
    Theophilus Freeman vs. John J. Guion et al.
    
    The right of a creditor who holds a demand against an absent debtor, where there is a resident of this state with effects of the absent debtor in his hands, or who is himself indebted to the absent debtor, to attach by bill in equity the fund in the hands of the home defendant, and subject it to the payment of the debt due to him by the absent defendant, is not limited to the case of a nonresident creditor; the same right exists in favor of, and may be enforced by, a resident creditor in the same mode, and to the same extent, that it can in favor of a non-resident creditor. See Hutch. Code, 801, 823.
    The maxim, that equity has no jurisdiction when there is a remedy at law, has its origin in the common law, and it can have no influence where the jurisdiction in equity is expressly conferred by statute.
    The constitution of this state, adopted in 1832, which establishes “ a superior court of chancery, with full jurisdiction in all matters of equity; ” had reference to the system of equity then in force in this state, as derived from the English system and modified by our legislation ; the jurisdiction of the chancery court therefore, established under the constitution of 1832, includes that given by the foreign attachment law of 1822. Hutch. Code, 801, 823.
    It seems in cases of attachments in equity under the statutes referred to, the attachment iá the means by which the jurisdiction is exercised ; the jurisdiction itself is conferred by the statute upon the existence of the required state of facts.
    It is absolutely necessary that the decree for complainants in cases of attachment in equity, shall direct the complainants to give the bond required by the statute ; and in failure of such provision in the decree, it will be reversed, and the cause remanded.
    Mr. Chief Justice Sharkey dissented from the conclusion reached by the majority of the court hi this case ; and held, that the jurisdiction of the superior court of chancery, under the law referred to, was limited to the case of a non-resident complainant; and could not be exercised in favor of a resident complainant, whose remedy was plain and' unembarrassed at law under the other provisions of the statute.
    In error from the superior court of chancery; Hon. Robert H. Buckner,-chancellor.
    On the 5th of June, 1843, John J. Guión, S. S. Prentiss, and W. C. Smedes filed their bill against Theophilus Freeman, Benson Blake, and Caroline M., his wife, in which they state, that they were practising law in partnership in this state, of which they were resident citizens, when,' in the month of October, 1840, Freeman, who is a citizen of Louisiana, and out of this state, employed them to collect a note for $6686-24, signed by Thomas Ferguson and A. G. Creath; that Freeman, acting by Henry S. Dawson, his agent, placed the note in complainants’ hands ,with instructions to sue Creath in the United States circuit court, for the southern district of Mississippi; and to lay the same before the commissioners of insolvency of the estate of Thomas Ferguson, who was dead, and his estate declared insolvent. That they sued Creath to the November term, 1840, of the United States court; he employed J- S. Yerger, Esq., as his counsel to defend the suit, on the ground that the note was given for negroes introduced into the state, and sold in violation of the constitution. On the 3d day of June, 1842, complainants obtained judgment against Creath for $8509-98, and also laid the claim before the commissioners of insolvency on Ferguson’s estate, who allowed it in full. The complainants also paid $54-41£-, the costs of the suit in the federal court; and filed the receipt of the clerk of that court, as evidence of the payment. They claim for their fees, five per cent, on the amount of the judgment thus rendered.
    The bill states further, that Blake and wife had jointly administered upon the estate of Ferguson, had reported it insolvent; commissioners of insolvency appointed; the commission closed ; Freeman’s claim allowed, and his distributive share in the hands of Blake and wife, in this state', ready to be paid to Freeman, who was out of this state, and indebted, as stated, to the complainants ; the prayer was for a restraining order, an account and payment out of the attached fund.
    The non-residence of Freeman, and his being out of the state, were sworn to; and the chancellor granted the restraining order, on complainants entering into bond, conditioned to be void, if, in case the chancellor, for the purpose of carrying into effect his order, should direct the debts to be paid, and the effects in the hands of Blake and wife to be delivered to the complainants, they should return the same to such person and in such manner as the chancellor should direct. The bond and fiat bear date of the day of filing the bill.
    The injunction and process were duly served on Blake and wife, and the bill taken for confessed against them.
    At the June term, 1843, an order of publication, to be published in the Vicksburg Whig, once a week for-months successively, and that another copy he posted at the door of the courthouse, was granted.
    The affidavit of R. L. Dixon, the clerk of the court, states, that, in obedience to the order of publication, he posted that order, of which he annexes a copy to his affidavit, at the door of the court-room about the first of July, 1843, where it remained more than two months. The copy of the order of publication filed with this affidavit recites, that the publication was to be published in the Vicksburg Whig for two months, and posted at the door of the court-room.
    Marmaduke Shannon, the publisher of the Vicksburg Whig, swears that he published in that newspaper a precisely similar order of publication to the one posted at the door, for two months successively, to wit: on the 26th of June, the 3d of July, the 10th of July, the 17th of July, the 24th of July, the 31st of July, the 7th of August, the 14th of August, and the 21st of August.
    Miles C. Folkes, mayor of Vicksburg and justice of the peace, certifies that the newspapers were produced before, and examined by, him, and the copy was correctly made.
    On this proof of publication, the bill was taken for confessed against Freeman.
    Copies duly transcribed from the records, and certified under the seal of the court in Louisiana, of depositions taken under a commission from the commercial court of New Orleans, Louisiana, in a suit between Guión, Prentiss, and Smedes, as plaintiffs, and Theophilus Freeman, as defendant, were read in the court below. These depositions fully establish the complainants’ demand to be just in all particulars. It is not necessary to make an abstract of them.
    The cause was referred to Robert Hughes, clerk of the court, who reported $673*11 to be due the complainants. Upon which the chancellor decreed that Blake and wife, out of the money belonging to Freeman in their hands, should pay that sum to complainants, within twenty days from the date of the decree, and in default thereof, that the clerk should issue a writ of fieri facias therefor against them; that out of that fund they should also pay the costs, and have credit on the debt they owed Freeman, for both sums when paid. The decree rvas rendered on the 10th of February, 1845.
    Freeman alone has prosecuted this writ of error.
    
      Sanders and Haggin, for plaintiff in error.
    1. A court of equity had no jurisdiction; the remedy was at law under the other sections of the statute.
    2. .The order of publication being blank as to the number of months, was void; the error is not supplied by the proof of publication.
    3. The publication itself was not of sufficient length, from July 26th to August 21, 1843, not two months.
    4. The funds attached are legally in the custody of the probate court, in the hands of the executor, who is amenable to that' court only for their just distribution. For the chancery court to interfere, would be not only interference, but conflict of jurisdiction.
    
      5. The decree is erroneous, in not requiring the bond, (How. & Hutch. 556,) according to the statute.
    6. The depositions were incompetent; they were mere copies.
    
      Smedes and Marshall, for defendants in error.
    1. The jurisdiction of the court in the case of a non-resident defendant, indebted to complainant,' and a home defendant indebted to, or having effects, of the non-resident in his hands, is no longer an open question. Comstock v. Rayford, 1 S. & M. 423 ; Trotter v. White, 10 S. & M. 607 ■ Zecharie v. Bowers, 3 S. & M. 641.
    2. The depositions filed were taken in a suit between the same parties, for precisely the same cause of action. They are copies, because the suit was in a different court; but they are duly certified.
    3. The bill was taken for confessed, on due proof of publication ; and was for a precise and definite demand, and needed, therefore, no other proof to confirm allegations there admitted.
    4. It is said the proof of publication was not for two months, as ordered. It was ordered to be published weekly for two months. It was published once in the last week in June, four times in July, and three times in August. If more than eight weekly publications, consecutively made, can be crowded into two months, the mode of effecting it is unknown to us.
    5. Blake submits to the decree of the court; if erroneous as to him, Freeman cannot complain of it. The decree of the chancery court transfers the demand to complainants; and a refunding bond can be exacted of them, if required.
   Mr. Justice Clayton

delivered the following opinion.

This case is in all respects like that of Comstock v. Rayford, 1 S. & M. 423; of Trotter v. White, 10 S. & M. 641; and of Freeman v. Malcom & Gaul, (ante, 53,) at this term of the court, except that, in those cases, the complainants were non-residents, and in this they are resident citizens. In the former cases the jurisdiction in chancery was sustained; shall the same rule prevail in this, or has the legislature provided a remedy for non-residents, which it has denied to our own citizens ?■ It is a question which depends entirely on the construction of the statute, for it is conceded, that without a statute giving jurisdiction to courts of equity to enforce the payment of a debt, or to render a decree for it, no such jurisdiction exists, unless in aid of the law to remove obstacles out of the way of an execution, or in the exercise of its peculiar powers oyer trusts and mortgages. The point therefore must be decided by the statute.

As early as 1807 a statute was in force, regulating the mode of proceeding in equity against absent defendants; but that refers solely to cases in which equity had jurisdiction apart from the statute; in other words, it conferred no new jurisdiction. Toul. Dig. 153. At the same time, there was a law in force, giving attachments at law to creditors resident in this state, against non-resident debtors having effects in this state. Toul. Dig. 146; Turner, 108. Its provisions are almost identical with those which prevailed up to 1848. See Hutch. Code, 801, 823. The law regulating the proceedings in equity against absent defendants, remained unchanged until 1822, when the statute, under which this suit was instituted, was passed. The title of this law is, “ an act directing the method of proceeding in courts of equity against absent debtors and other absent defendants, and for regulating the proceedings on attachments against absconding debtors.” Poin. Rev. 157.

The first five sections of the act relate to the proceedings in equity; the remaining sections to the proceedings at law. There is nothing in the former which restricts their provisions to any class of persons; the eleventh section in the latter confines the remedy therein given, to the residents of this state, in express terms, and for that reason alone, it cannot be extended to nonresidents.

The provisions of the statute are too various and minute to be here set out at length. The second section provides, that if the court shall be satisfied of the justness of the demand,” it may make such order and decree as may appear just, and enforce the same in the manner heretofore in use for enforcing other decrees. The third section enacts, “ that no sale of any lands shall be made for the satisfaction of any debt due from such defendant, unless the personal fund in the power of the court be insufficient for the purpose.” The fifth section provides, “-that the proceedings in equity against other absent defendants, shall be in all respects the same, both before and after the decree, as are prescribed in relation to absent debtors, so far as they are applicable.”

Thus then it appears, that the legislature conferred the power upon courts of equity, under certain circumstances, to decree the payment of debts, and to enforce such payment. It is needless to conjecture what induced the legislature thus to enlarge the jurisdiction of equity. The statute in regard to attachments at law had been in force for years, and experience might have shown defects which are now concealed. Certain points, however, appear manifest. The property which is proceeded against, may be clothed with trusts or covered with frauds, in a manner which may make the remedy more ample in chancery than at law. The rights, too, of the parties may be more carefully guarded. If the complainant cannot or will not give bond, the effects may be placed in the hands of a receiver; and if the defendant shall appear in five years after the decree, he may set it aside upon certain terms, file his answer, and have the whole matter investigated. These reasons might have induced it, to give a cumulative remedy, and to create a concurrent jurisdiction in this respect in chancery.

The act is copied precisely from one which has been in force in Virginia for many years, and the jurisdiction seems to have been exercised there, without reference to the residence of the complainants. Smith v. Hunt, 2 Rob. Va. R. 206; Platt v. Howland, 10 Leigh, 507. These are not decisions upon the point, but they are cases in which the court acted, without its appearing where the parties complainant resided. If the statute gives the jurisdiction, the fact that the complainants might have proceeeded at law, cannot prejudice their right to elect the forum. The maxim that equity has no jurisdiction where there is a remedy at law, has its origin in the common law, and it can have no influence where the jurisdiction in equity is expressly conferred by statute.

There is no objection to this view, growing out of the constitution, because that instrument, in establishing “ a superior court of chancery, with .full jurisdiction in all matters of equity,” had reference to the system of equity then in force in this state, as derived from the English system, and modified by our legislation. If our construction be correct, the court of chancery had jurisdiction of this class of cases, by express enactment, at the time the constitution was adopted.

But it is said the attachment is not the foundation of the jurisdiction, because that is only awarded by the court upon the return of the process.

The statute confers the jurisdiction, upon the existence of a given state of facts. The attachment is the means by which the jurisdiction is exercised. “ In practice,” it is said in that state from which we derived the proceeding, “ a subpoena against the absent debtor and the garnishee, with a restraining order indorsed by the clerk, served on the garnishee, is 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 v. Staley, 12 Leigh, R. 406. But at most, this objection only militates against the exercise of the jurisdiction before the return of the process.

The bond required to be given by the complainants, under the act, does not appear to have been given before the decree, nor was it required by the decree. This was absolutely necessary. For this reason, the decree will be reversed, and the cause remanded, as was done in the case of Freeman v. Malcom & Gaul, just decided.

Decree reversed and cause remanded.

By Mr. Justice ThacheR. — I concur in the foregoing opinion and conclusion.

Mr. Chief Justice Sharkey

delivered the following dissenting opinion.

The appellees had been employed as attorneys at law by the agent of the appellant, to institute suit on a promissory note due him, against one of the makers. They did so and recovered judgment, but the money was not realized. They prosecuted the claim before the commissioners of insolvency on the estate of another of the makers, and succeeded in obtaining an allowance, which amount so allowed is still due from the administrator on the insolvent estate, to the appellant. The appellant is a non-resident, and the complainants now seek, by bill and attachment in chancery, to subject the money in the hands of the administrator of the insolvent estate to the payment of their claim, and have made the administrator a party.

This remedy was adopted under a statutory provision found in H. & H. Dig. 620, sec. 63; and it is now objected that the statute does not authorize such a proceeding, and that the decree in favor of complainants is therefore erroneous. The statute provides that, in any suit which had been, or might thereafter be commenced for relief in equity in the superior court of chancery, against a defendant or defendants out of the state, and others within the same, having effects of, or being otherwise indebted to, such absent defendant, or against an absent defendant having lands within the state, if the appearance of such absentees be not entered, and security given for the performance of the decree; then, upon affidavit of the absence of such defendant, the court may make an order, if it shall appear necessary, to restrain the defendant within the state from paying the debt, or disposing of the property in his hands, and for that purpose may order the debt to be paid, or the property to be delivered to the plaintiff upon his giving security for its. re turn as the court shall direct. Now we are to inquire, what right is conferred by this statute? what does it authorize the court to do ? To hold property in the state, in the hands of a resident of the state, subject to the decree to be made. This is the substance, the object of the enactment. In what kind of case, or under what state of things, is this authority given? The statute answers the question. It is given in a suit in equity, instituted before or after the passage of the statute. Then the matter must be cognizable in equity, independently of this right, either because the subject-matter is proper for the jurisdiction of a court of chancery, or because there is no adequate remedy at law. Trotter v. White, 10 S. & M. 607. This statutory power or right is ancillary to the main right. This is obvious, since the court can only grant the attachment, or restraining process, in case the absent defendant shall fail to enter his appearance and give security to perform the decree. If he should appear and give the security, the restraining process cannot issue. But it is also manifest from the language of the statute in another particular; it confers the power in suits that had been instituted in chancery for relief, before its passage. It is clear from this that the legislature had in view cases of equity jurisdiction; for we cannot suppose that the legislature was attempting to give jurisdiction to that court in cases previously commenced, by extending its power, when without the act it would not have had jurisdiction. Two things are necessary then to the exercise of this power; first, there must be a suit in chancery against a non-resident, on the merits of which that court has jurisdiction; and second, the defendant must fail to appear and give security, to which indeed may be added a third; there must be an affidavit that the defendant is out of the state, or that he could not be found to be served with process. There must then be some other circumstances to give a court of chancery jurisdiction, besides the mere fact that a foreign debtor may have property in the hands of a citizen of this state, or a debt due him here. It certainly was not the object of this statute to transfer legal remedies to the jurisdiction of a court of chancery. The statute does not say that any cred-, itor or plaintiff may proceed in chancery to subject the property of his non-resident debtor to the payment of the debt; it only empowers him to do so in cases pending in chancery. This process is only given to insure satisfaction, not to confer jurisdiction.

Now I maintain that the complainants do not present a case coming within the letter or spirit of this statute; in other words, their case is not properly a matter cognizable in equity. And why so ? Because they have a plain and adequate remedy at law, as simple as it is certain, and much shorter; not depending on any thing precarious or doubtful, but an express statutory remedy. And not only so, but it is given them in so many words by the very same statute under which they are pursuing this remedy. They proceed under the first section, instead of the eleventh, which gives the remedy. The complainants aver in their bill that they are citizens of the state of Mississippi; they also aver, that Freeman is a citizen of Louisiana, and that he is indebted to them in a certain sum of money, and that Blake, another citizen of this state, is indebted to him, and they pray that Blake may be decreed to pay them instead of Freeman. The 11th section of the act of 1822, revised code, 161, provides for just such a case. It gives an attachment at law against the non-resident having effects here, with garnishee process against the holder of the effects, or the debtor of the non-resident. The legislature certainly did not intend to reenact in the eleventh section, the provisions of the first section. They had in view two distinct classes of cases; one in which the merits could only be reached in equity; but in the other, the remedy was given at law. The statute has this title : “ An act directing the method of proceeding in courts of equity against absent debtors and other absent defendants, and for regulating the proceedings on attachments against absconding debtors.” Its two-fold object is shown by the title, and it gives, in express words, the same remedy at law against non-resident debtors, that it gives against absconding debtors. Nor can I suppose that it was intended to confer concurrent jurisdiction, since there is nothing to indicate such intention. The legal remedy was made so plain as to render concurrent jurisdiction unnecessary. Now suppose it be contended, that the mere fact of indebtedness by a non-resident to a citizen, will give a court of chancery jurisdiction, because it can reach the effects of the debtor in the state by this statutory process; such a construction of the act would render the 11th section a dead letter; the legislature were engaged in a useless thing. But what is the further consequence? If jurisdiction is to be assumed originally, because, on a certain contingency, this process may be granted, suppose the contingency should not happen; suppose the defendant should appear; then there is an end of the jurisdiction, because, in that case, the power is at an end. The result is, that the court would have jurisdiction if the defendant did not appear, but no jurisdiction if he did appear. When he appears, the home defendant ceases to be a party. Let us suppose a proceeding of this sort instituted on the bond or promissory note of an absent debtor, whose resident debtor is also made party. If the absent debtor should appear, it is then simply a suit between him and the holder of the bond or note; the home defendant must be dropped, no further proceedings can be had against him. Now it seems to me to be a clear proposition that chancery would have no jurisdiction in such a case, because non-residents, who are indebted to our citizens on liabilities purely legal, are suable at law by process of attachment, which is but process to force appearance.

But it is said the question presented in this case is settled by the decision in Comstock v. Rayford. I do not object to that decision; on the contrary, I think it was right. But the two cases are not alike; a material difference is entirely overlooked. The complainants in that case were non-residents, and their debtor’ was a non-resident. The property sought to be subjected had been removed to this state from Alabama, and placed in the hands of a citizen, to avoid the debt. Was there a remedy at law? None whatever. The complainants could not sue by attachment; that right is expressly confined to our own citizens. They could not sue by the ordinary process of capias ad respon-dendum ; the defendant was a non-resident, and had no domicil here. Such process could not have been served, as service must be made on the person at his residence, or at his last place of residence. An appearance could not have been forced by judicial attachment, for that seems to be a remedy only in cases where the defendant has removed, or evades the service of process. The complainants then-had no remedy at law, and on this ground the jurisdiction of the chancery court was correctly sustained. But this case settles another important point; which is, that the attachment can only issue at the return term of the court, at which time it will^be issued if the necessary affidavit be made. This seems to prove that this process is not the foundation of jurisdiction: that it can only issue in cases where the court has rightful jurisdiction without the exercise of this power. If this be so, let us try the present case. The complainants hare a purely legal demand against a non-resident; they have also a legal remedy. Can equity assume jurisdiction merely because there happens to be a home debtor to the non-resident'? If this be so, suppose the home defendant should choose to pay the debt, even after process served, that would of course defeat the jurisdiction. It becomes, then, a controversy between the complainants and the non-resident. And what is to prevent such payment? There is no restraining process, and it is no contempt to do that which one is not prohibited from doing.

The case of Zecharie & Kerr v. Bowers, 3 S. & M. 641, has also been relied on. Both complainants and defendants were non-residents, the debtor having lands in this state. There was no remedy at law. The statute expressly gives the remedy in such cases.

I am therefore of opinion that the court of chancery had not jurisdiction in this suit, and that the decree should be reversed.  