ARTICLE VII.-PROCEEDINGS IN REM AND QUASI IN

SECTION.

252. Proceedings in Rem.

253. Order of Publication.

254.

REM.

Attachment-Non-residence.

255. Same-Consolidated Companies.

256. Liability to Suit as a Test.

257. Jurisdiction-Attachment an Auxiliary Remedy.

§ 252. Proceedings in Rem.-Whatever diversity of opinion may exist among the courts, as to the liability of a foreign corporation to personal service of process, there can be no doubt that both its tangible property and its choses in action within the jurisdiction may be reached, in some cases, by a proceeding in rem, in others by attachment or garnishment, which is in the nature of a proceeding in rem.1 In a Massachusetts case, where a bill in equity asked for a specific performance of a contract by a foreign corporation to assign and convey letters patent of the United States and personal chattels situated in the State, and the only service was by subpoena upon the treasurer of the corporation (a form of service unauthorized by statute in that State), the court held it had no jurisdiction; that as far as the bill asked for an assignment of the letters patent it

1 Andrews v. Michigan Cent. R. Co., 99 Mass. 534; Coffin v. Chicago Constr. Co., 67 Barb. 337; Pyrolusite Manganese Co. v. Ward, 73 Ga 491; United States Bank v. Merchants' Bank, 1 Rob. (Va.) 573.

asked for a personal decree against the defendant; that the proceeding ought to be in rem against the chattels, and the persons in whose custody they were should be joined as parties defendant.' It is doubtful, however, whether letters patent of the United States belonging to a foreign corporation can be reached at all by proceedings in rem. Such letters have been held to be intangible property, and so far as they have any situs it is that of the residence or domicile of the owner."

§ 253. Order of Publication.-Where the foreign company had property within the jurisdiction but neither the corporation nor its officers or agents could be found there, and it had no office and did no business there, it was held, in a proceeding, by a resident of the State, to foreclose a pledge of the property, in question, that the court could take jurisdiction by an order of publication, so as to affect the property with its judgment in rem.3

§ 254. Attachment- Non-residence. A foreign corporation being, as we have seen, legally a nonresident, the reasons which have induced the legislature to grant the remedy of attachment, against the property of non-resident natural persons, would seem to be technically applicable to such organizations. In many instances it has been so ruled. Statutes directing the method of proceeding against absent debtors, have been held remedial, intended to suppress a mischief and prevent a failure of jus

1 Desper v. Continental W. M. Co., 137 Mass. 252.

2 Wilson v, Martin-Wilson F. A. Co., 149 Mass. 24. See post. Coffin v. Chicago, etc. Constr. Co., 67 Barb. 337.

Ocean Ins. Co. v. Portsmouth Marine Ry. Co., 3 Metc. (Mass.) 420; Bushell v. Commonwealth Ins. Co., 15 Serg. & R. 173; Pierce v. Electric Co., 28 W. N. C. 311. Contra: McQueen v. Middletown Mfg. Co., 16 Johns. 5.

tice and therefore to be liberally construed, to include foreign corporations, among other non-resident creditors. Sometimes the statutes creating the remedy of attachment against non-residents specifically enumerate foreign corporations among them."

§ 255.

Same-Consolidated Companies.-But, as seen elsewhere, when a foreign company is consolidated with a domestic company, it thereby becomes domesticated,' and consequently it is not subject to service as a non-resident."

§ 256. Liability to Suit as a Test.-The purpose of the legislature in granting the remedy of attachment against the property of non-residents is to afford redress to the citizen of the jurisdiction as far as possible within his own local courts. The liability of the property of foreign corporations to seizure, under statutes authorizing such process, would seem logically to depend upon the liability of the company in question, to service of process in the jurisdiction. If the local statutes authorize the service of ordinary process on foreign companies, and the defendant corporation brings itself within the scope of such statute by doing business or keeping an office or agent within the State, or otherwise places itself within the jurisdiction, there would

1 United States Bank v. Merchants' Bank, 1 Rob. (Va.) 573, 584. It is worthy of note that these cases conflict, in principle, with those decisions, which hold that foreign corporations, doing business in the jurisdiction, and accessible for the service of process, are not non-resident within the meaning of the statute of limitations. Ante, §§ 245-247.

2 Rev. Stat. Tex. art. 152, ch. 2. See Societe Fonciere, etc., v. Milliken, 135 U. S. 304, 10 Sup. Ct. Rep. 823.

3 Post, Ch. X.

Sprague v. Hartford, etc. R. Co., 5 R. I. 233.

5 Such is the test applied to the running of the statute of limitations. See. §§ 245-247.

seem to be no occasion for resorting to the more summary and less affective method of attachment. So we are prepared to find that where an Alabama. railroad company was authorized by a statute of Kentucky to build its road into that State, and declared to be entitled "to all the privileges, rights and immunities" granted to it, and subject to all the restrictions imposed upon it by the legislature of Alabama, the court held that it remained an Alabama corporation, but had acquired such a residence in Kentucky that an attachment of its property in that State must be discharged.' In Missouri, for similar reasons, it was held that a foreign company which had its chief office or place of business within the State could not be sued by attachment.'

§ 257. Jurisdiction. Attachment an Auxiliary Remedy. The proceeding by attachment is an auxiliary remedy and the writ can only issue where an action has been commenced. Where the action. fails for want of jurisdiction the writ issued thereunder must fall with it. The provisions therefore of some of the statutes, that suits may be brought against foreign corporations by residents for any cause of action, and by non-residents only when the cause of action shall have arisen within the State, or the subject of the action is situated within the State, applies equally to proceedings by attachment although they are not specified in the language used.'

1 Martin v. Mobile, etc. R. Co., 7 Bush, 116.

2 Farnsworth v. Terre Haute, etc. R. Co., 29 Mo. 75. Compare Pierce v. Crompton, 13 R. I. 312.

3 Central R. Co. v. Georgia Co., 32 S. C. 319, 11 S. E. Rep. 192; Oliver v. Heywood Chair Mfg. Co., 10 N. Y. Supp. 771, 32 N. Y. St. Rep. 542, mem. 57 Hun, 588.

ARTICLE VIII.-FOREIGN COMPANY AS GARNISHEE.

SECTION.

260. Doctrine that Foreign Company, as a Non-Resident, is not Liable to Garnishment.

261. Another View-Foreign Company not a Non-resident within the Rule.

262. Corporations Created by Congress.

263. Situs of Choses in Action-Domicile of Creditor. 264. Another View-Situs Follows Domicile of Debtor.

265. Foreign Company must be Subject to Suit.

266. Service of Garnishment Writ.

267. Answer of Foreign Company as Garnishee. 268. Disclosures of Officers or Agents.

269. The Proceeding Purely Statutory.

§ 260. Doctrine that Foreign Company, as a Nonresident, is not Liable to Garnishment.-Under the custom of London, from which the process of garnishment is derived, one cannot not be charged as garnishee, unless he reside within the jurisdiction of the Lord Mayor's court.' In this country the uniform tenor of the decisions is that a non-resident is not subject to the process of garnishment, unless he have within the State property of the principal debtor in his hands, or is bound to pay him money, or deliver him goods at some particular place in the State. Since a foreign corporation is a nonresident, the rule would seem to be applicable to such companies, and it was so held in the earlier

1 Drake, on Attachment, § 474, and cases cited.

2 Drake, Attach., § 474, et seq.