
    Edward Williams’ Administrators v. William J. Welton’s Administrator.
    1. By the provisions of the code of civil procedure, section 52, an action other than those provided for in sections 45, 46, and 47, may be brought against a non-resident of the state, in any county in which, he may have property or debts owing to him, or where he may be found. In case he can not be found and personally served, the court can acquire no jurisdiction in the action except it be one in which service by publication can be made.
    2. To authorize a service by publication or by personal service of summons and a copy of the petition outside of the state, on such hon-resident, under the third clause of section 70 of the code, he must have property or debts owing to him within the state, and the relief sought must consist in taking such property or debts under some one of the provisional remedies of the code, or in appropriating in some way such property or debts.
    3. When the scope and purpose of the action is to recover a judgment for money only, to be enforced by execution, or such other judicial proceedings as may be founded on such a judgment, and no relief in the action is sought against such property or debts, the 70th section of the code does not authorize a personal service, out of the state, on such nonresident.
    4. The service of an alias summons, which was issued and served within the life of a prior summons, is not void or voidable, when at the time the same was issued and served, the prior summons was not in the hands of the officer nor under his control. Hence, where a summons dated July 23, and returnable August 5, was, without authority of law, sent to another state for personal service on a non-resident defendant, another summons may issue and be served in the county where the action is-brought, during the life of the former writ.
    Error to District Court of Franklin county.
    Suit was commenced by William J. Welton, against tbe estate of Edward Williams, in Franklin county, January 9, 1867, to recover a judgment for money only, on a contract made by tbe intestate.
    Williams died in Maryland, February 4,1864, and on the-18th of that month, letters of administration were granted, to Mayberry Goheen and Susan M. Williams, the present defendants, by the orphans’ court of that state.
    Williams died seized of real estate in Pickaway county,. Ohio, and debts owing to him in Franklin county, Ohio, and on the 10th of January, 1866, said defendants were also-appointed administrator and administratrix of the estate of the deceased by the Probate Court of Pickaway county.
    The petition avers, that said Mayberry Goheen and Susan-. M. Williams are non-residents of the State of Ohio, and residents of Baltimore, Maryland; that the claim sued on was duly presented to them for allowance as a valid claim against the estate, and was disallowed.
    The action was brought within the time limited by statute for'suit on rejected claims.
    In order to lay the foundation for personal service on the-defendants out of the state, the petition contains the following allegation :
    “ The said plaintiff says that one J. O’B. Reniek, who is-a resident of. said Franklin county, Ohio, is now indebted to the estate of the said Edward Williams, and now owes a large sum of money to the said Mayberry Goheen and the-said Susan M. Williams, as administrator and administratrix of the estate of the said Edward Williams. Wherefore-the said plaintiff prays judgment against the said Mayberry Goheen and the said Susan M. Williams, as administrator and administratrix of the estate of said Edward Williams,, ’for the said sum of five thousand and seventeen dollars and ■forty-five cents, together with interest from November 6, 1866, and for costs of this suit’, to be levied and paid out of the estate of the said Edward Williams in the hands of the •said defendants to be administered.”
    In addition to the verification of the petition by the .attorney, who alleges that the plaintiff was a non-resident ■of Eranklin county, and was then absent from the county, .said attorney made affidavit as follows :
    “ H. J. Wylie, being first duly sworn, says that he is the attorney and agent of the plaintiff, and that service of a ¡summons can not be made within the State of Ohio upon the said defendants, or either of them ; and that this action is brought against non-residents of this state, and having, in this state, and in the said county of Franklin, debts owing to the said defendants, sought to be appropriated to the payment of •the said claim of the plaintiff.
    
    
      “ H. J. Wylie, being duly sworn, says that he believes the .facts set forth in the above affidavit are true.
    “ H. J. Wylie.
    “ Sworn to before me by the above named H. J. Wylie, ■.and subscribed in my presence, this 9th day of January, a. d. 1867. T. S. Shepard, Clerk.”
    
    Several ineffectual efforts were made to obtain service on the defendants in Maryland.
    On the 25th of January, 1867, an alias summons was issued to the sheriff of Eranklin county, returnable July 8,
    1867, but not returned until August 5, 1867, when it was returned indorsed: “ July 8, 1867. The within named defendants not found in my bailiwick.”
    July 23, 1867, another alias summons was placed in the hands of the sheriff of Eranklin county, who indorsed thereon: “ Henry C. Seymour, of Baltimore, Maryland, is hereby authorized to serve this writ. William Domigan, sheriff of Eranklin county, Ohio.”
    This writ was returnable August 5, 1867, and was returned : “ Served on Groheen by leaving with him a copy of the writ and petition, at Hagerstown, Maryland, July 29, 1867,” and “ not found” as to Susan M. Williams.
    This return is made by Seymour, who verifies the same August 1, 1867, in Baltimore, and was filed in the clerk’s office August 3, 1867. July 29, 1867, another alias summons was placed in the hands of said sheriff:', returnable August 12, 1867, which was returned August 5, 1867, with service indorsed thereon as follows: “ July 29,1867. Served this writ personally on Susan M. Williams by copy. Wm. Domigan, Sheriff, by W. L. Turner, Deputy.”
    Afterward the defendants filed separate motions to quash, these several services, on the ground that they were insufficient.
    
      January 12, 1869, these motions came on to be heard,, and the court found that neither of the defendants were, at the commencement of the action, nor since have been, residents of the State of Ohio, and that neither is within the-State of Ohio, “ and service of summons can not be made upon them, or either of them, within this county.” The-court further found, as the reason for this conclusion of law, that Williams, at his decease, was a citizen and resident of Maryland, where administration was first granted;. that the contract sued on was made there, and that the cause of action accrued outside of Ohio.
    The service on Gloheen was quashed, because service-could not be made outside of the state on the affidavit filed in the case.
    The-service on Mrs. Williams,-made here in Eranklin county, was also quashed, because the summons on which-it was made was “ void or voidable,” as it was made on an-alias summons, dated July 29, 1867, in the life of a prior alias summons, dated July 23, 1867.
    April 29, 1869, Samuel Snowden, as administrator of the-plaintiff, Welton, filed a petition in error in the district, court, alleging that since the rendition of said judgment in-the common pleas, Welton has departed this life, and that he has been duly appointed his administrator.
    Summons in error was duly served on the attorney of record, and at the May term, 1870, of the district court, it was, by consent of parties, reserved for hearing in Pickaway county, the decision to be certified back.
    At the May term, 1871, of the District Court of Eranklin county (nothing appearing to have been done with the case in Pickaway county), the case was argued by counsel, both parties being represented, the judgment of the common pleas reversed, and cause remanded for further proceedings.
    To reverse the judgment of the district court this petition in error is prosecuted.
    
      Harrison, Olds & Marsh, for plaintiff in error:
    The petition in the original action was filed within a year from the time when letters of administration were granted in Ohio to the defendants in the action. The claim.of the plaintiff was not allowed by the administrators, nor reduced to judgment. The action was, in fact, brought to establish against the estate a claim which had been rejected by the administrators.
    No writ of attachment was ever issued or ever asked for. No affidavit therefor was filed.
    The cause of action arose in Maryland, upon a Maryland contract, made between residents of Maryland. Edward Williams died domiciled in Maryland, and there letters of primary and principal administration upon his estate were issued. When this action was commenced all the parties thereto resided in Maryland. And it appears from the nature of the transaction, as set forth in' the petition, that in all probability the witnesses all resided there.
    The courts of Ohio may not properly entertain jurisdiction to settle this controversy between these parties.
    Nor should the litigation be transferred from Maryland to Ohio. 2 Redfield on Wills, 22; Churchill v. Bryden, 17 Vt. 319; Swearingen v. Morris, 14 Ohio St. 430; Richards v. Dutch, 8 Mass. 506; Dawes v. Boylston, 9 Mass. 337; Abbott v. Coburn, 28 Vt. 663.
    
      On. the question, of service, see sections 70, 71, 74, 57, 58, 60, and 61.
    The petition made no case for constructive service by publication. , It does not set up any lien or claim upon the indebtedness of Renick, by reason whereof the plaintiff may “ appropriate ” it. Eagan v. Lumsden, 4 W. L. J. 161; Mitchell v. Eyster, 7 Ohio, 259; Paine v. Moreland, 15 Ohio, 443.
    The court in which the action was brought can not subject the debt due by Renick to the payment of the plaintiff’s claim, for:
    1. To do so would change the order of the payment of debts by the defendants, and give the plaintiff a priority over the other creditors of the estate.
    The assets of the decedent are to be reduced to money by the administrators, and they are to pay the debts in the order of their priority, ratably or in full, as the condition of the estate may warrant, or the order of distribution direct. If the administrator fail to do his duty in that regard, he is liable to the creditor in a proper proceeding against him, or upon his bond. He may not pay debts until after the expiration of a year from the time he has given notice of his appointment, and then only in case he has not notice of demands which will authorize him to represent the estate as insolvent. 8. & C. 584 (97).
    Section 194 of the code limits attachments to property not exempt by law from being applied to the payment of plaintiff’s claim. But assets of a decedent’s estate are not, except in special cases, subject to' execution; and for the same reason that such assets are not subject to the final process of execution, they are not subject to an attachment. Shewell v. Kern, 2 Wharton, 332; Drake on Attachment, sec. 498, and note 2; Coburn v. Ansart, 3 Mass. 319; Brooks v. Cooke, 8 Mass. 246; Stilman v. Isham, 11 Conn. 124; Waite v. Osborn, 11 Me. 185; Marvel v. Huston, 8 Harrington, 349; Thorn v. Woodruff, 5 Ark. 55; Walch v. Gurley, 5 Hayward (N. C.), 334; Adams v. Barrett, 2 N. H. 374; Cushing v. Heyde, 10 Mo. 374.
    
      In some of these cases the question was between legatees ;and the executor, but the principle is the same.
    2. The plaintiff' has no right to payment out of the Ohio .assets of the estate. They are to be applied by the ancillary administrators, first to the payment of Ohio creditors, and the surplus, if any, is to be remitted to the principal administration in Maryland. 1 S. & C. 616, sec. 260; 14 Ohio St. 429; 2 Redf. on Wills, 22; 17 Vt. 319
    1. The affidavit makes no constructive service by publication. Code, secs. 70, 71. It does not testify positively to anything. Code, sec. 192, subd. 3; Ib., sec. 200; Everts v. Thomas, 5 How. 45; Lawler v. Whelts, 1 Handy, 39; Dunboy v. Schwartz, 17 Ohio St. 640. Where affidavits on mere belief are sufficient, the code expressly authorizes them. “ Sed expressio nnius est exclusio alterius.”
    
    2. Our next objection to the affidavit is, that even were it positive, it would be insufficient, for the reason that the affiant, who is a mere attorney of the plaintiff', does not show that he had any personal knowledge, or means of knowledge, of the facts stated. Upon this point the follow ing case is direct: Phelps, Bliss & Co. v. Weatherby, 4 W. L. Jour. 404.
    3. The affidavit does not state that the plaintiff seeks to take the debt by any provisional remedy. Moreover, no affidavit therefor has been filed, nor has any such process been sued for or issued.
    If he merely seeks to appropriate the debt by establishing Ms claim through the due and ordinary course of administration, surely that will not, in letter or spirit, bring the case within the statute, and authorize constructive service.
    Service out of the state can only be made in a case in which publication would suffice. Code, sec. 74.
    The summonses were without authority of law, and void. The returns thereon were not verified, and therefore null. Thurston v. Kling, 1 Abbott, 126; Code, sec. 61. That upon Susan M. Williams was either void or voidable. Massie v. McCoy, 17 Ohio St. 225.
    July 23, 1867. Alias summons of that date was duly issued to and placed in the hands of the sheriff of Franklin county, returnable August 5, 1867, and notifying the defendant to answer by August 24, 1867.
    This writ remained in the hands of the sheriff until August 3, when it was returned. It was not served on Mrs. Williams.
    July 29, 1867. While the former writ was still alive and in the hands of the sheriff for service, another summons of that date was also issued to and placed in the hands of the sheriff of the same county of Franklin, returnable August 12, 1867, and notifying Susan M. Williams to answer by August 31, and on said July 29 returned by said sheriff as served on said Susan M. Williams.
    The code provides, section 60 : “ When a writ is returned ‘ not summoned,’ other writs may be issued, until the defendant or defendants shall be summoned; and when defendants reside in different counties, writs may be issued to' such counties at the same time.”
    As said before, all civil process in this state is regulated by statute. What necessity was there for the provision of this section of the code, if other writs might be issued, when another was not returned, or if different writs might he issued to the same county at the same time ?
    
      “ The express mention of one thing implies the exclusion of another.” Therefore the writ served (which was not a duplicate of the other) was void or voidable. The valid writ was not served on Susan M. Williams.
    The common pleas did not err in quashing the pretended service of this writ of July 23, 1867, upon Goheen, or in quashing the unauthorized writ of July 29, 1867, served upon Susan M. Williams.
    The adverse counsel have argued that the cause of action arose upon the payment by him of the Virginia judgment to Chas. Williams, and therefore in Virginia, and after administration was granted here.
    If this proposition is sound, still it amounts to nothing. The residence of the parties determines the situs of a personal debt, and the administration which shall allow or controvert it. But the proposition is unsound. Such is not the law. The cause of action, if any, arose not upon the payment of the Charles Williams note by the plaintiff,, but upon the failure of Edward Williams to pay it in a reasonable time. Wilson v. Stillwell, 9 Ohio St. 467; Wilson v. Stillwell, 14 Ohio St. 464.
    
      C. N. Olds, for the defendant in error :
    The Franklin Common Pleas had jurisdiction over the-subject-matter of the action, because :
    1. Although Williams was domiciled in Baltimore, Maryland, at the time of his death, and his administrators, Goheen and Mrs. Williams, also reside in Maryland, and administration was granted in Maryland on his estate in 1864, yet part of his estate was situated in Pickaway county, Ohio, and administration (not ancillary, but original) was granted to the same persons, Goheen and Mrs. Williams, in Pickaway county, Ohio, January 10, 1866, and there were-assets of the estate, debts owing to the estate, in Franklin county, Ohio, at the time this suit was commenced.
    2. Welton and Williams had been partners in Baltimore, Maryland, which partnership was dissolved in 1862,. Williams assuming to pay the liabilities of the firm. In February, 1866, Welton was sued in Hardy county, West Virginia, for a liability of the firm; a judgment was obtained against him, as survivor, September 21,1866, and in November, 1866, he was compelled to pay, and did pay, said judgment, $5,017.45, and this payment constitutes his cause of action against the estate of Williams. It accrued to him, as I claim, on the 6th of November, 1866, in West Virginia.
    3. This claim was presented to the administrators of Williams for allowance under the laws of Ohio, was by them rejected, and suit brought, under the laws of Ohio, within one year after the appointment of the administrators-in Ohio, within one year after the cause of action accrued to the plaintiff, and within six months after its rejection by the administrators.
    4. “Action against non-residents of this state maybe-brought in any county in which there may be property of or debts owing to said defendants, or where said defendant may be found. Code, sec. 52; S. & C. 960. See also as to foreign administrators, S. & C. 618, 615.
    Mrs. Williams, one of the defendants, was found in Franklin county, Ohio, July 29, 1867, and served with a •summons.
    5. I fail to find any rule of law, or anything in the facts •of this case, to compel this creditor of Williams’ estate to go to Maryland to have his claim adjudicated. On the •contrary, I find many reasons for bringing his case here:
    1. It is a common law right of action. There is nothing peculiar about it, to be regulated by statutes of one state rather than another.
    2. The cause of action accrued to him almost three years .after administration had commenced in Maryland, and there may have been many impediments in the way of the presentation and allowance of his claim there (how many or of what character I can not tell), and yet none of them affecting the substantial justice and equity of it.
    8. But it had accrued to him within the same year that .administration had been granted in Ohio, and the way for its presentation and allowance was perfectly clear and open under the laws of- this state. And, in case of its rejection by the administrators, the way for its legal adjudication was equally clear and open.
    4. The appointment of Goheen and Mrs. Williams, in ■Ohio, was, in no sense, ancillary to the appointment in Maryland. With the single exception of being later in point of time, it was just as primary, and independent, and .absolute as the other. And it conferred upon them all the rights, duties, and liabilities of administrators ’ under the laws of Ohio, as fully as if they and their intestate had been domiciled in this state.
    Aud as to the collection of assets in this state, the sale and disposition of property, and all proceedings and remedies against them, they are subject to the laws of Ohio, ■even under their appointment in Maryland. S. & O. 613, •615.
    
      
      Second. As to the jurisdiction of the court below over the persons of the defendants.
    I claim that the court acquired such jurisdiction by the-service of the summons issued July 23,1867, and served on Goheen, July 29, 1867, and served on Mrs. "Williams on the same day. If they acquired jurisdiction over either one, by either service, it is sufficient for the purposes of this-suit, for they jointly represent the estate, and the judgment sought against them is not a personal judgment, nor a judgment in rem, but a judgment establishing the plaintiff’s claim against the estate they represent.
    Let us examine each of these writs, and the service under them, separately, as to Goheen and Mrs. Williams. And,, first, as to Goheen.
    1. He is a non-resident and absent from the state. Personal service may be made upon him out of the state, if a case be first made for constructive service by publication. Code, sec. 74.
    2. Service by publication may be made in actions brought against a non-resident of the state, having in this state property, or debts owing to him, sought to be taken by any of the provisional remedies, or to be appropriated in any way. Code, sec. 70.
    Said Goheen, as administrator, had and held property in Pickaway county, and had debts owing to him in this,. Erauklin county.
    But it is said this property and this debt were not sought to be taken by any provisional remedy; no attachment was issued against it, nor even prayed for in the petition. Admitted. Still, if it was sought to be appropriated in anyway, it would be sufficient compliance with section 70 of the code to lay the foundation for this proceeding. The-petition describes this property in Pickaway county, and this debt in Franklin county, not for the purpose of establishing a specific lien of the plaintiff’s claim on this specific-property (for no such specific lien can be established against property in the hands of an administrator to be administered), but for the purpose of having this property, or its-proceeds, in the hands of the administrator, appropriated to the payment of the just debts and liabilities of the estate, •so that this claim of the plaintiff shall receive its share of said property in payment thereof.
    3. Before service by publication can be made, an affidavit must be filed that service of a summons can not be made within this state, and that the case is one of those mentioned in section 70 of the code. Code, sec. 71.
    Such affidavit was filed by H. J. Wylie, one of the attorneys of the plaintiff, covering, in terms and by positive •statement, the exact requirements of sections 70 and 71 of the code.
    I do not see how it could be made more direct, positive, and unequivocal. Every statement in the body of the .affidavit is absolute.
    This affidavit fully meets the code definition of an affidavit. Code, sec. 333.
    4. This summons, issued July 23, 1867, to the sheriff' of Eranklin county, returnable August 5, 1867, is indorsed by the sheriff', authorizing Henry C. Seymour, of Baltimore, Maryland, to serve the same. Code, sec. 61.
    Seymour made personal service of copy of summons and •copy of petition on Goheen, at Hagerstown, Maryland, July 29, 1867, verified by his affidavit attached to return, and made return August 3, 1867. As to Mrs. Williams, “ not found.” Code, secs. 61, 74.
    The only objection that can be found to this service is, that the affidavit does not state the place of service, though the return itself, to which the affidavit is attached, does .show the place. Both the return and the affidavit do show the time and manner of service, and that is all the code requires. It does not require the place to be shown.
    The law nowhere requires the private person, authorized in writing by the officer to serve his process, to do anything •more, or anything differently, either in the service or the return, than is required of the officer himself. It only requires that, as he is a private person, what he has done shall .be verified by oatb, whereas the officer does all his acts ■under his oath of office.
    And now, second, as to the service on Mrs. Williams.
    The summons was issued July 29, 1867, to the sheriff of Eranklin county, and served personally on the same day in Eranklin county, Ohio.
    Here, everything is regular in form, and also in time, manner, and place of service, and the only objection made is that this writ was irregularly issued, and therefore void or voidable. It is claimed to be irregularly issued, because, and only because, the writ of July 23, 1867, sent to Seymour at Baltimore, Maryland, was still outstanding as a valid writ.
    But I claim that under a fair and “ liberal construction ” of section 60 of the code, as to alias writs, both of these writs may be sustained as regular.
   Johnson, J.

It is claimed: 1. That as the intestate at his ■death, and these defendants, were all citizens of Maryland, residing there, where administration was first granted, and as this was a Maryland contract, the Court of Common Pleas of Eranklin county had no jurisdiction over the subject matter, and could acquire none over these defendants in their official character.

2. That if it had or could acquire such jurisdiction, the service on Mayberry Goheen, one of defendants, made out of the State of Ohio, was unauthorized and void.

3. That the personal service made on Susan M. Williams in this state was void or voidable, because made on a summons issued and served within the life of a prior summons, directed to the same officer, and before the prior writ had been returned.

1. As to the jurisdiction of the court over the subject matter and these defendants, aside from the nature of the service.

It was a well settled rule in England, that executors and administrators could not be sued, except in the courts of the country from which they derived their appointment. If a foreign executor or administrator collected assets in England, he could be sued as an executor or administrator de sontoil, though not in his official capacity.

Hence, if a creditor wished to bring suit to reach the-estate, he must first have an English representative appointed by the ecclesiastical court. 2 Williams Ex’rs [1641].

An administrator so appointed, was amenable to the-jurisdiction of the English courts for the due administration of the assets coming into his hands, and subject to-their judgments and orders in-behalf of creditors.

Our statutes (1 S. & C. 566) provide for such administration in this state, on the estate of a non-resident leaving an estate in Ohio. By sundry amendments (1 S. & C. 615, 616) the general administration laws of the state are made-applicable to the settlement of such estates as fully as if the intestate was domiciled within the state at the date of his death; “ and also the remedies and proceedings therein-given against executors and administrators, appointed by the laws of this state, shall apply to and be in full force and effect, as to any foreign administrator or executor appointed by the laws of any other state and residing in Ohio, or having assets or property in the same, and the several courts of probate and of record shall have like power and authority over said foreign executor and administrator, the same as-if appointed by the laws of Ohio.”

The various statutes make ample provisions for cases like the present, and fully warrant the remark of Ranney, J., in Swearingen v. Morris, 14 Ohio St. 431, that, “ By the administration laws, foreign executors and administrators-may sue and be sued in this state like those of our own appointment.”

As these defendants were appointed in this state, they were, so far as the estate was situate in Ohio, representatives under the laws of this state and under the control of our courts, as fully as if the intestate resided here at his death.

Some stress was laid on the fact that this was a cause of action arising in Maryland, and on a contract made there. Of themselves, these facts can have no significance, as it is an action for the recovery of money only, and in its nature transitory. An action may be brought on such a contract in any state where the court has jurisdiction over the subject-matter, and can acquire it by service on the person.

The code, sections 45, 46, and 47, provides for all eases of local actions, and 52 and 53 for those that are transitory.

By section 52, an action other than those named in sections 45, 46, and 47, against a non-resident of this state, . . “ may be brought in any county in which there may be property or debts owing to said defendant, or where he may be found.”

Section 53 provides that every other action must be brought in the county where some of the defendants reside- or may be served.

As this estate had debts owing to it in Eranklin county,, and the intestate and defendants were domiciled in Maryland, the common pleas had jurisdiction over the nonresident defendants, if service could be made under our-civil code.

We have been referred to a number of cases to support the claim made, that the Ohio courts have.no jurisdiction. “ over this controversy between these parties. Swearingen v. Morris, 14 Ohio St. 430; Churchill v. Boyden, 17 Vt. 319, and others.

It is said the administration in Ohio is ancillary to that in Maryland, and that foreign creditors have no right to-prove their claims against the estate here :

“ Ranney, J. Such new administrations (issued in other than state of domicile) are treated as merely ancillary or auxiliary to the original foreign administration, and subordinate to it, so far as regards the collection of the assets, and the proper disposition of them; and, as it seems to me, upon principle, should be limited to the necessity out of which they arise, and confined to the collection of the assets, and the payment of debts due to the citizens of the state, leaving any balance that may remain to be remitted to the state of the decedent’s domicile, .and there disposed of in accordance with the laws of such state.” Swearingen v. Morris, 14 Ohio St. 430.

In Churchill v. Boyden, it was held that creditors residing in tbe state of the domicile of the intestate, are not entitled to have their claims allowed by commissioners appointed in another state, under ancillary administration, “ to examine and adjust claims against the estate.” The case came before the Supreme Court of Vermont on an .appeal from the action of these commissioners refusing to allow the claim against the property in that state, the domicile of the intestate being in New York.

The general doctrine of these cases is, that it is the object of the ancillary administration to administer the assets found within the state, and remit the proceeds to the parent administration; but if there are home creditors, the courts having control of such ancillary administration will not allow the estate to be remitted to the foreign state until such creditors are first paid. If the general estate is solvent they are paid in full; but if not, they are paid pro rata, taking the whole estate and the whole liabilities into account to ascertain such pro rata payment. Dawes v. Head, 3 Pick. 128; Davis v. Estey, 8 Ib. 475; Story Conflict of Laws, 334, 337, 513-515; Hawley v. Richards, 1 Mason, 381

If this were an action that sought to direct the probate court as to the proper administration of these assets found in Ohio, these authorities would be in point. Here there is no contest between creditors residing in Ohio or elsewhere. In fact, we do not know there are any creditors except the plaintiff, if he be one, and, for aught that appears, he was a citizen of Ohio when this suit was brought. The Probate Court of Pickaway county has exclusive jurisdiction over these Ohio assets, and the conduct of these defendants in their administration, as completely as if the intestate had resided in Ohio. Without this Ohio appointment, their authority to administer them did not exist, except by comity.

When so administered according to Ohio laws, the residuum «belongs to the defendants in their capacity as administrators, under the control of the orphans’ court in Maryland.

If any conflict between Ohio and other creditors arise, and the estate was solvent, the probate court of this state might, in its discretion, and probably should require, that the Ohio creditors be paid in full; but if not solvent, a more ■difficult question arises. Some old authorities, acting on the maxim that all foreigners are barbarians and enemies, rehuiré the home creditors to be paid in full, if the assets within the state are sufficient, without regard to the solvency of the general estate. Such a principle is now hardly recognized as sound, or as comporting with the age, ■especially as between citizens of different states of a common Union. Be this as it may, it can not affect the question here.

The law gave the common pleas jurisdiction of the subject-matter in a ease of this kind and amount. The claim was rejected, and it became plaintiff’s duty to sue or become barred.

The object of the action is to adjudicate the claim. If it is established, the plaintiff is a creditor of the estate, on an equality with other creditors, with the right to execution against the estate in a certain event.

The relief sought is not to appropriate the property of the estate in any way, nor will a judgment prejudice the ■claims of domestic creditors, if there be any, nor interfere with the independent action of the probate court in directing this Ohio administration.

As defendants were non-residents of the state, having ■debts owing to them in their official character, in Franklin county, they were liable to be sued there if service could be made.

2. "Was the service on Mayberry Goheen in the State of Maryland a good service ?

¥e have in part anticipated this question. By section 74 it is provided that:

“ In all eases where service may be made by publication, personal service of a copy of the summons and complaint may be made out of the state.”

By sections 70 and 71 it is provided that:

“ Sec. 70. Service may be made by publication in either of the following cases : ... In actions brought against a non-resident of this state, . . . having in this state property or debts owing to them, sought to be taken by any of the provisional remedies or to be appro-' priated in any way.”
Sec. 71. “Before service can be made by publication, an affidavit must be filed that service of a summons can not be made within this state on the defendant or defendants for be served by publication; and that the case is one of those mentioned in the preceding section. When such affidavit is filed, the party may proceed to make service by publication.”

It is not claimed that any of the provisional remedies of the code, which warrant service by publication, were sought; but it is claimed that it is an action where there is property in this state and debts owing to defendants, sought “ to be appropriated ” by this action.

The right to serve a defendant by summons and a copy of the petition outside of the state, is limited to cases where constructive service can be made.

By section 70, when a defendant is a non-resident having-property in this state or debts owing to him, sought to be taken by any of the provisional remedies, orto be appropriated in any way, and personal service can not be made within the state, then service may be made by publication. It is essential to the jurisdiction of the court, either that there be persona] service,'or that the subject-matter of the action be under the control of the court. In case there is no personal service, the court has no jurisdiction unless property is reached or sought to be appropriated. To appropriate property by a judgment or decree of the court, is in the nature of a proceeding in rem.

The judgment, instead of acting on the person, acts on the thing, and only binds the person so far as he has rights in the property affected, and only then, subject to his right to have it vacated under section 75 of the code. Wood & Pond v. Stanberry, 21 Ohio St. 148.

The relief sought in the case at bar, was a money judgment against the estate as authorized by statute.

Such a judgment would not appropriate in any way the property or debts owing to the estate within the meaning of the code.

If a personal judgment, with the right to execution .against the estate, would amount to an appropriation of any part of this estate, then every such judgment against any person has the same effect, and it would follow that constructive service, or service out of the state, could be made in all actions to recover a money judgment where there was property in the state liable to execution, and the de-fendant might be served out of the state, without resorting to the remedial provision of the code.

The court must acquire jurisdiction over the property, •¿md its judgment must directly affect such property, otherwise it is not an appropriation of it in any way.

The motion to quash the service on G-oheen was therefore properly sustained.

8. Was the service on Mrs. Williams valid?

It was regularly made, July 29, on an alias summons of -the same date, by the sheriff of Eranklin county. The writ was in statutory form, and properly attested and sealed.

The claim made is, that it is a void writ, because issued •and served within the life of another alias writ, dated July 23 and returnable August 5. .

The last writ was indorsed by the sheriff, with an authority to one Seymour, of Baltimore, to serve the same in Maryland, and was on the 29th of July in his hands, and beyond the jurisdiction of the court, or the control of the •officer or the plaintiff'.

The code (sec. 60) provides that when a writ is returned “ not summoned,” other writs may be issued, and when defendants reside in different counties, writs may be-issued to such other counties at the same time.

It is argued that all process is the creature of the statute, and as there is no provision for issuing one writ before the-other is returned, when directed to the same county, and as provision is made for more than one writ when the defendants reside in different counties, the maxim “ expressiounius exclusio alterius” applies.

If this maxim is to govern in construing statutes relating to incidental remedies in all cases, it would lead us back to the era of technicality from which the code was intended-to relieve the practice.

No better illustration of this can be found than to apply this maxim to this section of the code. It provides for alias writs only when a wx'it is returned “ not summoned.” Therefore, if it is never returned, or is lost or destroyed, ox-filed without any return, no other writ can be issued, for “ the expression of one thing is the exclusion of another, and as provision is made for other writs in a given case, it excludes the power to issue in all other cases not ex-px-essed.”

This maxim, while of great value in the construction of wxitten instruments, is not, as this illustration of its application demonstrates, of univex-sal applicatioxx, and must be-used with great caution. Price v. The Great W. Ry. Co. 16 M. &. W. 244; Attwood v. Small, 6 Cl. & Finn. 48; Broom’s Legal Maxims, 654, 657.

The provisions of the code, and all proceedings under it, are to be liberally construed, with a view to promote its object and assist the parties in obtaining justice. Code,, sec. 2.

At the time the writ, which was served on Mrs.- "Williams, was issued and sei'ved, there was no other writ in the-sheriff’s hands, nor within the control of the court, officer, or party. The writ of July 23 had been sent out of the-state without authority of law, and placed in the hands of a stranger in Baltimore. The fact that it may have been* sent to Maryland at the instance of plaintiff can make no difference as to its validity.

Eor all practical purposes, it was the same as if lost or destroyed, or had never been issued.

The object of a summons is to give the party notice, and as each of these writs was in due form, one was as effectual, as a notice, as the other to the party served.

Keeping in view the remedial provisions of the code of civil procedure, and the fact that they are to be liberally construed to promote justice, and not to defeat it, we can see no substantial reasons for not allowing another summons to issue within the life of the former when it has been lost, destroyed, or in any way become unavailable for use, at the proper time. In such cases the costs for the new writ can be taxed at the discretion of the court, and substantial justice done.

The motion to quash the service on Mrs. Williams was improperly sustained, and as to it the judgment of the district court is affirmed.

In an action against co-executors and administrators, both are properly joined as defendants, and should in general be served; but what the rights of the plaintiff are under section 77, and other provisions of the code, before service is made on Goheen, we have not felt called on to determine, as that question did not arise upon the motion to quash.

The judgment of the district court is therefore affirmed, except as to the motion to quash the service on Mayberry Goheen, and as to that motion, the judgment of the common pleas is affirmed  