Beall v. Brown

Tuck, J., delivered the opinion of this court. We are not to determine, on this appeal, whether the points of law submitted to the court, in the trial at law, were properly decided or not. Indeed, the counsel for the appellant contends that these rulings, whether correct or not, must he taken as the law of this case, and the present bill is framed on the assumption that they are correct, and that he hpd no remedy, except by a proceeding in equity, after the jury, under directions from the court, had found that the beef was sold to the appellant, and not left with him as bailee. But, as this view of the case concedes that he has .a cause of action at law upon the warranty as to the quality and condition of the beef, for the purpose of giving this court jurisdiction of ³⁹⁷ the case, he shows that the appellee has always resided in another State, and cannot be reached by the process of the courts of Maryland, and the relief he asks is, “that Brown may be restrained, by injunction, from collecting his judgment, until he shall have come within this State and signified his presence and willingness to have a suit instituted against him, and have the matter adjusted at law or in this case.” The point, then, on which the question of jurisdiction turns is, whether the appellant is without adequate remedy at law, in the sense in which that doctrine of equity is to be understood.

We have found no cases touching the question before us, except those from Kentucky, referred to on the part of the appellant; in some of which relief was granted, upon the principles of set-off, where one party proved insolvent, or was absent, by reason of which the remedy at law might be obstructed. It is not a general doctrine of that State, though enforced in special cases. Collins vs. Farquar, 4 Littell, 154 . Upon the authority of these decisions it is quite probable that the present bill might be supported there, but we are not aware that the chancery jurisdiction here has ever been extended to such cases as the present.

The failure of remedy is not the want of jurisdiction at law over the subject matter, but because the party to be sued cannot be served by process in a proceeding in personam, and not in rem.