The defendants, Sarah and Covington Wilson, answered, but it is not thought material to state more of their answer than that they alleged, that by the will of their testator it was expressly declared, with regard to the division between the children of the testator (612) of the property devised and bequeathed to the said Search for life or widowhood, "that from first to last, together with what they have received, and may hereafter receive, each child shall receive the same amount; "and that they were utterly unable to ascertain what portion of the said property under the said limitation the said John P. would be entitled to receive. Upon these pleadings, it is evident, we think, that no decree could be made subjecting any specific part of the residuary interest in the property in question to be made liable for the debts of the defendant John P., until it was ascertained what was the said John P.'s interest therein; and thatthis could not be ascertained, without bringing before the Court all those interested in the bequest so that an account might be taken of their respective advancements.
But the Court will not retain the cause for the purpose of having these parties made as it is satisfied that the plaintiffs cannot have the relief which this bill asks, or any relief of the same kind.
The bill does not seek for the settlement of the accounts of the partnership, but for satisfaction of a debt alleged to be absolutely due from the defendant, John P., to the plaintiffs by virtue of an accountstated; and recites the partnership and other matters therewith connected as inducement to said settlement.
But the plaintiffs as creditors cannot ask the aid of a Court of Equity to have a sale of the property of their debtor, because they have not obtained any judgment for their debt, not sued out an execution by which a lien has been created on that property. In the language of this Court on former occasions, "Nothing is clearer, than that a mere creditor cannot, in equity, pursue his debtor's property in the hands of a third person." Donaldson v. Bank of Cape Fear, 1 Dev. Eq. Rep., 107. Clark v. Banner, decided at this term. The (613) *Page 476 remedy by attachment given by our acts of assembly must be sought in the courts which are authorized to administer it. If that remedy be not sufficiently extensive to reach the property which the plaintiffs would fain make liable for their debt, a Court of Equity has no right to enlarge the remedy by supplemental legislation. In some states, we understand the attachment laws have been so modified as to authorize their Courts of Chancery to help creditors before execution or judgment, to reach moneys due to, or property held for nonresident debtors. Our State has not thought proper, and probably never will think proper, to confer this large and dangerous jurisdiction.
The bill must be dismissed, and as against the representatives of John Wilson, deceased, with costs.
PER CURIAM. Bill dismissed.
Cited: Bank v. Harris, 84 N.C. 209; Frank v. Robinson, 96 N.C. 33.