We have recently decided that the statute, regulating attachments, has left the parties to the suit and the pleadings to the law governing the action in other cases. ' But another question is now to be determined, namely, whether in the proceeding against parties jointly liable, all the defendants must either have absconded, or be, at the time the affidavit was made, non-residents. The remedy by attachment exists principally in rem. The party, in contemplation of the statute, is not in court when his property is seized, and the notification, which is substituted for personal service, is generally ineffectual to give the debtor information of the pendency of the action. This proceeding gives the creditor an extraordinary advantage, at its inception, over the debtor. ^Besides dispensing with personal service, the statute gives a lien upon the property of the defendant from the service of the writ. The property, if perishable, may be sold before the rights of the parties have been judicially determined, and is held in the custody of the law, to satisfy the judgment that may be recovered. The rights and credits of the debtor- are also brought within the control of the creditor by this process. These very important consequences, which are unknown to our general course of jurisprudence, flow from this process. This remedy, being nearly ex parte, and not according to the course of the common law, ought not to be extended beyond the letter of the statute. Colwell, Adm’r, v. The. Bank of Steubenville, 2 Ohio, 229. Where the creditor proceeds by attachment, the statute does not authorize him to dispense with the parties to the contract, either in the declaration or subsequent proceedings, and it is not in his power to omit one of two or more joint defendants, without incurring the danger of the suspension of his remedy, by a plea in abatement.

The court might be justified in extending the equity of the statute to a case like the one under consideration, if the creditor was wholly remediless at law, without such construction ; but a less *143dangerous and more just remedy, one in strict conformity with the general policy of our law, is given by the act “providing for the service and return of process in certain cases.” This act provides that, when a writ is returned served upon one or more defendants, it shall be lawful for the plaintiff to file-his declaration against the one in. court, suggesting therein the return as to the other defendants, and proceed to judgment as in other cases. The defendants not served, if necessary, can be made parties to the judgment by scire facias. This statute furnished the plaintiff below with the ordinary means of securing and collecting the debt. It is no argument to say the process of attachment is more expeditious in creating a lien upon the defendant’s property, which is at once taken into the custody of the law to be held subject to the future judgment. There can be neither justice nor equity, in furnishing one creditor with a lien upon the debtor’s property, real and personal, from the service of the writ, and leaving another, with a claim perhaps more meritorious,.*to the tardy remedy of ordinary proceedings, and to bind the property by a judgment in his favor.

The remedy by attachment is an extraordinary proceeding, for the writ seizes and binds the property of the debtor before the claim of the creditor is judicially ascertained, upon the mere affidavit of an interested party.

It can not be tolerated, unless the creditor brings himself strictly within the provisions of the statute. It would, indeed, be a singular exposition of this statute, to give the creditor ah action by attachment against an absent partner, without allowing the resident one even a day in court to controvert the justness of the plaintiff’s demand. The partners being equally interested, in the consequence of the suit, there is an obvious fitness in permitting litigation with the one present rather than with him who is absent. The court will never proceed ex pa?ie, or upon notice, which, in general, is not much better, unless it is the only alternative of the creditor. When there is another remedy, according to the course of the common law, although it may admit of more delay, or, in some respect, be less advantageous to the creditor, it ought to be pursued, especially if a contrary course would lead, in the nature of things, to uncertainty and often to injustice.

The court are clearly of opinion that a creditor is not authorized to resort to process of attachment, when there are joint -liabilities, *144without all the defendants are non-residents, or have absconded. So long as one joint contractor remains within the jurisdiction, who can be personally served with process, the creditor must seek his remedy in the mode pointed out by other statutes.

The court below, therefore, erred in overruling the plea in abatement of the defendant, for which the judgment is reversed.