
    C. Weyman, & J. T. Weyman, executor and executrix of S. Gale, vs. John Murdock, executor Z. Miller.
    
      Process by attachment will not lie against an absent executor or-administrator.
    
    An order was made to quash the proceedings in this cáse, on the ground that an attachment will not lie against an absent executor, for a debt which was due by the testator; and an appeal taken from that order.
    
      Gilchrist, for the motion.
    The attachment is a proceeding in rem., and was'intended to come in stead tif the proceeding 
      in personam, when the defendant cannot be found. If the executor were within the state, he would be proceeded against personally, as a debtor, though in a representative capacity; and when absent, there is no reason why the proceeding by attachment should not apply to him. .
    If the attachment will not lie, there is no remedy for the Creditors of estates, in the absence of the executor; for in the case of Griffith vs. Frazier, 8, Cranch, 9 to 23, it was decided, that the ordinary could not grant administration, during the absence of the executor.
    
      King, contra.
    By the attachment act, the process can only issue against an absent deHor. The executor is not the debt- or, it is the debt of bis testator, and he is therefore not included. If the plaintiff were without remedy, it would he a matter to he regretted, hut this court would not strain it’s powers, to give him one. The court of Equity, however, has the power and will relieve; that court can impound the property, until the executor account for his administration. The courts of New-York and Pensylvania, have decided, that an attachment will not lie against an executor. 2 Dallas, 73, 97/ Í Johns, ca. 372. See also the case of Warwick vs. the adndr. of Telfair, decided in this court, Jan. 1822. Journals Con. Court.
    
    According to the adjudications on the subject, an attachment has an effect in binding the property, and giving a preference to the attaching creditor; and if it were allowed against executors, would wholly defeat the act of die legislature, prescribing the mode of marshalling assets.
    
      Clarke, in reply.
    The words of die act of assembly are very broad, and include all descriptions of persons who are, in way, debtors. It is no objection diat this proceeding will derange the order in which executors are directed to pay debts. An executor, when he undertakes the office, should know what it requires of him. It is his own fault, if one creditor obtains a preference to the injury of others, aiid no doubt he will be individually liable to make it good. If Equity can give jelief in such a case, it is he who should be sent there to seek it.
    
   The opinion of the court, was delivered by

Mr. Justice Bay.,

The point submitted in this case is, whether a writ of attachment will lia against an executor, who Is out of the limits of the state. Upon consideration of the above case, I am clearly of opinion that a writ of attachment under our act, will not lie against an executor or administrator, for they represent deceased persons, for whose debts they are not in any wise responsible. The terms of our act, confine its operations to absent debtors only, who are originally responsible in their own right; and the attaching their estates and effects is only a mode to make them Come in and answer for their own debts: the whole of the proceedings from the first process to the finaljudgment and execution, are confined to the absent debtor only. On the contrary, an executor or an administrator is not the debió?-, conseqently, the writ of attachment can never reach or attach upon either of them. In 2d Dallas, 73 and 97, it is laid down that executors, administrators and trustees are not liable to the writ .of attachment, as they all act in a representative capacity; and in this eourt, in 1801, an attachment which had been issued against an fexecutor was withdrawn, because the court thought it would not lie; and from that day to the present time, there is no trace of an attachment against an executor or administrator, to be found oii the records of our court. Besides, it would derange the whole course of administration and marshalling of assets, if an attachment were permitted to bind, or take away the property of a deceased person out of the hands of an executor or administrator, and prevent him from paying the debts of the testator or intestate according to law. The attachment law is a proceeding in rem, agreably to the civil law, unknown to the common law; and in all such newly created proceedings, the rule of law is, that they shall be carried o.n strictly within the letter of the law, and shall not be allowed any other or further powers by construction or intendment, than are expressly given by the act creating them.

Clarke.Gilchrist, for motion.

King, contra.

I am, therefore, of opinion that the motion should be refused'.—

Colcock, JYott, Gantt, Johnson &s Huger, Justices, concurred.  