
    Richmond.
    Anderson & als. v. De Soer. Same v. Gallego’s adm’r & als.
    
    1849. October Term.
    
    (Absent Cabell, P.)
    1. A bill of exchange drawn by a legatee under a will upon the executors, for value received, directing them to pay to the order of the drawee a specific sum, the amount of the legacy, out of the funds in their hands, destined by the testator for the payment thereof, is an equitable assignment of the legacy.
    
      2. A bill which is in form a foreign attachment, and the proceedings whereon were as in a foreign attachment suit, if it sets out a case for equitable relief, and contains a prayer for general relief, will be treated as a bill for equitable relief, and under the prayer for general relief, relief will be given according to the equity stated in the bill, if sustained by the proofs.
    3. The plaintiffs claim in their bill, as equitable assignees of a legacy, by virtue of a bill of exchange drawn by the legatee upon the executors, and endorsed to the plaintiffs ; and the bill of exchange is filed with the bill. No proof of the making the bill of exchange or of the endorsement is called for in the Court below. Held : An objection to the evidence for want of this proof, cannot be taken in the appellate Court.
    4. Two suits, one of which is a foreign attachment, in the same Court, by different plaintiffs, but against the same defendants, claiming to subject the same fund, proceed together and are heard together, and the Court makes a decree in each case, giving to each plaintiff a portion of the fund. One of the plaintiffs, who claims the whole fund, takes an appeal from the decree. Held : The appeal brings up both cases, though the appellant was not a party in the other case, which was the attachment case; and the appellate Court may reverse the decree in the second case.
    
      Joseph Gallego, late of the City of Richmond, bequeathed to his nephew Henry Grivegnee of the island of Malaga, 10,000 dollars: and he appointed John Richard and Peter Joseph Chevallie his executors. Henry Grivegnee drew a bill of exchange bearing date at Malaga, the 20th of July 1819-, upon the executors, by which he directed that, when forthcoming and out of the funds destined for that object by his deceased uncle, Joseph Gallego, they should pay to the order of Messrs. Scholtz & Brothers 10,000 dollars, for value received of them; noting the same as amount of a legacy left him by his uncle, by his will and codicils annexed.
    This bill was endorsed by Scholtz & Brothers to Anderson, Blair & Anderson ; and was duly protested for non-acceptance on the 5th day of March 1821.
    On the 27th day of October 1821, Anderson, Blair & Anderson sued out a subpoena in chancery in the late Chancery court for the Richmond district, against Henry Grivegnee, and Richard and Chevallie as executors of Gallego, which was endorsed, to attach the moneys, debts and effects of the defendant Henry Grivegnee in the hands of the other defendants. This subpoena was served on the executors on the 29th of October.
    On the 30th of October, Anderson, Blair & Anderson filed their bill, in which they set out the drawing of the bill aforesaid by Grivegnee, its endorsement to them, and the protest for non-acceptance; and exhibit the same and the protest with their bill. And they allege that thereby Grivegnee had become indebted to them for the contents of the bill. They state the bequest by Gallego to Grivegnee, and that the legacy had not been paid by the executors; and they pray that the funds in their hands applicable to the payment of the legacy, may be attached, and that it may be applied to the payment of the plaintiffs’ claim; and that the Court, the premises considered, may make such other and further decree as to equity shall seem meet.
    The bill was taken for confessed as to Grivegnee. The executors answered admitting the bequest, but insisting that Grivegnee was indebted to their testator at the time of his death, in the sum of 1300 dollars besides interest, which they claimed should be applied as a credit upon the legacy. And they neither admitted or denied that Grivegnee was indebted to the plaintiffs.
    On the 24th day of July 1819, just four days after the date of the bill of exchange herein before mentioned, Joseph Charles De Soer of the City of Liege, in Belgium, sued out a subpœna in the same Court, against Henry Grivegnee, and Richard and Chevallie as executors of Gallego, which was endorsed to attach the debts and effects of Grivegnee in the hands of the executors. His bill, which was in the nature of a foreign attachment, charged that Grivegnee was indebted to him in the sum of 7805 dollars; and sought to subject his legacy in the hands of the executors to the discharge of his debt. The debt was due by account, but it was proved. The bill was taken for confessed as to Grivegnee; and the answer of the executors was the same as in the case of Anderson, Blair & Anderson.
    
    These two cases seem to have been proceeded in and heard together in the Court below; but they were not consolidated; nor did the plaintiff, in either case, make the other a defendant.
    
      The fund in the hands of the executors not being sufficient to pay both debts, an order was made directing a commissioner to state the amount due to the plaintiffs respectively, and to apportion the fund ratably between them. And the executors having died, the suits were revived against the administrator de bonis non &c. of Gallego, and the representatives of the executors.
    The commissioner’s final statement ascertained that there was in the hands of Richard and Chevallie on the 17th of April 1834, 3630 dollars 14 cents of principal, and 2033 dollars 74 cents of interest, and the same was apportioned between the plaintiff's ratably; and it was also stated what part of this sum in hand, should be paid by the representatives of each executor. There does not appear to have been any objection to the evidence of either of the plaintiffs’ claims in the Court below.
    The cause came on to be finally heard in February 1841, when the Court made a decree against Grivegnee in favour of each of the plaintiff's, for their debts respectively, and made a decree against the representatives of the executors in conformity to the statement of the commissioner, giving to the plaintiffs respectively, their ratable proportion of the fund. From this decree Anderson, Blair & Anderson applied to this Court for an appeal, which was allowed.
    
      Harrison, for the appellants.
    The bill of exchange drawn by Grivegnee upon the executors of Gallego, was an assignment of his legacy, and that bill having been drawn before the attachment of De Soer issued, the appellants are entitled as assignees to have the whole fund.
    It will be said by the counsel of De Soer, that the bill of the appellants is framed as a foreign attachment. But the character of the bill is to be determined by the facts alleged, and the equity apparent upon its face. A bill may be misnamed but it will be treated according to its purpose, object and import. The bill of the appellants is, in effect, a bill by the assignees of the legacy to recover from the executors the amount due on account thereof.
    I take it that where there has been no assignment, yet where there has been an appropriation of the fund, this is in equity an assignment. And as a creditor who proceeds by foreign attachment can stand in no better condition than his debtor, if the debtor has assigned the debt due to him from the home defendant before the attachment issues, the attaching creditor can take nothing, because there is nothing upon which the attachment can operate. United States v. Vaughan, 3 Binn. R. 394; Ex parte Oursell, Amb. R. 297; Ex parte Byas, 1 Atk. R. 124; Bates v. Dandy, 2 Id. 207; Row v. Dawson, 1 Ves. sr. 331. In 7 Viner’s Abr. 225, 226, it is held that an assignment of equities prevents the operation of an attachment: And so is Stevenson v. Pemberton, 1 Dall. R. 3, and Wakefield v. Martin, 3 Mass. R. 558. In Sharpless v. Welsh, 4 Dall. R. 279, it is held that an appropriation by the garnishee defeats the attaching creditor.
    But there is another objection to the claim of De Soer to this fund; and that is that legacies cannot be attached in the hands of executors. Chamberlain v. Chamberlain, 1 Cas. in Chan. 257; 1 Rolles’ Abr. 551; Horsam v. Turger, 1 Ventris’ R. 111; 2 Bac. Abr. Customs of London, letter H; Spink v. Tennant, 1 Rolles’ R. 105; M’Combe v. Hudson’s ex’or, 2 Dall. R. 73; Pringle v. Black, Id. 97.
    
      Young and Scott, for De Soer.
    
    This is a contest between two creditors of Grivegnee. Both are attaching creditors, and both bills are filed under the statute. On the 24th of July 1819, De Soer filed his bill against Grivegnee and the executors of 
      Gallego ; and in October 1821, Anderson, Blair & Anderson filed their bill in the same Court against the same parties, to subject the same fund, without making De Soer a party.
    Throughout the whole proceedings in the Court below, from the subpoena to the final decree, the appellants proceeded as attaching creditors. The endorsement on the subpoena is to attach the effects of Grivegnee as their debtor. The bill charges him to be their debtor, and asks that his effects may be attached. The decree is against him as their debtor for the whole amount of the bill of exchange, principal, interest and costs of protest. And now these finding that they must fail as attaching creditors, they disclaim all the pretensions which they set up in the Court below; they denounce and repudiate their own proceedings, and seek to recover on another and wholly different ground; a ground not put in issue by the pleadings, and which we have not only had no opportunity of contesting, but of which we were kept in entire ignorance. We submit that this is a practice not to be tolerated in a Court of equity. Sheppard v. Starke, 3 Munf. 29; Parker v. Carter, 4 Munf. 273.
    But if the appellants may be permitted upon the pleadings in this case to set up a claim as assignees of Grivegnee have they made out their claim ? We object first, that the bill of exchange is not an assignment of the legacy. Clayton v. Fawcett, 2 Leigh 19. And we object secondly, that if the bill of exchange could operate as an assignment the appellants have yet failed to make out their case.
    In a suit against an absent defendant, although the bill is taken for confessed as to him, the plaintiff must still prove his claim against him. Gibson v. White & Co., 3 Munf. 94; Carr, J., in Glassell v. Thomas, 3 Leigh 113, 124. In this case there is no proof that this bill was drawn by Grivegnee. The only proof in the cause is the bill itself. Suspicion is thrown upon that, by the fact that it bears date on the 20th of July 1819, just four days before De Soer’s attachment, and was not presented for acceptance until the 5th of March 1821, near twenty months after its date; during all which time De Soer’s attachment was pending in Court. And this suspicion is strengthened by the fact, that the appellants filed their bill, in which they allege the endorsement to them by Scholtz & Brothers, without saying for value. That bill and all the proceedings upon it is in form a foreign attachment, and although they must have been informed of the pendency of De Soer’s attachment, they do not make him a party, so as to enable him to defend his interest in the subject. Further, the bill does not state when the bill of exchange was made, or when it was transferred: and the date is not proof that it was made at that time, as against third persons not claiming under the drawer. Wilcox v. Pearman, 9 Leigh 144.
    If a foreign attachment will not lie against executors as home defendants, then the appellants’ bill must be dismissed. But this is a question to be decided not upon the custom of London, or the decisions upon it, but upon our own statute, 1 Rev. Code, ch. 123, p. 474. The language of that statute embraces all debts or effects belonging to the absent defendant; and the object and policy of the statute is as extensive as its language. Certainly no greater difficulties exist in the case of a home defendant executor than in the case of a home defendant administrator; and as to the administrator, the question has been lately decided by this Court. Moores v. White, 3 Gratt. 139.
   Allen, J.

delivered the opinion of the Court.

The Court is of opinion, that although in form the bill filed by the appellants was a proceeding by way of foreign attachment, yet in effect the allegations of the bill presented a case for equitable relief. The paper designated in the bill as a bill of exchange drawn in favour of Messrs. Scholtz & Brothers, by Henry Grivegnee jr., and filed with and made a part of the bill, constituted an equitable assignment of so much of the legacy bequeathed to the said Henry Grivegnee jr. by Joseph Gallego, for the recovery of which it was competent for the assignees, and the appellants, to whom they had transferred the same, to proceed in chancery, under the ordinary jurisdiction of the Court, for relief against the home and absent defendants; and upon due proof of their claim, they were entitled to a decree for the legacy so assigned, under the prayer for general relief, as against the representatives of said Joseph Gallego, and the absent defendant, and all others who do not shew themselves entitled to any prior claim.

The Court is further of opinion, that as the suit of the appellee Joseph Charles De Soer was not instituted until the 24th day of July 1819, four days after the equitable assignment made by the said Henry Grivegnee jr. to Scholtz & Brothers, of the sum of 10,000 dollars, on account of said legacy, the claim of the appellants to the extent of said 10,000 dollars, with interest thereon, was entitled to priority of satisfaction over the attachment sued out by the appellee De Soer; and as there was no exception to the report of the commissioner, admitting said assignment as evidence, or any further proof of the due execution thereof called for in the Court below, or before the commissioner, the objection to allowing the claim for want of proof of the execution of the assignment, cannot be for the first time raised in the appellate Court. It was competent for the appellee De Soer, seeking to subject said fund to satisfaction of his debt by way of attachment, to have filed an amended bill making the appellants parties, for the purpose of impeaching the said assignment, or upon the general order of reference, proof of the execution of the assignment could have been called for; but nothing of the kind was done. The assignment was exhibited in evidence, and read upon the hearing without objection, and must as against the appellee De Soer, be taken for what on its face it purports to be, and to have been executed on the day it bears date.

The Court is further of opinion, that as the decree in this case, though pronounced in different cases, was a decree disposing of a subject to which conflicting claims were sot up, and so far as the attaching creditors were concerned, the jurisdiction attached in consequence of the subject being under the control of the Court, when by a decree rendered in all the cases the subject is disposed of, any of the parties injured by such disposition of the subject, has a right to appeal from the decree ; and such appeal brings up the whole decree disposing of the subject for revision, to which all the other claimants interested in such disposition, though their claims have been asserted by distinct bills, are parties.

The Court is therefore of opinion, that so much of said decree as directed a ratable distribution of the fund between the appellants and appellee Joseph Charles De Soer was erroneous. It is therefore reversed, with costs, against Joseph Charles De Soer, and is affirmed for the residue. And the causes are remanded to be proceeded in according to the principles of this decree.  