LONDON.
The original design of this writ was to secure the appearance of one who had dis regarded the original summons, by taking possession of his property as a pledge ; 3 Bla. Com. 280.
By an extension of this principle, in the New England states, property attached re mains in the custody of the law after an ap pearance, until final judgment in the suit. See Bond v. Ward, 7 Mass. 127, 5 Am. Dec. 28.
In some states attachments are distinguish ed as foreign and domestic,—the former is sued against a non-resident of the state, the latter against a resident. Where this dis tinction is preserved, the foreign attachment enures solely to the benefit of the party su ing it out ; while the avails of the domestic attachment may be shared by other cred itors, who come into court and present their claims for that purpose.
It is a distinct characteristic of the whole system of remedy by attachment, that it is— except in some states where it is authorized in chancery—a special remedy at law, be longing exclusively to a court of law, and to be resorted to and pursued in conformity with the terms of the law conferring it ; and where from any cause the remedy by attach ment is not full and complete, a court of equity has no power to pass any order to aid or perfect it ; Drake, Att. § 4.
In the New England states the attachment of the defendant's property, rights, and credits is an incident of the summons in all actions ex contractu. This is called Trustee Process, q. v. Elsewhere throughout the country the writ issues only upon cause shown by affidavit. And in most of the states its issue must be preceded by the execution by or on behalf of the plaintiff of a caution ary bond to pay the defendant all damage he may sustain by reason of the attachment. The grounds upon which the writ may be ob tained vary in the different states. Wherev er an affidavit is required as the basis of the attachment, it must verify the plaintiff's cause of action, and also the existence of some one or more of the grounds of attach ment prescribed by the local statute as au thorizing the issue of the writ.
Among the grounds upon which attach ments are usually permitted by statute, the most frequent and universal is non-residence iu the state, which is the primary basis for the issue of a foreign attachment; with respect to this ground, however, a man may have two residences in different states ; Bar ron v. Burke, 82 Ill. App. 116 ; Rosenzweig v.
Wood, 30 Misc. 297, 63 N. Y. Supp. 447. Then again, in most jurisdictions, attachments may be levied against the property of absconding debtors, either actual ; Stewart v. Lyman, 62 App. Div. 182, 70 N. Y. Supp. 936 ; or in tentional ; Stock v. Reynolds, 121 Mich. 356, 80 N. W. 289 ; Stouffer v. Niple, 40 Md. 477 ; and this intention must be shown ; Hanson v. Tompkins, 2 Wash. 508, 27 Pac. 73 ; one has been held to be an absconding debtor who conceals himself ; Stafford v. Mills, 57 N. J. L. 574, 32 Atl. 7 ; or absents himself so as to prevent the service of ordinary process iupon him; Ellington v. Moore, 17 Mo. 424.
Other grounds upon which attachment is per mitted in some states are: The fraudulent incurring of a debt under contract ; Mer chants' Bank of Cleveland v. Ins. & Trust Co., 12 Ohio Dec. (Rep.) 738 ; fraudulently re moving or disposing of property ; Bullene v. Smith, 73 Mo. 151; Howard v. Caperon, 3 Civ. Cas. Ct. App. § 313; or trans ferring it ; Culbertson v. Cabeen, 29 Tex. 247; though in the ordinary course of busi ness ; Farris v. Gross, 75 Ark. 391, 87 S. W. 633, 5 Ann. Cas. 616; but the removal must be fraudulent ; Dunn v. Claunch, 13 Okl. 577, 76 Pac. 143 ; and it must be actually, not constructively, fraudulent ; Wadsworth v. Laurie, 164 Ill. 42, 45 N. E. 435 ; the death of a non-resident debtor owning property in the state ; Bacchus v. Peters, 85 Tenn. 678, 4 S. W. 833 ; failing to pay on delivery the price or value of goods delivered where there was a contract so to pay ; Harlow v. Sass, 38 Mo. 34; Miller v. Godfrey, 1 Colo. App. 177, 27 Pac. 1016; the fact that a demand is not otherwise secured, or that security given has become worthless; Williams v. Hahn, 113 Cal. 475, 45 Pac. 815 (but not if the security was originally worthless ; Barbieri v. Ha meln, 84 Cal. 154, 23 Pac. 1086) ; the failure to pay for labor performed when it should have been paid at the time ; De Lappe v. Sul livan, 7 Colo. 182, 2 Pac. 926.