the attachment. Thus, in several attachments against the same absconding debtor, the attachments are levied successively on the same goods as his property, and they are paid according to the dates of their respective levies. So with executions. And in the case qf foreign attachment, where the real estate is proceeded- against, there is no seizure, no divesting of title, and from the nature of the subject cannot be.

*But, in truth, I look upon the service of the attachment as equivalent to an actual levy. The effects may remain in the hands of the garnishee, but under the control of the court: he acquires a special property in them as agent of the court: and this property is sufficient to protect him against the claims of the owner: it is his duty so to protect himself; and upon his failure, a personal decree will go against him. The property of the goods is so far divested as to prevent a recovery by the party. And this distinguishes the case from Payne v. Drewe, which has been so much pressed on the court. There, a writ of sequestration had been issued out of chancery, which was held up by the sequestrators some eighteen months. In the mean time, a fi. fa. came to the hands of the sheriff, who seized the goods and made an inventory of them, but afterwards quitted possession and returned nulla bona; and the writ of sequestration was relied on as a protection against the suit of the creditor for a false return. Lord Ellenborough, without deciding what was the effect of a writ of sequestration, but conceding that it had the same obligatory effect as the award of an .execution at common law, which binds from the teste of the writ, proceeded to enquire into the extent to which goods are bound bjr the award of the writ; and held, that it did not so vest the property in the goods absolutely, as to defeat a sale made by the sheriff under an execution ; that the property of the goods was not altered, but continued in the defendant till execution executed. And this, it seems to me, is very clear from this consideration, that if no levy is made before the return day, the goods cease to be bound, and an alienation made whilst the wri't was in force, could not be overreached by a levy on a subsequent writ. The writ, when executed, related at common law to. the time of the teste, and now to the time of the delivery, so as to overreach intermediate alienations. Having decided that the sheriff could have levied, and made a valid sale, ^'notwithstanding the writ of sequestration in the hands of the sequestrators, he proceeded to shew, that, under the special circumstances of that case, the sheriff would not have been liable to the action of the party grieved. If, however, I am right in supposing that a foreign attachment is tantamount to an actual levy, that it places the effects under the control of the court, and so far vests the propertj' in the garnishee or agent of the court, as to defeat all claims'or transfers of the defendant, — the case stands upon wholly different grounds. So, in the case of two writs of fi. fa. the sheriff is bound to execute the writ first delivered, but if he do otherwise and execute and sell under the second, the property of the goods is bound by the sale. The remedy of the creditor in the first execution, is against the sheriff. And this for reasons of public policy: “for sales made by the sheriff ought not. to be defeated, for if they are, no man will buy goods levied upon an execution. ” Smallcombe v. Cross, 1 Ld. Raym. 252.

The analogy derived from the case of Foreman v. Loyd wholly fails. That case, as appears by the language of all the judges, depended entirely upon the construction of the 10th section of the statute concerning executions. The mischief there intended to be remedied, was the alienation by debtors in execution to defeat the claim of the creditor. The first clause of the section was held to be limited to sales by the debtor himself, excluding involuntary judgments; and the words of the second clause, providing that a ca. sa. executed shall bind the real estate from the levy, were merely intended to effectuate the intention of the first clause.

On the facts in this case, I think the proceeding by way of foreign attachment was fully warranted; and that the application to the court to injoin the sale under the order of sale in Hamilton & Cost’s action at law, was regular, and indeed the only remedy the plaintiffs in the foreign attachment could resort to.

*1 think, therefore, the court below erred in dissolving the injunction. It should have continued the injunction until the case of foreign attachment was disposed of, and then have perpetuated it, in whole or in part, or dissolved it, as the result of that case should shew ' to be proper; giving to the appellants, the plaintiffs in the foreign attachment, priority of satisfaction if they should succeed in establishing their claim.

The other judges concurred. Decree reversed, and cause remanded &c.  