Opinion
11-10-1824
Miller v. Sharp
Call, for the appellant, Leigh, for the appellee.
This was an appeal from the Richmond Chancery Court.
William Miller, as surviving partner of William Brown & Co. filed a bill against Alexander Sharp, alledging, that Sharp had sundry dealings with William Brown & Co. upon which there was a considerable balance due the said Brown & Co. upon account: that William Barret was the only witness who could prove the said transactions and balance: that the said Sharp had left the State of Virginia; and, that as the complainant had no opportunity of bringing suit against him at common law, he was desirous of preserving the testimony of the said William Barret. He, therefore prayed, that the testimony of the said Barret might be taken and recorded: that an account of the transactions aforesaid might be had; and that the said Sharp might be decreed to pay to the complainant the balance which might be found due, with legal interest.
Publication was duly made against the said Sharp, and an order for an account was obtained. The deposition of Barret was also taken under a commission.
The commissioner reported a considerable balance to be due from Sharp.
On the final hearing, the Chancellor was of opinion, that the Court could not entertain jurisdiction of the case, either to perpetuate testimony or to afford relief: that, according to the English practice, both objects cannot be embraced by the same bill; and that, to entertain jurisdiction in this case, would be to assume a jurisdiction co-extensive with the world. He therefore dismissed the bill, and decreed to the defendant his costs. In the preamble to this decree, it is stated, that the cause was argued by counsel.
Miller appealed to this Court.
Call, for the appellant, contended:
1. That it was not irregular to proceed against Sharp as an absent defendant. The Court proceeds, in such a case, on the principle of quia timet. Coop. Eq. 52, 57. Fitzhuhg v. Lee, Ambler, 65.
Our act of Assembly points out the mode of giving notice in such a case, and applies to this case. 1 Rev. Code 476, § 5. There is no difference between the proceeding against absent defendants, and an attachment against the effects of an absent debtor.
2. The record shews, that this cause was argued by counsel, and this cures all error. Hind's Chan. 144.
3. As to the bill praying relief as well as to perpetuate testimony, this objection can only be taken advantage of by demurrer. Mason v. Goodburn et al.; Rep. Temp. Finch, 391.
Leigh, for the appellee.
The appearance of counsel was only of the counsel of the plaintiff. This is a demand for the balance of an account, which would be fit for a Court of Law, if the parties were in this country. That a bill to perpetuate testimony cannot pray relief, is expressly stated in Coop. Eq. 52; Mitf. Plead. 50; Hall v. HodsdenP. Wms. 162.
Another question is, can a plaintiff maintain a bill to perpetuate testimony against an absent defendant? In England, there is no process against an absent defendant. Mitf. Pl. 30. As to the case from Ambler, it does not appear whether the plaintiff or defendant was absent. The power is only given by our act of Assembly, which applies only to cases, where either the person or the party, or some subject, is within the jurisdiction of the Court. But, where neither the party nor his property is within the reach of process, a Court of Equity, upon its established principles, has no color of jurisdiction. The contract cannot give jurisdiction, because it is transitory.
The President, delivered the following as the opinion of the Court. [*]
OPINION
The Court is of opinion, that there is no error in the decree, except so far as it gives costs to the appellee in the Chancery Court, as to which the said decree is erroneous; therefore it is decreed and ordered, that the same be reversed and annulled, and that the appellant do pay unto the appellee, as the party substantially prevailing, his costs by him in this behalf expended, & c. and it is further ordered and decreed, that the bill of the appellant be dismissed.
[*]Judges Cabell and Carr, absent.The case was argued before Judge Carr came into the court.