Smith v. Jenny

Virginia Chancery Court

Smith v. Jenny

4 Va. 440

DecidedJune 15, 1809

StatusPublished

This text of 4 Va. 440 (Smith v. Jenny) is published on Counsel Stack Legal Research, covering Virginia Chancery Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Smith v. Jenny, 4 Va. 440 (Va. Super. Ct. 1809).

Pincite

Opinion

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 [441]*441so 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 td 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 subpoena 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.

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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 [441]*441so 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 td 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 subpoena 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.

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Bluebook (online)

4 Va. 440, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-jenny-vachanct-1809.