variety of judicial opinion than upon the topic now to be examined. Briefly, the question may be thus stated: A of New York owes B of Massachusetts $1000. Bowes C of New York or Virginia a like sum. B has no property save A's debt. C desires to sue out an attachment against B in New York, and to summon A before the New York courts upon process of garnishment. Have the New York courts jurisdiction of the proceeding, B being a non-resident and not personally before the court?

The attachment proceeding being in rem, and not in personum, if the res is before the New York courts, it is not necessary that the owner of the property seized should be within their jurisdiction. The fact that he is a non-resident is immaterial.2 Hence in these cases the sole question to be determined is this: Is the res within the jurisdiction of the attaching court? The res is the debt due to B by A, and hence we are confronted with the pregnant question, what is the situs of A's debt to B? Has it its situs with the creditor (B) at his domicil, or at the domicil of the debtor (A), or at the actual situs of B or A, respectively? If the debt is to be regarded as with the creditor (B), the fact that A is within the jurisdiction of the court will be of no avail. But if the debt is with the debtor, then the presence of A within the jurisdiction is all important, and the locality of B is immaterial.

Owing to the great confusion that has existed in respect to this subject, it has frequently happened that a debtor, who in one jurisdiction has been garnished in attachment proceedings and been compelled to pay his debt to his creditor's creditor, has been subsequently compelled in another jurisdiction to pay the same debt over again to another creditor of his creditor, on the ground that the first court had no jurisdiction of the res. Such a state of affairs is a disgrace to the law, calling for a speedy recognition of some principle upon which the question of jurisdiction may be determined once for all.

Many theories have been advanced by the various courts as to

reference to an able thesis on the subject by J. L. Templeman, Esq., formerly a student of the University of Virginia, now a practitioner in Butte, Montana For the assistance thus given, grateful acknowledgment is here made.

2 Ante, §§ 85, 86; Pennoyer v. Neff, 95 U. S 714.

the situs of debts under circumstances like these, some of the more important of which will now be examined briefly. In considering the merits of these various theories, one important principle, already discussed, must be constantly borne in mind: that principle is, that, for purposes of ascertaining the jurisdiction of a court over a res, the actual situs of the res is regarded, not its legal or constructive situs.

First Theory-Many of the courts have declared in favor of the extreme view that the situs of a debt is at the domicil of the creditor, and that it cannot be attached in another State for want of jurisdiction over the res. In the example above given, these courts would hold that A's debt to B could only be attached by C in Massachusetts (B's domicil). This view disregards altogether the dual nature of debt, which, while placing the creditor's right to sue (or chose in action) with the creditor, places the debtor's obligation to pay and the creditor's ability to exact payment with the debtor. In other words, though the question is one of jurisdiction over a res, these courts disregard the actual situs of the property, and look only to its legal or constructive situs. This view would clearly seem to be

erroneous.

Second Theory - Legislative Fiat. - Another line of cases, while recognizing the same general principle as those holding the first theory, yet for purposes of garnishment, in order to do effectual justice, find it necessary to resort to phraseology which, if interpreted literally, seems wholly unjustifiable. These cases hold that a debt for most purposes has its situs at the creditor's domicil, but for purposes of garnishment a State may by legisla tive fiat fix its situs at the debtor's domicil."

Ante, §§ 14, 120.

♦ Railroad Co. v. Nash, 118 Ala. 477, 23 So. 825; Railroad Co. v. Chumley, 92 Ala. 317, 9 So. 286; Bucy v. R. R. Co. (Miss.), 22 So. 296; Railroad Co. v. Smith, 70 Miss. 344, 12 So. 461; Railroad Co. v. Sharritt, 43 Kan. 375, 23 Pac. 430; Lovejoy v. Albee, 33 Me. 414, 54 Am. Dec. 630; Smith v. Eaton, 36 Me. 298, 58 Am. Dec. 746; Central Trust Co. v. R. R. Co., 68 Fed. 685; Mason v. Beebee, 44 Fed. 556. See also Railroad Co. v. Maggard, 6 Colo. App. 85, 39 Pac. 985; Caledonia Ins. Co. v. Wenar (Tex. Civ. App.), 34 S. W. 385.

5 Williams v. Ingersoll, 89 N. Y. 523; Douglas v. Ins. Co., 138 N. Y. 209;

It can hardly be supposed, however, that the courts mean to say that a legislature, by mere decree, can cause a thing to be situated where in fact it is not. All that is meant probably is that, though ordinarily the law will adopt the fiction that debts are located at the situs of the creditor, this fiction may be disregarded, and the actual situs of the obligation substituted therefor, whenever policy may require it. Under this view, the rules governing the situs of debts are assimilated to those governing the situs of tangible chattels, and the theory becomes identical with the fourth theory hereafter mentioned."

Third Theory- Another theory (which may be denominated the fund theory) distinguishes between the chose in action (following the creditor) and the money owing (in the hands of the debtor), which constitutes a fund held by the debtor but belonging to the creditor, which fund is the res in the attachment proceeding; holding that, since the debtor's funds are to be presumed to be at his domicil, the attachment can only issue there. This theory rests upon the idea that the creditor has the right to recover of the debtor a certain specific sum of money, and that by his attachment the attaching creditor becomes subrogated to this right, and may proceed to recover the debt in the place of the original creditor, and in the same jurisdiction.” It is submitted, however, that this view is fallacious, in that it requires as a basis one of two suppositions (or both): (1) That there is specific property belonging to the original creditor now in the debtor's hands; (2) That the court, which seizes the right of the original creditor to sue and turns it over to the attaching creditor, has jurisdiction of that right, for otherwise it could not attach it. But it is admitted by all the authorities Swedish-American Bank v. Bleeker, 72 Minn. 383, 75 N. W. 740, 71 Am. St. Rep. 492; Bragg v. Gaynor, 85 Wis. 468, 55 N. W. 919; Morawetz v. Sun Ins. Office, 96 Wis. 175, 71 N. W. 109; Renier v. Hurlbut, 81 Wis. 24, 50 N. W. 783; Reimers v. Mfg. Co., 70 Fed. 573.

6 See Mooney v. Buford, 72 Fed. 38; Railroad Co. v. Nash, 118 Ala. 477, 23 So. 325; National Ins. Co. v. Chambers, 53 N. J. Eq. 468, S2 Atl. 663; Lancashire Ins. Co. v. Corbett, 165 Ill. 592, 46 N. E. 631.

7 This seems to be in part the theory upon which Mr. Waples bases his interesting treatise on the Situs of Debt. Waples, Debtor and Creditor. See Berry v. Davis, 77 Tex. 191, 13 S. W. 978.

that the right of the original creditor to sue is with the creditor (who is not within the jurisdiction of the courts of the debtor's domicil). And it must be conceded also that there is with the debtor no specific fund or money belonging to the creditor, but only a general liability or obligation to pay.

Fourth Theory. - Another theory, which has been accepted and adopted by many of the courts, is that the legal situs of the creditor's right is to be distinguished from the actual situs of the debtor's obligation; that as the former is located with the creditor at his domicil, so the latter is situated at the debtor's domicil; and that, for purposes of jurisdiction in rem, the court must regard the actual situs of the debt."

The fallacy of this theory is that it treats the obligation of the debtor as local instead of transitory, as fixed at his domicil, instead of following his person whithersoever he may go. In other words, this view regards the actual situs of the debt as at the legal rather than the actual situs of the debtor. This is fallacious. The creditor is not confined to the debtor's domicil for the purpose of enforcing the obligation to pay, but may proceed against him wherever he finds him, unless the municipal law forbids. All that is necessary is that the court should have jurisdiction of the debtor's person, by his voluntary appearance or by process served upon him within the territorial limits of the court's jurisdiction.

Fifth and True Theory. The fourth theory, as we have just seen, is erroneous simply because of the narrow limits it allows to the actual situs of a debt, confining it to the debtor's domicil. The true theory is that the situs of a debt, for purposes of garnishment, is not only at the domicil of the debtor, but in any State in which the garnishee may be found, provided the municipal law of that State permits the debtor to be garnished, and provided the court acquires jurisdiction over the

Bragg v. Gaynor, 85 Wis. 468, 55 N. W. 924; Cross v. Brown, 19 R. I. 220, 33 Atl. 147; Lawrence v. Smith, 45 N. H. 533, 86 Am. Dec. 183; Tingley v. Bateman, 10 Mass. 343; Lerkin v. Wilson, 106 Mass. 120; Craig v. Gunn, 67 Vt. 92, 30 Atl. 860; Newland v. Reilly, 85 Mich. 151, 48 N. W. 544. See Chicago, etc. R. R. Co. v. Sturm, 174 U. S. 710; King v. Cross, 175 U. S. 396.

garnishee, through his voluntary appearance or actual service of process upon him within the State. Of course in most cases the question will arise in the garnishee's domicil."

Sixth Theory. A few cases will be found, which regard the place where the debt is payable as important in fixing its situs for the purpose of garnishment.10 But these have no basis of principle upon which to rest, and may be disregarded, as founded upon a misapprehension of the question involved."

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§ 126. Same-Exemptions. A question incidental to garnishment proceedings sometimes arises as to the law which should govern the legal exemptions to be claimed by the attachment defendant. The question has usually arisen with respect to the wages of laborers, exempt by law from their debts, in cases where the law of the attachment defendant's domicil entitles him to exemption of wages, while the law of the forum (the place of the attachment and garnishment) does not, or not to the same extent; or where there is a difference on this point between the law of the place where the defendant entered into his contract of service and the law of the forum. In such cases,

R. R. Co. v. Thompson, 31 Kan. 180,

9 Morgan v. Neville, 74 Penn. St. 52, 57-58; Neufelder v. Ins. Co., 6 Wash. 341, 33 Pac. 870; Mooney v. R. R. Co., 60 La. 346, 14 N. W. 343; Harvey v. R. R. Co., 50 Minn. 405, 52 N. W. 905; National Ins. Co. v. Chambers, 53 N. J. Eq. 468, 32 Atl. 663; Howland v. R. R. Co., 134 Mo. 474, 36 S. W. 29; Manufacturing Co. b. Lang, 127 Mo. 242, 29 S. W. 1010; Burlington, etc. 47 Am. Rep. 497; Railroad Co. v. Crane, 102 Ill. 249, 40 Am. Rep. 581. See also Chicago, etc. R. R. Co. v. Sturm, 174 U. S. 710; Mooney v. Mfg. Co., 72 Fed. 32. In the last case the court announces the doctrine that a garnishment is a proceeding in personam. This is contrary to the usually accepted idea, but it is believed the court is correct. The attachment is a proceeding in rem, the res being the general liability of the debtor, which general liability upon its seizure by the attaching creditor can be rendered fixed and definite only by a proceeding in personam against the debtor, that is, by garnishment. See Fithian v. R. R. Co., 31 Penn. St. 114.

10 See Manufacturing Co. v. Lang, 127 Mo. 242, 29 S. W. 1010; Lawrence v. Smith, 45 N. H. 533, 86 Am. Dec. 183; Tuller v. Arnold, 93 Cal. 166, 28 Pac. 863; American Ins. Co. v. Hettler, 37 Neb. 849, 56 N. W. 711; Mc Bee v. Purcell Bank (Ind. Ter.), 37 N. W. 55; Mo. Pac. R. R. Co. v. Sharritt, 43 Kan. 375, 387, 23 Pac. 430.

11 Chicago, etc. R. R. Co. v. Sturm, 174 U. S. 710, 716-717.