Jones v. Lawrence , 36 Ala. 618 ( 1860 )

R. W. WALKER, J.

This is a suit upon an attachment bond, given in a case in which a non-resident creditor sued out an attachment against a non-resident debtor. The Code requires that, in such a case, the plaintiff" must, “in addition to the oath necessary in other cases, swear that, according to the best of his knowledge, information and belief, the defendant has not sufficient property within the Staté of his residence, wherefrom to satisfy the debt.” Code, § 2509. The simple question presented for decision is, whether, when the plaintiff in the attachment is sued oh his bond, for wrongfully suing out the attachment, he makes a full defense to the action, by proving that,-although the debtor had sufficient property in the State of his residence to satisfy the particular debt on which the attachment issued ; yet he did not have property in such State sufficient to pay all the debts then owing by him,, and due therein. This question must be answered in the negative. The plaintiff is to swear that, according to the best of his knowledge, &c., the defendant has not sufficient property within the State of his residence “to satisfy the debt” . What debt? Obviously the debt to recover which the attachment is sued out.' The legislature has required the non-resident creditor, when he proceeds against another non-resident, to swear to a state of facts which, if true, would clearly show that tlie creditor could not, if he made the attempt, collect his debt in the State of the debtor’s residence. The uselessness of legal proceedings there, justifies the 1680x1 to the process of attachment here. Butit does not follow, that the creditor would he unable to collect his debt in the State of the debtor’s residence, simply because the property of the debtor was insufficient to satisfy all of his liabilities. It is not unusual for diligent creditors to collect the whole of their demands against-persons whose assets do not'equal their debts. • • ■

A resident creditor can not sue out an attachment against a resident debtor, simply because the latter is insolvent; and no good reason can be assigned, why one non-resident should be allowed to attach the property of another, on grounds which would not justify such a proceeding on the part of one resident of the State against another. If any difference should be made, it should be rather in favor of the resident, than of the non-resident creditoi’. The remedy by attachment is a harsh one, at best; and this is especially the case, where both parties are non-residents. We feel no disposition to extend the right to the use of this process by one non-resident against another, to cases not falling within the language employed by the legislature.

Whether the existence of reasonable ground to believe that the debtor had not sufficient property in the State of his residence to satisfy the debt of the attaching creditor, would be a defense to an action on the bond, is a question not presented by this record. — See Pettit v. Mercer, 8 B. Monroe, 51-2.

Judgment affirmed.