Opinion
(June Term, 1846.)
Under our attachment law, a nonresident creditor may attach the property of a debtor residing in this State who has absconded or so conceals himself that the ordinary process of law cannot be served on him.
APPEAL from NEW HANOVER Spring Term, 1846; Dick, J.
J. H. Bryan and Iredell for plaintiffs.
Strange for defendant.
The plaintiffs, who are nonresidents of this State, sued out an original attachment against the estate of the defendant, a resident and (246) absconding debtor, returnable to the county court of New Hanover. The sheriff summoned one William Cook as garnishee. Kline, the defendant (we suppose by the consent of the plaintiff, for they never replevied), pleaded in abatement that the plaintiffs were not inhabitants of the State of North Carolina, and, therefore, had no right to sue him by an original attachment. The plaintiffs demurred to the plea, and the Superior Court (on the case coming there on appeal) overruled the demurrer and gave judgment that the defendant recover his costs. The plaintiff then appealed to this Court.
The first section of the Attachment Act, Rev. Stat., ch. 6, authorizes any person to issue an original attachment against any person indebted to him who hath removed or is removing himself out of the county privately, or so absents or conceals himself that the ordinary process of law cannot be served on him. The attachment shall be returned to the court where the suit is cognizable, and it shall be deemed a leading process.
There is nothing in this section of the statute excluding a nonresident creditor from having the benefit of it against a resident debtor who has absconded or so conceals himself that the ordinary process of law cannot be served on him. To suppose that the Legislature did not intend to extend this additional remedy to foreign creditors, to be exercised in our own courts against our own citizens who might abscond or conceal themselves so that the common-law process could not be served on them, is to suppose that the Legislature was willing to leave foreign creditors remediless in recovering their debts of our citizens, although they might fraudulently avoid the ordinary process of the common law to bring them before the court — a supposition which we cannot for a moment entertain. It is said for the defendant that the attaching (247) creditor is required by the act to give bond and surety to indemnify the debtor if the attachment is properly sued out, and, therefore, if a foreign creditor should be construed to be within the act, a citizen of our State would have a very poor chance of indemnity under such a bond, if he should become entitled to sue upon it. To this argument the answer is that the judge or justice who is to take the bond would, it is presumed, never take a surety to it who resided out of the State. The second section of the act, relative to nonresident debtors, and the decisions of this Court which have been referred to, Broghill v. Wellborn, 15 N.C. 511; Taylor v. Buckley, 27 N.C. 384, give us no aid upon the question now before us, which arises now for the first time. We are of opinion that the plaintiffs being nonresidents is not a ground to support the plea in abatement, and that the demurrer should, therefore, have been sustained. The judgment must be reversed, with costs of this Court and the courts below, and judgment of responded ouster entered, and the cause remitted, that further proceedings may be had therein accordingly to law and right. Casey v. Harrison, 13 N.C. 244.
PER CURIAM. Judgment accordingly.