Foreign attachment. Judgment in the Circuit Court for the amount claimed by thе plaintiff below. Exception is taken to the whole proceeding, by an assignment of errors, which reaches the affidavit, thе writ, the bond, the publication, and the judgment. In a proceeding оf this kind, in its nature ex parte, and affording a peculiar remedy, the security of thе rights of those who may become the objects of its opеration, has induced the adoption of a rule of construсtion, by which nothing is conceded to presumption in any of its stages; but he who avails himself of the remedy, is bound to a strict compliance with the provisions of the statute. This conformity to the statutе must appear in every step taken.
As the first error assigned quеstions the sufficiency of the affidavit, and as that is the foundation of the proceeding, it is proper that it should be first in the.order of examination. The affidavit states, “that on the 20th of April, 1820, in the Jefferson Circuit Court, Kentucky, the plaintiff recovered a judgment against Walter E. Powers, for 2,000 dollars, with interest at the rate of 6 per cent, per annum, from the 25th of December, 18.19, until paid, and 7 dоllars and 30 cents costs; that since the judgment, the defendant has died, leaving heirs Clement Powers and others unknown, who are not all residents of Indiana; that the judgment has never been paid, nor any part, thereof, by the decedent in his life-time, nor by said heirs 'since, nor by any other person.” This affidavit is founded on the act of 1824, Rev. Code, 68, s. 1, which renders" liable for debts or demands against decedents, еstates, &c. which may have descended to non-resident heirs. As the proceeding can only be maintained against non-residеnts of the state, the affidavit should state positively, that the defеndants are non-residents; if this is not stated, the plaintiff is not entitled to this extraordinary remedy.
The proceeding is instituted against Clement Powers and others unknown, alleged to be the heirs of the judgment-defendant, who, it is said, “are not all residents of Indiana.” This statement of non-residence is indefinite, and clearly insufficient. If a part of the heirs were residents, they could not be joined with those who were non-residents. From the
We are further of opinion, that the affidavit, as there is no declaration filed, should have shown that there was no executor or administrator, or personal assets to discharge the debt, since personal assets are primarily liable fоr the debts of the decedent, and it is only on their exhaustion that thе heir becomes responsible. Even then his responsibility is qualified. An estate in land must have descended to him, and it is only to the value of the land so descended, that he is liable.
Without extending this examination further, we will remark, that errors equally as fatal as those nоticed, appear in the subsequent proceedings, and that the judgment must be reversed.
The judgment is reversed with costs. To be certified, &c.