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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.1 Foreign attachment is not now merely to compel appearance. The purpose has undergone a change.3

7. Bryan, 20 Pa. St. 144. 147: Albany Ins. Co. v. Whitney, 70 Pa. St. 248. Garnishment, trustee, or factorizing process, as it is variously called (applicable to both forms of attachment), "is a species of compulsory statute assignment by which a creditor may obtain that by operation of law which his debtor might voluntarily assign to him in payment of his debt. Strong v. Smith. 1 Metc. (Mass.) 476. "By the aid of this process, the attaching creditor is subrogated to all the rights of the debtor against third parties." Kneeland on Attachment, P. 17. It is a suit virtually by the attachment defendant, though in the plaintiff's name. Moore v. Stourton, 22 Ala. 831; Travis v. Tartt, 8 Ala. 574; Malley v. Altman, 14 Wis. 22.

1. The Nature of the Process.-Judge Sharswood thus describes it: "If a non-resident has property, real or personal, within the jurisdiction, an action may be commenced against him by a writ of foreign attachment, commanding the sheriff to attach the defendant by all and singular his goods and chattels, lands and tenements, in whose hands or possession soever they may be, so that he be and appear, etc. And in every such writ there must be contained a clause commanding him to summon all persons in whose hands or possession the said goods or chattels may be found, so that they appear, etc. The property itself, if susceptible of manual seizure, is taken possession of by the sheriff, and, if not, the summons of the garnishee fixes upon him a liability to the plaintiff for whatever he may hold belonging or owing to the defendant at that time. . . . He is allowed to controvert the fact of his indebtedness to the defendant, or that the property attached was his. The nonresident defendant may have the attachment dissolved by entering security for the plaintiff's claim, or, without such dissolution. he may appear voluntarily and take defence against the demand.

8 C. of L.-19

By such appearance, the proceeding against him may end in a judgment which will bind him personally. . . . But, without such voluntary submission to the jurisdiction of the court, the judg ment in the proceeding by foreign attachment can be enforced only against the property attached, or against the garnishee in personam to the extent of the property admitted, or found by the verdict of the jury, to be in his hands. It is allowed to have no extra-territorial operation." Coleman's Appeal, 75 Pa. St. 441, 455.

2. Attachment as Distraint to Compel Appearance.-When the object of attaching was to force the defendant into court, to give security for the debt or enter bail for his personal appearance, not to create and enforce a lien for ordinary debt, as now,-it was thought that he was in court by his property. Beech v Abbott, 6 Vi. 605. Compare Williams v. Stewart, 3 Wis. 773, and Matter of Clark, 3 Denis (N. Y.), 167.

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"Nominal attachment' insufficient. Carleton v. Washington Ins. Co., 35 N. H. 168.

The defendant was twice reported non est before the court proceeded against his property. Barney v. Patterson, 6 Har. & J. (Md.) 182. On failure to appear, his attached property was applied to the payment of his debts. Barr v. Perry, 3 Gill (Md.), 326. All the Maryland attachment laws grew out of the London custom,-Turner v. Lytle, 59 Md. 199. 203: Campbell v. Morris, 3 Har. & McH. (Md.) 535;—which was a means of relief against a foreign debtor,-Hepburn's Case, 3 Bland Ch. (Md.) 118. In the earlier decisions, the process was merely to compel appearance. Risewick 7. Davis, 19 Md. 91.


3. Change in the Object."It is said that a foreign attachment is a process to compel the appearance of a non-resident defendant, and that the appearance is supposed to be made only when he enters

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 surrendered; and thus, in effect, a virtual arrest of an insolvent debtor for a debt due before his discharge would [might] occur, in violation of the provisions of the insolvent laws. However this might have been prior to the act of 13th June. 1836, the latter excludes the difficulty.' It provides that foreign attachment may issue against any person not residing, etc. And a defendant may enter an appearance and take defence without entering bail to dissolve the attachment." By the court in Brolaskey v. Landers, 2 Miles (Pa.). 371; Manuel v. Miss. etc., R Co., 2 Miles (Pa.). 398.


1. Authorities under the head, WHAT MAY BE ATTACHED, AND WHAT MAY NOT, post.

2. Custom of London. This is a very ancient proceeding, taking its origin from the Roman law. . . . The object is to enable the creditor to attach the money, debts, or goods of his debtor in

the hands of a third person, and so to
deprive the owner of all control over the
subject of the attachment until he ap-
pears to answer the claim of his creditor,
or until the debt is satisfied." Complaint
against the absent debtor was made, and,
when he was returned nihil garnish-
ment was issued against any person in ·
debted to the defendant, by which that
person was warned not to pay to his
creditor, but to answer in court and abide
judicial order, in case he do not deny
his indebtedness. Four defaults of the
defendant, upon successive proclama-
tions, were followed by judgment against
the garnishee (who had acknowledged or
not denied the debt), in favor of the
plaintiff, who gave pledges to restore in
case the defendant should appear within
a year and a day, give security, and de-
fend the cause, etc. Locke on Foreign
Attachment (Law Lib. Ed.), pp. 1, 2,
*3. *19; Thayer v. Willet, 9 Abb. Pr.
(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.2

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 rem. 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 States. 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.

2. Conflict Between Foreign and Domes tic Attachment.--Process in a foreign attachment is served upon a garnishee having property of the absent debtor in his hands, and afterwards other creditors sue out attachments at law against the same party as an absconding debtor, which are served upon the same garnishee; and, before the foreign attachment is ready for a hearing, they obtain judgments and an order of sale of the property in the hands of the garnishee. The plaintiff in the foreign attachment may amend his bill and enjoin the sale. Moore v. Hoit. 10 Gratt. (Va.) 284.

3. In Rem.-Cooper . Reynolds, 10 Wall. (U. S.) 308; St. Clair . Cox, 106 U. S. 350; Fitzpatrick 7. Flannagan, 106 U. S. 648; Harris 7. Hardeman, 14 How. (U. S.) 334, 340; McKinney v. Collins,

88 N. Y. 216; Robinson 7. Nat. Bank, 81 N. Y. 385; Force 7. Gower, 23 How. Pr. (N. Y.) 294; Matter of Faulkner, 4 Hill (N. Y.), 598; Jackson v. Bank of U. S., 10 Pa. St. 61; Phelps v. Holker, 1 Dall. (Pa.) 261; Fitch v. Ross, 4 S. & R. (Pa.) 557; Miller 7. Dungan, 30 N. J. L. 21; Myers v. Smith, 29 Ohio St. 125; Clymore v. Williams. 77 Ill. 618; Banta 7. Wood, 32 Iowa, 469; Mayfield v. Bennett, 48 Iowa. 194; Woolkins v. Haid, 49 Mich. 299; Massey v. Scot, 49 Mo. 278: Bates v. Crow, 57 Miss. 676, 678; Field . Dortch, 34 Ark. 399; Shirley v. Byrnes, 34 Tex. 625: Atchison v. Rosalip, 4 Chand. (Wis.) 12; American Bank 7. Rollins, 99 Mass. 313. Compare Magee 7. Beirne, 39 Pa. St. 50, 62.

Attachment is sometimes said to be "in the nature of " a proceeding in rem. Wade on Attach. 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 can reach him. The rule is that he must have a place within the State where process can always reach him in order to relieve him from the operation of the attachment remedy. Burcalow v. Trump, I Houst. (Del.) 363; Malone v. Lindley, 1 Phila. (Pa.) 192; Rayne v. Taylor, 10 La. Ann. 726; Bryan v. Dunseth, I Mart. N. S. (La.) 412; Green v. Beckwith. 38 Mo. 384; Murphy v. Baldwin, 41 How. Pr. (N. Y.) 270; Chaine v. Wilson, 16 How. Pr. (N. Y.) 552; Houghton v. Ault. 16 How. Pr. (N. Y.) 77; Lee v. Stanley, 9 How. Pr. (N. Y.) 272; Stout v. Leonard, 37 N. J. L. 492; Chase v. Ninth Nat. Bank, 56 Pa. St. 355. One recently arrived who designs to remain, and who has a place where he may be cited, is exempt from the process of foreign attachment. People v. McClay, 2 Neb. 7; Swaney v. Hutchens, 13 Neb. 266; Heidenback v. Schland, 10 How. Pr. (N. Y.) 477. But mere design without the act of coming will not avail him. Adams v. Evans, 19 Kan. 174.

If the debtor has not a place within the State where summons may be lawfully served upon him, he is a nonresident within the statute, and may be proceeded against by attachment.

The use of this writ when the defendant is within reach of ordinary process is wholly inconsistent with the spirit and design of the statute." Baldwin v. Flagg, 43 N. J. L. 495; Perrine 7. Evans, 35 N. J. L. 221; Brundred 2. Del Hoys, 20 N. J. L. 328; City Bank of N. Y. 7. Merrit, 1 Green (Ñ. J.), 131; Branson 7. Shinn, I Green (N. J.). 250; Clark v.

Likens, 2 Dutch. (N. J.) 207: Phillipsburg Bank v. Lackawanna R. Co., 3 Dutch. (N. J.) 206; Kugler v. Shreve, 4 Dutch (N. J.) 129; In re Thompson, I Wend. (N. Y.) 43; Haggart 7. Morgan, 5 N. Y. 422; Wallace v. Castle, 68 N. Y. 370; Murphy v. Baldwin. 41 How. Pr. (N. Y.) 270; Ellington v. Moore, 17 Mo. 424.

2. Absence and Non-residence.-When absence and non-residence are conjoined as one statute ground, the debtor must not only be a non-resident, but also absent from the State when the writ is issued. Fuller v. Bryan, 20 Pa. St. 144; Bainbridge v. Alderson, 2 Browne (Pa.), 51; Haggett v. Emerson, 8 Kan. 262. Without such coupling of grounds in the statute, the present absence of the nonresident need not be averred or proved. Clark v. Arnold, Dana (Ky.), 305.

"Service of process on a non-resident, while transiently within the State, will not suffice to hold him as garnishee." Green . Farmers & Citizens' Bank, 25 Conn. 454.

One of Several Non-residents Personally Served.- Where there are several nonresident debtors liable for the same demand, and they own property in this State, it may be attached; and though one of them was casually here and served with process, there is no reason why the property may not be sold for the debt." Jackson v. Perry, 13 B. Mon. (Ky.) 232. Absence from the State of one member of a firm or one of several joint debtors, gives the chancellor jurisdiction to subject their effects by attachment.” Wilcox . Carey, 9 Dana (Ky.), 298.

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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.1 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. tion. A residence once shown to have been established is presumed to continue until it is clearly shown to have been abandoned. The residence of a man having a family, which he maintains, is prima facie where the family dwells. A man's acts and conduct are more to be considered, in determining the question of a change of residence, than any mere declarations of intent; and, when the question is doubtful, it should be so determined as will best secure the rights of creditors and others having dealings with such party. Keith v. Stetter, 25 Kan. 100.

Proof that the defendant declared his intention of removing out of the State, and invited another to go also and become his neighbor, and that he did leave the State, was held sufficient to warrant the attachment of his property as that of a non-resident, though he returned to the State a month after the bill had been filed. Farrow v. Barker, 3 B. Mon. (Ky.) 217.

2. Place of Business.-One may have a place of business within a State, yet no residence at which process can be served; and he may therefore be subject to the law of foreign attachment. Perrine v. Evans, 35 N. J. L. 221; Wallace v. Castle, 68

N. Y. 370; Murphy v. Baldwin, 41 How. Pr. (N. Y.) 270.

And he may have a place of business in the State, while his domicil is foreign, yet not be liable to the attachment of his property as that of a non-resident, for he may be amenable to ordinary process. Krone v. Cooper. 43 Ark. 547. Compare McKenzie

V. Murphy, 24 Ark. 155. Domicil may be in one State, yet actual residence in another. Savage v. Scott, 45 Iowa, 130; Board v. Davenport, 40 Ill. 197. Compare Chariton Co. v. Moberly, 59 Mo. 238.

3. Proof of Non-residence-Practice in New York.-In New York, non-residence must be distinctly proved, and cannot be inferred from mere addition or description, to support foreign attachment.

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