DEAN v. LEGG et al., 7 F. Cas. 304

CRANCH, Chief Judge, delivered the judgment of the court. This is a chancery attachment against Eli Legg as principal debtor, and the other defendants as garnishees. The case, as between the plaintiff and Eli Legg, is a case at law, the debt being due upon single bills under seal. The jurisdiction of this court as a court of equity is given merely by the act of assembly (page 1151, giving a remedy in equity against absent debtors having effects in the hands of persons within its jurisdiction, and the act of congress of the 3d of May, 1802 (2 stat 193).

That act of assembly points out the mode of proceeding in order to obtain a decree in ease the principal debtor should not appear and give security. That mode of proceeding has not been adopted, but inasmuch as the subpoena was served on Eli Legg, who has not appeared and given security, the plaintiff proceeded to take the bill for confessed, as in ordinary cases in chancery after the expiration of three months from the filing of the bill and the service of the subpoena.

The court is of opinion that the bill has been erroneously taken for confessed; because the only ground of jurisdiction of the court, and the only title to relief which the plaintiff can claim, are under the act of assembly, which describes particularly the mode of proceeding in such cases. That mode of proceeding not having been pursued, the court is not authorized to make a decree. A publication, according to the provisions of the act, is necessary.