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Barnet’s Case



AZARUS BARNET having abfconded, feveral foreign attachments were iffued againft him ; and afterwards, motions were made to fet them afide refpectively, in favour of a domeƒtic attachment, which had, likewife iffued againft him. Thefe motions were all founded upon the following affidavit. ‘‘ Daniel Benezet maketh oath that on or about the 12th day oƒ May 1783, the deponent let his houfe in Second Street Philadelphia to a certain Lazarus Barnet ; that the faid Lazarus Barnet had refided therein and followed the bufinefs of a Merchant or Store-keeper from that time ‘till about two weeks ago, when the faid Lazarus abfconded from the city, or fecreted himfelf therein, as this deponent is informed. And this deponent further faith, that the faid Lazarus Barnet appeared to him to be a married man, and having a family and fervants in this houfe.’’ Sworn the 11th of December, 1784.

This cafe was argued on the 20th of January by Sergent and Levy againft the foreign attachments ; and Wilʃon and Ingerʃol in fupport of them. On the 27th of the fame month, the president delivered the unanimous opinion of the Court.

SHIPPEN, Preʃident.— The queftion before us, is, whether the ƒoreign attachments, or the domeƒtic attachment, iffued againft Lazarus Barnet, fhall be eftablifhed ? The arguments in fupport of the foreign attachments, are chiefly founded on the third claufe in the firft act of Affembly, which fays that ‘‘ no writ of atachment fhall be granted againft any perfons effects, but fuch only as, at the time of granting ʃuch writs, are not refident, or refiding, within this province ; ’’ and on that of the fecond act, which leaves non refidents to be proceeded againft by foreign attachmetns, agreeably to the directions of the firft act. And it is urged, that, in the prefent cafe, it does not appear, that Lazarus Barnet was refident or refiding within the fate at the time of granting the domeftic attachment, and, if he was not fo refident, he is the object of the foreign attachment law.

Our opinion on this cafe, muft be founded upon a connected view of feveral acts of Affembly relating to attachments ; and thefe are the 4 Ann. c. 28. the 9 Geo. 1. c. 3. and the 14 Geo. 3. c. 5.

The object in paffing the ƒirʃt act, was to fubject the effects of abfent debtors to the payment of their debts ; as it appears by the preamble, that before that time, they were not equally liable with the effects of thofe perfons who refided on the fpot. Within the provifions of that act, three forts of debtors were included :— 1ft. Thofe who never refided here, or whofe actual refidence was abroad. 2. Thofe who had refided here, and had abfconded, or otherwife removed ; both of which are comprized in the general defcription of non refidents in the third caufe of the act ; and 3d. Thofe who


were ftill here, but were about to remove without giving fecurity to their creditors. In the ʃecond act it is ftated, ‘‘ that divers irre

‘‘gularities and fraudlent practices had happened to the injury

‘‘of fuch creditors as were willingly to accept an equal fhare of the

‘‘ effects of their debtors ; ’’ and from thefe general expreffions we are left to confider, to which of the foregoing defcriptions of debtors the preamble refers. It could not be the firft ; they refiding abroad, and their effects coming here only occafionally, there was NO great danger of fraudulent practices ; and fo it appears by the fubfequent law ftill continuing the fame remedy againft them. With refpect, however, to the other two claffes it was poffible for a creditor to feduce his debtor to leave the province, or to entrap him within the conftruction of the law, and to feize upon all his effects. The act, therefore, makes an entire new provifion with refpect to both the latter defcriptions of perfons, and confolidates the two cafes. It mentions nothing of perfons abfenting themfelves cut oƒ the province, nor of perfons refufing to give fecurity ; but enacts, generally, that all perfons who had abʃconded from their ufual place of abode for fix days, with defign, they were perfons whofe effects the Legiflature intended fhould be divided among their creditors. To fay that they muft be ftill remaining in the province, would be needlefsly reftraining the generality of the words of the act, which fuggefts that fometimes they may have left the province, by the words ‘‘ and had

‘‘not leƒt a clear eftate in fee fimple within the province, fufficient to

‘‘pay their debts.’’

The laft claufe of the fecond act provides, that ‘‘ nothing in this

‘‘ act fhall be conftrued to exempt the goods or effects of any per

‘‘fons, not inhabitants of this province, from being attach-

‘‘ed according to the directions of the former act. ’’ Here appears a defigned variation from the expreffion ufed in the firft act : it does not fay perfons not refiding in the province at the time oƒ iʃʃuing the attachment, but, generally, perfons not inhabitants oƒ the province, and feems exprefly meant to take in only thofe perfons firft described in the former act, perfons who never refided here, or whofe actual refidence was in another country. A contrary conftruction would defeat the general intention of the Legiflature, as in moft cafes thofe debtors who efcape from their creditors, go out of the ftate. Nor is it material as to the policy of the act, whether he remains in the ftate or goes out of it ; he has committed an act fimilar to an act of bankruptcy by abfconding with a fraudulent defign ; and in that cafe, and in that only, is he the object of the fecond act.

The word ‘‘ inhabitant’’ has a plain meaning. A perfon coming hither occafionally, as a captain of a fhip, in the courfe of trade, cannot be called an inhabitant ; nor does a perfon going from his fettled habitation here, on occafion of bufinefs to Boʃton, or any other place, ccafe to be an inhabitant. But a man who comes from


another place to refide among us, introduces his family here, take a houfe, engages in trade, contracts debts, and, after fome time, runs away with defign to defraud his creditors, he ought furely to be confidered fuch as inhabitant as not to be an object of the foreign fhould be feized for the benefit of all his creditors, and not of the firft creditor who fhall take out a foreign attachment, otherwife there would be few objects for this equitable law to operate upon.

Such has been the uniform conftruction of the law of attachments in Pennʃylvania from the year 1724, to the paffing of the act of the 24 Geo. 3. c. 5, which laft act gives a legiflature fanction to the preceeding practice.

We have, therefore, no hefitation in declaring our unanimous opinion, that the foreign attachments againft Lazarus Barnet be diffolved.

The ƒoreign attachments diffolved.