"A suit in the nature of a foreign attachment" cannot be maintained under the statutes of Virginia, unless the claim asserted be actually due. "Unless the bill avers that a debt is due the plaintiff by one who is a non-resident of this State, and who has estate and effects in this State, it is demurrable." Batchelder v. White, 80 Va. 103.

But it has been held, in some other States, if the debt be existent and certain, merely needing time to mature it, it may be reached. Benson v. Campbell, 6 Port. (Ala.) 455. Compare Jones . Holland, 47 Ala. 732; Taylor v. Drane, 13 La. 62; Henderson v. Thornton, 37 Miss. 448; Bacon v. Marshall, 37 Iowa, 581; Cox v. Reinhardt, 41 Tex. 591.

Debt Payable in Another State.-Under a statute which provides that the plaintiff may have the property of the defendant attached "in an action upon a contract, express or implied, for the direct payment of money, which contract is made or is payable in this State," it was held, in Oregon, that a promissory note made in California could not be collected by attachment in Oregon without any stipulation that the note should be paid there. Trabant v. Rummell, 14 Oreg., 17.

Debts on Contract. Foreign attachment is limited, in respect to the cause of action, to debts contracted or owing by the defendant, which is only extended to actions ex contractu." Piscataqua Bank v. Turnley, I Miles (Pa.), 312; Porter 7. Hildebrand, 2 Harris (Pa.), 129; Boyer v. Bullard, 102 Pa. St. 555; Holcomb v. Town of Winchester, 52 Conn. 447.

1. Damages for Breach of Contract.-It has been held that a claim for unliquidated damages for the breach of a contract may be secured by process of foreign attachment. New Haven SawMill Co. v. Fowler, 28 Conn. 103, 107. Compare, as to whether unliquidated damages on contract constitute a debt, Gray v. Bennett, 3 Metc. (Mass.) 522; Mill Dam Foundry v. Hovey, 21 Pick.

180; Joslyn v. Merrow, 25 Vt. 185. But the general rule is that the remedy is inapplicable to a suit for unliquidated damages.

Unliquidated Damages.-The plaintiff made affidavit that the defendant was non-resident and was indebted to him in the sum of $35,000 for rents and royalties accrued-$2 per ton for all ore mined and removed, and 10,000 tons to be mined and removed annually, etc. It was held that attachment would not lie for the damages accruing on breach of the covenant to mine and remove the stipulated quantity. Heckscher v. Trotter, 48 N. J. L. 419. "An attachment will not lie for unliquidated damages, and can be used only when the demand is for a certain sum." Schenck v. Griffen, 9 Vroom (N. J.), 462–7; Jeffery v. Wooley, 5 Halst. (N. J.) 123; Boyd v. King, 7 Vroom (N. J.), 21.

Under both species of attachment, the preliminary levy for unliquidated damages for tort and the like is not allowed. Ferris v. Ferris, 25 Vt. 100; Tarbell v. Bradley, 27 Vt. 535; Thompson v. Carper, II Humph. (Tenn.) 542; Hough v Kugler, 36 Md. 186; Atlantic Mut. Ins. Co. v. McLoon, 48 Barb. (N. Y.) 27. Although in domestic attachment the statutes vary as to authorization with respect to actions ex delicto and for unliquidated damages; yet, as against a trustee or garnishee, such actions are not maintainable. Hugg v. Booth, 2 Ired. (N. Car.) 282; Deaver v. Keith, 5 Ired. (N. Car.) 374; Graham v. Moore, 7 B. Mon. (Ky.) 53; Rundlet v. Jordan, 3 Me. 47; Paul 7. Paul, 10 N. H. 117; Despatch Line v. Bellamy Mfg. Co., 12 N. H. 205; Fish . Field. 19 Vt. 141; Barker v. Esty, 19 Vt. 131: Boardman v. Roe, 13 Mass. 104; Foster v. Dudley, 10 Fost. (N. H.) 463; Lomerson v. Hoffman, 1 Dutch. (N. J.) 625.

Tort. A claim for a tort is not a debt within the meaning of the term as used in the statute with regard to foreign attachment. Holcomb 2. Town of Win

chester, 52 Conn. 447. The court said in this case: "To hold that the word 'debt' as used in the statute concerning foreign attachment includes a right of action for a tort before it had become merged in a judgment would be to transcend all rules for the construction of statutes. . . . In other jurisdictions it has long been considered well settled that the word debt,' as used in the law of garnishment (as the process is elsewhere usually termed), includes only legal debts, or causes of action for which debt or assumpsit may be maintained, but never includes claims for torts. Freeman on Executions, 162, 167; Cook v. Wallhall, 20 Ala. 334; Victor v. Hartford Fire Ins. Co., 33 Iowa, 210; Foster v. Dudley, 30 N. H. 463; Getchell v. Chase, 37 N. H. 106,"

1. Assignment Not Recorded in the County. An unrecorded assignment does not prevent the foreign attachment of property in the county, in Pennsylvania, though the levy be made subse quently to the making of the act of assignment. Steel v. Goodwin, 113 Pa. St. 289. The contrary doctrine prevailed

in

Northwestern Forwarding Co. v. Mahaffey, 36 Kan. 152. Upon the question: Borm . Tuthill, G. Greene (Iowa), 190; Hopping v. Burnam, 2 G. Greene (Iowa), 39; Norton v. Williams, 9 Iowa, 529; Parker v. Miller, 9 Ohio, 110; Bloom 2. Noggle, 4 Ohio St. 45; Stowe v. Meserve, 13 N. H. 46; Carter v. Champion, 8 Conn. 549; Coffin v. Ray, 1 Metc. (Mass.) 212; People v. Cameron, 7 Ill. 468; Holden v. Garrett, 23 Kan. 98; Davis v. Ownsby, 14 Mo. 170; Valentine . Havener, 20 Mo. 133; Stillwell v. McDonald, 39 Mo. 282; Potter v. McDowell, 43 Mo. 93; Reed v. Ownsby, 44 Mo. 204: Sappington v. Oeschli, 49 Mo. 244: Block v. Long, 60 Mo. 181; Tyrell 2. Rountree. 7 U. S. 464.

Assignment Without Notice. If foreign attachment is served on the garnishees before they have notice of a valid assignment, the effect is not to postpone the claim of the assignees to that of the attaching creditors. Wakefield v. Martin. 3 Mass. 558; Dix 7. Cobb, 4 Mass. 512; Van Buskirk v. Warren, 32 Barb. (N. Y.) 457; Coit v. Bull, Kirby (Conn.), 149.

The reason is that the plaintiff in a foreign attachment stands on no better footing, as to the thing attached, than his debtor. Noble v. Thompson Oil Co., 79 Pa. St. 354.

If not recorded in the county, an assignment for the benefit of creditors does not have priority over a foreign attachment laid after the act of assignment. Steel v. Goodwin, 113 Pa. St. 288.

A debt due from the garnishee to A, by assignment from B, may be taken by a foreign attachment against A." Apthorp v. Lockwood, I Root (Conn.), 198.

Foreign Assignment with Preferences.— An assignment for the benefit of creditors containing preferences, made in New York, conveying real property in Illinois, will not be held invalid in the latter State against non-resident attaching creditors, notwithstanding Starr & C., ch. 72.49, providing that "every provision in any assignment hereafter made in this State, providing for the payment of one debt or liability in preference to another, shall be void," as the laws of New York allow such preferences and the assignment was there made. May 7. First Nat. Bank, 122 Ill. 551.

Lienholders. What is legally held by a lienholder cannot be taken from him under a writ directed against the property of the principal owner. Williams v. Morgan, 50 Wis. 548; Perry v Williams, 39 Wis. 339; Sargent v. Carr, 12 Me. 396; Carpenter v. Dresser, 72 Me. 377; De Wolf v. Dearborn, 4 Pick. (Mass.) 466; Robinson v. Mansfield, 13 Pick. (Mass.) 139: Townsend v. Newell, 14 Pick. (Mass.) 332; Stearns v. Dean, 129 Mass. 139; Seymour v. Newton, 105 Mass. 272; Haven v. Low, 2 N. H. 13; Morse v. Hurd, 17 N. H. 246; Inslee v. Lane, 57 N. H. 454; Thompson v. Rose, 16 Conn. 71; Brownwell v. Carnley, 3 Duer (N. Y.), 9; Bodega v. Perkerson, 60 Ga. 516; Wolfe 7. Crawford, 54 Miss. 514; Henry v. Quackenbush, 48 Mich. 415; Moore v. Murdock, 26 Cal. 514; Rix v. Silknitter, 57 Iowa, 265; McNeill v. Glass, I Martin, N. S. (La.) 261; Skillman v. Bethany, 2 Martin, N. S. (La.) 104; Lambeth v. Turnbull, 5 Rob. (La.) 264.

The reason is that, as the attaching

creditor can have no greater rights as subrogee than the debtor, he cannot dispossess the lienholder when the latter cannot. Rix v. Silknitter, 57 Iowa, 265; Stephenson v. Walden, 24 Iowa, 84; Houghton v. Davenport, 74 Me. 590; Oliver v. Lake, 3 La. Ann. 78.

A chattel mortgagee may demand of the attaching officer payment of his claim, stating the amount and the nature of it. A demand by assignee, without stating the names of the parties to the mortgage, date of the contract, and time of payment, is insufficient. Wilson V. Crooker, 145 Mass. 571.

It has been held that a mortgagee of real estate has an attachable interest therein after the condition has been broken and his right of foreclosure has arisen. Thornton 7. Wood, 42 Me. 282; Fay . Cheney, 14 Pick. (Mass.) 399. Compare Smith v. Peoples' Bank, 24 Me. 185.

1. Debt Due to a Non-resident. It is "liable to foreign attachment where the debtor is within reach of process. But a mere contract by a non-resident to sell property, for a certain price, to a person within the jurisdiction, is not such a debt, for the debt is not created until the contract is executed by the vendor." Furness v. Smith, 30 Pa. St. 520.

"A debt due to a non-resident is bound by a foreign attachment issued in this State [Pennsylvania], notwithstand ing a previous assignment by him in trust, of all his estate and effects, where the assignment was not recorded within the county in which the debt attached was due, as required by the act of 3d of May, 1855, and no notice of the assignment was given to the attaching creditor.' Philson v. Barnes, 50 Pa. St. 230.

Notes due by a resident to a non-resi dent debtor, and in the hands of another resident for collection, are subject to attachment. West v. Sanders, I Marsh. (Ky.) 112.

2. Debt Due or becoming 80.- "The statute with regard to foreign attachment (Gen. Statutes, p. 397. sec. 2) provides for such attachment where a debt is due from any person to such defendant.' Held, that the word 'due' is not used in

the restricted sense of payable.' There must be, however, an existing indebtedness." Sand-blast File-sharpening Co. 7 Parsons, 54 Conn. 310.

There must be a valid debt due (or becoming so) to the defendant, to enable the attaching creditor to attach it in third hands. It must be such that the attachment defendant could maintain a suit to recover it against his debtor. Caldwell v. Coates, 78 Pa. St. 312; Paul v. Reed, 52 N. H. 136; Cobb v. Bishop, 27 Vt. 624; Morey v. Sheltus, 47 Vt. 342; Fellows 7. Duncan, 13 Metc. (Mass.) 332; Geer v. Chapel, 11 Gray (Mass.), 18; Curtis v. Alvord, 45 Conn. 569; Victor v. Hartford Ins. Co., 33 Iowa, 210; Nesbitt z. Ware, 30 Ala. 68; Powell v. Sammons, 31 Ala. 552; Webster v. Steele, 75 Ill. 544.

Any debt due by the garnishee in a foreign attachment to the defendant at the time of the answer to interrogatories is embraced by the attachment. A claim uncertain at the time of the attachment, but rendered certain at the time of the answer to the interrogatories is embraced. Franklin Fire Ins. Co. v. West, 8 W. & S. (Pa.) 350.

3. Debt Due and Payable Within the State. If a Kentucky corporation, doing business in Alabama, owes a citizen and resident of the former State, this debt cannot be reached by garnishment proceedings in Alabama. Louisville, etc., R. Co. v. Dooley, 78 Ala. 524.

A debt created and payable in Missouri is not subject to garnishment in Kansas-all the parties being residents of Missouri, and the garnishee's debt to the defendant being exempt under the Missouri law, the garnishee doing business in Kansas and the plaintiff and defendant temporarily there. Missouri Pac. R. Co. v. Maltby, 34 Kan. 125.

A foreign corporation having no property of the defendant in Nebraska, and owing nothing to the defendant payable there, is not subject to garnishment there. Wright v. Chicago, etc., R. Co., 19 Neb. 175.

Debt Not Due." There is no judg ment or authoritative dictum to be found in any book that money due upon such a

negotiable instrument can be attached before it is payable; and, in point of reason, policy, and usage, as well as upon principles of convenience and equity, we think it would be dangerous and wrong to introduce and establish a precedent of this kind. To adjudge that a note, which passes from hand to hand as cash, on which the holder may institute a suit in his own name, which has all the properties of a bank note payable to bearer, which would be embraced by a bequest of money, and which is actually in circulation in another State, should be affected in this way by a foreign attachment would be, in effect, to overthrow an essential part of the commercial system, and to annihilate the negotiable quality of all such instruments." Ludlow v. Bingham, Dall. (Pa.) 47. Compare Kiefer . Elsler, 18 Pa. St. 388; Day v. Zimmerman, 68 Pa. St. 72, under statute subsequent to the Ludlow case.

Debt Exempt in one State, Yet Attachable in Another.-A citizen of the State of Ohio, having a valid debt against another citizen of that State, which cannot be collected by legal process there by reason of the exemption laws of that State, and which laws make it a misdemeanor for such creditor to assign, transfer, or send out of the State such debt for the purpose of having it collected by proceedings in attachment in courts outside of that State, with intent to deprive such resident debtor of personal earnings so exempt, when the per. son or corporation owing the money intended to be attached is within the jurisdiction of said State, has a right to bring an action and attach such earnings for such debt in the courts of West Virginia, when the garnishee is a domestic corporation of the latter State, and the attachment is served on such garnishee in the county where the action is brought, notwithstanding such creditor may have sent the claim to West Virginia and instituted his action there for the purpose of evading the exemption laws of Ohio. Stevens v. Brown, 20 W. Va. 450, 451.

As State laws have no extra-territorial effect, a credit exempt from attachment in one State may be liable in another. A foreign corporation may be garnisheed for wages due the attachment defendant, if it come into the State where the attachment suit is instituted, engage in business there, and subject itself to process there, though wages be exempt from

seizure in the State in which they were earned, and the attachment defendant to which they are owing be a non-resident. Burlington, etc., R. Co. v. Thompson, 31 Kan. 180; s. c., 16 Am. & Eng. R. R. Cas. 480. Debt is transitory and payable (unless there be a fixed place of payment) wherever the debtor may be found. Brauser v. New Eng. Ins. Co., 21 Wis. 506; Bank v. Railroad Co., 45 Wis. 172; Fithian v. Railroad Co.. 31 Pa. St. 114.

When Both Parties Non-resident and Debt Foreign.-Both the plaintiff and defendant resided in New York, in a suit brought in Vermont on a contract made in New York. Upon that contract the plaintiff sought to charge the trustee, which was a body corporate existing under the laws of New York, operating a continuous line of railroad from Troy, N. Y., to Rutland, Vt. The debt claimed was for services rendered in New York, and due and payable there. The trustee was discharged. Towle v. Wilder, 57 Vt. 622.

But if both parties have residence in the State, the rule is different, though the debt be foreign in the sense of having been contracted in another State. Chicago. etc., R. Co. v. Ragland, 84 Ill. 375; Pierce v. Chicago, etc., R. Co., 36 Wis. 283; Conley v. Chilcote, 25 Ohio St. 320; Helfenstein v. Cave, 3 Iowa, 287; Newell v. Hayden, 8 Iowa, 140; Moore v. Chicago, etc., R. Co., 43 Iowa, 385.

1. Judgment, When Attachable.-A foreign railroad corporation that has accepted the privilege of extending its works trough Pennsylvania, on the condition that they keep at least one manager or other officer resident within the State, on whom process in actions against the company may be served, may be made a garnishee in an attachment execution, in respect to a debt owing by them to a non-resident. A judgment recovered against the company in the court of another State, may be attached under such process. Fithian v. N. Y. & Erie R. Co., 31 Pa. St. 114. A judgment is held attachable, though pending on a writ of error. Woodward v. Carson, 86 Pa. St. 176. "A judgment debt may be held by process of foreign attachment, although subsequent to the attachment the judgment creditor has taken out and commenced to levy his execution. Gager v. Watson, II Conn. 171.

Judgment Debt.-" By the Custom of

London, from which our foreign attach ment system was principally derived, it is said that a judgment debt cannot be attached, and the same has been holden by the courts of Massachusetts. A fair, and, as we think, very obvious construction of our statute on this subject, as well as the general policy of our attachment laws, leads us to a different conclusion. It is enacted that Where debts are due from any person to an absent and absconding debtor, it shall be lawful for any creditor to bring his action against such absent and absconding debtor' and that any debt due from such debtor to the defendant shall be secured to pay such judgment as the plaintiff shall recover." The provisions of this statute were extended, in 1830, to the attachment of debts due to such persons as should be discharged from imprisonment. The language of this statute clearly embraces judgment debts as well as others, and the reason and equity of it are equally extensive. A judgment debt is liquidated and certain, and, in ordinary cases, little opportunity or necessity remains for controversy specting its existence, character, or amount. The policy of our laws has ever required that all the property of a debtor, not exempted by law from execu tion, should be subject to the demands of his creditors, and that every facility consistent with the reasonable immuni ties of debtors, should be afforded to subject such property to legal process. It is true, as has been contended, that to subject judgment debts to attachment, and especially those upon which executions have issued, may in some cases produce inconvenience and embarrass ment to debtors, as well as to creditors. Such consequences have resulted from the operation of our foreign attachment system in ordinary cases, etc. . . . ; but the general interest of the community in

re

this respect has been considered as paramount to the possible and occasional inconveniences, etc.' Gager v. Watson, II Conn. 168.

Judgment Debt-Prescription.-A judgment debt obtained in foreign attachment was presumed to have been paid after a lapse of twenty years, though the proceeding against the garnishee had beeh nominally pending all the while. Biddle v. Girard Nat. Bank, 109 Pa. St. 349.

1. Drake on Attach, (6th Ed.) §§ 574

588. Negotiable Notes.-The general rule is that an attachment is unavailable against a bona fide holder of negotiable paper for value, who obtains it after attachment served on the maker as garnishee, before maturity and without notice. Ludlow v. Bingham, 4 Dall. (Pa.) 47; Enos v. Tuttle, 3 Conn. 27; Huff v. Miller, 7 Yerg. (Tenn.) 42; Hinsdell v. Stafford, 11 Vt. 309; Little v. Hale, 11 Vt. 482; Eunson v. Healy, 2 Mass. 32; Maine Ins. Co. v. Weeks, 7 Mass. 439; Grant v. Shaw, 16 Mass. 344; Cushman v. Haynes, 20 Pick. (Mass.) 132. "The negotiation of such note by the payee, after notice of the attachment, is a fraud upon the law, and the court from which the attachment issues may require the instrument to be placed in such custody as will prevent its improper transfer, taking care that payment of it be demanded at maturity, and, if necessary. proper notice given to indorsers--the money, if paid, to be in the place of the note, to abide the event of the proceeding." Kieffer v. Ehler, 18 Pa. St. 388. If the note is indorsed after maturity, judgment in the attachment will be a good defence to an action by the holder against the maker. Hill v. Kroft, 29 Pa. St. 186.

Where the defendant offered evidence of a foreign attachment against the plain