Opinion
(December Term, 1854.)
A bill in the nature of an attachment, to subject a claim due to an absconding debtor from a third person, to the payment of a judgment against such debtor, will not be sustained where such debtor has only been made a party by advertisement and not by actual service on the person: because the decree asked for, would not protect his debtor out of this State.
CAUSE transmitted to this Court from the Court of Equity of NEW HANOVER.
W. A. Wright for the plaintiff.
D. Reid for the defendants.
The plaintiff had recovered a judgment for the sum of $316 and costs in the County Court, and took out execution, which was in part satisfied, and returned nulla bona as to the remainder. The defendant, Bowen, having been surrendered by his bail, was confined in prison, and afterwards regularly discharged under the insolvent law. The bill alleges that the defendant, Bowen, has no property wherewith to satisfy his judgment, but that the defendant. Wm. B. Jones, owes him a promissory note of about $400, due on 1st of January, 1849, the prayer of the bill is to subject this debt to the payment of the plaintiff's judgment.
The defendant, Jones, only was served with a subpoena, but advertisement was formally made for the defendant, Bowen, who had left the State, to come in and plead, and a judgment pro confesso was entered as to him. Jones admitted his indebtedness to Bowen, but contended that he would not be protected by a decree of this Court beyond the limits of the State, and would thus be subjected to the risk of paying the note a second time.
The cause was set for hearing on the bill, answer and exhibit, and sent to this Court.
There is no controversy as to the facts of this case: the bill was drafted doubtless on the authority of Brown v. Long, 22 N.C. 138: between that case and this, however, there is a substantial difference. All the parties were there before the Court by (50) personal service. Here, only Jones has been served with a subpoena. The other defendant Bowen, the principal, having left the State, is a party only by notice under the act of Assembly. In Long's case, the decree was placed on the ground that the defendant was a debtor discharged under the insolvent law, and the property, sought to be subjected, was acquired after his discharge. — That case was rightly decided. The subsequent case of Yarbrough v. Arrington, 40 N.C. 291, is decisive of this. The bill was dismissed because no decree, that could be made, would effectually protect the defendant in making the payment to the plaintiff, which it would require of him. The bill alleged that Thomas Yarbrough owed a debt to the plaintiff which had been reduced to a judgment, and that he had, in this State, no property out of which the debt could be raised, but the distributive share of his wife in the estate of her father, and prayed a decree for satisfaction out of that share. Thomas Yarbrough and wife, were living in Arkansas, and they were made parties by advertisement, and the bill taken pro confesso as to them: A subpoena was served on Nicholas Arrington, the adm'r. of Frederick Battle, the father of Mrs. Yarbrough. The Court say, as Yarbrough and wife have not been served with process, nor appeared in the cause, the decree would have no binding extra-territorial effect, and the Courts of Arkansas would not enforce it; and if the plaintiff could not enforce it abroad against Yarbrough and wife, because they were not parties to it by personal service or by appearance, it is clear that for the same reason, it could not be set up as a defence by Arrington to a demand by Yarbrough and wife for her distributive share: and the Court use this emphatic language, "The consequence would be that Arrington could not put his foot out of North Carolina without exposing himself to a suit for the distributive share, and would have to pay it again."
In our case, the defendant, Bowen, had left the State before the filing of the bill, and no process has been served on him, nor has he (51) appeared in the suit: if a decree should be made against the defendant Jones for the amount he may still owe to Bowen, the latter not being a party to the proceedings, would not be bound by them, and of course they would afford no protection to Jones, if sued abroad by Bowen for the amount due. The Court, in Arrington's case, further say that under the attachment law, a debtor might be subjected to the payment of the debt twice; but there is no statute in this State authorizing an attachment in Equity, which in substance, the bill in that case was: and the bill in this case, is so likewise. The Court cannot make the decree asked for, but must dismiss the bill with costs.
Per curiam.
Decree accordingly.