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Who Liable.

Private corporations are domiciliated in the State of their origin, and are artificial persons liable to have their property attached, and their property and credits subjected to garnishment in the hands of third persons in all the other States. Beyond their own State they are treated as non-residents, precisely as though they were natural persons. They are treated, however, as having a quasi domicil in other States than that of their origin, when authorized to do business there on condition of subjecting themselves to liability there When sued at such domicil to be served by ordinary process." by ordinary process, the record should show the liability there in order to support the jurisdiction of the court.3 Though operating Brauser v. New Eng. Ins. Co., 21 Wis. 506.

the Federal government does not affect their character as foreign or domestic; that depends upon locality. Bowen v. First Nat. Bank of Medina, 24 How. (N. Y.) 408; Cooke v. State Nat. Bank, 50 Barb. (N. Y.) 339; s. c., 52 N. Y. 96; Robinson v. Nat Bank of Newberne, 81 N. Y. 385.

A national bank located in Boston was held to be a foreign corporation in New York. Cooke v. State Nat. Bank, 50 Barb. (N. Y.) 339: §. c., 52 N. Y. 96.

1 Domicil of a Corporation.-The general rule is that a corporation is domiciliated only in the State which created it. and that it is incapable of passing beyond the lines of that State. Plimpton v. Bigelow, 93 N. Y. 592, 598; Merrick v. Van Santvoord, 34 N. Y. 208; Stevens v. Phoenix Ins. Co., 41 N. Y. 150; McQueen v. Middletown Mfg. Co., 16 Johns. (N. Y.) 5, Bank of Augusta 2. Earle, 13 Pet. (US.) 519; Lafayette Ins. Co. v. French, Is How. (U. S.) 404; Myer 7. Liverpool Ins. Co., 40 Md 595; Peckham v. North Parish, 16 Pick. (Mass.) 274.

2. Exceptions to that rule are now recognized and established in the interest of commerce, so far as to hold a corporation liable in other States than that where it is chartered, if it does business in them, and has representatives there who may be legally cited to find the corporation. Barr v. King, 96 Pa. St. 485; Darlington v. Rogers, 13 Phila. (Pa.) 102; Libbey 7. Hodgdon, 9 N. H. 394; Moulin v. Trenton Ins. Co., 24 N. J. L. 222.

A State permitting a foreign corporation to do business within its bounds may impose upon it the condition that it shall subject itself to liability as though it were domesticated.

Paul . Virginia, 8 Wall. (U. S.) 168; Lafayette Ins. Co. v. French, 18 How. (U. S.) 404; Newell v. Great Western Railway Co., 19 Mich. 344; Gibbs v. Queen Ins. Co., 63 N. Y. 114; s. c., 20 Am. Rep. 513; Fithian v. N. Y. & Erie R. Co., 31 Pa. St. 114; McAllister v. Pa. Ins. Co., 28 Mo. 214:

A foreign insurance company had an not doing agent in Georgia, but was business there; and it was held that he could not be garnisheed in a suit against the company, and that the Georgia court had no jurisdiction over the company. Schmidlapp v. La Confiance Ins. Co., 71 Ga. 246.

Foreign attachment certified to the court of common pleas in Ohio cannot reach the real estate of a resident of that State. Krumm v. Krauss, 26 Ohio St. 529. It lies against a non-resident corporation. Champion Co. v. Husten, 24 Ohio St. 503. The words "foreign corporations" in the statute (S. & C. 776) do not include those of the State. Boley 2. Ohio Life, etc., Co., 12 Ohio St. 139. But the action lies against a nonresident stockholder in an Ohio corporation. Nat. Bank of New London v. Lake Shore, etc., R. Co., 21 Ohio St. 221.

Indebtedness, non-residence, and a levy essential to jurisdiction. Parker v. Miller, 9 Ohio, 108.

The proceeding held to be in rem, and therefore strict observance of the law Humphrey . Wood, Wright necessary (Ohio), 566. The absence of one joint Attachment for nondebtor not sufficient. Taylor v. McDonald, 4 Ohio, 149. resident must be founded on contract or judgment. Pope v. Ins. Co., 24 Ohio St. 481. In foreign attachment, jurisdiction depends on the existence of property or rights in action. Myers v. Smith, 29 Ohio St. 120.

3. Foreign Corporation Doing Business in the State.-"When service is made within a State upon an agent of a foreign corporation, it is essential, in order to support the jurisdiction of the court to render a personal judgment, that it should appear somewhere in the record . . . that the corporation was engaged in busiThe jurisdiction ness in the State ..

of the court, under the writ, to dispose of 299

in different States, a corporation cannot be successfully garnisheed in one for a debt payable in another. The rule which exempts a personal non-resident from garnishment under such circumstances is applicable to foreign corporations.2

the property attached cannot be doubted, so far as was necessary to satisfy the demand. No question was raised as to the validity of the judgment to that extent. The objection to it was to evidence that the amount rendered was an existing obligation or debt against the company. If the court had not acquired jurisdiction over the company, the judgment established nothing as to its liability beyond the amount which the proceeds of the property discharged." St. Clair v. Cox, 106 U. S. 350.

1. Corporation Operating in Different States. - An attachment was issued against a non-resident debtor, and a summons of garnishment served on the East Tenn., Va. & Ga. Railroad Co. by serving a station agent in Georgia. The answer of the garnishee showed that the company acted under charters from each of the States; that it was indebted to the attachment defendant, in Tennessee, for labor there performed, and where he resided; that his wages were exempt from attachment by the laws of Tennessee; that he had sued for his wages in that State, and had recovered, though the garnishment had been pleaded there by the company in defence to his suit.

It was held that no debt was due to the attachment defendant in Georgia, by the gar nishee (the R. Co.). Wells v. East Tenn., etc., R. Co., 74 Ga. 548. This case distinguished from Kyle v. Montgomery, 73 Ga. 337.

which was enacted in aid of creditors extends only to cases of foreign corporations having, at the time, property in the Commonwealth liable to be attached; giving our courts jurisdiction of such corporations, as defendants, only in cases where they have property within the Commonwealth. This statute, it will be observed, subjects foreign corporations to the same liability, as defendants, which attach to individuals, and nothing more than this; and there seems to be no good reason for extending their liabilities, in cases of the trustee process, beyond that which exists in cases of individuals residing in another State. Applying this principle to the facts of the present case, it would seem very clearly to follow that, as a general rule, foreign corporations are not liable to the trustee process.

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It seems to us very clear that the circumstances of the residence here of individual members of this corporation can give no locality to the corporation within this Commonwealth. The individual members, as such, have no authority or capacity to act in the corporate name, or to represent the corporate interests; and, if their residence in any State were allowed to have the effect to make the corporation a domestic one, our corporations, instead of being local and limited, for most purposes, to the territorial limits of the States incorporating them. would have a corporate existence, rendering them liable to civil process, in as many different States as its various members might happen to reside in. Nor do we think the fact that individuals, who hold offices in such corporation, reside here, or that the books and records are kept here, can give the corporation so far the character of a domestic corporation as to subject it to suits here in which the corporation is summoned as trustee. We think that the jurisdiction of our courts, in suits against them, can only attach when they have property within the Commonwealth liable to attachment." Danforth v. Penny, 3 Metc. (Mass.) 564. Of like import: Gold v. Housatonic R. Co., I Gray (Mass.), 424; Larkin 7. Wilson, 106 Mass. 120; Liverpool Ins. Co. v. Massachusetts, 10 Wall. (U. S.) 566; Willet v. Equitable Ins. Co., 10 Abb. Pr. (N. Y.) 193; Smith v. B. C. & M. R. Co., 33 N. H. 337; Bradford v. Mills, 5 R. I. 393; Myer v. Liverpool, etc.,

A carrier is not responsible for goods sold under an attachment, after having notified the owner thereof. Balt. & Ohio R. Co. v. Davis (Pa.), 10 Cent. Rep. 630. 2. Garnishment of Foreign Corporations. -A non-resident is not garnishable, unless he owe the attachment defendant a sum payable in the State, or hold goods of the defendant within the State where the writ is sued out. Tingley v. Bateman, 10 Mass. 343; Ray v. Underwood, 3 Pick. (Mass.) 302; Hart v. Anthony, 15 Pick. (Mass.) 445; Squair v. Shea, 26 Ohio St. 645.

Foreign corporations are exempt from garnishment, subject to the same exceptions, though the officers reside in the State and the statute provides that all corporations may be summoned under the trustee process. In announcing this principle, in Massachusetts, the court said:

"It will be seen that the statute

This rule, however, has not been invariably followed: funds in the hands of a common carrier have been attached, though payable in another State.1

Property in transitu cannot be attached in the hands of the carrier, except in the county where the writ is issued, it has been held; nor anywhere within the bounds of the State, if the service on the common carrier as garnishee was too late for the necessary orders from the superior officer to reach the subordinate agents in charge of the goods in time to stop the transit. And it is queried whether a common carrier may be garnisheed at all for goods already in transit and crossing the State.

If the owner of baggage is a passenger, the common carrier cannot be garnisheed within the State as the possessor of it, in a suit against the passenger.3

Ins. Co., 40 Md. 595; State v. Boston, etc., R. Co., 25 Vt. 433. Compare Midland P. R. Co. v. McDermid, 91 Ill. 170. Where a foreign corporation has assented, in consideration of privileges granted, to keep an officer within the State duly authorized to represent it in having service served upon him in its behalf, it may be legally garnisheed by service upon such representative. Jones v. N. Y. & Erie R. Co., Grant (Pa.), 457; Fithian v. N. Y. & Erie R. Co., 31 Pa. St. 114; Barr . King, 96 Pa. St. 485.

Operating within the State has been held sufficient to render a foreign railroad corporation liable to attachment and garnishment under a statute authorizing the corporation to do business within the State. Pennsylvania R. Co. v. Peoples, 31 Ohio St. 537.

Under a statute of Illinois providing that foreign corporations doing business within the State shall be subject to all liabilities that are imposed on domestic corporations, it was held that they were garnishable. Hannibal, etc., R. Co. v. Crane, 102 Ill. 249. And. in Missouri, under a general statute, foreign corporations were held amenable to garnishment where they had an agent within the State on whom process could be served. McAllister v. Pennsylvania Ins. Co., 28 Mo. 214.

A foreign railroad company is liable to garnishment in Ohio. Pennsylvania R. Co. v. Peoples, 31 Ohio St. 537. Like ruling has been had in Wisconsin. Brauser New Eng. Fire Ins. Co., 21 Wis. If a corporation is chartered by more than one State, it is garnishable wherever chartered-not being deemed a foreign corporation because of its having also obtained a franchise elsewhere. Smith v.

506.

B. C. & M. R. Co.. 33 N. H. 337; Balt. & O. R. Co. v. Gallahue, 12 Gratt. (Va.) 655. Compare Mahany v. Kephart, 15 W. Va. 609.

1. A common carrier has been held liable to garnishment for funds of the defendant in hand, though payable in another State. Adams v. Scott, 104 Mass. 164. Compare Bottom v. Clark, 7 Cush. (Mass.) 487; Whipple v. Robbins, 97 Mass. 107; Edwards v. Transit Co., 104 Mass. 159; Clark v. Brewer, 6 Gray (Mass.), 320.

2. If a common carrier has property which he is taking through the State, it has been held that it can be attached only if it is in the county where the writ is sued out. Ill. Cent. R. Co. v. Cobb, 48 Ill. 402; Sutherland v. Peoria Bank, 78 Ky. 250. The ruie has been extended in Wisconsin, and it is held that a railroad company cannot be garnisheed, though property of the defendant in transitu be within the lines of the State at the time of the service of the summons, if the service came too late for the necessary orders to subordinates in charge; and, semble, that property in transit cannot be made the subject of garnishment whether in the county or not. Bates v. Chicago, etc., R. Co., 60 Wis. 296; s. c., 50 Am. Rep. 369. Compare St. Louis, etc., R. Co. v. Larned, 103 Ill. 293.

A non-resident common carrier, for losing a passenger's baggage within the State, is not liable to the process of foreign attachment. Porter v. Hildebrand, 14 Pa. St. 129.

3. In Western R. Co. v. Thornton, 60 Ga. 300, an agent of the company in charge of a trunk was sought to be garnisheed, in a suit against its owner. who was a passenger on the railroad; but he was held not amenable, because he did not have such possession, at the station

Whether an agent or trustee of a railroad company may be garnisheed in a suit against it, depends upon his relations to the company.1

9. General Rule as to Both Persons and Corporations when Non-resident.-Garnishment does not depend upon residence, whether foreign or not, but upon the question whether the property or credit sought to be subjected to the process is deliverable or payable to the defendant within the State where the process is issued.2

But if, without property so deliverable, or not owing debt there payable, and therefore exempt from garnishment, the foreign corporation or private non-resident cannot voluntarily answer so as to bind the attachment defendant.3

10. When Foreign Corporation Held Not Liable.-The liability of a foreign corporation to garnishment has been adjudged to de

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Creditors may reach, by garnishment, the profits and earnings of a railroad operated by a company which have mortgaged the road itself to bondholders. Miss., etc., R. Co. v. U. S. Express Co., 81 Ill. 534.

Should the receiver, appointed to represent a corporation, have to defend a suit in another State where property of the corporation has been attached, he must make himself a party to the suit there. South Carolina R. Co. v. Peoples' Saving Institution, 64 Ga. 18.

2. General Rule.-Both the defendant and the garnishee may be non-residents; but, if the latter be found within the State with property of the defendant deliverable there, or indebted to the defendant and the debt payable there, he may be garnisheed. Sawyer . Thompson, 4 Foster (N. H.), 510; Young 7. Ross, II Foster (N. H.), 201; Green 7. Farmers' Bank, 25 Conn. 452; Ray v. Underwood, 3 Pick. (Mass.) 302; Hart v. Anthony, 15 Pick. (Mass.) 445; Nye v. Lipscombe, 21

Pick. (Mass.) 263; Tingley v. Bateman, 10 Mass. 343: Lovejoy v. Albee, 33 Me. 414: Baxter v. Vincent, 6 Vt. 614; Jones v. Winchester, 6 N. H. 497; Lawrence 2. Smith, 45 N. H. 533; Miller v. Hove, 2 Cr. (C. C.) 622; Bates v. N. O., etc.. R. Co., 4 Abb. Pr. (N. Y.) 72; Willet v. Eq. Ins. Co., 10 Abb. Pr. (N. Y.) 193; Cronin v. Foster, 13 R. I. 196; Waldron v. Wilcox, 13 R. I. 518.

3. If the garnishee is a non-resident without property deliverable, or indebtedness payable within the State when temporarily found there, he cannot waive his exemption from garnishment and bind the defendant by answering. Rindge v. Green, 52 Vt. 204.

A corporation domiciled in one State, yet doing business in another with a representative in the latter duly authorized to bind the corporation by being subjected to service, is garnishable. Commerce Bank v. Huntington, 129 Mass. 444. In such case the corporation may be treated in either State as a resident, and therefore garnishable. Smith v. B. C. & M. R. Co.. 33 N. H. 337; Balt. & Ohio R. Co. 7. Gallahue, 12 Gratt. (Va.) 655. If property be held in another State, under trust created by a judicial decree in that State, the trustee is accountable there only, though he reside where the attachment or garnishment writ be directed against him. Jenkins v. Lester, 131 Mass. 355; Curtis . Smith, 60 Barb. (Ñ. Y.) 9.

In Virginia, an insurance company incorporated under the laws of the United States, though complying with the laws of that State in relation to foreign insurance companies doing business there, is liable to foreign attachment. Cowardine 7. Universal Life Ins. Co., 32 Gratt. (Va.) 445; Va. Code, ch. 36, 19.

pend upon its assumption of domesticity in States where it operates, other than that of its domicil of origin. In other words that, as a foreign corporation, it is not subject to the process.1

IV. Cause of Action Which This Remedy May Aid.-1. Debt Due. -Ordinary debt due from the non-resident defendant to the plaintiff, and payable within the State, constitutes the usual cause of action which the extraordinary remedy of foreign attachment is designed to aid. In most of the States it must be certain and liquidated; in several it must be based upon contract; in some the statute authorization includes all money demands."

1. It has been repeatedly held, how ever, that, unless the foreign corporation has agreed to become liable to garnishment as though it were domestic, or has voluntarily put itself under the operation of statutes which render it amenable, it is not liable.

Duke . R. I. Locomotive Works, 11 R. I. 599; Clark v. Chapinan, 45 Ga. 486; Daniels 7. Meinhard, 53 Ga. 359: Varnell Speer, 55 Ga. 132; Claflin 7. Iowa City, 12 Iowa, 284: Kennedy v. H. L. & S. Society. 38 Cal. 151; Raymond v. Rockland Co., 40 Conn. 401. 2. Debts Due. -Drake on Attach. (6th Ed.). ch. 2.

Payable Within the State."-Kneeland, in his Treatise on Attachments, ch. 8. pp. 95-99. says: "There has been some difficulty in ascertaining what is meant by the phrase 'cause of action arose,' as used both in the former and the present code (of New York). It was held at special term that the term 'cause of action is synonymous with chose in action; that it refers to the contract itself, and not the breach of a contract, and that consequently the cause of action arises where the contract or note is made, and not where it is payable. Thus, a note made in Iowa, payable at a bank in the city of New York, is not a cause of action arising in New York Cantwell 2. Dubuque West. R. Co., 17 How. Pr. (N. Y.) 16. This case substantially holds that the duty, not the breach of duty, is the cause of action.

"On the contrary. Judge Hand, at the special term of the same court, held that, whatever be the form of action, the breach of duty, and not the duty itself, is the cause of action, and that a bill drawn and accepted in Boston but made payable at a bank in New York, is a cause of action arising in New York. Bank of Commerce v. Rutland and Washington R. Co., 10 How. Pr. (N. Y.) 1. Although this decision was rendered prior to that of Cantwell 7. Dubuque, etc., 17 How. Pr. (N. Y.) 16, last above cited, it was affirmed at the general term, and has

since been quoted as authority on this point. . . . I think it safe, therefore, to adopt the rule that a cause of action arises at the place where the breach of duty occurs. In the case of bills, notes, or other contracts for the payment of money only, the breach of duty arises from the non-payment at the place where they are made payable. It follows that, in respect to such contracts, the cause of action arises when they are payable; and this follows the general rule, now quite well settled, that where a contract is made at one place, and to be performed at another, the contract, as to its validity, nature, obligation, and interpretation, is to be governed by the law of the place of its performance. [Cited, Bank of Commerce 7. Rutland, etc., R. Co., 10 How. Pr. (N. Y.) 1; Fanning v. Cousequa, 17 Johns. (N. Y.) 511; Andrews v. Pond, 13 Pet. (U. S.) 65; and, for the same principles in regard to bills and notes, see Lee v. Selleck, 33 N. Y. 615.] But if the performance of a contract is partly in another State and partly in New York, the cause of action cannot be said to have arisen in this State if the contract was made and payable in another State.

The New York supreme court, in a late case, held that, where a contract was made in Canada, to be by its terms performed there or here, and was in fact chiefly performed here, and the notice of discharge alleged to be a breach was given here, the cause of action may be said to have arisen here. This shows the distinction between the cause of action and the contract itself, for that certainly was a Canadian contract. Campbell v. Proprietors, etc., 18 How. Pr. (N. Y.) 418. In an earlier reported case (Conn. Mut. Life Ins. Co. v. Cleveland R Co., 41 Barb. (N. Y.) 9, see also Hiller v. B. & M. R. Co., 70 N Y. 223), the same court held that, where a foreign corporation made in another State its bonds and coupons, secured by property in its own State but payable in the city of New York, the cause of action arises here,

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