
    
      FISK vs. CHANDLER.
    
    Appeal from the court of the first district.
    ofr^iebta-11'0 hisnote though smt-
    , Till there be a stay of ceedings any creditor may
    necessary.
    Porter>for the plaintiff.
    On the 14th of Octo-bcc? 1818, the plaintiff instituted a suit by at- . v against the defendant for 3596 dollars. . 31 cents, anil seized his property in the hands ofT. Howe, under a writ issued out of the par-court, and on the next day he instituted another suit, in the district court, on which an attachment was issued and levied in the hands of the same person. The first suit was after-wards transferred to the district court, by consent of the parties ; both suits having been consolidated there was judgment for the plantiff, and the cause is now before this court on a bill of exceptions and a statement of facts.
    The bill is taken to the opinion of the district court in overruling the motion of the tie-femlant’s counsel.to set aside the suit originating in the district court, on the ground that, from the plaintiff’s own shewing, the debt was not payable at the time the attachment issued.
    As the petition alledged the bankruptcy of the defendant, this circumstance suffices to give the right to sue immediately. MBride vs. Cocherons, 5 Martin, 276.
    
    If the petition sets forth a case which authorizes an attachment, this court cannot enquire into the proof exhibited to the judge or clerk of the court from which the attachment issues. 1 Martin’s Digest, 512 n. 6 Sj* 516 n. 2.
    
    If the court should think that they have a right to enquire into the evidence on which the attachment issued, the depositions and docu. merits annexed to the petition abundantly prove the failure of the defendant, previous to the issuing the attachment in both cases. The bill of exceptions can only be considered as applying to the case originating in the district court, as it was taken before the transfer of the other case.
    On the merits, the case is so fully with us, that we need only to refer the court to the state» meat of facts.
    
      Hennen, for the defendant.
    Our attachment law provides for two cases, where the debt ⅛ due at the time of issuing the writ, acts of 1^17? page S0, § S, and the other where the debt is not yet due. lo. 9.
    The plaintiff wishes to bring himself within the provisions of the second section, although the notes had not arrived at maturity, by endea-vouring to prove the failure of the defendant.
    The proof offered, we contend, does not establish the fact of insolvency, bankruptcy or failure of the defendant. No evidence has been given of the protest of his notes, nor of any legal proceeding in the state of Massachusetts which justifies the plaintiff’s allegation. The plaintiff must prove that the defendant has done some act which, by the laws of Massachusetts, his place of residence and domicil, amounts to a bankruptcy. That has not been done. He does not pretend to bring himself within the provisions of the third section of the act of 1817, which was the only one that could authorise an attachment, in this case. If, however, the court should be of opinion that the defendant has become insolvent, has failed and become bankrupt, would an attaching creditor in such a case have a privilege over the others ? Does not ihe plaintiff by his own shewing declare that he wishes to take advantage of the other creditors ? Coop
      
      er’s Bankrupt Bates, Appendix, xxvii. The plaintiff moreover shews by the assignment, which he has given in evidence, and which forms a part of the statement of facts, that the defendant has no right in the property attached. The court must presume every thing against the plaintiff and in favor of the defendant, and will therefore presume, as the contrary does not appear, that a delivery has been matte under the assignment previous to the attachment.
    Under all the considerations of the case we trust the court will dismiss the attachment or render judgment in favour of the defendant.
    
      Porter, in reply.
    We not only rely on the third section of the act of 1817, referred to by the defendant’s counsel, but we contend that the petition sets forth a case which authorizes an attachment — under the second, because the debt sued for, although not yet payable, according to the terms of the contract, had become so by the insolvency of the debtor: the rule being that on his insolvency all debts become payable presently, although by the terms of the contract they be only so in futuro. The insolvency of the defendant is alledged in the petition and the affidavit which the law requires is annexed thereto. The rule of which we claim the ben fit is found in our statute book, Civ. Code, 876. 7 art. 88, 'ana this court acted on it in the case of J\I‘Bride vs. Crocherons, which has already been cited.
    It is contended that sufficient proof of the insolvency of the defendant was not offered to authorize the issuing of the attachment. The proof, required by the act of 1817, already cited, is the affidavit of the plaintiff, his agent or attorney. This was furnished and if it be not deemed sufficient, it is believed that the depositions and documents annexed to the record will place the question out of doubt.
    It is said that the property attached had been assigned by the defendant, before the attachment. Adunnitting this allegation to be proved and that the property is identified, still the defendant must fail; for the assignee, as the property was not delivered here, had only an inchoate right. So, this court decided in the case of Norris vs.^Mumford. 4 Martin, 20.
    
    If the defendant’s insolvency did not exist, he might have disproved our allegation of it. This he did not attempt.
   Martin, J.

delivered the opinion of the court, sprits were brought by attachment on two notes of the defendant, before the arrival of the day m which they were made payable. The suits being brought on different days, were consol?» dated. Before the trial, the defendant prayed that the attachment on one of the suits might be dismissed, the affidavit and petition not shewing a sufficient cause. The court overruled the motion and be took his bill of exceptions. There was afterwards a judgment for the plaintiff and the defendant appealed.

The affidavit establishes the debt and the residence of the defendant out of the state, and the petition avers his failure.

His counsel contends that the attachment ought to have been dismissed, as no evidence was given of the protest of any of the defendant’s notes or any legal proceedings or any act of bankruptcy.

We are of opinion that the district court did not err. The petition averred the failure of the defendant, and this under our statute authorized the suit. Civ. Code, 276, art. 88. The affidavit established the only two facts which the law requires — the existence of the debt and the residence out of the state of the defendant.

On the merits, the execution of the note is admitted by the statement of facts, and the depositions which come up with the record establish 4the failure of the defendant.

But the defendant’s counsel contends that one of the creditors of an insolvent has no privilege and caniiot attach his property, which must remain liable to the claims of all generally. As long as proceedings at law against a debtor’s person and property have not been stayed, any of his creditors may resort to either for the payment or security of his debt. Whether he does attach or receive goods or money for the joint benefit of all, or to his own private use, is a question useless to be discussed in the present case. _

The defendant’s counsel further contends that the property attached, though once the debtor’s, has ceased to be his by assignment, which the court must presume to have been followed by delivery, although none be proved. If no delivery be proven the consequence is the same as in all other cases, lie non apparentibus et non existentibux eadem est lex.

It is, therefore, ordered, adjudged and decreed? that the judgment of the district court be affirmed with costs.  