#### Christian Von Hesse, as Ex’r, Resp’t, *v.*Marie Louise Mackaye, Impl’d, App’lt.

*(Supreme Court, General Term, First Department,*

*Filed January 24, 1890.)*

1. Service—Publication—Code Civ. Pro., § 438, subd. 5.

Where an order for serving a summons, under Code Civ. Pro., § 438, subd. 5, by publication is made, it must appear that the “ specific personal property,” from a “vested or contingent interest in or lien upon” which it is sought by the action to exclude defendant, is “ within the state.”

3. Same.

Accordingly held that where bonds of foreign corporations, having officers and agents in this state, were the subject of dispute between the widow of a testator, a resident of Paris, France, where the testator also resided, and his executor, and such bonds were in the custody of Paris bankers, and a suit is now ponding regarding the title to the bonds in a French court, no such order could be maintained.

3. Same—Jurisdiction—Subject oe action.

As the widow claims the bonds as a gift from the testator, the subject of the action is the bonds themselves and not the obligation of the corporations to pay them. In the absence of the bonds, the *corpus,*there is nothing in this state upon which the judgment could act if a recovery were permitted.

Appeal from an order of the special term, denying Mra Mackaye’s motion to vacate an order of publication.

*Noah*Davis, for app’lt; *George H.*Starr, for resp’t.

Barrett, J.

This is not an action in *personam*against Mrs. Maclcaye to recover “ a sum of money only,” as damages for a breach of contract or for the wrongful conversion of or injury to personal property. It is, consequently, not an action in which she could be proceeded against by attachment as a non-resident. The case for publication, therefore, depends upon subd. 5, of § 438, of the Code of Civil Procedure; and the question is, does the complaint show a sufficient cause of action against Mrs. ¡Maclcaye with regard to “ specific personal property within this state?” The subject of the action is sixty coupon bonds of certain foreign corporations. The plaintiff claims these bonds as part of the estate of his testator, James Maclcaye. He avers that they are also claimed by Mrs. Maclcaye, the appellant, under an alleged gift from her husband, the said James Mackaye, made in his life time. Maclcaye died a resident of Paris, France. In the codicil to his will, executed on the 20th day of April, 1887, he declared Paris his residence. The complaint *229states that he died in that city, and the plaintiff in the affidavit upon which publication was ordered, says that he “had spent most of his time there for some years prior to his death.”

Mrs. Mackaye resided in Paris with her husband, and still so resides. The bonds are in Paris, in the possession of bankers there, named Hottinguer & Go. There is no allegation or proof that the bonds were ever in this state, nor that they are payable here. It appears that the plaintiff and Mrs. Mackaye are now litigating their respective claims to these bonds before the French courts. The plaintiff admits that he has intervened there; and it seems to be undisputed that the foreign tribunal has acquired full jurisdiction over the parties and the subject matter.

What, then, it may well be asked, is the plaintiff doing here ? His complaint is framed as a bill in equity. The foreign corporations, the foreign bankers and Mrs. Mackaye are made parties defendants. The prayer is that these foreign corporations, who are said to have offices here for the regular transaction of business, refrain from paying the principal or interest of the bonds; that a receiver be appointed to collect such principal and interest; that Mrs. Mackaye be required to interplead concerning her claim, and that it be adjudged that the bonds belong to the estate of the plaintiff’s testator. Distrust of the French courts seems to be one of the alleged equities of this bill. The plaintiff, in substance, avers that if the proceedings in France terminate unfavorably to his contention, and if Mrs. Mackaye should thus obtain possession of the bonds, he, as executor, *might*be remediless and be unable to recover the possession of such bonds for the estate of James Mackaye; and, further, that if the corporations should pay her either principal or interest, that, too, might be lost to the estate. It is not necessary to consider whether this complaint shows any cause of action against Mrs. Mackaye, entitling the plaintiff to the relief demanded. The jurisdiction of the court as to non-residents proceeded against otherwise than for a money demand on contract, or for specific pecuniary damages, is *quasi in*rem, and the complaint must not only show a sufficient cause of action generally, but a sufficient cause of action with regard to *“specific personal property within the state."*Indeed, the learned judge at special term conceded, and correctly so, that the order of publication could not be upheld if the sixty bonds in Paris were to be treated as the subject of the action. He sustained the order solely upon the ground that the bonds were only evidences of debt, and that the obligation of the corporations to pay the principal and interest was the real subject of the action. That obligation he held to be “ specific personal property within the state,” because the corporations had offices here for the regular transaction of business, and because process had been served upon their agents here, resulting in their general appearance in the action. Thus he necessarily held that the *situs*of the corporate obligation was not the locality of the corporate being, but followed its agencies wherever established, and was inseparable, so to speak, from the debtor’s person.

The underlying objection to this view of the case is that the *230bonds, though evidence of corporate obligation, are themselves essentially personal property. They are such both at common law and by statute. Trover could be maintained for their1 conversion.. They could be specifically replevied. They were accounted part of the movable estate of a deceased owner. Ersldne Inst., b. 3, tit. 9, § 4. Money could be borrowed and *liens*effected upon them. They passed from hand to hand, upon purchase and sale, by mere delivery. The Code declares them to be *“*personal property capable of manual delivery,” and as such the subject of attachment, the sheriff being required to take them into his actual custody. Code Civ. Pro., § 649, subd. 2. They can be attached in no other manner, being expressly excepted from the provision whereby other obligations, not similarly evidenced, may be attached, namely, by leaving a certified copy of the warrant and an appropriate notice with the person against whom such demand exists. Id., subd. 3. And further, “ evidences of debt ” are ex-' pressly defined to be “ personal property ” by the seventh subdivision of § 3343. Then, too, such negotiable instruments are plainly contemplated by the phrase, in the section under consideration, “specific personal property” *the tille to which*may_ be affected by the action. . That section speaks of a demand of judgment “ excluding the defendant from a vested or contingent interest *or lien upon*” this specific personal property within the state; a judgment enforcing, regulating, defining or limiting such an interest or lien in favor of either party; “ or otherwise affecting *the title*to such property.” The purpose of this legislation is apparent, and it produces a reasonable and harmonious system. There is no attempt to drag non-residents into our jurisdiction in money actions, or with regard to pecuniary demands of a strictly personal character. Jurisdiction over *property*within the state is asserted and provided for. If the property of a non-resident is here, it may be attached in an action *in*personam, for money or damages. There the action itself has no relation to the property, yet its sole purpose is the subjection of the property to the demand.

If, however, there bo no such demand, then the court may proceed *quasi in rem,*though in form *in*personam, to adjudicate upon conflicting interests in specific real or personal property within the jurisdiction. But clearly the *corpus*must be within the state, *the actual thing*upon which the judgment can properly and adequately act. It seems clear that this “ *actual thing,"*in the case at bar, is not the intangible obligation which lies behind the bonds, the mere *jus*incorpórale, but the bonds themselves. It is *the title*to these bonds which the complainant questions, not *the title*to the *jus incorporate.*With regard to the corporate obligation to honor its bonds, there is no possible controversy. The corporations do not dispute that obligation, and they are ready to meet it upon the production of the true subjects of the controversy. In our judgment, then, an intangible obligation (evidenced by a tangible bond) is not, apart from the instrument, specific personal property within the meaning of that phrase as used in the section in question. It is the tangible bond, and that alone which constitutes such prop*231erty, and unless *that*is alleged to be within the state the court is without jurisdiction to order publication against a non-resident claimant.

It is not necessary, therefore, to determine whether an ordinary debt, evidenced by no written instrument, follows the *situs-*of the debtor, and, so following it into this state, comes within the expression specific personal property, as used in this section. Still less is it necessary to determine that question when applied to the *situs*of a foreign corporation. Doubtless such debts may ordinarily be attached by the service, in a proper case, of a certified copy of the warrant, with a notice showing what is attached, upon the debtor. But that is a very different thing from asserting jurisdiction over conflicting *claims of title to the débi,*and, for that purpose, treating it as specific personal property within the state under this section, 438. How can the court lay hold of the *corpus*of such a debt ? How enforce interests therein or liens thereon ?

The respondent proceeds upon the motion that the body of the debtor is the *corpus*of the debt; or rather in the present case, the body of the debtor’s local agent. The debt has no *corpus*until collected or otherwise reduced to possession. By a legal fiction it is given a *situs*for the purpose of regulating transmission and fixing the rights of creditors and others. But it is a mere chose in action. Any one claiming to own the debt may, it is true, sue the debtor wherever he finds him, but can he follow him in his travels and file a bill in a locality which is neither the domicil of the debtor nór of the rival claimant to the debt, to have it determined who is entitled to be paid, and, when that is so determined, to enforce such payment in favor of the adjudicated owner?

To this question should be added the possibility of the debtor’s denying that he owes the money to either party and contesting witl'i both.

These suggestions suffice to indicate that if the question depended upon our treating the corporate obligation which is evidenced by these bonds and not the bonds themselves as the specific subject of the action, it would be by no means free from doubt. The illustration serves to show that the *corpus*of the property must be actually within reach of the court to be dealt with as the facts and circumstances demand. Our views are fortified by the principle enunciated in *Bryan*v. *Un. Pub. Co.,*112 N. Y., 382; 21 N. Y. State Rep., 21. The case there made for jurisdiction was, in our judgment, stronger than that presented by the facts now before us. The order of publication was vacated although Earl, J., stated in his dissenting opinion that “some of the property at least was within this state.” The opinion of the majority, delivered by Danforth, J., proceeded upon the ground that as an assignment of copyrights to a citizen of Massachusetts could not be effectually set aside as fraudulent by the courts of this state, “ the impropriety of issuing an order which if it leads to a judgment would operate on nothing in the state and be regarded by nobody out of it was apparent; ” and that the defendant “ was *232entitled to make the motion rather than submit to the hardships o£ coming into this state to defend the action.”

The same doctrine applies here. The court could not compel the corporations to pay the principal or interest of their bonds to a plaintiff who had not possession of them. The bonds could be delivered to Mrs. Mackaye by the French courts regardless of our decree, and she could transfer them to a purchaser, who would be entitled to principal and interest equally regardless of our decree. Thus our decree would operate on nothing in the state and be regarded by nobody out of it. Mere there is no question whatever of any part of the property being within the state, and our conclusions are fully supported even by the dissenting opinion of Bari, J.

The order appealed from should, therefore, be reversed, with ten dollars costs and the usual disbursements, and the motion to vacate the order of publication granted.

Yan Brunt, P. J.

It seems to me that the fact that if the plaintiff was proceeding against the defendant therein to recover a debt, he could not reach by attachment the debt due from the foreign corporation to the holder of the bonds, the subject matter of this action, shows conclusively that the title to these bonds cannot be litigated in the courts of this’ state under the circumstances disclosed in the case at bar.

Section 649 of the Code provides how property is to be attached. It says that a levy under a warrant of attachment must be levied upon a bond, promissory note, or other instrument for the payment of money by taking the same into the sheriff’s actual custody. The debt represented by these instruments, therefore, cannot be recovered disregarding these evidences of the debt That such must be the rule is apparent when we consider the position of the debtor.

Suppose he pays a debt represented by a negotiable instrument as are the bonds in question, even in pursuance of a .judicial decree, and a holder of the evidence of the debt having acquired the same before maturity and in good faith, presenting the evidence of debt for payment when it falls due, is there any doubt but that the holder of such evidence of debt could enforce payment, and that the payment pursuant to a judicial decree would be no defense ? H there is any doubt as to this proposition then the doctrine that the rights of a *bona fide*holder of a negotiable instrument acquired before maturity are unassailable does not exist, and no person in dealing with such instruments can be sure that he gets any right because of their possession. It is because in the case of a negotiable instrument for the payment of money the evidence of the debt and the debt cannot be separated (except, perhaps, while the instrument is in the hands of the original party and is offered to be surrendered) that thé Code requires the levy to be made by the taking of the instrument into actual custody.

M jurisdiction can be acquired in the case at bar because the debtor, the foreign corporation, has an agent here for the transaction of its business, then such jurisdiction can be acquired in a *233case where two residents of England, neither of whom had ever been in this country, were having a dispute about the ownership of certain bonds issued by an English corporation, which bonds had always been in England, and which dispute arose out of transactions the whole of which took place in England, simply because the corporation had an agent here for the transaction of its business. The resident of England, without ever having been or being in this country, could cause a suit to be commenced in. the courts of this state against his English adversary to determine their dispute as to the title of these evidences of debt, and simply by serving a summons upon the agent of the English corporation in this state, and serving his adversary by publication, confer jurisdiction upon the courts of this state to determine the dispute as between these two Englishmen as to the title to these evidences of debt, and thus compel his adversary to submit their controversy to the courts of this state.

It is evident that no jurisdiction can be acquired under such circumstances. It may be claimed that the facts above stated are not parallel to those existing in the case at bar, in that the plaintiff herein is a resident of this state. Jurisdiction is not claimed because of the residence of the plaintiff, but because service can be made upon the agent of the debtor, and this element, the only essential one to give jurisdiction in this case, is present in both cases. The debtor is not in any respect a necessary party to an action such as this, as the title to these bonds can be determined as well without it as defendant; and it would be singular could the court acquire jurisdiction because the plaintiff had made an unnecessary defendant a party and procured service upon him.

It seems to me that Justice Barrett has clearly reached a correct conclusion.

Bartlett, J.

I concur in the views as to the jurisdictional question in this case expressed by the presiding justice and Mr. Justice Barrett, and agree that the order appealed from must bo reversed.