must be a resident within the state;a but the statute declares, that any creditor residing in or out of the state, shall be deemed a creditor within the act, and he may proceed by attorney. Under the former statute laws of New-York, the process by attachment did not apply in the case of a foreign creditor against a debtor residing abroad, and whose debt was not contracted within the state. The same provision still exists under the new revised statutes. Any creditor may proceed against an absconding, or concealed debtor, being an inhabitant of the state, or against any non-resident debtor, if the contract was made in New-York; but if *the con- *403 tract was made elsewhere, then the creditor must be a resident of the state.c

• Case of Fritzgerald, 2 Caines' Rep. 318. Ex parte Schroeder, 6 Cowen's Rep. 603.

• N. Y. Revised Statutes, vol. ii. p. 3. sec. 1, 2. 6. 7. Laws of N. Y. May 8th, 1845, ch. 153. Fitch's case, 2 Wendell, 219. In the matter of Brown, 21 Ib. 316. The attachment process for reaching the property of absconding and absent and non-resident debtors, was a favourite measure of justice with the colonial legislatures; but in respect to non-resident debtors, it was strongly opposed by the governor and council in some of the states, as being different from the mode of recovery allowed in like cases in England. Royal instructions were communicated to the colonial governors, to refuse assent to such attachment laws, and the subject was for some time a matter of discussion and warmth between the governor and house of assembly of North Carolina. The great objection, on the part of the executive power, was, that the attachment laws, as contended for by the colony, did not place the English and American creditors on an equal footing, but allowed the American creditor the preference, in like manner as if he had obtained for his own benefit a judgment and execution. 2 Martin's Hist. N. C. 302. Attachment laws against the property real and personal, of absconding and non-resident debtors, prevail throughout the several United States; but these statute laws are not uniform on this point.

In England, the proceeding by foreign attachment is used in London, Bristol, Liverpool and Chester, but it has fallen into disuse in Oxford, Exeter and other places.

In the New-England States the trustee process has in many respects the operation of the domestic as well as foreign attachment, and it operates in a greater or less degree upon persons as well as property. The strict

Debtors imprisoned in New-York in a state prison for a term less than their natural lives, or imprisoned in any

trustee process extends to the goods, effects and credits of the principal debtor, in the hands of his agent, trustee, or debtor, and who, as trustee, is summoned to appear and answer. The first process in civil actions against the debtor is not only to compel appearance, but to attach the goods and estate of the debtor, and hold them in pledge to pay the debt or damages recovered. The strict trustee process does not extend to the real estate in the hands of the trustee. (Cushing's Treatise on the Trustee Process, 1833. p. 4-16.)

The Massachusetts Revised Statutes, of 1835, part 3. tit. 4. ch. 109, contain very specific, minute, and remedial provisions relative to the process of foreign attachment, or trustee process. All personal actions, except detinue and replevin, and actions sounding in tort, may be commenced by this process, which authorizes the attachment of the goods and estate of the principal defendant in his own hands, and also in the hands of trustees, or garnishees. Every person having goods, effects, or credits of the defendant entrusted or deposited in his possession, may be summoned as a trustee, and the property in his hands attached and held to respond the final judgment in the suit. But there are limitations to the demands attachable by the trustee process: (1.) No person is to be adjudged a trustee, by reason of having drawn, accepted, made, or endorsed any negotiable bill, draft, note, or other security; (2.) nor by reason of any money or other thing received or collected by him as sheriff, or other officer, by execution or other process in favour of the principal defendant; (3.) nor by reason of any money in his hands, and for which he is accountable, as a public offi. cer, to the principal defendant; (4.) nor by reason of any money or other thing due from him to the principal defendant, unless due absolutely, and without depending on any contingency: (5.) nor by reason of any debt due from him on a judgment, so long as he is liable to an execution on that judgment, (6) nor as guardian for the debts of his ward. If a legacy accrue to the wife during coverture, it is like her choses in action liable to be attached by the trustee process, at the suit of a creditor of the husband, though not reduced to possession by him. Holbrook v. Waters, 19 Pick. Rep. 354. Gassett v. Grout, 4 Metcalf's Rep. 486. By the act of 1838, ch. 163, authorizing proceedings against insolvent debtors, upon their voluntary application or upon the application of a creditor, the proceedings are confined to resident debtors. Claffin v. Beach, 4 Metcalf Rep. 392.

In Maine, the law concerning foreign attachment is essentially the same under the act of February 28th, 1821, ch. 61, and the several subsequent acts in addition thereto. The statute of 1835, ch. 188, gave the trustee process against third persons holding the debtor's property by way of mortgage or pledge. The proceedings against trustees of debtors are of the same import, in New-Hampshire, by the act of July 3d, 1829. The pro

penitentiary or county jail for a criminal offence, for a term more than one year, are liable to the like proceed

cess reaches debts, choses in action, stocks, &c., in the hands of third persons. So, also, in Vermont, by the several statutes of October 1st, 1797, November 10th, 1807, November 6th, 1817, and November 10th, 1830, the trustee process is given to creditors against persons possessed of money, goods, chattels, rights, or credits of concealed or absconding debtors, or of debtors residing out of the state, or removed out of the state leaving effects within it. The Revised Statutes of Vermont, 1839, p. 188. It has however been held, and very justly, that a person residing out of the state, and coming within it for a temporary purpose, is not liable to be summoned as a trustee, of an absconding, concealed, or absent debtor. Baxter v. Vincent, 6 Vermont Rep. 614. The same principle applies to the trustee process in Massachusetts. Ray v. Underwood, 3 Pick. Rep. 302. From the time of service of process on the trustee, it fixes the property or debt in his hands, as a stake-holder for the party ultimately entitled. But it will not hold choses in action previously assigned with notice. The attaching creditor acquires priority according to the order of time. The Massachusetts practice in respect to the trustee process, goes further than that of Connecticut or Vermont, and gives it against any person as the trustee of his resident neighbour. Leach v. Cook, 1 Shaw's Vermont Rep. N. S. 239. Neither in Vermont or Ohio can the foreign attachment be sustained, unless all the debtors are non-residents or have absconded. Leach v. Cook, supra. Taylor v. M'Donald, 4 Ohio Rep. 149.

In Connecticut, the effects and debts of absconding, or absent or nonresident debtors, in the hands of any agent, factor, trustee or debtor, may be attached by any creditor by the process of foreign attachment. Statutes of Connecticut, 1838, p. 287. But choses in action, as notes not negotiable, are not goods and chattels liable to the process of foreign attachment, or liable to be sold on execution. Fitch v. Waite, 5 Conn. Rep. 117. Grosvenor v. F. & M. Bank, 13 Ib. 104. It lies, also, against debtors imprisoned for debt, who shall not, within three months, be admitted to take the poor man's oath; and debtors discharged from imprisonment are to be deemed absconding debtors, so as to allow the creditor to proceed against their goods and effects in the hands of their attorney, agent, trustee or debtor. Statutes of Conn. 1838, p. 293, 294.

In Rhode Island, under the statute of January, 1822, the trustee process lies against the attorney, agent, factor, trustee, or debtor of absent, or non-resident, or concealed debtors; and also against the personal estate of any incorporated company established without the state, and being indebted, and having personal estate in the possession of any person or corporate body within the state. Seamen's wages are exempted from the attachment process, prior to the termination of the voyage.

In New-Jersey, the attachment issues by any creditor, foreign or do

ings against their estates as in the case of absconding debtors.a The court in which proceedings under the

mestic, against absconding or non-resident debtors, and the statute is very provisional, and is construed liberally for the benefit of creditors. The attachment becomes a lien from the time of executing the same. It reaches all the debtor's property and effects, in the possession of the garnishee, or debtor's debtor. The property attached is distributed rateably, among all the creditors who come in on due notice; and in this respect, it resembles the New-York attachment law. Elmer's Digest, 20—31. R. S. NewJersey, 1847, p. 48.

In Pennsylvania, the process of domestic attachment, is provided by statute against absconding and concealed debtors, and resident debtors who are absent. Trustees are appointed and the proceeds rateably distributed among all the creditors who come in and prove their demands. Purdon's Digest, 277. 282. The process of foreign attachment, is for the exclusive benefit of the attaching creditor, and it may issue at the suit of any credi tor, resident or non-resident. Mulliken v. Aughinbaugh, 1 Penn. Rep. 117. It issues against the estate, real and personal, of non-resident debtors, and of debtors confined for crimes. Process may be awarded against any person who has property or effects, or money of the debtor in possession, and the attachment binds all the estate, real and personal, of the debtor, in his own hands, or in those of his trustee, debtor, or garnishee. Purdon's Dig. 45, 46. 435. The foreign attachment can only be sued out against a debt presently demandable, but a domestic attachment like a commission of bankruptcy under 6 Geo. IV. can be sued out for a debt not due, for it is a process of distribution among creditors, 4 Watts & Serg. 201. But under the attachment laws of Pennsylvania, stock of the United States standing in the name of the debtor on the books of the treasury, cannot be attached. Neither the United States nor the officers of the treasury in their official capacity, are amenable to the process of law or equity. Opinions of the Attorneys General, vol. i. 657-665. The very clear and able argument of Mr. Wirt, the Attorney General, would seem to be equally applicable to the laws of every state, and the only limitation to the principle is, where the United States held the stock as stakeholders ready to pay to the rightful claimant, and a voluntary submission on terms to the process is recommended to have the rightful claim judicially ascertained.

In Ohio, the process of attachment lies at the instance of any creditor, resident or non-resident, and whether the debtor has absconded or is a non-resident; and the statute regulates proceedings against the garnishee, in whose possession the property may be, or who owes money to the original debtor. Chase's Statutes of Ohio, vol. ii. p. 1321; and in Indiana and Illinois, the foreign attachment lies against the estate of non-resident

N. Y. Revised Statutes, vol. ii. p. 15.

absconding debtor act are pending, has an equitable jurisdiction over all claims between the trustees and the

debtors, and against their effects and property in the hands of a garnishee, and the proceeding is for the benefit of the plaintiff; but in Illinois if the process be against the estate of a non-resident debtor, the creditor must be a resident. Revised Laws of Indiana, edit. 1838, p. 73–79. Revised Laws of Illinois, edit. 1833, p. 82, 83. So, in Maryland, under the act of 1825, the creditor must be a resident of the United States. Wever v. Baltzell, 6 Gill. & Johns. 335. Baldwin v. Neale, 10 Id. 274. The laws of several of the states are restrictive, as to the character of the plaintiff. In North Carolina, and Tennessee, the creditor, in the case of an absconding debtor, need not be a resident, but in the case of an attachment against a non-resident debtor, he must be. 1 Minor's Ala. Rep. 14. 69. North Carolina, stat. 1777, ch. 115. N. C. Revised Statutes, vol. 1. 71. Tennessee act of 1794, 1 Yerger's Rep. 101. 6 Ibid. 473. By the old attachment law of Alabama, only resident citizens could commence suits by attachment, but a subsequent statute gave the power equally to non-resident plaintiffs. 2 Ala. R. N. S. 326. In Tennessee, no attachment will lie against property, when both creditor and debtor are non-residents, unless judgment had been first obtained, and execution issued in the courts of the jurisdiction where the defendant was a resident; nor in cases in which personal service of process cannot be made, nor an attachment at law lie. In those special cases, the non-resident creditor may, by bill in chancery, cause stocks, and choses in action, and other property belonging to the non-resident defendant, or held in trust for him, to be applied to his debt. Stat. 1801, ch. 6. Stat. 1832, ch. 11. Garget v. Scott, 9 Yerger, 244, where the reason of their statute law is clearly and justly vindicated. Stat. 1836, ch. 43. In Virginia, Missouri, and Louisiana, the foreign attachment lies, though both the creditor and debtor reside out of the state. Williamson v. Bowie, 6 Munf. Rep. 176. Poesy v. Buckner, 3 Missouri Rep. 604. Flower v. Griffith, 12 Lou. Rep. 345. 5 Miller, 300. The statute of Missouri seems to apply to all creditors and the attachment and proceeding, in rem, and against property in the hands of garnishees apply when the debtor is a non-resident, or has absconded, or concealed, or absented himself, or is about to remove his property out of the state, or fraudulently to convert it. Revised Statutes of Missouri, 1835, p. 75.

In Virginia, the domestic attachment lies against the absconding debtor, and also against non-resident debtors, for debts not exceeding $20, and against a garnishee, though the debt be not due. The foreign attachment lies against absent debtors, and resident debtors of the foreign debtor may be prosecuted as garnishees. 1 Rev. Code, edit. 1814, p. 160. 2 Ibid. 98. It is grounded upon two facts; non-residence of the debtor, and his having effects in Virginia; and the proceeding is conclusive against parties and privies. Martin v. Chandler, 2 Brockenbough, 125. In the VOL. II.

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