The act prescribing that the defendant whose estate is liable to foreign attachment must be a person “ not residing within this commonwealth,” evidently contemplates a person who is resident out of, although he may be within the commonwealth, except in the county where the writ issues. The act of 1705, sect. 3, uses the words “ not resident, or residing within this province.” The act of 2d March, 1723, sect. 12, uses the words “ not inhabitants of this province.” The rules therefore laid down by the courts, prior to the act of 1836, equally apply at this time. A person going from his settled habitation here on occasional business to any other place, does not cease to be an inhabitant ,- Lazarus Barnet’s case, 1 Dali. 153; and while such a person remains in the state, though avowing an intention to withdraw from it, he must be considered as an inhabitant, and therefore not an object of foreign attachment. Lyle v. Foreman, 1 Dall. 480; Bainbridge v. Alderson, 2 Browne 51. And it is not clear here that the defendant intended permanently to abandon his residence in this state. In this case then the rule applies, that where there is a competition under a foreign and domestic attachment, the court, on the question of residence, will lean in favour of the latter, as a more equitable law, being for the benefit of all the creditors, 1 Dall. 154, ib. 159.
Pettit, President, absent from indisposition.Rule absolute.