Hoyt v. Thorn

I have not been able to take any view of this question Avhich will authorize this court to proceed in this cause. Our statute directing publication in the case of an absent defendant can only apply to cases in which the court has jurisdiction of the subject matter of the suit. If it be not thus limited, there is no limit, either as to the persons of defendants or as to subject matter. Herman Thorn, a citizen of New York, by means of an assignment by Elizabeth Hait to him, received in New York the share to which she was entitled of the personal estate of William Jauncey, deceased, ayIio lived and diedinNeAV York, whose will Avas proved there, and whose estate was administered there. If he has received it wrongfully, or in such manner and by such means that he will be held to have received it for her use, and to be accountable to her for it, her claim is against him personally. Equitas agit in personam : the primary decree in all suits in equity is in personam. The end and object of any suit instituted by her against him Avould be the recovery of the money from him. The assignment by means of which Thorn received the money Avas executed in this State; and it is contended that, inasmuch as the prayer of the bill is, that the assignment may be set aside, as well as that Thorn may account and pay the money ; and as the charge in the bill is, that the assignment Avas procured by fraud, the subject matter of the suit is here. It is admitted that it was necessary to go, in this bill, for an account and payment of the money, as well as for the setting aside of the assignment; that the suit must be wholly here, or Avholly in New York. But it is contended that the fraudulent procurement of the assignment is the subject matter of tlio suit, the gravamen, and Avill draAV the matter of account and payment to it as incidents. I cannot see the matter in this light. If Elizabeth Hait had been on a Arisit to Connecticut, and the assignment had been procured from her there, would a Connecticut court haAre jurisdiction without the service of process 1 Thorn has receiAred the money. Of what utility could it *15be for this court to declare the assignment void 1 Ho is in New York, with the money in his pocket. The complainant would be obliged to prosecute him there for the money. If he had not received it, would a suit here to set aside the assignment prevent his receiving it 1 The case amounts only to this : Thorn has received the money by means of tho assignment; if the assignment was fraudulently procured, he has received the money wrongfully, and will bo held to have received it for her use; and her claim against him is in personam. It cannot be that tho place where the assignment was executed can give locality to the claim for tho money. Does Thorn’s coming into this State and procuring the assignment, make the case in any way different from what it would have been if he had by letters induced her to send it to him in New York 1 He having received the money, the cause of action or object of suit is the recovery of it from him. The cause of action or subject matter of tho suit cannot be the mere negation of the validity of the authority by which he received it. Where would he the jurisdiction on assumpsit at law 1 It is said that fraud in the procuring the assignment gives jurisdiction to this court, because the fraud was practiced here ; tho fraud not being in the mere execution of the instrument. But what was this assignment other than a personal contract by which Thorn was authorized to receive her money, transitory in its character; a contract authorizing a citizen of Now York to receive^ in New York, money that she was entitled to there. It seems to mo it would he going very far to say that such a contract is a reslocata in such a sense that to act upon it would bo proceeding in rem. Where would the principle contended for in opposition to the motion stop 1 A citizen of New York, indebted to' mo, a resident of this State, comes here, and by fraud gets my receipt for tho debt. Could a suit bo instituted against him in this court, without service of process on him, for the money 1 Certainly not. Would the putting in the bill a prayer to set aside the receipt remove the difficulty 1 I think not. The fact that a notice of the suit has been served on Thom in New York cannot aid the complainants. If that was sufficient, any citizen in New York, having a claim in personam *16against another citizen of New York, could give this court juris, diction of it.

The order of publication will be vacated.

Order accordingly.