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II. Character of the Remedy.-1. Distinction.—The principal distinction between foreign and domestic attachment is found in the situation of the attachment debtor as within the reach of ordinary process or beyond it. The remedy has grown in this country from a mere process to compel the appearance of an absent and non-resident debtor to a proceeding to create and enforce a lien; and the two forms of attachment now prevalent have become so much alike that little distinction is made between them in most of the States--non-residence being simply one of the grounds for attaching:
Foreign attachment is not now merely to compel appearance." The purpose has undergone a change.3 v". Bryan, 20 Pa. St. 144. 147; Albany By such appearance, the proceeding Ins. Co. v. Whitney, 70 Pa. St. 248. against him may end in a judgment
Garnishment, trustee, or factorizing which will bind him personally.... But, process, as it is variously called (applic. without such voluntary submission to able to both forms of attachment), “is a the jurisdiction of the court, the judg. species of compulsory statute assignment ment in the proceeding by foreign attachby which a creditor may obtain that by ment can be enforced only against the operation of law which his debtor might property attached, or against the garvoluntarily assign to him in payment of nishee in personam to the extent of the his debt.' Strong v. Smith. i Metc. property admitted, or found by the (Mass.) 476. “By the aid of this pro. verdict of the jury, to be in his hands. cess, the attaching creditor is subrogated It is allowed to have no extra-territorial to all the rights of the debtor against operation.” Coleman's Appeal, 75 Pa. third parties." Kneeland on Attachment, St. 441, 455. p. 17. It is a suit virtually by the attach- 2. Attachment as Distraint to Compel ment defendant, though in the plain. Appearance. When the object of attachtiff's name.
Moore v. Stourton, 22 Ala. ing was to force the defendant into court, 831; Travis v. Tarit, 8 Ala. 574; Malley to give security for the debt or enter V. Altman, 14 Wis. 22.
bail for his personal appearance, -not to 1. The Nature of the Process.-Judge create and enforce a lien for ordinary Sharswood thus describes it :
debt, as now,-it was thought that he was non-resident has property, real or per- in court by his property.
Beech v. sonal, within the jurisdiction, an action Abbott, 6 Vi. 605. Compare Williams v. may be commenced against him by a Stewart, 3 Wis. 773, and Matter of Clark, writ of foreign attachment, commanding 3 Denis (N. Y.), 167. the sheriff to attach the defendant by all * Nominal attachment” insufficient. and singular his goods and chattels, lands Carleton v. Washington Ins. Co., 35 N. and tenements, in whose hands or posses. H. 168. sion soever they may be, so that he be The defendant was twice reported non and appear, etc. And in every such est before the court proceeded against his writ there must be contained a clause property. Barney v. Patterson, 6 Har. & commanding him to summon all persons J. (Md.) 182. On failure to appear, his in whose hands or possession the said attached property was applied to the goods or chattels may be found, so that payment of his debts. Barr v. Perry, 3 they appear, etc. The property itsell, Gill (Md.), 326. All the Maryland attachif susceptible of manual seizure, is taken ment laws grew out of the London cuspossession of by the sheriff, and, if not, tom,—Turner v. Lytle, 59 Md. 199. 203; the summons of the garnishee fixes upon Campbell v. Morris. 3 Har. & Mch. him a liability to the plaintiff for what. (Md.) 535;—which was a means of reever he may hold belonging or owing to lief against a foreign debtor, -Hepthe defendant at that time. ... He is burn's Case, 3 Bland Ch. (Md.) 118. allowed to controvert the fact of his in- In the earlier decisions, the process was debtedness to the defendant, or that the merely to compel appearance. Riseproperty attached was his. The non- wick v. Davis, 19 Md. 91. resideni defendant may have the attach- 3. Change in the Object. —"It is said ment dissolved by entering security for that a foreign attachment is a process to the plaintiff's claim, or, without such compel the appearance of a non-resident dissolution, he may appear voluntarily defendant, and that the appearance is and take defence against the demand. supposed to be made only when he enters 8 Ç. of L.-19
• If a
2. Modification of the Remedy.—The property of a foreign debtor is not now taken only in case he cannot be personally attached, nor is it limited to chattels in the hands of third persons, and to debts due by them to him. It may be taken directly from the non-resident, if he be found with it, within the jurisdiction; and both realty and personalty are liable to be levied upon. On the other hand, garnishment, or trustee process, is applicable in a case of domestic attachment, as well as in one of foreign, if there are goods or realty in third hands belonging to the defendant, or credits due him. 1
Starting from the same point, the several States of the Union have travelled in different paths, and some have gone much farther than others from the original methods of the Custom of London." Some preserve the distinction between the two species of attachment on their statute-books, while others do not. All, however, observe the real difference between the two, in their practice and decisions. When a debtor has absconded, or secreted his property or himself, to avoid the payment of his debts, or disposed of his property, by assignment or otherwise, for this purpose, and by simulated acts, his conduct is fraudulent; and the reason underlying the authorization of attachment under those circumstances is very different from that for attaching the property of a nonresident. For this and other reasons, some states, which do not sharply draw the line between the two forms, require no bond from the plaintiff before attaching on the ground of non-residence, and make other differences in the conditions of the statutory authorization. Notwithstanding the variety of modifications in the several States, foreign and domestic attachment may now be described together: “A proceeding to create and enforce a lien; a remedy for the collection of ordinary debt by preliminary levy
special bail upon which he may be sur- the hands of a third person, and so to rendered; and thus, in effect, a virtual deprive the owner of all control over the arrest of an insolvent debtor for a debt subject of the attachment until he apdue before his discharge would [might] pears to answer the claim of his creditor, occur, in violation of the provisions of or until the debt is satisfied.” Complaint the insolvent laws. However this might against the absent debtor was made, and, have been prior to the act of 13th June, when he was returned nihil garnish1836, the latter excludes the difficulty.' ment was issued against any person in It provides that foreign attachment debted to the defendant, by which that may issue against any person not resid- person was warned not to pay to his ing, etc. And a defendanı may enter an creditor, but to answer in court and abide appearance and take defence without judicial order, in case he do not deny entering bail to dissolve the attachment. his indebtedness. Four defaults of the By the court in Brolaskey v. Landers, 2 defendant, upon successive proclamaMiles (Pa.), 371; Manuel v. Miss. etc., tions, were followed by judgment against R Co., 2 Miles (Pa.). 398.
the garnishee (who had acknowledged or 1. Authorities under the head, WHAT not denied the debt), in favor of the MAY BE ATTACHED, AND WHAT MAY plaintiff, who gave pledges to restore in Nor. post.
case the defendant should appear within 2. Custom of London.
.-" This is a very a year and a day, give security, and deancient proceeding, taking its origin fend the cause, etc. Locke on Foreign from the Roman law. . . . The object is Attachment (Law Lib. Ed.), pp. 1, 2, to enable the creditor to attach the *3. *19; Thayer v. Willet, 9 Abb. Pri money, debts, or goods of his debtor in (N. Y.) 325.
upon property of the debtor, to conserve it for eventual execution after the lien shall have been perfected by judgment." 1
There may be clashing between the two methods when one is in equity and the other at law.?
3. In Rem.-Under the prevalent system of foreign attachment there is no judgment nisi against the attachment defendant who is beyond the jurisdiction and merely invited to court, but a final judgment against the property attached, if the plaintiff has given bond and complied with all statutory requirements, and made out his case.
In other words, the proceeding, under such circumstances, is in rein. It is so almost everywhere in the Union, except where bond is not required of the plaintiff till the time of sale when he obligates himself to make restoration in case the defendant should appear within a given time and defend, the judgment there being merely interlocutory.
This proceeding in rem is limited in effect to the defendant's interest and that of his privies, and is not res adjudicata quo ad omnes, like a general proceeding against property.
It is now quite generally held that, though the attachment suit, without a personal defendant in court, is still in personam in form, in effect it is in rem.3
III. Who Liable to have their Property Attached.-1. Non-resident Debtors.--The attachment of the property of non-resident debtors is authorized by statute in every State of the Union. It is not everywhere called foreign attachment, but it is such in all the
The property of those debtors is universally held amenable to the remedy, though the owners cannot be summoned, but merely notified by publication.
Most of the statutes use the term “non-resident debtors” instead of " foreign debtors,” because the condition upon which the remedy is to be employed is not that the debtor be a resident of another State or country, but that he do not have a place within the State
1. Waples on Attach. & Garn.
88 N. Y. 216; Robinson 7'. Nat. Bank, 2. Conflict Between Foreign and Domes. 81 N. Y. 355; Force 7. Gower, 23 How. tic Attachment.--Process in a foreign Pr. (N. Y.) 294; Matter of Faulkner, 4 attachment is served upon a garnishee Hill (N. Y.), 598; Jackson v. Bank of having property of the absent debtor in V. S., 10 Pa. St. 61; Phelps v. Holker, his hands, and afterwards other creditors i Dall. (Pa.) 261; Fitch 2. Ross, 4 S. & sue out attachments at law against the R. (Pa.) 557; Miller 7". Dungan, 30 N. J. same party as an absconding debtor, L. 21; Myers v. Smith, 29 Ohio St. 125; which are served upon the same gar- Cly more v. Williams, 77 III. 618; Banta nishee; and, before the foreign attachment 7. Wood, 32 lowa, 469; Mayfield v. is ready for a hearing, they obtain judg- Bennett, 48 Iowa, 194; Woolkins v. ments and an order of sale of the prop Haid. 49 Mich. 299; Massey v. Scot, 49 erty in the hands of the garnishee. The Mo. 278; Bates v. Crow, 57 Miss. 676, plaintiff in the foreign attachment may 678; Field 2'. Dortch, 34 Ark. 399; Shiramend his bill and enjoin the sale. ley 21. Byrnes, 34 Tex. 625; Atchison v. Moore v. Hoit. 1o Gratt. (Va.) 284. Rosalip, 4 Chand. (Wis.) 12; American
3. In Rem.--Cooper 7'. Reynolds, 10 Bank v. Rollins. 99 Mass. 313. Compare Wall. (U. S.) 305; St. Clair 31. Cox, 106 Magee 71. Beirne. 39 Pa. St. 50, 62. U. S. 350; Fitzpatrick 2. Flannagan, 106 Attachment is sometimes said to be U.S. 648; Harris 7'. Hardeman, 14 How. "in the nature of” a proceeding in rem. (U. S.) 334, 3.40; McKinney v. Collins, Wade on Altach. 7.
of the process at which he can be reached. His property and credits may be attached if he is not personally and continuously subject to the jurisdiction of the court upon ordinary summons.1
Whether the debtor be a subject of a foreign government, and living abroad, or an inhabitant of any State or Territory of the Union other than that in which the process is issued, he is amenable to the process; but whatever his citizenship, whether he be voter or not, if he has a residence at which process may be served within the State, he is not thus amenable.
2. Non-resident Present.--He may, however, be served with process within the State of the court's jurisdiction when found temporarily therein, and yet be proceeded against as a non-resident. The mere accident by which ordinary process is enabled to reach him does not cut off the creditor from his right to resort to the extraordinary. The foreign debtor not being usually within the jurisdiction and liable to summons, cannot defend against foreign attachment on the plea of having been actually served with process. 2
1. Defendant not where Ordinary Process Likens, 2 Dutch. (N. J.) 207; Phillipscan reach him. --The rule is that he must burg Bank v. Lackawanna R. Co., 3 have a place within the State where pro. Dutch. (N. J.) 206; Kugler v. Shreve, 4 cess can always reach him in order to Dutch (N. J.) 129; In re Thompson, I relieve him from the operation of the Wend. (N. Y.) 43; Haggart 1. Morgan, 5 attachment remedy. Burcalow v. Trump, N. Y. 422; Wallace v. Castle, 68 N. Y. i Houst. (Del.) 363; Malone v. Lindley, 370; Murphy_v. Baldwin, 41 How. Pr. 1 Phila. (Pa.) 192; Rayne v. Taylor, 10 (N. Y.) 270; Ellington v. Moore, 17 Mo. La. Ann. 726; Bryan 2'. Dunseth, i Mart. 424. N. S. (La.) +12; Green 7. Beckwith. 38 2. Absence and Non-residence.- When Mo. 354; Murphy 1. Baldwin, 41 How. absence and non-residence are conjoined Pr. (N. Y.) 270; Chaine v. Wilson. 16 as one statute ground, the debtor must How. Pr. (N. Y.) 552; Houghton v. not only be a non-resident, but also Ault, 16 How. Pr. (N. Y.) 77; Lee v. absent from the State when the writ is Stanley, 9 How. Pr. (N. Y.) 272; Stout issued. Fuller v. Bryan, 20 Pa. St. 144; v. Leonard, 37 N. J. L. 492; Chase v. Bainbridge v. Alderson, 2 Browne (Pa.), Ninth Nat. Bank. 56 Pa. Si. 355. One 51; Haggett v. Emerson, 8 Kan. 262. recently arrived who designs to remain, Without such coupling of grounds in the and who has a place where he may be statule, the present absence of the noncited, is exempt from the process of for- resident need not be averred or proved. cign attachment. People v. McClay, 2 Clark v. Arnold, 9 Dana (Ky.). 305. Neb. 7; Swaney v. Huichens, 13 Neb. Service of process on a non-resident, 266; Heidenback v. Schland, 10 How. while transiently within the State, will Pr. (N. Y.) 477. But mere design with- not suffice to hold him as garnishee." out the aci of coming will not avail him. Green v. Farmers & Citizens' Bank, 25 Adams v. Evans, 19 Kan. 174.
Conn. 454. If the debtor has not a place within One of Several Non-residents Personally the State where summons may be law. Served.--" Where there are several nonfully served upon him, he is a non- resident debtors liable for the same deresident within the statute, and may be mand, and they own property in this proceeded against by attachment. State, it may be attached; and though The use of this writ when the defendant one of them was casually here and served is within reach of ordinary process is with process, there is no reason why the wholly inconsistent with the spirit and property may not be sold for the debt." design of the statute.” Baldwin v. Flagg, Jackson v. Perry, 13 B. Mon. (Ky.) 232. 43 N. J. L. 495; Perrine 2. Evans, 35 Absence from the State of one memN. J. L. 221; Brundred 14. Del Hoys, 20 ber of a firm or one of several joint debiN. J. L. 328; City Bark of N. Y. 7. ors, gives the chancellor jurisdiction to Merrit, i Green (V. J.), 131; Branson subject their effects by attachment." v. Shinn, i Green (N. J.). 250; Clark J. Wilcox z'. Carey, 9 Dana (Ky.), 298.
3. Facts Showing Residence.—Transient abode at a hotel, where summons may be served, will not defeat foreign attachment. It must be such an abode as will render the debtor ordinarily liable to be reached there ; such as will place him upon an equal footing with resident citizens with respect to process.
As a question of fact, it is sometimes difficult to decide, under given circumstances, whether the debtor is a resident or not. A home very recently acquired is as good as one of long standing, but the question of its permanency and honesty is often difficult. A home very recently abandoned is equivalent to the want of one for years, but the fact of its abandonment and of change of residence to another State or country is sometimes inferred from circumstances, after much uncertainty. It is not necessary that the debtor should have acquired residence in any particular place out of the State ; it suffices the purpose of the attaching creditor if the debtor has ceased to have residence within the State.
The keeping of a business establishment within the State will not render him a resident for attachment purposes. When there is a question whether he lives within the jurisdiction so as to be subject to ordinary process, the circumstance that he does his principal business therein may throw light upon the problem; but it is not sufficient, in itself, to relieve him from liability to have his property attached as that of a non-resident. If it be admitted or proven that he resides in a State other than that of the business place, and of the court issuing the process, the fact of the business establishment being within the State is entitled to no weight. He may have clerks there, on whom he has authorized service to be served as upon his agents, and yet this will not relieve him. He may be liable at his business place within the State, though his domicil be foreign.? Non-residence should be proved, but may
1. Residence--- Facts Showing--Presump- 2. Place of Business. --One may have tion.- A residence once shown to have a place of business within a State, yet no been established is presumed to continue residence at which process can be served; until it is clearly shown to have been and he may therefore be subject to the abandoned. The residence of a man law of foreigii attahment. Perrine v having a family, which he maintains, is Evans, 35 N. J. L. 221; Wallace v.Castle, prima facie where the family dwells. A 68 N. Y. 370; Murphy v. Baldwin, 41 man's acts and conduct are more to be How. Pr. (N. Y.) 270. considered, in determining the question And he may have a place of business of a change of residence, than any mere in the State, while his domicil is foreign, declarations of intent; and. when the yet not be liable to the attachment of his question is doubtful, it should be so property as that of a non-resident, for he determined as will best secure the rights may be amenable to ordinary process. of creditors and others having dealings Krone v. Cooper. 43 Ark. 547. Compare with such party. Keith v. Stetter, 25 McKenzie v. Murphy, 24 Ark. 155. Kan. 100.
Domicil may be in one State, yet actual Proof that the defendant declared his residence in another. Savage v. Scott, intention of removing out of the State,' 45 Iowa, 130; Board v. Davenport, 40 and invited another to go also and be. III. 197. Compare Chariton Co.v.Moberly, come his neighbor, and that he did leave 59 Mo. 238. the State, was held sufficient to warrant 3. Proof of Non-residence--Practice in the attachment of his property as that of New York.-In New York, non-residence a non-resident, though he returned to the must be distinctly proved, and cannot be State a month after the bill had been filed. inferred from mere addition or descripFarrow v. Barker, 3 B. Mon. (Ky.) 217. tion, to support foreign attachment.