nishment, laid stress on the fact that the debt also was foreign, as if both elements were necessary to a refusal of jurisdiction.38 But the notion that garnishment is an ordinary action against the garnishee in combination with another personal action, an action against the principal debtor, has led the courts gradually to decide that garnishment proceedings will lie in any place in which personal jurisdiction may be obtained over the garnishee. In short, the original conception of garnishment as a proceeding based on jurisdiction in rem over a thing has been entirely superseded by a conception of garnishment as a transitory personal action against the garnishee. This has usually been held, where the garnishee is a foreign corporation doing business within the state, and therefore, in a sense resident there, though not technically domiciled therein;39 but has not been confined to incorporated garnishees.40

Efforts to limit this doctrine in certain cases have failed. Thus it has been urged that where a railroad runs into two states and is

38 Mason v. Beebee, 44 Fed. 556 (1890) (debt payable elsewhere); Central Trust Co. v. Chattanooga R. & C. R. Co., 68 Fed. 685 (1895) (debt payable elsewhere); Reimers v. Seatco Mfg. Co., 30 L. R. A. 364, 17 C. C. A. 228, 37 U. S. App. 426, 70 Fed. 573 (1895) (debt payable elsewhere); Illinois C. R. Co. v. Smith, 19 L. R. A. 577, 70 Miss. 344, 12 So. 461 (1893) (debt payable elsewhere); Towle v. Wilder, 57 Vt. 622 (1885) (debt payable elsewhere).

39 Mooney v. Buford & G. Mfg. Co., 18 C. C. A. 421, 34 U. S. App. 581, 72 Fed. 32 (1896); National F. Ins. Co. v. Ming, Ariz. 6, 60 Pac. 720 (1900); Kansas City P. & G. R. Co. v. Parker, 69 Ark. 401, 86 Am. St. Rep. 205, 63 S. W. 996 (1901); Hannibal & St. J. R. Co. v. Crane, 102 Ill. 249, 40 Am. Rep. 581 (1882); Wabash R. Co. v. Dougan, 142 Ill. 248, 34 Am. St. Rep. 74, 31 N. E. 594 (1892); Pomeroy v. Rand, McN. & Co., 157 Ill. 176, 41 N. E. 636 (1895); Lancashire Ins. Co. v. Corbetts, 165 Ill. 592, 32 L. R. A. 640, 56 Am. St. Rep. 275, 46 N. E. 631 (1897); Roche v. Rhode Island Ins. Asso., 2 Ill. App. 360 (1878); Glover v. Wells, 40 Ill. App. 350 (1890); Missouri P. R. Co. v. Flannigan, 47 Ill. App. 322 (1892); Moore v. Chicago, R. I. & P. R. Co., 43 Iowa 385 (1876); Mooney v. Union P. R. Co., 60 Iowa 346, 14 N. W. 343 (1882); Burlington & M. River R. Co. v. Thompson, 31 Kan. 180, 47 Am. Rep. 497, 1 Pac. 622 (1884); Pittsburgh C. C. & St. L. Ry. v. Bartels, 108 Ky. 216, 56 S. W. 152 (1900); Harvey v. Great Northern R. Co., 50 Minn. 405, 17 L. R. A. 84, 52 N. W. 905 (1892); Howland v. Chicago, R. I. & P. R. Co., 134 Mo. 474, 36 S. W. 29 (1896); National F. Ins. Co. v. Chambers, 53 N. J. Eq. 468, 32 Atl. 663 (1895); Fithian v. New York & E. R. Co., 31 Pa. 114 (1857); Datz v. Chambers, 3 Pa. Dist. R. 353 (1894); Virginia F. & M. Ins. Co. v. New York Carousal Mfg. Co., 95 Va. 515, 40 L. R. A. 237, 28 S. E. 888 (1898); Neufelder v. German American Ins. Co., 6 Wash. 336, 22 L. R. A. 287, 36 Am. St. Rep. 166, 33 Pac. 870 (1893); Pennsylvania R. Co. v. Rogers, 52 W. Va. 450, 62 L. R. A. 178, 44 S. E. 300 (1903).

In Holt v. Ladd, 71 Vt. 204, 44 Atl. 69 (1899) garnishment was allowed where the debt was contracted within the state.

40 Balk v. Harris, 198 U. S. 215, 25 Sup. Ct. 125, 49 L. ed. 1023 (1904).

chartered in each it is impossible to reach the foreign corporation within whose state the garnished claim arose." So in a few cases garnishment is denied where to allow it would enable the creditor to evade the local law as to exemptions.42 These limitations are unsound; but an exception must probably be allowed in the case of a judgment, which cannot be reached by garnishment proceedings outside the state in which it was rendered.43

Since the decision of a garnishment suit is a judgment, and is protected as such by the Supreme Court of the United States, that court obviously has the last word on the subject. The history of the question in that court is peculiar. No case appears to have been carried to the court until recently. In the case of Chicago, Rock Island and Pacific Railway v. Sturm 44 the court held that a judgment against a resident garnishee was binding although the principal debtor was absent. The reasoning of the court was open to criticism, especially the attempted distinction between the right of the creditor and the obligation of the debtor, and led the Court into an untenable decision. As a result in Harris v. Balk 45 the court quite ignored the nature of the proceeding as quasi in rem, and held that a garnishee could be held in any jurisdiction where he may be served with process. Mr. Justice Peckham said:

"We do not see how the question of jurisdiction vel non can properly be made to depend upon the so-called original situs of the debt, or upon the character of the stay of the garnishee, whether temporary or permanent, in the state where the attachment is issued. Power over the garnishee confers jurisdiction on the courts of the State where the writ issues. If, while temporarily there, his creditor might sue him there and

41 Wells v. East Tennessee V. & G. Co., 74 Ga. 548 (1885). Contra, Holland v. Mobile & O. R. Co., 16 Lea 414 (1886); Mobile & O. R. Co. v. Barnhill, 91 Tenn. 395, 30 Am. St. Rep. 889, 19 S. W. 21 (1892); Georgia & A. R. Co. v. Stollenwerck, 122 Ala. 539, 25 So. 258 (1898).

Drake v. Lake Shore & M. S. R. Co., 69 Mich. 168, 13 Am. St. Rep. 382, 37 N. W. 70 (1888). Contra, R. R. v. Sturm, 174 U. S. 710, 19 Sup. Ct. 797, 43 L. ed. 1144 (1899); Williams v. St. Louis & S. W. R. Co., 109 La. 90, 33 So. 94 (1902). And see Goodwin v. Clayton (N. C.), 67 L. R. A. 33, 49 S. E. 173 (1904.)

Boyle v. Musser-Sauntry Land, Logging & Mfg. Co., 88 Minn. 456, 97 Am. St. Rep. 538, 93 N. W. 520 (1903); Tourville v. Wabash R. Co., 148 Mo. 614, 71 Am. St. Rep. 650, 50 S. W. 300 (1899); Noble v. Thompson Oil Co., 79 Pa. 354, 21 Am. St. Rep. 66 (1876).

44 174 U. S. 710, 19 Sup. Ct. 797, 43 L. ed. 1144 (1899).

45 198 U. S. 215, 25 Sup. Ct. 625, 49 L. ed. 1023 (1904).

recover the debt, then he is liable to process of garnishment, no matter where the situs of the debt was originally."

This language would have force if the process were merely to enjoin payment of the garnishee's debt until the other parties could be brought to a settlement. But the process of garnishment does not stop with an injunction against paying the debt. It results in a judicial discharge of the debt; and what power has the court into whose territory a debtor temporarily comes to discharge the debt as against the absent creditor? Or, for that matter, what power has the court of the debtor's domicil? It cannot discharge the debt by proceedings in insolvency; 46 nor will a bill in equity lie to adjust rival claims to payment where one of the rivals is absent.47 The decision is absolutely opposed to the decisions of many of the best courts in this country." 48

Garnishment obviously can be just only when it results in a discharge of the garnishee from his debt. Justice requires that if a garnishee is called upon to pay his debt to the plaintiff he shall be absolutely protected against suit by the defendant in another jurisdiction. It is impossible, however, for the court which allows garnishment proceedings to protect the garnishee against a suit in another jurisdiction for the recovery of a debt unless the principal defendant is himself subject to the jurisdiction of the court; for if he was not a party to prior proceedings they are not as to him res judicata and he may therefore sue in another state to recover payment. The garnishee, to be sure, would be entitled to equity protection in so far as he had actually paid the creditor's debt but the burden would be upon him to prove the existence of the debt.

46 Ogden v. Saunders, 12 Wheat. (U. S.) 213 (1827); Phoenix Nat. Bank v. Batcheller, 151 Mass. 589, 24 N. E. 917 (1890).

47 Mahr v. Norwich U. F. I. Society, 127 N. Y. 452, 28 N. E. 391 (1891). 48 In addition to the cases cited in notes 33 and 34, ante, see the following cases: Louisville & N. R. R. v. Dooley, 78 Ala. 524 (1885); Louisville & N. R. R. v. Nash, 118 Ala. 477, 23 So. 825 (1897); Green v. Farmers' & C. Bank, 25 Conn. 452; Central R. Co. v. Brinson, 109 Ga. 354, 77 Am. St. Rep. 382, 34 S. E. 597 (1899); McBee v. Purcell Nat. Bank, 1 Ind. Terr. 288, 37 S. W. 55 (1896); Bush v. Nance, 61 Miss. 237 (1883); Keating v. American Refrigerator Co., 32 Mo. App. 293 (1888); Walker v. N. K. Fairbanks & Co., 55 Mo. App. 478 (1893); Wright v. Chicago, B. & Q. R. Co., 19 Neb. 175, 56 Am. Rep. 747, 27 N. W. 90 (1886); American Cent. Ins. Co. v. Hettler, 37 Neb. 849, 40 Am. St. Rep. 522, 56 N. W. 711 (1893); Bullard v. Chaffee, 61 Neb. 83, 51 L. R. A. 715, 84 N. W. 604 (1900); Morawetz v. Sun Ins. Office, 96 Wis. 175, 65 Am. St. Rep. 43, 71 N. W. 109 (1897).

He is now protected to be sure in all states of the Union by the constitutional provision for full faith and credit to the judicial proceeding of other states; for the supreme court has held not only that there is jurisdiction for garnishment in any court which has personal jurisdiction over the garnishee, but also that the garnishment process discharges the debt of the garnishee in so far as he pays it in that process; and therefore that he may plead this judicial discharge in any other state of the United States. The Constitution, however, is without power to protect the garnishee in another country; and when he is forced to pay under such circumstances he is, therefore, forever barred from spending the summer in European travel or a winter in Cuba except at the risk of being forced again to pay the debt from which the Supreme Court of the United States would vainly have tried to discharge him. The English courts, at least, would probably deny the effect of the discharge.49

Even the Supreme Court of the United States could not protect the garnishee against the obligation to pay the debt again in the interesting case of Ward v. Boyce.50 A "trustee process" had been brought in Vermont against the husband of the present plaintiff as principal debtor and the present defendant as trustee. The debt was a promissory note claimed to belong to the husband; and in Vermont it was adjudged that the trustee owed the absent husband, and he was forced by the trustee process to pay the note. He is now sued in New York by the wife, who proves her title to the note. The court is, therefore, compelled to give judgment for the wife, and to hold that the debt had not been paid as a result of the trustee process; because, as the court said, the existence of the trusteed debt was a necessary jurisdictional fact, and since the debt alleged, that is, a debt due to the husband, did not in fact exist, the Vermont proceedings were coram non judice.

This, however, is not the only objection to the garnishment process as it has been developed by the courts. It is unjust not only to the garnishee but also and chiefly to the principal defendant; for it permits him to be subjected to doubtful or even fraudulent claims without redress. An owner of property may determine the situs of the property he owns, and may justly be subjected

49 Gibbs v. Société Industrielle, 25 Q. B. D. 399; Mayor of London v. Cox, L. R. 2 H. L. 239 (1890).

50 152 N. Y. 191, 36 L. R. A. 549, 46 N. E. 180 (1897).

to the action of the courts within whose territory his property is found. The creditor, however, has no power to fix the personal presence of his debtor at one place or another. For all the creditor can do, the debtor may travel where he will. It is, therefore, unjust to submit the creditor's claim to the accident of the debtor's presence in one state or another. Yet, according to the current doctrine, if the debtor is travelling a thousand miles away from the creditor's domicil he may there be garnished and be compelled to pay a claim which is alleged to be a legal claim against the creditor. To be sure if the creditor happens to have notice of the suit, which can usually be obtained only by careful reading of the newspaper published where the suit is brought, he has a right to defend himself; but unless the claim as made in the garnishment proceedings is a very large one it will hardly pay him to travel across the country in order to meet the charge, taking with him his evidence. Without doing so, his effort to disprove the claim, however groundless it may be, is practically hopeless; the absent is always wrong, just as surely in court as in the outside world. He may send on his deposition; but a deposition is of very little force against the actual living testimony of the plaintiff. He may employ counsel; but counsel is helpless without witnesses. Garnishment, therefore, is practiced at the present day as a safe and easy instrument of fraud.

The practical objection to the established rule has never been more forcibly stated than by Willes, J., in Mayor of London v. Cox.51

"A foreign merchant, say at New York or San Francisco, opens an account at Lafitte's [in Paris], or at Coutt's, to meet bills which he has accepted, or pay for French or English merchandise. Is it to depend upon whether Lafitte happens to visit London and walk into the City, or whether Coutt's do business in the City through one of the firm, or only through the intervention of a clerk, that the Mayor's Court shall have jurisdiction to attach the balances in Paris or in London to answer a foreign claim, which may be bad or indifferent, but is good enough to procure the dishonor of the bills, and to destroy the foreign. merchant's credit before he can take means to dissolve the attachment? The defendant may have an answer, by way of payment, or release,

51 L. R. 2 H. L. 239, 268.