cases. The circumstance that the foreign company had an office, and was engaged in the transaction of business within the State was considered immaterial.' In some jurisdictions this rule was subsequently modified by statute, providing that 'foreign companies, having a usual place of business in the State, should be liable to the process."

§ 261. Another View-Foreign Company not a Non-resident Within the Rule. However just and equitable, the principle underlying the decisions we have just discussed may be, when applied to the case of a non-resident, or of a foreign corporation, which has no office, usual place of business, or agents within the jurisdiction, it is manifest that in the case of a foreign company, which avails itself of the rule of comity to come within the State, and do business there, under the protection of the local laws, and substantially to exercise there the usual privileges of corporate existence, the application of such a principle must be purely technical and without merit. A foreign corporation which has so domesticated itself is non-resident only in name. It has all the advantages and protection. that the laws secure to domestic companies and equal opportunities to defend itself when attacked in the courts, and it is eminently proper that it should be subject to the same liabilities. It is neither just nor politic for the State to discriminate in favor of foreign as against domestic companies. Accord

1 Danforth v. Penny, 3 Metc. (Mass.) 564, on authority of Tingley v. Bateman, 10 Mass. 343; Ray v. Underwood, 3 Pick. 302; Hart v. Anthony, 15 Pick. 445. See also Gold v. Housatonic R. Co., 1 Gray, 424; Larkin v. Wilson, 106 Mass. 120; Wright v. Chicago, etc. R. Co., 19 Neb. 175.

2 Stat. Mass. 1870, ch. 194. See Larkin v. Wilson, 106 Mass. 120.

ingly we find that the courts, in construing the statutes regulating the remedy of garnishment, have very generally held that where a foreign company does business, has an office, or usual place of business in the State, or keeps its agents or officers there, in such away as to subject itself to the service of process, it may be summoned as garnishee.' In some instances, that has been the effect given by the court to statutory provisions authorizing in broad and general terms the service of process upon foreign corporations.' Where the foreign company has ceased to be a foreign organization, and has in fact, become domesticated through a legislative adoption, the above reasoning applies with special force.3

§ 262. Corporations Created by Congress.-Whichever of the above views is adopted, there can be no doubt that corporations created by the United States for Federal purposes, which, as we shall see elsewhere, are entitled to exercise their franchises throughout the country, depending for recognition, not upon the principle of comity, but upon the power of Congress, must be regarded as domestic corporations whenever they do business, and, conse

1 Branser v. New England Fire Ins. Co., 21 Wis. 506; Fithian v. New York, etc. R. Co., 31 Pa. St. 114; McAllister v. Pennsylvania Ins. Co., 28 Mo. 214; Hannibal, etc. R. Co. v. Crane, 102 Ill. 249; Burlington, etc. R. Co. v. Thompson, 31 Kans. 180, 47 Am. Rep. 497; Selma, etc. R. Co. v. Tyson, 48 Ga. 351; Pennsylvania R. Co. v. Peoples, 31 Ohio St. 537; Roche v. Rhode Island Ins. Assn., 2 Ill. App. 360; Weed S. M. Co. v. Boutelle, 56 Vt. 570; Rainey v. Maas, 51 Fed. Rep. 580. Compare Fielder v. Jessup, 24 Mo. App. 91.

2 Darlington v. Rogers, 13 Phil. 102; Pennsylvania R. Co. v. 31 Ohio St. 537, 47 Am. Rep. 497.

3 Baltimore, etc. R. Co. v. Gallahue, 12 Gratt. 655.

Peoples,

▲ Post, Ch. IX. See also Commonwealth v. Texas, etc. R. Co., 98 Pa. St. 90; Market National Bank v. Pacific National Bank, 64 How. Pr. 1.

quently, are equally subject to the process of garnishment.'

§ 263. Situs of Choses in Action-Domicile of Creditor. The jurisdiction in garnishment, no less in than attachment, depends upon the situs of the res. Not only must the garnishee be within the jurisdiction, but the property or credit must be there with him.' In the case of tangible property, there can be no difficulty in determining the situs. But where the object of the seizure is a mere legal right, a chose in action, the question becomes much more difficult. The general rule seems to be that, in the absence of a stipulation to the contrary, the situs of a debt is the domicile of the creditor. Adopting this view, a number of the courts have held. that a debt contracted by a foreign corporation, in the State of its domicile, to a defendant who resides. there, and which is payable there, cannot be reached by garnishment in another State where the company does business, although the latter is duly served with the writ of garnishment; that the debt, the res is not within the jurisdiction, although for some purposes the company is.' Where a policy of fire insurance was issued by an English company, through its Chicago agency, to an Illinois corporation, and a loss had occurred, it was held that a creditor of the insured, residing in New York, could not, by serving process upon the English company

1 Losee v. Ream, 5 Utah, 528, 17 Pac. Rep. 452; Mooney v. Union Pac. Ry. Co., 60 Iowa, 346, 349.

2 Roche v. Rhode Island Ins. Assn., 2 Ill. App. 360.

3 See State Tax on Foreign Held Bonds, 15 Wall. 300.

4 Louisville, etc. R. v. Dooley, 78 Ala. 524. See also Mo. Pac. Ry. Co. v. Maltby, 34 Kans. 125. 8 Pac. Rep. 235; St. Louis Perpetual Ins. Co. v. Cohen, 9 Mo. 421. Compare Wright v. Chicago, etc. R. Co., 19 Neb.. 175; Towle v. Wilder, 57 Vt. 622.

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at its New York agency, reach such indebtedness, on the ground that it was not property of the defendant, the insured, within the State of New York.'

§ 264.

Another View-Situs Follows Domicile of

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Debtor. The cases, however, are not in unison. In several States, the courts have adopted the rule that, if the principal debtor could have maintained an action on his demand against the garnishee within the State, the debt must be considered to be within the jurisdiction and subject to seizure. It is specifically provided by statute in Massachusetts, that such companies, if they have a usual place of business in the State, shall be liable to be summoned by trustee process. But in several other States it has been held that the statutes making corporations generally liable to such process are broad enough to cover the case of foreign companies. That view prevails in New Hampshire, where it was held that under the act directing proceedings against the trustees of debtors, foreign corporations fall within the provision of the section that "when any corporation or body-politic, within this State, shall be possessed of any money," etc." In Missouri, the St. Louis Court of Appeals has held that there must

1 Straus v. Chicago Glycerine Co., 46 Hun, 216.

2 Mooney v. Union Pac. Ry. Co., 60 Iowa, 346; Oberfelder v. Union Pac. Ry. Co., 60 Iowa, 755. In these cases it was held that the foreign exemption law cannot be pleaded or relied on, either by the garnishee, or the judgment. See also Broadstreet v. Clark, 65 Iowa, 670; Burlington, etc. R. Co. v. Thompson, 31 Kans. 180, 47 Am. Rep. 497; Roche v. Rhode Island Ins. Co., 2 Ill. App. 360.

8 Stat. Mass. 1870, ch. 194; National Bank of Commerce v. Huntington, 129 Mass. 444.

4 McAllister v. Pennsylvania Ins. Co., 28 Mo. 214; Hannibal, etc. R. Co v. Crane, 102 Ill. 249; Barr v. King, 96 Pa. St. 485; ante, §

5 Libbey v. Hodgdon, 9 N. H. 394. See also Smith v. Boston, etc. R. Co, 33 N. H. 337, 342.

be something more than a mere liability of the foreign company to suit within the jurisdiction, before a debt due by it can be regarded as having a situs in the State. It must be, for all intents and purposes, subject to all the liabilities of a domestic corporation, as, for instance, is the case with foreign corporations operating their railroads in the State.'

§ 265. Foreign Company must be Subject to Suit.Of course where the foreign company has not subjected itself to the service of process, by its opera tions within the State, credits in its hands cannot be reached by garnishment served on its officer temporarily within the State any more than jurisdiction could be acquired by such a service of summons on the company.' It has been held by the Supreme Court of Maryland that the plaintiff is subrogated in garnishment cases to the position of the principal debtor, and that where the latter being a non-resident could not under the statute maintain an action in the State against the foreign corporation,' such foreign company cannot be made liable there as garnishee.*

§ 266. Service of Garnishment Writ.-Service of summons as garnishee may, it seems, be made upon any officer of the foreign company, who might be served with ordinary process. It was so held in Georgia, although in that State a distinction is made between the service of garnishment and other

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1 Fielder v. Jessup, 24 Mo. App. 91.

2 Willet v. Equitable Ins. Co. 10 Abb. Pr. 193. Compare Taft v. Mills, 5 R. I. 393; Schmidlapp v. La Confiance Ins., 71 Ga. 246.

3 Acts Md. 1868, ch. 471, § 211.

Myer v. Liverpool, etc. Ins. Co., 40 Md. 595. Compare Straus v. Chicago Glycerine Co., 46 Hun, 216.

Selma, etc. R. Co. v. Tyson, 48 Ga. 351.