In the case of a tangible chattel there is no difficulty whatever and no difference of opinion in the cases. The possessor of a chattel, in a suit against the owner of the chattel, cannot be garnished outside the jurisdiction in which he holds the chattel. Thus where a carrier is engaged in transporting goods he can be garnished in a suit against the owner in any state through which the goods pass, but only while the goods happen to be in transit through the state. He is not subject to garnishment either before the goods come into the state or after they have passed through it and gone into another.22

In the case of a chose in action evidenced by a document the case appears to be the same. If no attachment could be issued against the document itself no garnishment proceeding will lie against the possessor of the document. On this ground it has been held that a pledgee or other bailee who holds a certificate of stock within a state cannot be garnished in that state in a suit against the absent owner,23 nor can a foreign corporation be garnished in a state in a suit against a foreign stockholder,24 the court having no control over the res; since it has no power to attach, it has for the same reason no power to garnish.

When these considerations are applied to the garnishment of a debt great difficulty is at once felt. In its nature, a mere chose in action has no situs any where. This is not merely because it is intangible, for some intangible things, as has been seen, have a sort of location in connection with a tangible thing. Thus a share of stock has a sort of situs where the stock book is kept or rather where the corporation is domiciled; and a judgment has in the same sense a situs in the court which rendered it; the sovereign of the place having complete and sole power over it. Similarly the

22 Western R. R. v. Thornton, 60 Ga. 300 (1878); Montrose Pickle Co. v. Dodson, 76 Ia. 172, 40 N. W. 705 (1888); Wheat v. Platte C. & F. D. R. R., 4 Kan. 370 (1868); Sutherland v. Second Nat. Bank, 78 Ky. 250 (1880); Clark v. Brewer, 6 Gray, 320 (1856); Pennsylvania R. R. v. Pennock, 51 Pa. 244 (1865); Bates v. Chicago, M. & S. P. Ry. Co., 60 Wis. 296, 19 N. W. 72 (1884).

23 Winslow v. Fletcher, 53 Conn. 390, 4 Atl. 250 (1886); Christmas v. Biddle, 13 Pa. 223 (1850). The contrary opinion expressed in National Bank v. Lake Shore & M. S. R. R., 21 Ohio St. 221 (1871), and Puget Sound Nat. Bank v. Mather, 60 Minn. 362, 62 N. W. 396 (1895), is due to the expressed opinion of the court that shares of stock are taxable where the certificate is found, and not to any idea that an interest could be reached by garnishment that could not be reached by attachment.

24 Ashley v. Quintard, 90 Fed. 84 (1898).

intangible thing called good will of a business is situated where the business is carried on. But an ordinary chose in action has no such situs. The only attempts to ascribe situs to a debt have been to fix it at the domicil of the creditor or of the debtor. It has been urged in many cases, especially in taxation cases, that the situs of the debt is at the domicil of the creditor, since it is a valuable thing in his hands. The answer to this is that it is not a thing at all in the hands of the creditor, but merely the legal power of getting a thing from the debtor. Its value to the creditor simply lies in the power it gives the creditor over the debtor. In so much as the creditor is richer by the possession of it, the debtor is poorer. It is, therefore, not a real thing, adding, like good will, to the wealth of the world, but merely a relation between the debtor and creditor, which is advantageous to one and detrimental to the other. The explanation of the power of taxing it at the domicil of the creditor is that as it adds to the creditor's wealth the power that may tax the creditor personally may exact the tax from him based on the ability which this power over the debtor gives him to pay the tax.

More specious efforts have been made to locate the debt with the debtor.25 In favor of this location is the view the law originally took of the debt, that is, that it is a thing in the possession of the debtor and belonging to the creditor. The original nature of the action of debt as a real action, to recover from the debtor a thing held by him for the creditor, illustrates this conception of a debt.26 It is to be noted, of course, that even if we hold this conception the debtor has no specific thing of the creditor in his possession which could be reached by attachment and therefore this sort of situs ought not to be regarded as sufficient for garnishment. But this conception of the nature of a debt has long since disappeared from the law, and the debtor is now regarded merely as a party to a contract for the payment of money, i. e., as one party to a chose in action.

Without basing any argument upon the original nature of the debt, modern courts have nevertheless suggested a situs of the debt where the debtor is for several purposes; of which the commonest is the administration of estates. A debt is alleged to

25 Minor, Conflict of Laws, § 121. 26 Ames, Lectures on Legal History, 78.

be assets at the domicil of the debtor for the purpose of founding administration. If that were really the conception of the law it would follow that only in that place could the debtor be forced to pay his debt to the estate, and that the administrator in that place alone could make an assignment of the claim to collect it. The fact is, however, quite opposite. Any administrator may make a claim for payment upon a debtor who is only temporarily within his jurisdiction and may receive or even compel payment of the debt. All that is meant, then, by saying that the debt is assets where the debtor is domiciled is that administration may be taken out there on account of the debt, though there are no other assets. This is true, but it is for the very practical reason that there alone can an administrator be sure of reducing the claim to possession by a suit. In every other place the power to sue the debtor is dependent upon the accident of his being found within the state; at his domicil he may be sued whether he can be found there or not. The administrator at the domicil of the debtor is therefore the only administrator who can be sure of having jurisdiction to sue, and for this reason it is permissible to appoint an administrator there. An attempt has been made to extend this doctrine to the case of garnishment and to say that the debt is situated for the purpose of garnishment at the domicil of the debtor and only there. This is open to the same objection urged against the similar doctrine of the case of administration. The debtor may be sued in any place where he can be served with process. If the debt were situated at the domicil of the debtor it is quite clear that it could be discharged by proceedings in bankruptcy or insolvency. It has, however, been conclusively determined by the Supreme Court of the United States that an insolvent court at the domicil of the debtor cannot discharge him 27; and this is settled law.28 If he cannot be discharged in an insolvency or bankruptcy proceeding it would seem all the more that he cannot be discharged in garnishment.

The true doctrine would seem to be that a debt has in fact no situs anywhere; not merely because it is intangible but because as a mere forced relation between the parties it has no real existence anywhere. Like other such relations it may, of course, be controlled by the law, and by the courts as instruments of the law;

27 Ogden v. Saunders, 12 Wheat. (U. S.) 213 (1827).

28 Felch v. Bugbee, 48 Me. 9 (1859).

but the control must be obtained by making use of the relation. In order to control the relation the court must have the power to control both parties to it. Any court which has both debtor and creditor may compel a release from the creditor and an assigment of the action of the creditor. In other words if a debt is to be legally assigned or discharged it requires the action of both parties and especially the creditor, and the court which has to apply such a process must do so through its control over both parties.

The history of the law of garnishment, and the particular form which the action has taken - that is, the double action: first against the debtor, and then against the debtor's debtor, — have led the courts, it is submitted, into error as to the jurisdiction. It is in truth first an inquiry into a fact, the indebtedness, followed by the real judicial action, the seizure and application of the credit by suit against the garnishee. The courts have without sufficiently careful consideration assumed it to be two successive actions in personam against two parties.

Our process of garnishment was, as has been seen, derived from the custom of London 29 as to foreign attachment. The courts of London had jurisdiction over citizens only; and it could proceed upon such claims only as arose entirely within the city.30 This, in the case of contracts, would mean such contracts as were performable in London, for instance, a foreign bill drawn on a London merchant.31 Garnishment was subject to the same principles; and therefore no debt could be reached by foreign attachment unless it was due in London, and only a resident of London could be summoned as a garnishee.32 When the custom was brought to this country, the question which was first raised was whether a debt due to a foreigner by another foreigner could be garnished in an action against the absent creditor; and it was rightly held that the custom of London allowed no such suit, and

29 Other English cities had similar customs, e. g. Exeter. There is, however, no evidence that any other custom except that of London was brought to this country; but what is here said of the custom of London would equally apply to any local custom. 30 Mayor of London v. Cox, L. R. 2 H. L. 239 (1867).

31 Shand v. Du Buisson, L. R. 18 Eq. 283 (1874).

32 "It is quite obvious, therefore, that the custom of foreign attachment cannot in reason apply to debts or garnishees out of the jurisdiction; and it is so settled by authority." Willes, J., in Mayor of London v. Cox, L. R. 2 H. L. 239, 266.

that the proceedings would not lie in such a case in this country. Unfortunately the question whether the debt which formed the subject of garnishment was due within the state was not raised in the earlier cases; and this requirement of jurisdiction dropped out of judicial memory. Thus, we find that while careful courts forbade the exercise of garnishment where the garnishee was not resident within the jurisdiction, whether the garnishee was an individual foreigner 34 or a foreign corporation,35 garnishment was allowed at the residence of the garnishee without inquiry as to where the garnished debt was payable, and even in cases where the court noticed that the debt was a foreign one.37 In a few cases the court, in deciding that a foreigner could not be reached by gar

33 Tingley v. Bateman, 10 Mass. 343 (where the court pointed out that garnishment seemed to be confined to debts arising within the jurisdiction); Redwood v. Consequa, 2 Bro. (Pa.) 62 (1811); Cronin v. Foster, 13 R. I. 196 (1881).

4 Everett v. Connecticut Mut. L. Ins. Co., 4 Colo. App. 509, 36 Pac. 616 (1894); Nye v. Liscombe, 21 Pick. 263 (1838); Lovejoy v. Albee, 33 Me. 414, 54 Am. Dec. 630 (1851); Smith v. Eaton, 36 Me. 298, 58 Am. Dec. 746 (1853); McKinney v. Mills, 80 Minn. 478, 81 Am. St. Rep. 278, 83 N. W. 452 (1900); Sawyer v. Thompson, 24 N. H. 510 (1852); Lawrence v. Smith, 45 N. H. 533, 86 Am. Dec. 183 (1864); Straus v. Chicago Glycerine Co., 46 Hun 216 (affirmed in 108 N. Y. 654, 15 N. E. 444) (1888), Carr v. Corcoran, 44 App. Div. 97, 60 N. Y. Supp. 763 (1899); Baxter v. Vincent, 6 Vt. 614 (1834).

35 Atchison T. & S. F. R. Co. v. Maggard, 6 Colo. App. 85, 39 Pac. 985 (1895); Green v. Farmers' & C. Bank, 25 Conn. 452 (1857); National Bank v. Furtick, 2 Marv. (Del.) 35, 44 L. R. A. 115, 69 Am. St. Rep. 99, 42 Atl. 479 (1897); Northwestern Life & Sav. Co. v. Gippe, 92 Minn. 36, 99 N. W. 364 (1904); Swedish-American Nat. Bank v. Bleecker, 72 Minn. 383, 42 L. R. A. 283, 71 Am. St. Rep. 492, 75 N. W. 740 (1898); Douglass v. Phenix Ins. Co., 138 N. Y. 209, 20 L. R. A. 118, 34 Am. St. Rep. 448, 33 N. E. 938 (1893); National Broadway Bank v. Sampson, 179 N. Y. 213, 71 N. E. 766 (1904); Wood v. Furtick, 17 Misc. 561, 40 N. Y. Supp. 687 (1896); Allen v. United Cigar Stores Co., 39 Misc. 500, 80 N. Y. Supp. 401 (1902); Balk v. Harris, 124 N. C. 467, 45 L. R. A. 258, 70 Am. St. Rep. 606, 32 S. E. 799 (1899) (reversed by Supreme Court of the United States); Strause Bros. v. Ætna F. Ins. Co., 126 N. C. 223, 48 L. R. A. 452, 35 S. E. 471 (1900); Renier v. Hurlbut, 81 Wis. 24, 50 N. W. 783 (1891). 36 Molyneux v. Seymour, 30 Ga. 440, 76 Am. Dec. 662 (1860); Rothschild v. Knight, 176 Mass. 48, 57 N. E. 337 (1900); Dinkins v. Crunden-Martin Woodenware Co., 99 Mo. App. 310, 73 S. W. 246 (1903); Sexton v. Phoenix Ins. Co., 132 N. C. 1, 43 S. E. 479 (1903); Berry Bros. v. Davis, 77 Tex. 191, 19 Am. St. Rep. 748, 13 S. W. 978 (1890); Ward v. Morrison, 25 Vt. 593 (1853); Bragg v. Gaynor, 85 Wis. 468, 21 L. R. A. 164, 55 N W. 919 (1893).

37 Tootle v. Coleman, 57 L. R. A. 120, 46 C. C. A. 132, 107 Fed. 41 (1901); Wyeth Hardware & Mfg. Co. v. Lang, 127 Mo. 242, 27 L. R. A. 651, 48 Am. St. Rep. 626, 29 S. W. 1010 (1895); Nichols v. Hooper, 61 Vt. 295, 17 Atl. 134 (1889); Hawley v. Hurd, 72 Vt. 122, 52 L. R. A. 195, 82 Am. St. Rep. 922, 47 Atl. 401 (1900).