
    RIKER vs. HIS CREDITORS.
    Eastern Dist.
    February, 1837.
    ATPEAL FROM THE COURT OF THE FIRST JUDICIAL DISTRICT.
    The Code of Practice, article 582, authorizes service of citation to be made on the attorney of the appellee, solely in cases when the latter resides out of the state.
    
      Absence from the state, of the appellee, does not authorize service of citation of appeal on his attorney.
    The Code of 582Ctauthoi-izes service of citation to be made on the attorney of the appellee, solely in cases mV/e/out ofUie state.
    the state,6of the noteUeaúthorizo service of dta-IiiTattorney.31 °n
    The attorney, appointed to represent the absent creditors in this case, took an appeal from a judgment of the District Court, dismissing his opposition to the proceedings of the insolvent and the creditors before the notary.
    The service of citation of appeal was made on the appellee, “by handing the same to H. Potts, Esq., his attorney, he (Riker) being absent from the state.”
    
      Potts, for the insolvent and appellee,
    moved to dismiss the appeal, on the ground that the citation was illegally served.
    
      Jackson, for the absent creditors,
    contended, that the insolvent had left the state, and no other service could be made than that stated in the sheriff’s return.
    2. The opposition should be sustained. Riker being a debtor in actual custody, could not take the benefit of the insolvent, laws, relating to voluntary surrenders. See act of 1S17, section 1. 2 Moreau’s Digest, 424. °
    
   Marlin, J.,

delivered the opinion of the court. *

The dismissal of the appeal is prayed for, on account of the irregularity of the service of the citation. The sheriff’s return is, “served on N. M. Riker, by handing a copy of cita-to P°tls> Esq., his attorney, he being absent from the state.” The Code of Practice, 582, authorizes the service on the attorney, solely in cases in which the appellee resides out of the state. Absence does not authorize it, when the party does not reside out of the state, for then, a copy of the citation must be left at his domicil; and it cannot be legally served on the attorney, or left at his domicil.

The appeal, therefore, must be dismissed.  