
    Smith v. Jenny et al.
    Spring Vacation,
    1809.
    1. Foreign Attachments — Subpoena.—How subpoenas or foreign attachments, should be endorsed.
    2. Superior Court of Chancery — Appearance Day.— what is the appearance day in the Superior Court of Chancery.
    The object of this suit was to attach the effects of the defendant Jenny, as an absent debtor, in the hands, of the other defendants, and notice to that effect was endorsed on the subpcena, which was returnable on the 17th day of this term: and now Mr. Wirt moved for an order to restrain the home defendants from parting with the effects of the absent defendants, until the further order of the Court; and for an order of publication against the absent defendants.
    
      
       Foreign Attachment — Endorsement on Subpoena.— On this question the principal cage is cited in footnote to McKim v. Pulton, 6 Call 106; foot-note to Erskine v. Staley, 12 Leigh 406; Moore v. Holt, 10 Gratt. 287, 288; Chapman v. Railroad Co., 26 W. Va. 314.
      See monographic note on ‘ Attachments” appended to Lancaster v. wilson, 27 Gratt. 624.
    
   By the Chancellor.

The appearance day in all cases is on the second day after the term to which the subpoena is returnable; (1 Rev. Code, p. 65, s. 24,) and in the case of absent and home defendants, the latter holding the effects of the former, and the appearance of such absentee or absentees being not entered, and security given, to the satisfaction of the Court, for performing the decree, upon affidavit that such absentee or absentees are out of the country, or that upon inquiry at his, her or their usual place of abode, he, she or they could not be found *so as to be served with process; in all such cases, the Court may make any order, and require security, if it shall appear necessary, to restrain the home defendants from paying or conveying away, or secreting the debts by them owing to, or the effects in their hands of, such absentee or absentees; and for that purpose may order such debts to be paid, and effects delivered, to the plaintiff or plaintiffs, upon their giving sufficient security for the return thereof to such persons, and in such manner, as the Court shall direct. (Ib. 115, s. 2.) Hence it follows, that, regularly, no order can be made, agreeably to the terms of the law, until the term succeeding the appearance-day; but the plaintiff may endorse his subpcena as he has done in this case, in the terms of the law, which will be a sufficient notice to the home defendants, not to part with the debts or effects in their hands without leave of the Court, and so it was settled to be a correct practice, by the Court of Appeals, in the case of M’Kinn against Fulton and others; (MS.) and there is great propriety in it, for without such notice upon the subpoena, creditors might be defeated, and the clear intention of the legislature frustrated; to prevent which, and to carry into effect the very object of the law, the Court would, if it were necessary, upon affidavit, make any order for that purpose, before the return-day, which it could make afterwards; but in the present case no such necessity appears.

Mr. Wirt withdrew his motion.  