1876. proceedings to be had therein in conformity with the September

Term. foregoing decree.

Which is ordered to be certified to the said circuit

Pugh & al. court of Frederick county.

V.

Staunton.

DEVRIES & Co. v. JOHNSTON & WOLFE & al.

September 29.

1. Three suits in equity are brought by the same plaintiffs against the same defendants to enforce payment of debts by attachment and sale of the same land. By order of the court these suits are directed to be consolidated and heard together, and then plaintiffs file an amended bill bringing in a third party. There being a decree dismissing the attachments, the plaintiffs may appeal to the court of appeals, though neither of the debts amount to $500, the sum of all of them being more than that amount.

2. Quære: If a creditor, whose debt is not yet due, may bring a suit in equity to attach the property of his absent debtor, or to set aside a deed as fraudulent.

This was a contest between the creditors of Johnston & Wolfe, of Baltimore. Devries & Co. filed three bills against Johnston & Wolfe, which are set out in the opinion of Judge Anderson. Francis White filed six bills against the same parties to attach the same tract of land. These suits were commenced on the 13th of May 1872, and were to recover debts then due.

In September 1872, Francis White filed his petition in the case of Devries & Co., in which he stated the institution of his suits and the amounts involved in each. He says that when Devries & Co. instituted their respective suits, and issued their attachments, the debts sued for by them were not due; and he charges that the said attachments sued out by Devries & Co. are null and void; and he prays that they may be quashed, and that the land may be sold, and the petitioners debts satisfied out of the proceeds of sale.

1876. September Term.

1876.

In November 1872, the case came on upon the petiSeptember Term. tion of Francis White, and the court being of opinion that the attachments sued out by Devries & Co. were Devries improperly sued out, it was ordered that they be abated. And thereupon Devries & Co. applied to a judge of & Wolfe this court for an appeal; which was allowed.

& Co.

V.

Johnston

& al.

Dandridge and Pendleton, for the appellants.

Barton & Boyd, for the appellees.

ANDERSON, J. The appellants are creditors of the appellees by three promisory notes, one bearing date December 2nd, 1871, payable at three months; another one bearing date November 22nd, 1871, payable at four months; and the other bearing date December 20, 1871, payable at four months. On the same day, the 20th of February 1872, they brought three several suits in equity, by suing out three several subpœnas and attachments in chancery, and on the 26th of the same month filed a bill in chancery in each case, the same in substance; and in each case upon affidavit of non-residence, and the return of the sheriff an order of publication was awarded against the defendants. The bill in the first case, avers the indebtedness of the defendants to the plaintiffs on the 2nd day of December 1871, in the sum of $438.29 cents, which it is averred is evidenced by a note of that date, payable three months after date. It appears from the bill and exhibits that neither note was due at the time suits were brought.

The bill avers that the firm of Johnston & Wolfe, the defendants, since the giving of the note had become insolvent. But that the said Wolfe owned a tract of land in Frederick county, described in the bill, which was devised to him by the will of his father.

1876.

September

It alleges that the defendants are non-residents of the state of Virginia, and were so at the commence- Term. ment of this suit; and that the said Wolfe was in hopeless financial embarrassment.

It further charges, that by a deed dated the 16th of December 1871, shortly before the institution of this suit, and recorded in the clerk's office of Frederick county on the 27th of December 1871, the said Wolfe conveyed the aforesaid tract to said Johnston, which conveyance was made with intent to hinder, delay, and defraud creditors; by reason whereof the plaintiffs have just cause to apprehend that their said debts may not be paid, and are advised that by the equitable powers of the court, and by its attachment process, the said tract of land may be subject to its payment. The prayer is that the land may be sold and the proceeds applied to the payment of their debt.

At a subsequent term of the court, 24th of May 1872, the three suits by order of the court were to be consolidated, or proceeded in as one suit; and the plaintiffs were given leave to file their amended bill.

The amended bill adds to, and amends the allegation of the original bill, with regard to the conveyance of the land by Wolfe to Johnston, by alleging that the said Wolfe on or before the 16th of December 1871, executed to the said Johnston his writing obligatory for a large sum of money, which he secured to said Johnston by a mortgage upon the land in question, which was admitted to record in the clerk's office of the county court of Frederick on the 27th of December 1871. And it further charges that a deed purporting to be an assignment of the said mortgage to Miles White, bearing date the 10th of December 1871, which is the date of the mortgage, was recorded in the clerk's office of said county court on the 5th of January 1872.

Devries & Co.

V.

Johnston

& Wolfe

& al.

Term.

& Co.

V.

Johnston

& al,

1876. Copies of both deeds are in the record. The bill furSeptember ther charges that the said mortgage securing the bond aforesaid, was executed together with the bond, for the Devries sole purpose of raising money thereon for the firm of Johnston & Wolfe. That White, who is a money & Wolfe dealer, agreed to advance the money to Johnston on said bond, and that the assignment was drawn up with a view to that end, and was left with White, who failed to comply with his agreement to advance the money; and the bond was never passed to him, but remains in the possession of Wolfe the obligor: which he was never to part with until the arrangements for raising the money were completed. And the bill charges that White fraudulently designing to make avail of said assignment without advancing the money, which was the condition on which it was placed in his hands, refused to deliver it to Johnston or Wolfe who demanded it, but fraudulently retained it. And to the detriment of Wolfe & Johnston, and to the plaintiffs their creditors, had the assignment recorded as aforesaid, to effectuate his iniquitous and fraudulent design. The prayer is that the said White may be made a party to this and the original bill, and be compelled to answer them; and that the said assignment may be set aside, and for general relief. On the 20th of February 1872 notice lis pendens of these suits, the plaintiffs by their counsel caused to be recorded in the clerk's office of the county court of Frederick.

The court is of opinion, upon the preliminary question raised by the appellees' counsel, as to the jurisdiction of this court to hear this cause upon the appeal, that inasmuch as the three causes were essentially one, and were very properly consolidated, or united in one, and proceeded in and heard as one cause by the court below, that the matter in controversy upon this appeal