15 N.C. 511 | N.C. | 1834
At Wilkes, on the last circuit, the following facts were stated in the shape of a case argued and submitted to Strange, J. If upon them, the plaintiff was entitled to proceed, the suit was to progress; if otherwise, then the process was to be dismissed.
Neither of the parties were citizens of this State, and the attachment, upon the oath and application of the plaintiff's agent residing here, was levied on the property of the defendant in this State: it not being pretended, that the defendant had removed out of the State, secretly or fraudulently, or with a design to avoid the ordinary process of law.
His Honor dismissed the attachment, and the plaintiff appealed. According to the case made and agreed to by the parties, we think the opinion pronounced in the Superior Court was correct.
*Section 27, chapter 2, Laws of 1777, 2nd Sess. (Rev. ch. 115, s. 27), declares that "when any person who shall be an inhabitant *420 of any other government, so that he cannot personally be served with process, shall be indebted to any person, a resident of this State, and hath any estate within the same, any of the justices may grant an attachment against the estate of such foreign person, etc." The plaintiff is not a resident of this State, and does not come within the purview of this section, and therefore he was not authorized to attach the estate or property that might be found here, which belonged to the defendant who was also an inhabitant of another government.
It is not pretended that the defendant left the State (512) secretly, fraudulently, or with the design to avoid the ordinary process of the law. Therefore we are not called on to give an opinion whether a non-resident creditor could attach the estate of an absconding debtor, by virtue of the twenty-fifth section of the said act. In putting a construction on a section of the attachment act of the State of New York, which section is very similar to the twenty-seventh section of our act, the Court said, "it is very well to give our own citizens a remedy over the property of their absent debtors, but it would be harsh and impolitic to extend this remedy to strangers, who might pursue the property here for the sole purpose of seizing it, and by this means drive its owner to a settlement on very unequal terms, or compel him to litigate in a distant forum, when perhaps both parties, residing near each other, ought to be left to apply to the tribunals of their own country." (In the matter of Fitzgerald, 2 Cains, 315.) In this case, now before us, it seems that the plaintiff was not authorized by the act of Assembly, to issue an attachment against the estate of the defendant, and the judgment must be affirmed.
PER CURIAM. Judgment affirmed.
Cited: Price v. Sharp,