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ATTACHMENTS AGAINST ABSENT AND ABSCONDING DEBTORS.

sconding or concealed debtor under the statute of this state. Austin ▼. Palmer, 2 Ver. R. 489; Baxter v. Vincent, 6 Ver. 614. But a legal settlement within the state is not necessary to constitute one an inhabitant within the act directing proceedings against trustees of absconding debtors. Boardman v. Brickford, 2 Aik. 345.

A creditor cannot sue out a scire facias where the trustee neglects to expose the principal debtor's property or to pay money on execution, his only remedy by the statute, is a motion for a rule on the trustee, to show cause why execution should not issue against his proper goods and estate. -Aldis v. Hull, 1 Chip. 309. A town is not liable as trustee of an ab

sconding debtor.-Bradley v. Richmond, 6 Ver. R. 121.

If a judgment is rendered against the principal debtor, and also against trustee, a single execution against both is irregular and void.-Rhider v. Alexander, 1 Chip. 267.

Where several garnishees personally attend the court, they may tax separate travel and attendance.--Porter v. Russel, 1 Tyler, 35.

A trustee is not protected by a previous judgment against him as trustee, when such judgment is to be satisfied in specific property, and cannot be enforced till a future time, and what is in his hands is due immediately. -Hazeltine v. Page, 4 Ver. R. 49.

The trustee process is, by the several statutes of October 1st, 1797, November 10th, 1807, November 6th, 1817, and November 10th, 1830, 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 removing out of the state, leaving effects within it. It has, however, been held, 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 foreign attachment cannot be sustained unless all the debtors are non-residents, or have absconded.-Leach v. Cook, 1 Shaw's Vermont Rep., N. S. 239.

ATTACHMENT AGAINST ABSENT AND ABSCONDING DEBTORS IN MASSACHU

SETTS.

All personal actions, except detinue and replevin, an action sounding in tort, may be commenced by the process of foreign attachment, or trustee process under the revised statutes of 1835, par 3, tit. 4. ch. 109, 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. Any person may be summoned as a trustee having goods, effects, or credits of the defendant entrusted or deposited in his possession. And such goods, effects, or credits of the defendant may be attached in the hands of such trustee, and held, to respond the final judgment in the suit. But there are limitations

to the demands which are attachable to the trustee process; and the provisions of the statute are very specific and minute. (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 favor of the principal defendant; (3.) nor by reason of any money in his hands, and for which he is accoun table, as a public officer, 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 exception on that judgment.

Many decisions have taken place with regard to what is, and what is not attachable in this State.-See Knowlton v. Bartlett, 1 Pick., 271; Maine Fire and M. Ins. Co. v. Weeks, 7 Mass., 439; Lane v. Jackson, 5 Mass., 157; Kittredge v. Sumner, 11 Pick., 50; Briggs v. Strange, 17 Mass., 405; Stevens v. Briggs, 5 Pick., 177; Oysted v. Shed, 12 Mass., 510; Potter v. Hall, 3 Pick., 368; D' Wolf v. Dearborn, 4 Pick., 466; Melville v. Browne, 15 Mass., 82; Phillips v. Bridge, 11 Mass. 249; Pierce v..Jackson, 6 Mass., 242; Gibbs v. Chase, 10 Mass., 130; Howard v. Williams, 2 Pick., 80; Daily v. May, 5 Mass., 313; Chandler v. Thurston, 10 Pick., 205; Cleverly v. Brackett, 8 Mass., 150; Cornwall v. Gould, 4 Pick., 448; Wheeler v. Train, 3 Pick., 255; Wolcott v. Pomeroy, 2 Pick., 121; Chickering v. Lovejoy, 13 Mass., 51; Portland Bank V. Hall, 13 Mass., 207; Eaton v. Whiting, 3 Pick., 484; Blanchard v. Colbourn, 16 Mass., 346; Kempton v. Cook, 4 Pick., 315.

ATTACHMENT AGAINST ABSENT AND ABSCONDING DEBTORS IN MAINE.

The statute of 1835, ch. 188, gave the trustee process against third persons holding the debtor's property by way of mortgage or pledge.

ATTACHMENT AGAINST ABSENT AND ABSCONDING DEBTORS IN NEW

HAMPSHIRE.

By the act of July 3rd, 1829, the process reaches debts, choses in action, stocks, &c., in the hands of third persons.

It seems the colonial legislatures were much in favor of the attachment process for reaching the property of absconding, absent, and nonresident debtors. But this process was cogently opposed by the governor and counsel in some of the States, so far as it related to non-resident debtors. The argument raised against it was, that the mode of recovery was different from that allowed in similar cases in England. 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 History, North

24 ATTACHMent against ABSENT AND ABSCONDing debtorS IN ALA.

Carolina, 202. 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. But as already suggested, the attachment laws, though not uniform on this point, prevails throughout the several United States, against the property, real and personal, of absconding and non-resident debtors.

ATTACHMENT AGAINST ABSENT AND ABSCONDING DEBTORS IN ALABAMA.

Must the creditor in the case of an absconding debtor be a residenti

He need not, but in the case of an attachment against a non-resident debtor, he must be. 1 Minor's Ala. Rep. 14, 69. It is not sufficient to authorize an attachment to issue that an affidavit state that a party is about to remove from the country, so that ordinary process of law cannot be served upon him. Wallis v. Murphy, 2 Stew., 15.

To sustain a judicial attachment it must appear on the record that the defendant is an inhabitant. Evans v. Saltmarsh, 1 Stew., 43. Wyat v.

Campbell, Minor, 390.

A judgment on original attachment in another State is prima facia evidence of a debt here, though personal service does not appear, but it may be impeached by plea that the defendant constantly resided here, and had no notice. Miller v. Pennington, 2 Stew., 309.

An assignment by a debtor of all his effects for the benefit of his creditors, though made in another State, will take precedence of a subsequent attachment. Robinson v. Rapely, 2 Stew., 86.

The voluntary affidavit of a garnishee taken before a justice, without summons, does not warrant judgment against the defendant in attachment. Lawrence v. Ware, 1 Stew., 33.

To sustain original attachment against a non-resident, it is not necessary that it should be stated by affidavit that the plaintiff resides in the State. Peters v. Bower, Minor, 69.

It is not necessary that te attachment bond should contain a condition for payment of costs. Peters v. Bower, Minor, 69. Saltmarsh v.

Evans, 1 Stew., 132.

Attachment materially variant from the affidavit will be quashed. Woodley v. Shirley. Minor, 14.

It is not a valid objection to the judgment by default, that the gai nishee, by his plea, claimed the property levied on.

Minor, 328.

Harris v. Clapp

A garnishee will be protected, as to the amount attached in his hands, while the proceedings are unreversed, though they are erroneous. Tubb v. Hadding, Minor, 129.

If a garnishee answer that the defendant held his note, to which he has a set-off, and cannot say what is due until a settlement, judgment cannot be rendered against him. Allen v. Morgan, 1 Stew. 9.

Nor if he state that before he was summoned, he was notified that the payee had transferred his agent's receipt for his note to A. And that A.'s agent had presented the note, and he had paid him a part and promised to pay the residue on a contingency that has happened. King v. Murphy, 1 Stew., 228.

ATTACHMENT AGAINST ABSENT AND ABSCONDING

DEBTORS IN ILLINOIS.

Are not all proceedings under an attachment void, unless the affidavit on which the attachment issues conform to the requisitions of the statute ?

They are. And the proceedings will be quashed. But an affidavit stating that "A. is justly indebted to the plaintiff in the sum of $100, and that he is privately moving his property out of the county," is sufficient. Clark v. Roberts, 1 Breese, 222.

It is sufficient to state that the non-resident is "justly indebted to the plaintiff in the sum of $200, by his certain instrument in writing." Phelps v. Young, 1 Breese, 256.

Judgment of non-suit in attachment merely quashes the attachment, and leaves the parties to proceed anew. Bates v. Jenkins, 1 Breese,

25. App.

A plea in abatement, may be made in a suit commenced by attachBates v. Jenkins, 1 Breese, 25. App.

ment.

In order to enable the owner or consignee of a vessel attached under the "Act authorizing the seizure of boats and other vessels by attachment," to take an appeal from the judgment of a justice of the peace in such case, he should make himself a party defendant to the suit before the justice. On the trial of the right of property levied on by attachment, the writ of attachment and return thereon are admissible in evidence. The Schooner Constitution v. Nelson Woodworth, 1 Scammon's Rep. 511. Sheldon v Reihleu, et al. Ibid 19. A. D. 1841.

An attachment bond which does not describe the court from which the process is to be issued or to which it is to be returned, or the term of the court, is fatally defective, and a judgment rendered by default in such a case, will be reversed on writ of error.—. -Laurence v. Yateman, et al., Scammon's Rep., 17 A. D. 1841.

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ATTACHMENT AGAINST ABSENT AND ABSCONDING DEBTORS IN ARK.

It is no objection that the affidavit does not state "that the defendant had departed from the State with intention of having his effects and personal estate removed out of the limits of the State, where the proceedings are, on their face, manifestly against a non-resident debtor.Phelps v. Young, 1 Breese, 256.

ATTACHMENT AGAINST ABSENT AND ABSCONDING DEBTORS IN OHIO.

Is not a creditor, suing out an attachment against the effects of his debtor on false affidavits of non-residence, liable to an action?

He is, and the indebtedness and affidavit will not constitute probable cause to protect him.-Ohio Rep., vol. 9, p. 103, A. D. 1840.

The foreign attachment cannot be sustained unless all the debtor or non-residents have absconded.-Taylor v. McDonald, 4 Ohio Rep., 140

The process of attachment lies at the instance of any creditor, resi. dent or non-resident, and whether the debtor has absconded, or is a nonresident, 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 Statute of Ohio, vol. 2, p. 1321.

A foreign attachment cannot be sustained against one of several joint contractors.-Cowden v. Harford, 4 Ham., 131. Nor where one of several contractors is a resident and the others non-residents.-Taylor v. McDonald, 4 Ham., 149.

Proof that the defendant was a resident of the county where the writ issued will set aside on certiorari a judgment in attachment before a justice of the peace.-Hartshorn v. Wilson, 2 Ham., 27.

Money collected on execution by the sheriff cannot be attached in his hands.-Dawson v. Holcomb, 1 Ham., 275.

ATTACHMENT AGAINST ABSENT AND ABSCONDING DEBTORS IN ARKANSAS.

Service of a writ of attachment by merely summoning a garnishee, gives the court no jurisdiction.

Manner of serving such writ prescribed.-Richmond v. Duncan & Preston, 4 Ark. R., p. 197. (1843)

This case was détermined in Clark Circuit Court in October, A. D., 1841, before the Hon. William Conway, B., one of the Circuit Judges. Duncan & Preston filed their declaration in debt, with the proper affidavit and bond, and sued out a writ of attachment against Barton Richmond. The property was returned served, by summoning John Wil son, as garnishee, and no property found. After publication made, judgment by default. The case came up by writ of error.