
    Levina Bates vs. Henry Chapin.
    When a debtor does not dissolve an attachment, according to the requirements of St. 1844, c. 178, § 12, within fourteen days from the return day of the writ, or before the last day of the return term if the court rises within fourteen days, the right of a creditor to institute proceedings in insolvency against him under St. 1838, c. 163, § 19, accrues at the expiration of the time fixed for the dissolution of the attachment, and such proceedings cannot be instituted more than ninety days after the expiration of that time; although the action in which the attachment is made is continued one term, because of the debtor’s absence from the state.
    The petitioner, on the 19th of September, 1851, filed a petition under oath before Henry Chapin, a commissioner of insolvency for this county, setting forth that she was a creditor of Prince Davis, who was within one year previous a resident in said county, but now supposed to be in California; that her debt, the nature of which she particularly described, amounted to one hundred dollars, and was provable against the estate of Davis according to the provisions of the insolvent laws: That on the 28th of April, 1851, all the right and interest of Davis, in and to certain real estate in the county of Worcester, was attached on mesne process, for the sum of one hundred dollars and upwards, in a civil action founded on a demand in its nature provable against Davis’s estate under the insolvent laws, on a writ sued out of the court of common pleas by Ridolpho Wolfe of New York, and returnable to the last June term of that court: That Davis being then out of the
    commonwealth, an order of notice to him was taken out, and duly published, returnable at the September term of that court, at which term Davis appeared by attorney to defend the action: And that Davis did not dissolve the attachment within fourteen days from the last named return day. And the petitioner prayed that a warrant might be issued' to take possession of Davis’s estate, so that it might be seised and distributed according to law; and that such further proceedings might be had in the premises as the law in such cases prescribes.
    On this petition an order of notice to Davis was issued by the commissioner, returnable before. him on the 25th of September, and was duly served on Davis, who appeared before the commissioner at the time appointed. At the hearing before the commissioner, the allegations of the petition were duly proved; and it also appeared that the real estate attached was described by metes and bounds in the officer’s return. But the commissioner refused to grant the prayer of the petitioner upon the ground that the petition was not filed within ninety days after the expiration of the June term of the court of common pleas; and ordered the petition to be dismissed.
    The petitioner, on the 30th of September, presented a petition under oath to this court, setting forth the above proceedings ; and praying that the commissioner might be summoned to appear and show cause why a writ of mandamus should not be issued, commanding him to issue his warrant to a messenger to take possession of the goods and estate of Davis according to the provisions of the insolvent laws; and that such other proceedings might be had touching the premises as law and justice might require.
    
      E. Rogers, for the petitioner.
    
      F. H. Dewey, for the respondent.
   Shaw, C. J.

This petition raises a single question on the construction of the insolvent laws.

The original insolvent law, St. 1838, c. 163, § 19, made provision for cases, in which the creditors might commence insolvent proceedings, against the will of the debtor, in certain cases, indicative of insolvency. Some of these are, being arrested for debt and not giving bail; being imprisoned for debt more than thirty days; or if any person whose goods, or estate are attached on mesne process,” &e., “ shall not, on or before the last day of the term of the court to which such process is returnable, dissolve the attachment.” The statute goes on to provide, that in either of these cases a creditor may, within ninety days, and not after, apply, &c.

By St. 1844, c. 178, § 9, in addition to these several causes for proceeding adversely against an insolvent, some others are stated, in which any of the creditors described may apply, &c., but no time is limited; and by § 12 the liability is extended to a debtor, whose goods are attached, and who shall not dissolve the attachment in fourteen days from the return day, or on or before the last day of the term, if the court shall rise sooner.

We have no doubt that the ninety days’ limitation, within which the petitioning creditor shall apply, as stated in the first act, extends to the cases enumerated in the second, though not repeated. The act is in terms an act in addition, and all are to be taken together, so far as the later is not repugnant to any former act; it adds other cases to those existing, without changing the time within which the application must be made.

But the main argument of the petitioner is, that although the former statute says, the return term, and the latter statute fixes very definitely fourteen days from the return day of the process, yet when, as in the present case, the debtor was out of the state, and for that cause the action was continued one term, as required by law, the second term, or term when the defend ant is bound to appear and plead, ought to be regarded as the return term, in analogy to the cases of pleas in abatement. Rathbone v. Rathbone, 4 Pick. 89; Robbins v. Hill, 12 Pick. 569. This analogy, we think, is not strong or direct enough to control the express words of the statute; and besides the cases do not stand on the same ground of principle.

If the property of a debtor is attached, it goes to satisfy an individual debt, if not intercepted, to the exclusion of the other creditors. But the policy of the insolvent laws is, that if a debtor’s property is to be appropriated by legal process, all the creditors shall share in it. The proceedings in insolvency, as provided for in these statutes, operate to defeat the particular attachment, and bring the attached property into equal distribution. They must therefore take place promptly, to accomplish this purpose. Now, although a debtor is out of the state, he may have left an attorney, he may appear by attorney, a valid judgment may be rendered against him, and the attached property seized and sold, as soon as an execution can issue, after twenty-four hours from the rising of the court. Perhaps it may not be tqo much to say, that it is the duty of a debtor leaving the state, and leaving debts due or becoming due, and property liable to attachment, to make provision for its being rightly administered. We think therefore it was not the intention of the statute to restrain a petitioning creditor, until the term, to which the action is continued, because the defendant is out of the state. Such construction would be repugnant to the plain provisions of the last act cited. The right of the petitioning creditor to proceed accrues at the expiration of fourteen days from the return day of the process, and before it can be known, where, as in many counties, the term lasts several weeks, whether the defendant will appear, or whether the action will be continued.

The court are of opinion therefore, that the right of the petitioning creditor, to proceed against the debtor in insolvency, accrued at the rising of the court of common pleas in June, that the term of ninety days commenced at that time, and the petition not having been filed within that term, was rightly disallowed by the commissioner.

Petition dismissed  