1. The Delaware rule in foreign attachment cases which
conditioned the defendant's right to appear and contest the merits
of the plaintiff's demand upon his first giving special bail or (as
the rule was amended) a surety's undertaking, and which was in
force since colonial days, finding its origin in the Custom of
London and its counterparts or analogues in procedure adopted by
other colonies and states and familiar in the common law and
admiralty, cannot be regarded as an arbitrary and unreasonable
rule, violative of the due process clause of the Fourteenth
Amendment (Del.Rev.Code, 1915, 4123, § 6). Pp.
256 U. S. 102,
256 U. S.
108.
2. Nor may the rule be adjudged obnoxious to due process in a
particular case where, through exceptional misfortune, a defendant
was unable to furnish the necessary security. P.
256 U. S.
110.
3. One who acquires property in a state and departs must be
presumed to have known and consented to such a rule of foreign
attachment, already in force. P.
256 U. S.
111.
4. A distinction made in foreign attachment cases between
nonresident individuals and foreign corporations, requiring the
individual to furnish special security before appearing and making
defense but allowing the corporation to defend on the security of
the attachment lien,
held not a denial to individuals of
equal protection of the law. P.
256 U. S.
112.
5. The privileges and immunities referred to in the Fourteenth
Amendment are such as owe their existence to the federal
government, its national character, its Constitution, or its laws.
P.
256 U. S. 113.
30 Del. 297 affirmed.
The case is stated in the opinion,
post, 98.
Page 256 U. S. 98
MR. JUSTICE PITNEY delivered the opinion of the Court.
This writ of error brings under review a judgment of the Supreme
Court of the State of Delaware affirming a judgment of the superior
court in a proceeding brought by defendants in error by foreign
attachment against the property of plaintiff in error pursuant to
the statutes of that state.
Proceedings were commenced in the superior court
Page 256 U. S. 99
December 23, 1915, by the filing of an affidavit entitled in the
cause, made by one Joyce, a credible person, and setting forth that
defendant Ownbey resided out of the state and was justly indebted
to plaintiffs in a sum exceeding $50. Thereupon a writ of foreign
attachment was issued to the sheriff of New Castle County which
plaintiffs caused to be indorsed with a memorandum to the effect
that special bail was required in the sum of $200,000, and under
which the sheriff attached 33,324 1/3 shares of stock (par value $5
each) held and owned by defendant in the Wootten Land & Fuel
Company, a Delaware corporation, and made a proper return.
Plaintiffs filed a declaration demanding recovery of $200,000,
counting upon a combination of the common money counts in
assumpsit. Whether such pleading was required or even permitted by
the statutes is questionable, but this is not material for present
purposes. Not long afterwards, defendant, by attorneys, without
giving security, went through the form of entering a general
appearance, and filed pleas of non assumpsit, the statute of
limitations, and payment. Plaintiff's attorneys moved to strike out
the appearance and pleas on the ground that special bail or
security as required by the statute in suits instituted by
attachment had not been given. To this motion defendant filed a
written response setting up that the Wootten Land & Fuel
Company, although a Delaware corporation, was engaged in coal
mining and all its other activities and business in the States of
Colorado and New Mexico, where it had large and valuable property;
that defendant was a resident of Colorado, and the stock in said
company attached in this case constituted substantially all his
property; that the company was in the hands of a receiver, and
because of this, the market value of the shares attached was
temporarily destroyed, so that they were unavailable for use in
obtaining the required bail or security to procure the discharge of
the
Page 256 U. S. 100
shares from attachment, and that it was impossible for defendant
to secure bail or security in the sum of $200,000, or any adequate
sum, for the release of the shares so attached; that defendant had
a good defense, in that there was no indebtedness upon any account
or in any sum due from him to plaintiffs; that, by the true
construction of the Delaware statutes, the entry of bail or
security for the discharge of the property attached was not a
necessary prerequisite to the entry of defendant's appearance, and
such appearance might be made without disturbing the seizure of
property under the writ or its security for any judgment finally
entered, and that, if the statutes could not be so construed as to
permit appearance and defense in a case begun by foreign attachment
without the entry of bail or security for the discharge of the
property seized, they were unconstitutional under the first section
of the Fourteenth Amendment in that (a) they abridged the
privileges and immunities of citizens of the United States, (b)
deprived defendants in cases brought under them of property without
due process of law, and (c) denied to such defendants the equal
protection of the laws.
Upon motion of plaintiffs, this response and the attempted
appearance and pleas of defendant were struck out upon the ground
that special bail or security as required by the statute had not
been given by defendant or any person for him, the court in banc
holding that, in a foreign attachment suit against an individual
there could be no appearance without entering "special bail," that
the requirement to that effect was not arbitrary or unreasonable,
and the statute was not unconstitutional.
Morgan v.
Ownbey, 29 Del. (6 Boyce) 379, 398-406.
Thereupon judgment in favor of plaintiffs and against defendant
for want of appearance was ordered, collectible only from the
property attached, the amount to be ascertained by inquisition at
bar. The inquisition afterwards proceeded, and resulted in the
finding of damages
Page 256 U. S. 101
to the amount of $200,168.57, for which final judgment was
entered.
Defendant repeatedly asked that the proceedings be opened and he
be permitted to appear and disprove or avoid plaintiff's debt or
claim, saying that, shortly after the issuance of the writ of
attachment, and as soon as advised thereof, he had proceeded to
Delaware, retained counsel, and used every possible effort to
secure bail in the sum of $200,000, offering the attached stock as
collateral security to indemnify a surety, but, because the
property of the Wootten Company was in the hands of a receiver, he
had found it impossible to obtain any surety, and that he was not
at present nor was he at the time of the issuance of the writ of
foreign attachment indebted to plaintiffs in any sum whatever, but
had a just and legal defense to the whole of the alleged cause of
action. These applications were denied, upon opinions of the court
in banc (29 Del. [6 Boyce] 417, 434-436), and the superior court
ordered the shares of stock in question sold in order to satisfy
the debt, interest, and costs.
The supreme court affirmed the judgment (30 Del. (7 Boyce) 297),
and the case comes here upon the contention that the statutes of
Delaware, as thus construed and applied, are repugnant to the first
section of the Fourteenth Amendment.
The statutes are found in the Delaware Revised Code of 1915, and
the provisions bearing upon the controversy are set forth in the
margin.
*
Page 256 U. S. 102
The principal contention is based upon the "due process of law"
clause of the Fourteenth Amendment. It is said the essential
element of due process -- the right to appear and be heard in
defense of the action -- is lacking. But the statute in plain terms
gives to defendant the
Page 256 U. S. 103
opportunity to appear and make his defense, conditioned only
upon his giving security to the value of the property attached.
Hence, the question reduces itself to whether this condition is an
arbitrary and unreasonable requirement, so inconsistent with
established modes of administering justice that it amounts to a
denial of due process. And this must be determined not alone with
reference
Page 256 U. S. 104
to a case of peculiar hardship arising out of exceptional
circumstances, but with respect to the general effect and operation
of the system of procedure established by the statutes.
The act concerning foreign attachments has been upon the statute
books of Delaware since early colonial days. Like the attachment
acts of other states, it traces its origin to the custom of London,
under which a creditor might attach money or goods of the defendant
either in plaintiff's own hands or in the custody of a third person
by proceedings in the mayor's court or in the sheriff's court. The
subject is treated at large in Bohun's
Privilegia Londini
(3d ed. 1723) p. 253
et seq. See also Bac.Abr.
(Bouv. ed.), Tit. Customs of London (H); Com.Dig. (4th ed.) Tit.
Attachment, Foreign, (A); Pulling, Laws & Customs of London (2d
ed.) 187
et seq.; Serg. Attach. Appendix, p. 205
et
seq. As is said in Drake on Attachment, § 3:
"This custom, notwithstanding its local and limited character,
was doubtless known to our ancestors when they sought a new home on
the western continent, and its essential principle, brought hither
by them, has, in varied forms, become incorporated into the legal
systems of all our states. . . . Our circumstances as a nation have
tended peculiarly to give importance to a remedy of this character.
The division of our extended domain into many different states,
each limitedly sovereign within its territory, inhabited by a
people enjoying unrestrained privilege of transit from place to
place in each state, and from state to state, taken in connection
with the universal and unexampled expansion of credit, and the
prevalent abolishment of imprisonment for debt, would naturally,
and of necessity, lead to the establishment, and, as experience has
demonstrated, the enlargement and extension, of remedies acting
upon the property of debtors."
By the custom, a defendant could not appear or raise
Page 256 U. S. 105
an issue about the debt claimed without entering special bail or
else surrendering his body.
Andrews v. Clerke, Carth. 25,
26. Hence, it naturally came about that the American colonies and
states, in adopting foreign attachment as a remedy for collecting
debts due from nonresident or absconding debtors, in many instances
made it a part of the procedure that, if defendant desired to enter
an appearance and contest plaintiff's demand, he must first give
substantial security, usually in the form of special bail. Besides
Delaware, this was true of New Jersey (Pat. L. p. 296, § 7; p. 298,
§ 16;
Watson v. Noblett, 65 N.J.Law, 506, 508);
Pennsylvania (
McClenachan v. McCarty, 1 Dall, 375, 378);
Maryland (
Campbell v. Morris, 3 Har. & McH. 535, 552,
553); Virginia (
Tiernans v. Schley, 2 Leigh, 25, 29);
North Carolina (
Britt v. Patterson, 31 N.C.197, 200;
Alexander v. Taylor, 62 N.C. 36, 38); South Carolina
(
Acock v. Linn, Harp. 368, 369-370;
Fife v.
Clarke, 3 McCord, 347, 352;
Callender v. Duncan, 2
Bailey, 454); Tennessee (
Boyd v. Buckingham, 10 Humph.
434, 437), and Ohio (1 Chase's Stat. 462, § 15, cited by counsel in
Voorhees v. Bank of United
States, 10 Pet. 449, 453).
As to the legislation in Delaware, where the system is
authoritatively deduced from the Custom of London (
Reybold v.
Parker, 6 Houst. 544, 555;
Reynolds v. Howell, 1
Marv. 52, 59;
Fowler v. Dickson, 24 Del. [1 Boyce] 113,
119), not stopping to trace early colonial laws mentioned in
Reybold v. Parker, supra, (6 Houst. 553), we find that an
act providing for proceedings by attachment against nonresident as
well as against absconding debtors was passed by the Assembly of
the Delaware Counties and the Province of Pennsylvania March 24,
1770 (Del.Laws 1753-1777, pp. 165, 174); was supplemented by acts
of the legislature of the State of Delaware of January 31, 1817
(Del.Laws 1817, p. 232, c. 133), and January 27, 1823 (Del.Laws
1822-1824, p. 261, c. 162), and found
Page 256 U. S. 106
its way, without change material to the present purpose, into
Delaware Revised Code of 1852, as c. 104. By § 3 (Code, § 2266), a
defendant desiring to enter appearance was required to put in
special bail to the value of the property attached.
In 1856, it was held by the superior court that the act did not
extend to foreign corporations, and this because a corporation
could not put in special bail or be surrendered to bail when it
appeared, and, in the absence of provision for the security to be
given, it must be held that the statute did not contemplate or
include the case of such a corporation.
Vogle v. New Granada
Canal Co., 1 Houst. 294, 299. To remedy this, a supplement was
enacted March 2, 1857 (11 Del.Laws, 482, c. 424) providing that the
writ might be issued against a foreign corporation and like
proceedings be had thereon as in other cases, except that the
attachment should be dissolved only by defendant bringing into
court the sum of money specified as the plaintiff's demand in the
affidavit on which the writ was issued, or giving security for the
payment of any judgment recovered, but that an appearance might be
entered for defendant without bringing in the money or giving the
security mentioned, in which case the writ should continue to bind
the property attached. An amendment passed March 17, 1875 (15
Del.Laws, 305, 306, cc. 181, 182) eliminated the express provision
for appearance without dissolving the attachment, and amended the
provision as to the form of security to be given, leaving the
section to stand as it appears in Rev.Code Del.1915, § 4143, § 26,
quoted in the margin,
supra. Notwithstanding this
amendment, it seems to be thought that, in attachment against a
foreign corporation, the entry of security is still not a
prerequisite to appearance, and necessary only if it be desired to
discharge the garnishees and the property attached (2 Woolley,
Del.Prac. § 1293), and in favor of plaintiff in error we shall so
assume.
Page 256 U. S. 107
Meantime, the provision requiring a nonresident individual to
enter special bail as a condition of making appearance remained as
before until March 6, 1877, when the legislature substituted a
provision requiring security to be given to the satisfaction of the
plaintiff or of the court to the value of the property attached and
costs, conditioned that defendant answer the plaintiff's demand and
satisfy any judgment recovered, to the extent of the value of the
property attached. 15 Del.Laws, 612, c. 473. In this form, it is
found in Rev.Code Del.1915, § 4123, § 6, quoted in the margin,
supra.
It will be seen that, from the beginning, the giving of
security, either in the form of special bail or a substituted
undertaking for the payment of the judgment, has been made a
condition precedent to the entering of appearance and making
defense upon the merits by a nonresident individual defendant whose
property was taken under foreign attachment. In the present case,
the court in banc called attention to the hardship occasionally
arising from this, and suggested that the legislature provide a
remedy.
Morgan v. Ownbey, 29 Del. (6 Boyce) 435. There
followed an amendatory act of March 23, 1917 (29 Del.Laws, 844, c.
258), permitting an appearance and defense without the giving of
special security, but leaving the lien upon the property attached
to remain as security
pro tanto, which was made to apply,
subject to conditions, to all suits instituted (as this one was)
after January 1, 1915. Whether plaintiff in error was at liberty to
avail himself of this statute we are not advised, and, for present
purposes, it will be disregarded.
The courts of Delaware at all times have laid emphasis upon the
difference between the original character of a suit by foreign
attachment, treating it as an
ex parte proceeding
quasi in rem, looking to a judgment of condemnation
against the property attached and having the incidental object of
compelling defendant's appearance,
Page 256 U. S. 108
on the one hand, and the action
in personam, with its
appropriate incidents, that resulted from an appearance by
defendant accompanied by the giving of security, on the other.
Wells v. Shreve's Administrator (1861), 2 Houst. 329,
369-370;
Frankel v. Satterfield (1890), 9 Houst. 201, 209;
Nat. Bank of W. & B. v. Furtick (1895), 2 Marv. 35,
51. Recognizing the fundamental character of this distinction, and
regarding the foreign attachment in Delaware as wholly statutory,
the courts have not felt at liberty, in the absence of legislation,
to give to the proceeding a hybrid character by permitting an
appearance without security other than the property attached,
leaving this to answer
pro tanto the plaintiff's
demand.
The requirement of special bail as a condition of appearance was
long familiar in bailable actions at common law and in admiralty
proceedings. In requiring such bail from a nonresident defendant
whose goods had been seized and who desired to be heard to contest
the plaintiff's demand, Delaware did but follow familiar precedents
and analogies, besides conforming to the custom. It is not
contended that the substitution, by the 1877 amendment, of a bond
conditioned for payment of the judgment to the extent of the value
of the property attached, in lieu of the special bail formerly
required on entering appearance, made a substantial difference
rendering the new requirement any more obnoxious to the due process
clause than the earlier. It is the imposing of any condition
whatever upon the right to be heard that is complained of.
Hence, the question is whether the state, in thus adopting a
time-honored method of procedure and preserving as a part of it a
time-honored requirement of security, and in adhering logically to
the ancient distinction between a proceeding
quasi in rem
and an action
in personam, to the extent of refraining,
until the amendment of 1917, from enacting legislation recognizing
the peculiar appeal
Page 256 U. S. 109
of a defendant who may have no resources or credit aside from
the property attached, must be regarded as having deprived such a
defendant of his property without due process of law, in
contravention of the Fourteenth Amendment. In our opinion, the
question must be answered in the negative.
In
Murray's Lessee v. Hoboken
Land & Imp. Co., 18 How. 272,
59 U. S. 276,
59 U. S. 280,
which arose under the due process clause of the Fifth Amendment,
the Court, by Mr. Justice Curtis, declared (pp.
59 U. S.
276-277):
"The Constitution contains no description of those processes
which it was intended to allow or forbid. It does not even declare
what principles are to be applied to ascertain whether it be due
process. . . . To what principles, then, are we to resort to
ascertain whether this process, enacted by Congress, is due
process? To this, the answer must be two-fold. We must examine the
Constitution itself, to see whether this process be in conflict
with any of its provisions. If not found to be so, we must look to
those settled usages and modes of proceeding existing in the common
and statute law of England, before the emigration of our ancestors,
and which are shown not to have been unsuited to their civil and
political condition by having been acted on by them after the
settlement of this country."
In
Pennoyer v. Neff, 95 U. S. 714,
95 U. S.
722-724, it was shown that the process of foreign
attachment has its fundamental basis in the exclusive jurisdiction
and sovereignty of each state over persons and property within its
borders, and although emphasis was there laid upon the authority
and duty of a state to protect its own citizens in their claims
against nonresident owners of property situate within the state, it
is clear that, by virtue of the "privileges and immunities" clause
of § 2 of Article IV of the Constitution, each state is at liberty,
if not under a duty, to accord the same privilege of protection to
creditors
Page 256 U. S. 110
who are citizens of other states that it accords to its own
citizens.
Blake v. McClung, 172 U.
S. 239,
172 U. S. 248
et seq.
The record before us shows no judgment entered against plaintiff
in error
in personam, but only one for carrying into
effect a lien imposed upon his interest in property within the
jurisdiction of the state for the purpose of satisfying a demand
made against him as a nonresident debtor, and established to the
satisfaction of the court. And an analysis of his contentions shows
that the real complaint was and is not that there was any
departure, arbitrary or otherwise, from the due and orderly course
of procedure provided by the statutes of Delaware long before the
case arose, but rather that the courts of the state declined to
recognize the peculiar hardship of his case as sufficient ground
for relaxing in his behalf the established legal procedure. His
appeal, in effect, was to the summary and equitable jurisdiction of
a court of law so to control its own process and proceedings as not
to produce hardship. This is a recognized extraordinary
jurisdiction of common law courts, distinguishable from their
ordinary or formal jurisdiction. It has been much developed since
the separation of the American colonies from England. But where the
proceedings have been regular, it is exercised as a matter of grace
or discretion, not as of right, and is characterized by the
imposition of terms on the party to whom concession is made.
Smith's Action at Law (4th ed. 1851) pp. 22-27; Stewart's
Blackstone (1854) vol. 3, pp. 334-338. A liberal exercise of this
summary and equitable jurisdiction, in the interest of substantial
justice and in relaxation of the rigors of strict legal practice,
is to be commended, but it cannot be said to be essential to due
process of law in the constitutional sense.
The due process clause does not impose upon the states a duty to
establish ideal systems for the administration of justice, with
every modern improvement and with
Page 256 U. S. 111
provision against every possible hardship that may befall. It
restrains state action, whether legislative, executive, or
judicial, within bounds that are consistent with the fundamentals
of individual liberty and private property, including the right to
be heard where liberty or property is at stake in judicial
proceedings. But a property owner who absents himself from the
territorial jurisdiction of a state, leaving his property within
it, must be deemed
ex necessitate to consent that the
state may subject such property to judicial process to answer
demands made against him in his absence according to any
practicable method that reasonably may be adopted. A procedure
customarily employed long before the Revolution in the commercial
metropolis of England, and generally adopted by the states as
suited to their circumstances and needs, cannot be deemed
inconsistent with due process of law, even if it be taken with its
ancient incident of requiring security from a defendant who, after
seizure of his property, comes within the jurisdiction and seeks to
interpose a defense. The condition imposed has a reasonable
relation to the conversion of a proceeding
quasi in rem
into an action
in personam; ordinarily it is not difficult
to comply with -- a man who has property usually has friends and
credit -- and hence, in its normal operation, it must be regarded
as a permissible condition, and it cannot be deemed so arbitrary as
to render the procedure inconsistent with due process of law when
applied to a defendant who, through exceptional misfortune, is
unable to furnish the necessary security -- certainly not where
such defendant, as is the case now presented, so far as the record
shows, has acquired the property right and absented himself from
the state after the practice was established, and hence with notice
that his property situate there would be subject to disposition
under foreign attachment by the very method that afterwards was
pursued, and that he would have no right to
Page 256 U. S. 112
enter appearance and make defense except upon giving
security.
However desirable it is that the old forms of procedure be
improved with the progress of time, it cannot rightly be said that
the Fourteenth Amendment furnishes a universal and self-executing
remedy. Its function is negative, not affirmative, and it carries
no mandate for particular measures of reform. For instance, it does
not constrain the states to accept particular modern doctrines of
equity, or adopt a combined system of law and equity procedure, or
dispense with all necessity for form and method in pleading, or
give untrammeled liberty to make amendments. Neither does it, as we
think, require a state to relieve the hardship of an ancient and
familiar method of procedure by dispensing with the exaction of
special security from an appearing defendant in foreign
attachment.
We conclude that the statutes under consideration were not in
conflict with the due process provision of the Fourteenth
Amendment.
Under the equal protection clause, it is contended that there is
unwarranted discrimination in debarring an individual from
appearing and making defense without first giving special security,
while a foreign corporation may appear and answer without giving
any security, except for the lien of the process upon the property
attached. But, as we have seen, the difference in treatment was
resorted to because, from their nature, corporations could not put
special bail or be surrendered thereunder. This was a reasonable
ground for separating defendants into two classes -- individuals
and corporations, and it was natural that, in subsequent
legislation, the classes should be separately treated, as was done.
There is here no denial of the equal protection of the laws within
the meaning of the Fourteenth Amendment.
The objection that the acts abridge the privileges and
Page 256 U. S. 113
immunities of citizens of the United States, within the meaning
of the same amendment, is not pressed, and plainly is untenable. As
has been pointed our repeatedly, the privileges and immunities
referred to in the amendment are only such as owe their existence
to the federal government, its national character, its
Constitution, or its laws.
Maxwell v. Bugbee, 250 U.
S. 525,
250 U. S.
537-538, and cases cited. The privileges and immunities
of plaintiff in error alleged to be abridged by the statutes in
question have no such federal origin.
The judgment under review is
Affirmed.
MR. JUSTICE McREYNOLDS concurs in the result.
THE CHIEF JUSTICE and MR. JUSTICE CLARKE dissent.
*
"4142. Sec. 25. A writ of foreign attachment may be issued
against any person not an inhabitant of this state . . . upon
affidavit made by the plaintiff, or some other credible person, and
filed with the prothonotary that the defendant resides out of the
state, and is justly indebted to the said plaintiff in a sum
exceeding fifty dollars. . . ."
"4145. Sec. 28. The said writ shall be framed, directed,
executed, and returned, and like proceedings had, as in the case of
a domestic attachment, except as to the appointment of auditors and
distribution among creditors; for every plaintiff in a foreign
attachment shall have the benefit of his own discovery, and, after
judgment, may proceed, by order of sale,
fieri facias, capias
ad satisfaciendum, or otherwise, as on other judgments."
"Provided that, before receiving any sum under such judgment,
the plaintiff shall enter into recognizance as required by section
18 preceding."
"4135. Sec. 18. Provided that, before any creditor shall receive
any dividend or share so distributed, he shall, with sufficient
surety, enter into recognizance to the debtor, before the
prothonotary, in a sufficient sum, to secure the repayment of the
same or any part thereof if the said debtor shall, within one year
thereafter, appear in the said court and disprove or avoid such
debt or such part thereof."
"The proceeding for this purpose may be by motion to the court,
and an issue framed and tried before the same."
"4123. Sec. 6. If the defendant in the attachment, or any
sufficient person for him, will at any time before judgment, appear
and give security to the satisfaction of the plaintiff in such
cause, or to the satisfaction of the court, and to all actions
brought against such defendant, to the value of the property,
rights, credits and monies attached, and the costs, then the
garnishees and all property attached shall be discharged. The
security may be taken thus:"
"On the ___ day of _____, 19 __, A. B. becomes security in the
sum of _____ that C. D. shall answer the demand of E. F. in this
suit, and shall satisfy any judgment to the extent of the value of
the property attached, that may be recovered against him
therein;"
"which entry, on the appearance docket, shall be signed by the
security, and shall be an obligation of record of the same force
and effect, and subject to the same remedy by an action of debt, as
any other obligation for the payment of money may be."
"4137. Sec. 20. Judgment shall be given for the plaintiff in the
attachment the second term after issuing the writ unless the
defendant shall enter special bail as aforesaid, whereupon the
court shall make an order that the sheriff shall sell the property
attached, on due notice, and pay the proceeds (deducting legal
costs and charges) to the auditors for distribution."
"4143. Sec. 26. A writ of foreign attachment may be issued out
of the superior court of this state against any corporation,
aggregate or sole, not created by or existing under the laws of
this state, upon affidavit made by the plaintiff or any other
credible person, and filed with the prothonotary of said court,
that the defendant is a corporation not created by, or existing
under the laws of this state, and is justly indebted to the said
plaintiff in a sum of money, to be specified in said affidavit, and
which shall exceed fifty dollars."
"The said writ shall be framed, directed, executed, and
returned, and like proceedings had as in the case of a foreign
attachment issued under the next foregoing section, except that
attachments to be issued under this section shall be dissolved only
in the manner hereinafter provided."
"In any attachments to be issued under this section, judgment
shall be given for the plaintiff at the second term after the
issuing of the writ unless the defendant shall have caused an
appearance by attorney to be entered, in which case the like
proceedings shall be had, as in suits commenced against a
corporation by summons: Provided, however, if the defendant in the
attachment or any sufficient person for him, shall at any time
before judgment, give security for the payment of any judgment that
may be recovered in said proceedings with costs, then the
garnishees and all the property attached, shall be discharged, and
the attachment dissolved, and like proceedings be has as in other
cases of foreign attachment, in which the attachment has been
dissolved by special bail. . . ."
"4150. Sec. 33. The shares of any person in an incorporated
company, with all the rights thereto belonging, shall be subject to
attachment as provided by sections 95 to 99, inclusive, of chapter
sixty-five. [The reference is to Rev.Code, §§ 2009-2013, which
prescribe the method of attaching stock, selling it under such
attachment, and passing title thereto.]"
"1986. Sec. 72. For all purposes of title, action, attachment,
garnishment, and jurisdiction of all courts held in this state, but
not for the purpose of taxation, the situs of the ownership of the
capital stock of all corporations existing under the laws of this
state, whether organized under this chapter or otherwise, shall be
regarded as in this state."