like these and we are glad to see that the theory of commerce is beginning to attract some attention among us-is calculated, far more than any thing else, to give our merchants that comprehensiveness of view, and that vigor of judgment, in which can alone be found any security against those seasons of wild speculation with which we are now periodically visited, and which, after a year or two of apparent prosperity, overwhelm the country with long seasons of suffering and distress.

It is not that the past commercial history of the world does not abound with examples and warnings; but the misery is, that these examples and these warnings are unknown. How many of our merchants have any ac quaintance with mercantile history, beyond the experience of their own business life? Thus it happens that so long as a great commercial crisis remains fresh in the memory of the men who suffered by it, the recollec tion of that disaster inspires a certain degree of caution, prudence, and distrust. But presently, a new generation arises; the past is unknown and disregarded; and a new series of precisely similar errors produces a' new series of precisely similar disasters.

It is the merchants and capitalists, who, from their position, are the arbiters of the business fortunes of the nation. It is of little consequence how much good theoretical knowledge of trade, how much economical science may be possessed by this or that professor, or this or that retired student. In order to make knowledge valuable, it must be made practical; and to be made practical, it must be diffused among business men. A merchant who deserves the name, a man at the head of a joint-stock company of large capital, ought just as much to understand the theory of trade, in all its branches, as a physician ought to understand the anatomy and physiology of the human body. No doubt many cures may be ef fected by a man of experience without science, and many shrewd bargains may be made, and fortunes may be accumulated by merchants who know nothing beyond the daily prices current. But every year, as trade becomes more complicated, and as the interests of nations and individuals become more entangled, it grows more indispensable that our merchants, or at least that part of them who take the lead and give the tone to public sentiment, should avail themselves of the experience of the past; should make themselves acquainted with the observations of those who have attempted to reduce trade to a science, and whose removal from any practical concern in it, if it renders their knowledge less distinct and accurate as to particulars, gives them a more perfect and comprehensive view of it, as a whole. War, in modern times, has been reduced to a science, and no one is now thought fit, even for a subaltern command, who has not some theoretical as well as practical knowledge. Shall not commerce take a stand as high? Is not the art of producing and accumulating, the art of abundance, as worthy to be made a science as the art of destruction and dispersion?

ART. V.-LAWS RELATIVE TO DEBTOR AND CREDITOR.

NUMBER VIII.

THE MODE OF PROCEEDING IN NEW JERSEY FOR THE RECOVERY OF DEBTS AND DEMANDS AGAINST ABSCONDING AND ABSENT OR NON-RESIDENT debtors.

HAVING, in a former article,* which treats of the mode of proceeding in New Jersey for the recovery of debts, and in general for enforcing payment and satisfaction of any claim or demand, confined my observations wholly to residents, and to those who may be within reach of the processes of the courts, an inquiry is naturally suggested, whether there be any, and what, mode of proceeding in this state against those debtors upon whom the writs there spoken of, cannot be served. It shall be the purpose of this article to satisfy that inquiry, and to give such a statement of the law upon this subject as will answer the demands of business men. It has all grown out of legislative provisions, and is contained in an act entitled "An act for the relief of creditors against absconding and absent debtors," and the several supplements thereto; the first enactment, now in force, being of as early a date as the year 1778. Several sections of this act and its supplements having at different times come under judicial construction, it shall be our part to state the law, as gathered from both sources. First-as to the

PROCESS.

The first, or mesne process, made use of as authorized by the statute, is called a writ of attachment, and may be issued by the clerks of the Inferior Court of Common Pleas of the several counties in the state, of the Circuit Courts of the different counties, and by the clerk of the Supreme Court. Any justice of the peace within this state is also authorized to issue this writ for any sum not exceeding fifty dollars, directed to a constable, who is to execute it in the same way in which the writs from the higher courts are directed to be served; but on the effects, rights, and credits of the defendant, and not on his lands, tenements, &c. The writ is the same whether issued against absconding or absent debtors, (in which latter class is included all corporations and bodies politic not created or recognised by the laws of the state,) and is, when issued from the Common Pleas, Circuit, or Supreme Court, directed to the sheriff of the proper county, and commands him to attach the rights and credits, moneys and effects, goods and chattels, lands and tenements of the defendant, wheresoever the same may be found in his county, so that he be and appear before the court out of which it issues, on the day and at the place mentioned in the writ, (which day is always some one of a regular term of the court,) to answer the plaintiff in the plea therein mentioned. After the issuing of the said writ, it is made unlawful for any person against whom it is issued, to grant, bargain, sell, or convey any of his lands, tenements, or real estate, which he was seized or possessed of at the time of issuing the same; but the said writ, from the issuing thereof, becomes

The article referred to will be found in the number of this magazine for June, 1840.

and remains a lien on the said lands, tenements, and real estate; but in relation to the personal estate and effects of the said defendant, it becomes a lien only from the time of executing the same. To authorize the clerk to issue the writ against an absconding debtor, the creditor must file an affidavit with him, that he verily believes that his debtor absconds from his creditors, and is not, to his knowledge or belief, resident in the state at that time. Sufficient must appear in the affidavit to show that the defendant is a debtor. To authorize the clerk to issue a writ against a non-resident debtor, an affidavit must be filed with the clerk, that the person against whose estate such attachment is to issue, is not, to his knowledge or belief, resident at that time in this state, and that he owes to the plaintiff a certain sum of money, specifying, as nearly as he can, the amount of the debt or balance. If the creditor be absent from or reside out of the state of New Jersey, then his agent or attorney may make the requisite oath or affirmation for him, and deliver the same to the clerk to be filed, who shall thereupon issue such writ. An attachment can issue only for a cause of action founded on contract, and of such a nature as would authorize the plaintiff to require bail as of course without any order of a judge. It cannot be issued for unliquidated damages, nor against the executors, administrators, or heirs of a deceased debtor, unless they have become personally liable for the debt. It may be issued at the suit of a corporation in this state, upon the affidavit of one of its officers or its attorney. It cannot be issued against one absent partner, if the other reside in the state; but if all the partners abscond, it may be issued against all; and if all the partners reside abroad, then it may be issued against all or any of them; or, if dead, against their non-resident representative. When two or more are jointly bound, or indebted, either as joint obligors, partners, or otherwise, it may be issued against the separate or joint estate, or both, of such joint debtors or any of them, either by his or their proper name or names, or by the name or style of the partnership, or by whatever other name or names such joint debtors shall be generally known and distinguished in this state, or against the heirs, executors, or administrators of them or any of them. And the estate so attached, whether it be separate or joint, may be sold, or assigned, for the payment of such joint debt. It was decided in the Supreme Court at the September term, 1838, in the case of Pullinger adsm. Van Emburg, that a female debtor could not be proceeded against by writ of attachment, because she could not be holden to bail in a civil suit ; females being exempt from imprisonment, or arrest for debt. But since that decision, the legislature, at its sitting in February, 1839, passed an act, authorizing writs of attachment to be issued against absconding and absent females, and repealed that part of the law which required special bail to be filed, in order to effect an appearance to the action, leaving it to be done by entering into bond with sureties according to law.

The affidavits above mentioned, and upon which a writ of attachment is to issue, whether against an absconding or a non-resident debtor, may be made and taken by and before the chancellor of this state, or any judge of a court of record of this state, or any master in chancery, or any jus tice of the peace of this state, or any mayor, recorder, or alderman of any city or borough of this state, or any commissioner for taking bail and affidavits in the Supreme Court of this state. Thus much for the writ and affidavit. We will now proceed to point out

THE MANNER IN WHICH THE WRIT IS EXECUTED BY THE OFFICER.

The officer to whom it is directed, must go to the house or lands of the defendant in attachment, or to the person or house of the person in whose custody or possession the defendant's property and estate may be, and then and there declare in the presence of one credible person at the least, that he has attached the rights and credits, moneys and effects, goods and chattels, lands and tenements of such defendant, at the suit of the plaintiff in the said writ named. He must also, with the assistance of one discreet and impartial freeholder, make a just and true inventory and appraisement of all the property and estate of the defendant, so by him attached; and such inventory and appraisement, dated and signed by himself and the said freeholder, shall annex to and return with the said writ, and the said officer must endorse on the said writ the true time of executing the same, and sign his name thereto.

To enable the officer fully to execute such writ of attachment, he is authorized and required (having first made demand and being refused) to break open any house, chamber, room, shop, door, chest, trunk, or other place or thing, where he shall be informed, or have reason to believe, any money, goods, books of account, notes, papers, or writings of the said defendant may be deposited or secreted.

On the return of the said writ, it is made the duty of the clerk to give notice, for two months successively, in some public newspaper, circulating in this state, convenient to the place where the court is held, of such attachment, at whose suit, against whose estate, for what sum, and from what court the same issued. But, in cases of foreign attachment against any debtor or debtors, who reside out of the state, it is made the duty of the court, whenever the circumstances of the case require a more extensive publication of the issuing of the writ, to order and direct such advertisement to be made in one of the newspapers printed and published in one of the other states, or in the District of Columbia, and for such time as the court may deem proper. But in all cases will the publication abroad be dispensed with, if it be made to appear to the court, by oath or affirmation, that notice, in writing, of issuing such attachment, hath been served on the defendant.

The language above, as made use of by the legislature, in relation to the publication of the notice of a foreign attachment, would seem to imply that there was a previous law, requiring publication of notices of issuing attachments to be made in some newspaper printed and published in this state. But there is no such law, though I believe the invariable practice · has been to publish it in some one of the newspapers printed in this state. The previous law, as contained in the original act, requires the clerk to give two months notice in some public newspaper circulating (not published or printed) in this state, convenient to the place where the court is

held.

The goods, chattels, and personal estate so attached, must remain in the safe-keeping and care of the said officer, in order to answer and abide the judgment of the court; unless the person in whose possession or custody the said property is found, (and who, in law, is called the garnishee,) after inventory and appraisement thereof, shall enter into bond to such officer, with two sureties, being freeholders in the county, in double the sum at which they were appraised, with condition that the said goods,

chattels, and personal estate, or the full value thereof, to be estimated by such appraisement, shall be forthcoming to answer the judgment of the said court.

THE MODE OF PROCEEDING TO RECOVER THE PERSONAL ESTATE OF THE DEBTOR AND HIS EFFECTS, IN THE HANDS OF A THIRD PERSON.

It is very often the case that the absconding or non-resident debtor, leaves, or has, property of some kind in the possession of a friend; or that some person or persons, in this state, may be indebted to him. The plaintiff in attachment, believing it to be the case, may inquire of that person, or those persons, as to such possession and indebtedness, and the amount thereof; and if, after the garnishee's denial of his having any moneys, goods, chattels, or effects of the defendant in his custody or possession, or of his being indebted to him, he really believes that the said garnishee hath such moneys, goods, chattels, or effects, in his custody or possession, or that he is indebted to the defendant, and is in fear of the said garnishee's absconding before judgment and execution can be had against such garnishee, and shall make oath or affirmation thereof, and deliver the same to the clerk, as aforesaid, he may institute a suit by capias ad respondendum against such garnishee, who shall thereon be held to special bail; and the plaintiff in said suit may declare against the said garnishee for the moneys, goods, chattels, or effects, so aforesaid in his custody or possession, in trover and conversion, as of such plaintiff's own proper moneys, goods, chattels, and effects; or if said garnishee be indebted to the defendant in attachment, then the plaintiff may declare for so much money had and received by such garnishee to the use of the plaintiff, and on the trial may give the special matter in evidence and thereupon the jury, if they find for the plaintiff, must assess the damages to the full value of the moneys, goods, chattels, or effects, so proved to be in the custody or possession of such garnishee, or to the full value of the debt so due from such garnishce to the defendant in attachment; on which verdict judgment is given with costs of suit, and execution is issued thereon against the goods and chattels, lands and tenements, and the body of said garnishee, as is allowed by law in actions of trespass on the case.

The suit, however, thus commenced against the garnishee, must be continued by the court, without trial or decision, until the action, against the defendant in attachment, shall be adjudicated upon and determined; and if, in such action, nothing shall be found due from the defendant to the plaintiff, then the garnishee recovers costs against the plaintiff, notwithstanding he may be indebted to the defendant, or have moneys, goods, chattels, or effects of such defendant in his custody or possession.

MODE OF PROCEEDING WHEN THE GOODS ATTACHED BY THE SHERIFF ARE CLAIMED BY ANY PERSON.

If the sheriff or other officer, by virtue of any writ of attachment, attach and take, through ignorance or want of proper information, any goods, chattels, or effects which shall be claimed by any person as his property, then the sheriff or other officer may summon and swear a jury to inquire into and try the right and property thereof; and if the jury, on such inquest, shall find the right and property of such goods, chattels, and effects to be in the claimant, or in any other than the defendant in attachment, such sheriff or other officer must forthwith deliver the said goods,