
    Byrne versus Crowninshield.
    Land under a prior attachment to its full value is property that may by the common and ordinary process of law be attached, within the meaning of the statute of limitations. So, of shares in a bank or insurance company.
    A debtor, formerly a citizen of this State, passed eight or ten days doing business in Salem without concealment, and appeared on two or three days publicly doing business in Boston, but without an intention of dwelling in this State: whether this is such a return as will make the statute run against creditors living in Salem or elsewhere, quasre,
    
    Assumpsit on four promissory notes, which were respectively payable on the 15th of July, 1st and 15th of August, and 1st of September, 1811. The defendant pleaded the statute of limitations. (Si. 1786, c. 52, § 4.)
    The following facts appeared in a case stated by the parties.
    The plaintiff was a citizen of the State of New York when he action accrued, and continued so until the commencement of this suit. The defendant lived without this Commonwealth, with his family, from the time when the action accrued until he came to live here, within six years before the suit was commenced, except that in the year 1812 he passed eight or ten days doing business in Salem without concealment, and appeared on two or three days publicly doing business in Boston. His family resided at the same time in Middletown in Connecticut, where he also then had his home, and he had not then returned to this Commonwealth with an intention of dwelling here.
    The defendant, at the time xvhen the plaintiff’s action accrued, had sundry parcels of real estate, which were then under attachment at the suit of one Silsbee. That suit was afterwards prosecuted to final judgment and execution, and the whole of the real estate was set off on the execution, while the lien created by the attachment continued, at the appraised value of 5300 dollars.
    The defendant also, on the 25th of July, 1811, had shares in txvo incorporated insurance companies in Salem, to the value of 2600 dollars, which were on that day transferred to Silsbee. There were also dividends then due to him from these shares, to the amount of 264 dollars. The sum of 2270 dollars likewise was due to him, at the time when the plaintiff’s action accrued, from the administrator of Jacob Crowninsliield, of Salem. The two last sums remained due until the 14th of February, 1812, on which day he made an assignment of all his property to his creditors, pursuant to the insolvent laws of New York, where he then lived.
    
      Nichols, for the plaintiff,
    contended that the action was not barred by the statute of limitations. The return of the defendant for eight or ten days, while his family lived without the State, was not the return intended by the statute. White v Bailey, 3 Mass. Rep. 273. The true principle is, that th creditor should use reasonable diligence in bringing his suit. It is to be presumed, in the present case, that the creditor did not know of the defendant’s return. It is the business of the debtor to seek the creditor, and not of the creditor to seek the debtor. Dwight v. Clark, 7 Mass. Rep. 517. Neither did the defendant “ leave property or estate within this Commonwealth that could by the common and ordinary process of law be attached,” within the meaning of the proviso in the statute. The extent on the real estate relates back to the time when the attachment was made. Brown v. Maine Bank, 11 Mass. Rep. 158. The defendant had neither a general nor a special property in the land after it was attached, but the property was in abeyance ; Ladd v. North, 2 Mass. Rep. 517; and the result of the first attachment shows that a subsequent one by the plaintiff would have been invalid. It could not be the intention of the legislature, that a party should be at the expense of a suit by which he could neither compel the appearance of the debtor, nor obtain any security for his debt. If the land had been conveyed by deed, an attachment would be void ; the same remark must apply to a levy of an execution, which is a statute conveyance. Bartlett v. Harlow, 12 Mass. Rep. 350. Had the plaintiff attached the land when his action accrued, and recovered judgment by default in the absence of the defendant, the judgment might have been reversed on a writ of error, as the whole of the land was set off to the first attaching creditor.
    The insurance shares could not be attached by the common and ordinary process. A peculiar mode is pointed out by the statute for attaching such property. The ordinary process applies to land and goods. [It was admitted by the defendant’s counsel, that the property in the administrator’s hands and the dividends on the insurance shares could not be attached.]
    
      Prescott and Cummins, for the defendant,
    cited Fowler v. Hunt, 10 Johns. Rep. 464, in reference to the defendant’s return into this Commonwealth.
    The clause in the statute, relating to a debtor’s leaving property which may be attached, is peculiar to New England. It is not found in the statutes of limitations of other States or of England, where the property of a debtor cannot be attached on mesne process to respond the judgment which the plaintiff may recover. The object of the provision is, to give the courts of this Commonwealth jurisdiction, in order that a creditor may reduce his simple contract to a judgment; for the law presumes that a creditor will not rest on such a contract after six years
   Per Curiam.

By a return within the government must be meant such a return as would give a party reasonable opportunity to commence an action. In White v. Bailey it is said, that a person must return with a design to dwell within the jurisdiction of the Commonwealth ; but that was not the point before the Court. Here the defendant remained eight or ten days in Salem for a temporary purpose. This might be sufficient in respect to a creditor living in that town, but not so in regard to a creditor living in New York. It is not necessary, however, to decide this question, because we are satisfied on another ground that the action cannot be maintained.

The plaintiff says, that it would have been of no use to attach the real estate, because it was already under attachment to its full value ; and that if he had attached it and obtained judgment, the attachment would have been void, and the judgment erroneous. But we are of opinion, that the prior attachment did not affect the plaintiff’s right to attach the same property, it being altogether uncertain whether the first suit would be prosecuted to judgment. This property gave an opportunity to the plaintiff to keep his demand alive, as well as if there had been no prior attachment.

It is not necessary to determine the question about the shares in the insurance companies ; we think, however, that they also might have been attached by the ordinary process ; the law points out a different mode of service only. The legislature probably meant to distinguish between the ordinary process and the trustee process. A creditor might not choose to rely on the oath of a trustee ; but he has the means of ascertaining whether his debtor owns shares in banks and insurance companies, (St. 1804, c. 83, § 4,) and such shares are liable to attachment, within the letter and the meaning of the statute of limitations.

According to the agreement of the parties, the plaintiff must be nonsuit. 
      
       The word “ return” in the statutes means coming into the State; and foreigners who have never been in the United States, or the State in which they sue, are within the exception in the statutes. Duplein v. De Rover, 2 Vern. 540; Strithorst v. Graeme, 3 Wils. 145; Hall v. Little, 14 Mass. R. 203; Chomqua v. Mason, 1 Gallison, 342; Ruggles v. Keeler, 3 Johns R 263. See also Jones v. Henry, 3 Littell, 48; Wilson v. Appleton, 17 Mass. R 180; Pancoast v. Addison, 1 Har. & J. 350; Doe v. Harrow, 3 Bibb, 446; Fau v. Roberdeau, 3 Cranch, 174; Thurston v. Fisher, 9 Serg. & R. 293.
     
      
       See Mazozon v Foot, 1 Aikens’s R 282; Gregory v. Hurrill, 8 Moore, 189 S. C. 1 Bingh 324.
     
      
       See Little v. Blunt, 9 Pick. 488.
     