#### ELISHA ABRAMS vs. ROBERT H. PENDER.

A. a carpenter by trade, enlisted in the army during the war with Mexico, and during his absence at the seat of war, B. sued out an attachment, levied on the carpenter’s tools of A. left in the possession of a friend, and had them sold for a debt of A.:— Mold, that whether during a voluntary absence 'of A. the tools of his trade would or would not have been liable to seiziire under execration, yet B. was liable for a wrongful suing out of the attachment, A. not having fraudulently or privately absconded, within the meaning of the law allowing attachments, and there being no probable cause to suppose that he had.

The plaintiff declared in case upon a count for wrongfully suing out an attachment, and in thover for the conversion of his working tools. Upon the plea of general issue, the case wa% .submitted to his Honor, Judge Baily, at Edgecombe, on the last Circuit, upon the following facts agreed between the parties:—

The plaintiff was a carpenter by trade. He enlisted as a soldier to serve in the ai my during the late war with Mexico ; and when he was preparing to leave this country for Mexico, he deposited his tools with one Hart. After the plaintiff had left this country, for the seat of war, the defendant sued out an attachment and caused the same to bé levied on the said tools, when Hart informed him they were the working tools of the plaintiff, and he therefore objected to the levy, and upon final judgment in said attachment the said tools were sold, after due advertisement — the defendant being present and purchasing a part thereof; and most of the said tools were thus sold.

The value of the tools was $100 : and it is agreed that if the Court should.be of opinion that the plaintiff is entitled to recover, he shall have judgment for that sum ; if that he is not entitled to maintain the action, he shall be nonsuited. And his Hon- or being of opinion with the plaintiff, there was judgment accordingly, and the defendant appealed.

*261 Moore, for the defendant.

Biggs, contra, argued:—

1. The plaintiff had not removed out of the county privately; nor absented himself so that the ordinary process could not be served on him, (Rev. Stat. ch. 6, sec. 1,) and therefore the defendant sued out the attachment wrongfully.

2. As a volunteer in the service of the United States, the plaintiff was exempt from arrest, (U. S. Statutes at large, Act of 1799, Vol. 1, page 751.) And an attachment being in lieu of personal service, was therefore sued out wrongfully, (Davis v. Garrett, 3 Ire. 459.)

3. The defendant was notified that these were the working tools of the plaintiff, left with Hart, and therefore cannot be excused for seizing for want of such notice, as in the case of Hen-don v. Edwards, 10 Ire. 43.

Pearson, J.

The plaintiff was entitled to recover upon the count for wrongfully suing out the attachment. A citizen of our State may sue out an original attachment, when the debtor is not an inhabitant of this State, or when, being a citizen of this State, he fraudulently eludes tire ordinary process of law.

In the present case, the defendant had no probable cause to support the allegation that the plaintiff was fraudulently eluding the ordinary process of law, or that he had, in the language of the Statute,privately removed, or was about to remove himself out of the county, or so absented, absconded and concealed himself that the ordinary process of law could not be served on him. On the contrary, the plaintiff had enlisted as a soldier, and the fact of his leaving this State for Mexico, was a matter of public notoriety. There was as little cause to charge the plaintiff with a fraudulent evasion of the ordinary process of law, as there is to charge such an intent upon a member of Congress who goes to Washington, or a merchant who goes to New York.

It is asked, what remedy has a creditor when the debtor enlists “ during the war,” and leaves the State? It may be, that mesne process might have been served before the debtor left the State ; but it is sufficient for us to say that the want of a remedy is no excuse for the defendant, and does not show probable cause, or jus*262tify a proceeding under a statute giving a remedy against a debtor who fraudulently evades the ordinary process of law.

In the argument there was much discussion in reference to the Act of Congress which exempts the body of a soldier from arrest during the time of service. The Act lias no application to the case before us. The exemption from arrest was not intended to be a benefit to the soldier, but was intended to benefit the service ; and therefore a habeas corpus may be sued out, (not by the soldier,) but by an officer of the company; and upon his entering common bail, the body of the soldier is to be delivered to the officer. So there is no personal privilege granted to the soldier, and the policy of the public in not having a soldier taken from the ranks, is made consistent with the rights of creditors, by enabling them, upon common bail, to proceed to judgment and execution, i. e. a fieri facias.

We lay no stress upon the fact that the goods attached in this case were the “ tools of a tradesman.” It may be that such tools are only exempted from execution when the debtor remains in the country and submits himself to the ordinary process of law ; and does not extend to the case of one who fraudulently evades the service of process. Suffice it to say, a creditor has no right to reach these tools by means of an original attachment, upon, a false allegation that his debtor has evaded the ordinary pro- . cess of law.

Per CuRIam. Judgment affirmed.