The opinion of the Court
(Barnes, President; Coxe, J. ; and Pettit, J.)
was delivered by
Coxe, J.
-The defendant, residing and trading in Paris, appears to have sailed for the United States in the last, autumn, probably by [425]*425way of England, with his wife and her parents. Having arrived at New York, he shortly after came with these persons to Philadelphia, where he was an entire stranger, and evidently in disguise, and under an assumed name ; he never expressed any intention permanently to reside here, and was probably a fugitive from his foreign creditors. He applied for the house of Mrs Dougherty, not for a year, or quarter, or half year, but in the month of November he applied to rent it until May, which would be less than six months, describing himself as a stranger unable to give security, offering to pay in advance, and expressing no intention to remain beyond May. There was therefore in the manner of taking the house a strong intimation that it was intended as a merely temporary residence, and that he had no intention of fixing his residence in Philadelphia; and at the time of withdrawing from his family to avoid the capias and the issuing of the domestic attachment, he had no creditor whose debt was contracted here but the owner of the house, who was amply secured by the property on the premises, and who has since been paid. There is no domestic creditor who applies for relief or protection under the attachment laws, and no such creditor is known to the court to exist.
It will be necessary for the court to review the state of the law as to domestic attachments prior to the act of the 4th of December 1807, Purd. Dig. 70, as it has been argued that the decisions of our courts prior to that act, were made under enactments essentially differing from it in the description of the persons liable to the writ, and consequently are not authority upon the question now under consideration.
As early as 1705, the legislature of Pennsylvania, in the preamble of an act entitled “ an act about attachments,” declared the mischiefs or inconvenience that the act was intended to remedy, in these words:
“ Whereas the laws of this government have hitherto been deficient in respect to attachments, so that the effects of persons absenting are not equally liable with those persons upon the spot, to make restitution for debts contracted in or owing in this province, to the great injury of the inhabitants thereof, and encouragement of such unworthy persons as frequently by absconding make an advantage of the defect aforesaid.”
The debtor is here described as “ absconding” and “ absenting,” [426]*426in contradistinction to those persons dwelling “upon the spot;” the debts as “ contracted or owing within this province the persons to be protected by the act as “inhabitants thereof.”
Although foreign creditors are allowed, upon principles of liberal justice, to secure their debts in cases in which a defendant has been brought within the principles of the domestic attachment laws, it will be found that in order to ground such a proceeding under all the acts of assembly which have since been in operation, this description in 1705 of the debtor, of Ids debts, and of his creditors, as the principal objects of legislative protection, has never been substantially changed, and has been recognised and sustained by judicial decisions without exception.
The act of the id of March 1723, Purd. Dig. 69, provides that no writ of attachment shall be issued but on oath or affirmation that the defendant in such attachment is indebted to the plaintiff therein named, in ¡he sain of 40 dollars or more ; and that the defendant, is and has been absconded from the place of his usual abode- for the space of six days, with design to defraud his creditors, as is believed ; and (hat the defendant has not left a clear real estate, in fee simple within this province, sufficient to pay his debts, &c.
On the 22d of January 1774, was passed “an act to oblige trustees and assignees of insolvent debtors to execute their trusts,” (Carey & Bioren 116, vol. 2), sect. 4, which has not been cited oti the argument. It provides:
“ And whereas the laws of this province respecting domestic attachments are defective, inasmuch as they do not empower I he justices to issue writs of attachments against persons who shall confine or conceal themselves within their own houses, or elsewhere, with intent to defraud their creditors.
“ Be it therefore enacted, that if It shall appear on oath, &c, that his or their debtor or debtors have concealed him or themselves elsewhere, for and during the space of six days, with design to defraud his, her or their creditors, as is believed, and that he, she, or they have not a clear real estate.” &c. as in former act.
The only difference between the act of 1807 and this, as to the debt, is the omission of the necessity of its amounting to 40 dollars. As to the debtor, it adds to the acts to defraud his creditors, which will render him liable to the writ, that he has “ remained absent from the state and the words “ lor and during the space of six days” are omitted. It [427]*427is therefore clear that no alteration was made in the laws existing prior to 1807, by this act, relating to the character of the defendant, the debt, or the creditors, so far as ! hey me involved in the case under consideration ; and that all jnthc.ai determinations under the acts of 1723 and 1774 apply with full force to the act of 1807 upon the questions under consideration.
We shall therefore proceed to consider the cases .which we regard as judicial authorities operative upon the case, and obligatory upon the court. The disjunctive conjunction used in stating the various acts of concealment, absconding, &c. in the act of 1807, on which great stress has been laid, has been introduced in fact hom the act of 1774 ; and the construction based upon its use in the funner would equally apply to the latter act.
In Lazarus Barnet’s Case, Judge Shippen has ably reviewed these three acts of assembly of 1705, 1723 and 1774, the latter being cited as 14 George 3, c. 5.
He considers three sort of debtors to be included in the act of 1705. 1st, those who never resided here ; 2d, those who had, but had absconded or otherwise removed, both being non residents within the 3d section ; and, 3d, those who were about to remove without security to their creditors. In the act of 1728 it is slated, “that divers irregularities and fraudulent practices had happened, to the injury of such creditors as were willing to accept an equal share of the effects of their debtors.” He then inquires to which of these three descriptions of debtors the preamble applies.
It could not be the first; they resided abroad, and their effects coming here only occasionally, there was no great danger of fraudulent practices. And the act of 1723, by continuing the former remedy against them, is regarded by Judge Shippen as making this manifest.
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The opinion of the Court
(Barnes, President; Coxe, J. ; and Pettit, J.)
was delivered by
Coxe, J.
-The defendant, residing and trading in Paris, appears to have sailed for the United States in the last, autumn, probably by [425]*425way of England, with his wife and her parents. Having arrived at New York, he shortly after came with these persons to Philadelphia, where he was an entire stranger, and evidently in disguise, and under an assumed name ; he never expressed any intention permanently to reside here, and was probably a fugitive from his foreign creditors. He applied for the house of Mrs Dougherty, not for a year, or quarter, or half year, but in the month of November he applied to rent it until May, which would be less than six months, describing himself as a stranger unable to give security, offering to pay in advance, and expressing no intention to remain beyond May. There was therefore in the manner of taking the house a strong intimation that it was intended as a merely temporary residence, and that he had no intention of fixing his residence in Philadelphia; and at the time of withdrawing from his family to avoid the capias and the issuing of the domestic attachment, he had no creditor whose debt was contracted here but the owner of the house, who was amply secured by the property on the premises, and who has since been paid. There is no domestic creditor who applies for relief or protection under the attachment laws, and no such creditor is known to the court to exist.
It will be necessary for the court to review the state of the law as to domestic attachments prior to the act of the 4th of December 1807, Purd. Dig. 70, as it has been argued that the decisions of our courts prior to that act, were made under enactments essentially differing from it in the description of the persons liable to the writ, and consequently are not authority upon the question now under consideration.
As early as 1705, the legislature of Pennsylvania, in the preamble of an act entitled “ an act about attachments,” declared the mischiefs or inconvenience that the act was intended to remedy, in these words:
“ Whereas the laws of this government have hitherto been deficient in respect to attachments, so that the effects of persons absenting are not equally liable with those persons upon the spot, to make restitution for debts contracted in or owing in this province, to the great injury of the inhabitants thereof, and encouragement of such unworthy persons as frequently by absconding make an advantage of the defect aforesaid.”
The debtor is here described as “ absconding” and “ absenting,” [426]*426in contradistinction to those persons dwelling “upon the spot;” the debts as “ contracted or owing within this province the persons to be protected by the act as “inhabitants thereof.”
Although foreign creditors are allowed, upon principles of liberal justice, to secure their debts in cases in which a defendant has been brought within the principles of the domestic attachment laws, it will be found that in order to ground such a proceeding under all the acts of assembly which have since been in operation, this description in 1705 of the debtor, of Ids debts, and of his creditors, as the principal objects of legislative protection, has never been substantially changed, and has been recognised and sustained by judicial decisions without exception.
The act of the id of March 1723, Purd. Dig. 69, provides that no writ of attachment shall be issued but on oath or affirmation that the defendant in such attachment is indebted to the plaintiff therein named, in ¡he sain of 40 dollars or more ; and that the defendant, is and has been absconded from the place of his usual abode- for the space of six days, with design to defraud his creditors, as is believed ; and (hat the defendant has not left a clear real estate, in fee simple within this province, sufficient to pay his debts, &c.
On the 22d of January 1774, was passed “an act to oblige trustees and assignees of insolvent debtors to execute their trusts,” (Carey & Bioren 116, vol. 2), sect. 4, which has not been cited oti the argument. It provides:
“ And whereas the laws of this province respecting domestic attachments are defective, inasmuch as they do not empower I he justices to issue writs of attachments against persons who shall confine or conceal themselves within their own houses, or elsewhere, with intent to defraud their creditors.
“ Be it therefore enacted, that if It shall appear on oath, &c, that his or their debtor or debtors have concealed him or themselves elsewhere, for and during the space of six days, with design to defraud his, her or their creditors, as is believed, and that he, she, or they have not a clear real estate.” &c. as in former act.
The only difference between the act of 1807 and this, as to the debt, is the omission of the necessity of its amounting to 40 dollars. As to the debtor, it adds to the acts to defraud his creditors, which will render him liable to the writ, that he has “ remained absent from the state and the words “ lor and during the space of six days” are omitted. It [427]*427is therefore clear that no alteration was made in the laws existing prior to 1807, by this act, relating to the character of the defendant, the debt, or the creditors, so far as ! hey me involved in the case under consideration ; and that all jnthc.ai determinations under the acts of 1723 and 1774 apply with full force to the act of 1807 upon the questions under consideration.
We shall therefore proceed to consider the cases .which we regard as judicial authorities operative upon the case, and obligatory upon the court. The disjunctive conjunction used in stating the various acts of concealment, absconding, &c. in the act of 1807, on which great stress has been laid, has been introduced in fact hom the act of 1774 ; and the construction based upon its use in the funner would equally apply to the latter act.
In Lazarus Barnet’s Case, Judge Shippen has ably reviewed these three acts of assembly of 1705, 1723 and 1774, the latter being cited as 14 George 3, c. 5.
He considers three sort of debtors to be included in the act of 1705. 1st, those who never resided here ; 2d, those who had, but had absconded or otherwise removed, both being non residents within the 3d section ; and, 3d, those who were about to remove without security to their creditors. In the act of 1728 it is slated, “that divers irregularities and fraudulent practices had happened, to the injury of such creditors as were willing to accept an equal share of the effects of their debtors.” He then inquires to which of these three descriptions of debtors the preamble applies.
It could not be the first; they resided abroad, and their effects coming here only occasionally, there was no great danger of fraudulent practices. And the act of 1723, by continuing the former remedy against them, is regarded by Judge Shippen as making this manifest. The act of 1723 makes a new provision with respect to both the other classes, which are consolidated in one- — “ persona who have absconded from their usual place of abode for six days vt i<!» design to defraud their creditors, without regard to then being <» out of the province.” If they had absconded with desit; n to defaud their creditors, the act of 1774 merely multiplies the act ¡ w:ib do sign to defraud, which latter acts of bankruptcy bring the dt leudan! within the statute. The preamble of the act of 1774 may l»p said also to apply most evidently to domestic creditors.
The word “inhabitant” has a plain meaning. A p-'i -on coining [428]*428hither occasionally as a captain of a ship, in the course of trade, cannot be called an inhabitant; nor does* person going from his settled habitation here, on occasional business to Boston, or any other place cease to be an inhabitant. But a man who comes from another place to reside among us, introduces his family, takes a house, engages in trade, contracts debts, and after some time runs away with design to defraud bis creditors — he ought surely to be considered as such an inhabitant, as not to be an object of the foreign attachment, bat of the domestic one.t
Such has been the uniform construction of the law from 1724 until the act of 1774, which last gives a legislative sanction to the practice.
After reviewing the numerous cases cited on both sides of the argument, we have found ourselves brought back to this most clear and satisfactory authority, which, although the leading case on domestic attachments, has never been overruled or been shaken by judicial decision. In some instances, efforts have been made to modify it, particularly to fix: a definite time during which a defendant must have resided, engaged in trade and contracted debts, but no time has yet been judicially settled. Probably no particular or specific time may be necessary ; but the defendant must in fact reside here, and contract debts here, and subsequently abscond from the place of his usual abode in this stale, &c,, with design to defraud his creditors.
Judge Shippen lias said, in reference to the preamble of the act of 1723, it could not mean the first class of debtors, as there was no danger of fraudulent practices in relation to them, they residing abroad — so there could be no such clanger requiring legislative interposition in relation to foreign creditors whose debts were not contracted here.
The defendant cannot be regarded as within this description. He was a stranger in disguise, flying from his domicil in Paris, to avoid foreign creditors, temporarily concealing himself in Philadelphia, in a house taken for that purpose, and not with a view to a permanent residence; no debts contracted here that he could by absconding defeat ; no domestic creditor existing; none whom he could have designed to defraud by absconding or concealing himself.
The practice of the courts of this state in relation to domestic attachments, has been too long settled to be now disturbed without. [429]*429legislative enactment. The affidavit to ground the suit in the ease before us, which is well drawn, shows the views entertained by the counsel in relation to that practice. ..... »
The court being of opinion that the defendant is not the subject of a domestic attachment, order the rule to be made absolute.
Attachment dissolved,
See the act of the 13th of Jone 1836, sect, J, I’ampfi. Laws 608.