#### James Broghill v. William Wellborn.

A«on-resident creditor cannot, under the act of 1777, (Rev. cA..ll5,§ 27,) attach the property of his debtor in this State, ;vhcn the latter has not absconded, nor removed to avoid the ordinary process

Whether a non resident creditor can attach the property of an absconding debtor resident in this State. Qu.

This was an attachment obtained by the plaintiff against the defendant.

At Wilkes, on the last circuit, the following facts were stated in the shape of a case argued and submitted to StiiaNge, Judge. 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.

No Counsel appeared for either party.

Daniei, Judge.

According to the case made and agreed to by the parties, we think the opinion pronounced in the Superior Court, was correct.

The act of 1777, (Rev. ch. 115, § 27",) declares that, “when any person who shall be an inhabitant of any other government, so that he cannot personally be served with process, shall bo 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, &c.”— 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 pro • perty that might bo found.here, which belonged to the defendant who was also an inhabitant of another go-*512vcrnment. It is not pretended that the defendant left the State 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, hy 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 tiiis means drive its owner to a settlément 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 tlieir own country.” (In the mater of Fitzgerald, 2 Cains, Rep. 315.) In this case, now before us, it seems that the plaintiff was not authorized hy the act of Assembly, to issue an attachment against the estate of tlje defendant, and the judgment must be affirmed.

Per Curiam. — JudgmeNT apeirmeb.