5

of his courts by other forms of process. For instance, while a court of equity has, generally speaking, no jurisdiction in rem without the aid of statute, it may be given by statute jurisdiction over rights in land; and in that case it may exercise its jurisdiction to determine the title of all land within the territory, or otherwise to deal with the land,' although the claimants are abroad. And this power is not confined to jurisdiction over land. The courts of a sovereign may also be empowered to determine the title to chattels, or to foreclose liens or settle accounts,9 although the owner of the chattel or the trustee of the estate is abroad. The jurisdiction in rem depends upon control of the thing at the time litigation is begun. If the jurisdiction is once exercised over a thing within the territory the subsequent removal of the thing out of the territory pending the litigation does not oust the court of jurisdiction,10 although if anything else is substituted for the thing, as for instance if the thing, whether movable or immovable, is taken out of the court upon a bond being substituted in its place, the jursidiction over the thing ceases and cannot afterwards be exercised unless it is again brought within the power of the court on subsequent proceedings."1

Holmes, C. J., in Tyler v. Court of Registration, 175 Mass. 71, 76, 55 N. E. 812 (1900).

• Arndt v. Griggs, 134 U. S. 316 (1890); Ormsby v. Ottman, 85 Fed. 492, 29 C. C. A. 295 (1898); McLaughlin v. McCrory, 55 Ark. 442, 18 S. W. 762 (1892); Loaiza v. Superior Court, 85 Cal. II, 24 Pac.707 (1890); Hollenback v. Poston, 34 Ind. App. 481, 73 N. E. 162 (1905); Felch v. Hooper, 119 Mass. 52 (1875); Short v. Caldwell, 155 Mass. 57, 28 N. E. 1124 (1891); Kidd v. N. H. Traction Co., 72 N. H. 273, 56 Atl. 465 (1903); Hardy v. Beaty, 84 Tex. 562, 19 S. W. 778, 31 Am. St. Rep. 80 (1892). 7 Reconveyance: La Trobe v. Hayward, 13 Fla. 190 (1869). Partition: Williams v. Williams, 221 Ill. 541, 77 N. E. 928 (1906). Injunction against transfer: Tomson v. Tomson, 31 N. J. Eq. 464 (1879) Foreclosure: Cook v. Weigley, 68 N. J. Eq. 480, 59 Atl. 1029 (1905). Specific performance: Clem v. Gwen, 106 Va. 145, 55 S. E. 567 (1907). Establishment of trust: Porter L. & W. Co. v. Baskin, 43 Fed. 323 (1890); Pennington v. Smith, 69 Fed. 188 (1895); Reeves v. Pierce, 64 Kan. 502, 67 Pac. 1108 (1902).

8 Wilson v. Graham, 4 Wash. C. C. 53, 30 Fed. Cas. No. 17, 804 (1821) (box); Loaiza v. Superior Court, 85 Cal. 11, 24 Pac. 707 (money) (1890); Gassert v. Strong, 38 Mont. 18, 98 Pac. 497 (trust in stock) (1908); Tomson v. Tomson, 31 N. J. Eq. 464 (money) (1879); Ward v. Arredondo, Hop. 213, 14 m. Dec. 543 (deed) (1824); Monroe v Douglas, 4 Sandf. Ch. 126 (estate) (1846).

Oswald v. Kampmann, 28 Fed. 36 (1886).

10 The Rio Grande, 23 Wall. (U. S.) 458, 23 L. ed. 158 (1874); Wilson v. Graham, 4 Wash. C. C. 53, 30 Fed. Cas. No. 17, 804 (1821).

11 Shields v. Coleman, 157 U. S. 168 (1895).

This power over things has always been exercised by courts for the enforcement of the obligations of absent owners. It is so palpably unjust that a debtor should be able, by putting his property outside the jurisdiction of the courts of his own domicil, to escape the compulsion of courts forcing him to discharge his obligation, that the court within whose jurisdiction his property has been thus placed by him should use its power over the property to give justice to the creditor. By proper action therefore the creditor may obtain payment of his debt out of the debtor's property, although he is unable to obtain personal service upon the debtor. The jurisdiction of the court to grant such remedy is obviously its jurisdiction over the res and nothing else; 12 but in that it is not dealing with the res because of any right asserted in the thing itself, this exercise of jurisdiction differs from the ordinary exercise of jurisdiction in rem, in which some existing claim upon the thing itself is asserted. To mark this distinction the phrase "jurisdiction quasi in rem" may be applied to this sort of jurisdiction.13 It is in all essentials of jurisdiction the same as jurisdiction strictly in rem, so far as the property is concerned; but no power can be assumed over the person because of the power over his property, and no personal judgment can be rendered against the person for any excess of the debt over and above the amount realized from sale of the property seized.14

Since the jurisdiction is in reality a jurisdiction over the thing and since therefore no judgment against the person that he owes a debt may effectually be granted the proceeding must in some way be brought against the thing and not against the person. In other words, to obtain jurisdiction the process must be directed against the thing and the claim of the complaining party must in its terms be directed against the thing and not be a complaint against the debtor for failing to pay his debt.15 This may be accomplished

12 A court cannot seize and apply an equitable interest in land outside its jurisdiction. Butterfield v. Ogborn, 1 Disn. (Ohio) 550 (1857). A controversy as to the ownership of promissory notes in Tennessee, secured by mortgage of land in Mississippi, cannot be determined in Mississippi in the absence of the holder. Cocke v. Brewer, 68 Miss. 775, 9 So. 823 (1891).

13 Freeman v. Alderson, 119 U. S. 185, 7 Sup. Ct. 165, 30 L. ed. 372 (1886).

14 Freeman v. Alderson, 119 U. S. 185, 7 Sup. Ct. 165, 30 L. ed. 372 (1886); McVicker v. Beedy, 31 Me. 314 (1850); Eliot v. McCormick, 144 Mass. 10, 10 N. E. 705 (1887); Arndt v. Arndt, 15 Ohio 33 (1846); Jones v. Spencer, 15 Wis. 583 (1862).

"Pennoyer v. Neff, 95 U. S. 714 (1877) (no attachment); Starkey v. Lunz, 57 Or.

by a bill in which the court is requested to seize the property and apply it to the payment of the alleged debt. But the commonest form of proceeding is by some form of attachment of the property in which the request of the complainant for the attachment and sale of the property is the real gist of the complaint.

The attachment may either be the ordinary attachment of the property or the process which is called foreign attachment, trustee process or garnishment. This latter form of process will be separately considered later.

The attachment of tangible property offers no difficulty. Any property may, of course, be attached if the sovereign within whose jurisdiction it lies so wills. The fact that the property was not attachable in the place from which it came or in the place where the debt was contracted or in the place where the debtor lives is quite immaterial; thus the only exemption law which can prevail within the jurisdiction is the exemption law of that territory.16 When, however, the question arises as to the power to attach commercial securities we meet with a somewhat embarrassing question. How far is a mercantile security a thing within the jurisdiction, or how far is it merely the evidence of an intangible chose in action? In ancient times the court undoubtedly regarded such securities as not in themselves chattels but as mere evidences of the existence of a chose in action. With the laspe of time, however, mercantile practice became otherwise. A bill of exchange, a certificate of stock, or even an insurance policy came to be a thing having value in itself and capable of being dealt with where it was. It becomes a question of much interest in the law whether this mercantile practice has resulted or should result in a change in the attitude of the court with respect to such securities. It is not intended in this place to examine this question in detail. One class of securities, however, presents consideration which may be of particular interest. The certificate of title to stock in a cor

147, 110 Pac. 702 (1910) (attachment void); Cooper v. Reynolds, 10 Wall. (U. S.) 308, (1870).

16 Chicago, R. I. & P. Ry. v. Sturm, 174 U. S. 710, 19 Sup. Ct. 797, 43 L. ed. 1144 (1899); Boykin v. Edwards, 21 Ala. 261 (1852); Mineral Point R. R. v. Barron, 83 Ill. 365 (1876); Broadstreet v. Clark, 65 Ia. 670, 22 N. W. 919 (1885); Burlington & M. R. R. v. Thompson, 31 Kan. 180, 1 Pac. 622 (1884); Morgan v. Neville, 74 Pa. 52 (1873). But see Missouri Pac. Ry. v. Sharitt, 43 Kan. 375, 23 Pac. 430 (1890); Drake v. Lake S. & M. S. Ry., 69 Mich. 168, 179, 37 N. W. 70 (1888).

poration is commonly dealt with in the market as a commercial document of value and in an English case it has been held that it is so far a self operating document of value as to be assets at its situs.1 The courts, however, almost unanimously hold that the presence of a certificate of stock within the jurisdiction gives no power to take the right evidenced by the certificate; 18 existing only on the books of the corporation, it can be attached only in that place where the corporation books legally exist, that is, at the domicil of the corporation.19

The question of foreign attachment or garnishment requires more consideration, and it is full of theoretical difficulties. Garnishment is a form of attachment in which the property attached is not taken directly by the sheriff but is reached in the hands of a third person holding it. He is warned (garni) to hold the property subject to the order of the court. The ordinary process of garnishment involves two actions: first an action of debt or contract is brought against a defendant to recover damages in the ordinary way; then it is alleged that he has property in the hands of a third person which cannot be come at in the ordinary way, and the third person is therefore called upon to come in with the property and hold it to abide the result of the first suit. The third person is brought into the action, but only as a stake holder. He is not charged as a wrongdoer, even though the suit involves the proof against him of a debt due to the principal defendant.

The process of foreign attachment or garnishment is based upon

17 Stern v. Queen, [1896] 1 Q. B. 211.

18 Pinney v. Nevills, 86 Fed. 97 (1898); Smith v. Downey, 8 Ind. App. 179, 34 N. E. 823, 35 N. E. 568 (1893); Armour Bros. Banking Co. v. St. Louis Nat. Bank, 113 Mo. 12, 20 S. W. 690 (1892); Plimpton v. Bigelow, 93 N. Y. 592 (corporation doing business in state; certificate does not appear to have been in state) (1883); Ireland v. Globe M. & R. Co., 19 R. I. 180, 32 Atl. 921 (1895) (same facts).

In Simpson v. Jersey City Contr. Co., 165 N. Y. 193, 58 N. E. 896 (1900), it was held that the certificate of stock in a foreign corporation could be attached, the certificate itself being in the state. Gray, J., said: "The truth is that it did have property here, in the common acceptation of the term, as well as in the eye of the law. Certificates of stock are treated by business men as property for all practical purposes. They are sold in the market, and they are transferred as collateral security for loans, and they are used in various ways as property. They pass by delivery from hand to hand, and they are [by statute] the subject of larceny."

19 Wait v. Kern River M. M. & D. Co., 157 Cal. 16, 106 Pac. 98 (1909); People's Nat. Bank v. Cleveland, 117 Ga. 908, 44 S. E. 20 (1903); Young v. South Tredegar Iron Co., 85 Tenn. 189, 2 S. W. 202 (1886).

the custom of London of Foreign Attachment. The earliest full account of this custom that has been found is in an old book called "The City Law" published in 1647. As there described the process is as follows:20 "When a plaint of debt is brought before any of the said sheriffes testimony is given by the officer that the defendant hath not sufficient within the said city, and it is alleadged, that the defendant hath goods and chattels, or debts in other hands, or in others' keeping within the said city, and the plaintiffe prayeth that such goods and chattels may bee arrested and an extent may be made of the debts, then at the suit and suggestion of such plaintiffe such goods and chattels shall be arrested wheresoever they be found within the city, and an extent shall bee made of the debts, at the perill of the plaintiffe." The custom is stated in much the same terms in the Privilegia Londini.21 In that work it is added "Note, the plaintiff ought to surmise that the other man who is indebted to the defendant is within the city; 22 Ed. 4, 30, per Starkey, Recorder of London, the custom so certified.'

The custom of London became the custom of several colonies as a part of their common law. In New England, it takes the name of trustee process; in Pennsylvania, where the introduction of the custom was by statute, it is called foreign attachment. In most of the states of this country the process is called garnishment. But whether the process be permissible under the common law or depends upon the statute, it is in all cases really based upon the custom of London.

The jurisdiction for garnishment is obviously based upon the possession by the garnishee of property belonging to the defendant, which can be reached by the court because it is situated within the territory of the court. The proceeding to collect the principal claim is not itself in rem; and if the defendant in this proceeding is absent the court has no power to determine the principal claim; jurisdiction to apply the property to the payment of the alleged claim must therefore depend upon the actual situs of the property within the control of the court, or upon some power in the court over the property derived from some other circumstance.