To exercise this power would in many cases, however, lead to inconvenience and hardship, by compelling the garnishee to answer to a suit pending in a court a long distance from his home. Influenced by these considerations, the courts have construed garnishee statutes strictly, and have declined to charge a non-resident or foreign corporation as garnishee, unless the legislative intention so to do was expressed in language clear and unambiguous.'

This rule of strict construction is adopted for the protection of the garnishee. Hence the fact that both plaintiff and defendant are residents of the state of process does not vary the rule, when the garnishee is a non-resident and served with process while temporarily within the state. In a case with these facts in Rhode Island, Cronin v. Foster, 13 R. I. 196, 197, the court, by Potter, J., assigns these reasons for the rule:

"By the custom of London, whence the process arose, no person could be served as trustee unless he resided within the jurisdiction of the court. And to this effect was the decision of many of the earlier cases here in the United States.

"When a person transiently in another state is sued for his own debt, it is a different case. But if a person by garnishment is compelled, in order to satisfy a debt not his own but due from one of his creditors, to pay his own debt in a mode very different from that in which he would otherwise have paid it, or to carry goods perhaps of weight from his own state into another in order to discharge himself, it might in many cases be a hardship; and this has led the courts, and very properly, to a great degree of strictness in deciding on the liability."

cess of its courts, and to charge 564; Gold v. Housatonic R'y, 1 him for all the defendant's property Gray (Mass.), 424; Green v. Farmunder his control within the state. ers' Bank, 25 Conn. 452; Sawyer v, 1 Baxter v. Vincent, 6 Vt. 614; Thompson, 24 N. H. 510; Wheat v. Tingley v. Bateman, 10 Mass. 343; Platte City R'y, 4 Kan. 370. Danforth v. Penny, 3 Met. (Mass.)

When both the defendant and the garnishee are nonresidents of the state of process, and the defendant is not personally served and does not appear, a judgment charging the garnishee for a debt due without the state is void as against the defendant for want of jurisdiction over him or over his property. Hence, when the garnishee is sued by his own creditor, such garnishee judgment may be impeached collaterally, and will constitute no defense for the garnishee, even in the same state of its rendition.'

When, however, the defendant as well as the non-resident garnishee are both personally served with process in the state of suit, a judgment charging the garnishee upon default is not void, but at most only irregular or erroneous; and therefore it cannot be impeached collaterally by the garnishee when he is sued upon such judgment. Having been duly served with process, it was the garnishee's duty, although a non-resident, to appear and answer and claim his immunity from the process; and having failed to do so at the proper time, he must bear the consequences and pay the judgment.2

§ 148. Liability to attachment is determined by law of the state where property is situated. The liability of property belonging to non-residents to be attached and sold under legal process is determined by the law of the state in which the property is actually situated and from whose courts the process issues, and is not determined by the law of the state in which the owner resides. Hence, in case of conflict between the laws of these two states, the law of the former governs.3

In the New York case of Keller v. Paine, ubi supra, all the parties were residents of Pennsylvania, under whose laws a mortgagee had a better title than a subsequent attaching creditor, although the mortgagee had not taken

1 Columbus Ins. Co. v. Eaton, 35 Me. 391.

3 Keller v. Paine, 107 N. Y. 83, reversing Keller v. Paine, 34 Hun

2 Lawrence v. Smith, 45 N. H. (N. Y.), 167; Cronan v. Fox, 50

533.

N. J. L. 417.

possession of the property, or had his mortgage recorded, until after the attachment was made. The property, which consisted of a canal-boat, was, however, found and attached in New York by process issuing from a New York court of competent jurisdiction; and, after judgment for the attaching creditor, it was sold in satisfaction of his demand. In an action by the mortgagee for converting his property, based upon the theory that the law of the parties' residence (Pennsylvania) governed the case, it was held by the New York court of appeals that the law of New York governed the case, notwithstanding the fact that all the parties were non-residents of that state; that according to the laws of New York the attaching creditor had a better title than the mortgagee; and that therefore the mortgagee could

not recover.

So, also, exemptions from attachment are as a general rule governed by the law of the state in which the property is attached, and not by the law of the state in which its owner resides. The fact that the defendant owner resides in another state is immaterial; because, for the purpose of attachment, his property is subject to the exclusive jurisdiction and laws of the state where it is actually situated, and the only exemptions allowed are those given by the laws of that state.1

§ 149. Qualifications of this rule —(1) Plaintiff's fraud. But there are some qualifications to these rules, as follows: If a creditor fraudulently induces his non-resident debtor to take property from a state in which it is exempt from attachment to a state in which it is liable to attachment, and there causes it to be attached, the attachment is void, and both the creditor and the attaching officer are liable in damages as trespassers; for "a valid and lawful act cannot

1 Mineral Point R'y v. Barron, 83 Ill. 365; Burlington R'y v. Thompson, 31 Kan. 180; Boykin v. Edwards, 21 Ala. 261, 264; Morgan v. Neville, 74 Pa. St. 52; Moore v.

C., R. L. & P. R'y, 43 Iowa, 385; Carson v. Railway Co., 88 Tenn. 646; Stevens v. Brown, 20 W. Va. 450; First National Bank v. Burch, 80 Mich. 242.

be accomplished by any unlawful means, and wherever such unlawful means are resorted to, the law will interpose to restore the party injured thereby to his rights."1

In Deyo v. Jennison, supra, the creditor's fraud consisted in the false representation that a person in Massachusetts wished to employ the debtor (a citizen of New York state) to transport a load of goods from a town in Massachusetts. to a town in New York, whereby the debtor was induced to take his horses and wagon to Massachusetts, where the creditor attached them. The court held that not only the creditor, but also the attaching officer, were liable in damages to the debtor for this fraudulent attachment of goods, which by the law of New York were exempt.

In Pierce v. Chicago, etc. R'y, 36 Wis. 283, it was held that a railroad corporation organized under the laws of Wisconsin and Illinois which was summoned as garnishee in Illinois of its employee living in Wisconsin, and failed to notify him of the attachment, and also failed to set up the exemption laws of Wisconsin, was, after payment to the judgment creditor in Illinois, bound to pay the same sum again to its employee in Wisconsin.

§ 150. (2) Evasions of the exemption laws of the parties' common domicile.- Some interesting questions have arisen under this head; and it is now firmly established, not only that the state of the parties' common domicile has the power to enjoin the prosecution of a garnishee suit in another state in which a debt was attached, but also that the courts of such state will exercise that power when the attachment is made in evasion or in fraud of the exemption laws of the parties' common domicile.'

1 Deyo v. Jennison, 10 Allen seems, however, to carry this doc(Mass.), 410.

2 Snook v. Snetzer, 25 Ohio St. 516; Zimmerman v. Franke, 34 Kan. 650; Keyser v. Rice, 47 Md. 203; Teager v. Landsley, 69 Iowa, 725; Wilson v. Joseph, 107 Ind. 490. Mumper v. Wilson, 72 Iowa, 163,

trine of enjoining suits in other states too far, and to amount to an invasion of the jurisdiction of another state and to deprive an attaching plaintiff of a valid lien, obtained in accordance with the laws of the state of process. In this case,

In the recent Michigan case of Drake v. Lake Shore Railway, 69 Mich. 168, it was held that a debt contracted and payable in Indiana between residents of that state, which by the law of Indiana was exempt as wages, was thereby rendered exempt from attachment by garnishee process in Michigan; for the reason that such exemption was a vested right in rem, which followed the debt everywhere, and which the courts of other states would recognize and enforce as against an Indiana attaching creditor. The Indiana citizen therefore failed in his attempt to appropriate such