that construction may have, as the question is not necessarily here involved, we do not expressly decide it.

The judgment of the Circuit Court of Appeals is reversed, and

that of the District Court affirmed; cause remanded to the latter court.

MR. JUSTICE MCKENNA took no part in the decision of this

cause.

HARRIS v. BALK.

ERROR TO THE SUPREME COURT OF THE STATE OF NORTH CARO

LINA.

No. 191. Argued April 4, 1905.-Decided May 8, 1905.

A citizen of North Carolina who owed money to another citizen of that State, was, while temporarily in Maryland, garnisheed by a creditor of the man to whom he owed the money. Judgment was duly entered according to Maryland practice and paid. Thereafter the garnishee was sued in North Carolina by the original creditor and set up the garnishee judgment and payment, but the North Carolina courts held that as the situs of the debt was in North Carolina the Maryland judgment was not a bar and awarded judgment against him. Held, error and that: As under the laws of Maryland the garnishee could have been sued by his creditor in the courts of that State he was subject to garnishee process if found and served in the State even though only there temporarily, no matter where the situs of the debt was originally.

Attachment is the creature of the local law, and power over the person of the garnishee confers jurisdiction on the courts of the State where the writ issues. A judgment against a garnishee, properly obtained according to the law of the State, and paid, must under the full faith and credit clause of the Federal Constitution, be recognized as a payment of the original debt, by the courts of another State, in an action brought against the garnishee by the original creditor.

Where there is absolutely no defense and the plaintiff is entitled to recover, there is no reason why the garnishee should not consent to a judgment impounding the debt, and his doing so does not amount to such a voluntary payment that he is not protected thereby under the full faith and credit clause of the Constitution.

While it is the object of the courts to prevent the payment of any debt

twice over, the failure on the part of the garnishee to give proper notice to his creditor, of the levying of the attachment, would be such neglect of duty to his creditor, as would prevent him from availing of the garnishee judgment as a bar to the suit of the creditor, and thus oblige him to pay the debt twice.

THE plaintiff in error brings the case here in order to review the judgment of the Supreme Court of North Carolina, affirming a judgment of a lower court against him for $180, with interest, as stated therein. The case has been several times before the Supreme Court of that State, and is reported in 122 N. Car. 64; again, 124 N. Car. 467; the opinion delivered at the time of entering the judgment now under review, is to be found in 130 N. Car. 381; see also 132 N. Car. 10.

The facts are as follows: The plaintiff in error, Harris, was a resident of North Carolina at the time of the commencement of this action in 1896, and prior to that time was indebted to the defendant in error, Balk, also a resident of North Carolina, in the sum of $180, for money borrowed from Balk by Harris during the year 1896, which Harris verbally promised to repay, but there was no written evidence of the obligation. During the year above mentioned one Jacob Epstein, a resident of Baltimore, in the State of Maryland, asserted that Balk was indebted to him in the sum of over $300. In August, 1896, Harris visited Baltimore for the purpose of purchasing merchandise, and while he was in that city temporarily on August 6, 1896, Epstein caused to be issued out of a proper court in Baltimore a foreign or non-resident writ of attachment against Balk, attaching the debt due Balk from Harris, which writ the sheriff at Baltimore laid in the hands of Harris, with a summons to appear in the court at a day named. With that attachment, a writ of summons and a short declaration against Balk (as provided by the Maryland statute), were also delivered to the sheriff and by him set up at the court house door, as required by the law of Maryland. Before the return day of the attachment writ Harris left Baltimore and returned to his home in North Carolina. He did not contest the garnishee

198 U. S.

Argument for Plaintiff in Error.

process, which was issued to garnish the debt which Harris owed Balk. After his return Harris made an affidavit on August 11, 1896, that he owed Balk $180, and stated that the amount had been attached by Epstein of Baltimore, and by his counsel in the Maryland proceeding Harris consented therein to an order of condemnation against him as such garnishee for $180, the amount of his debt to Balk. Judgment was thereafter entered against the garnishee and in favor of the plaintiff, Epstein, for $180. After the entry of the garnishee judgment, condemning the $180 in the hands of the garnishee, Harris paid the amount of the judgment to one Warren, an attorney of Epstein, residing in North Carolina. On August 11, 1896, Balk commenced an action against Harris before a justice of the peace in North Carolina, to recover the $180 which he averred Harris owed him. The plaintiff in error, by way of answer to the suit, pleaded in bar the recovery of the Maryland judgment and his payment thereof, and contended that it was conclusive against the defendant in error in this action, because that judgment was a valid judgment in Maryland, and was therefore entitled to full faith and credit in the courts of North Carolina. This contention was not allowed by the trial court, and judgment was accordingly entered against Harris for the amount of his indebtedness to Balk, and that judgment was affirmed by the Supreme Court of North Carolina. The ground of such judgment was that the Maryland court obtained no jurisdiction to attach or garnish the debt due from Harris to Balk, because Harris was but temporarily in the State, and the situs of the debt was in North Carolina.

Mr. George W. S. Musgrave, with whom Mr. Sylvan Hayes Lauchheimer was on the brief, for plaintiff in error:

Garnishee judgment was properly entered so far as practice in Maryland is concerned. Cockey v. Leister, 12 Maryland, 124; Garner v. Garner, 56 Maryland, 127; Buschman v. Hanna, 72 Maryland, 1, 5; Maryland Code, Art. IX, § 34.

Argument for Plaintiff in Error.

198 U.S.

As to the question of the situs of a debt, there has been much controversy and a great diversity of opinion, but the weight of authority is that the position taken by the Supreme Court of North Carolina was wrong.

A debt is something which (in the absence of some written evidence) exists only in contemplation of law. It is merely the right one person has to ask or demand of another a certain amount of money or other property; an incorporeal right, invisible, intangible and without substantive existence.

The situs of a debt for the purposes of garnishment is not only at the domicil of the debtor, but in any State in which the garnishee may be found, provided the municipal law of the State permits the debtor to be garnished, and provided the court acquires jurisdiction over the garnishee through his voluntary appearance, or by actual service of process upon him within the State. Minor on Conflict of Laws, § 125.

This is supported by a long line of cases, the most important of which are the following: Chi., R. I. & Pac. R. R. v. Sturm, 174 U. S. 710; Tootle v. Coleman, 107 Fed. Rep. 41; Mooney v. Buford Mfg. Co., 72 Fed. Rep. 32; Morgan v. Neville, 74 Pa. St. 52; Savin v. Bond, 57 Maryland, 228; Nat. Ins. Co. v. Chambers, 53 N. J. Eq. 468; Harvey v. Railroad, 50 Minnesota, 405; Wyeth v. Lang, 127 Missouri, 242; Lancashire Ins. Co. v. Corbetts, 165 Illinois, 592; Embree v. Hanna, 5 Johns. 101; C., B. & Q. Ry. v. Moore, 31 Nebraska, 629; Hull v. Blake, 13 Massachusetts, 153; Blake v. Williams, 6 Pick. 286; Harwell v. Sharp, 85 Georgia, 124; Neufelder v. Ins. Co., 6 Washington, 341; Mooney v. Railroad Co., 60 Iowa, 346; Howland v. Railroad Co., 134 Missouri, 474; Railroad Co. v. Thompson, 31 Kansas, 180; Railroad Co. v. Crane, 102 Illinois, 249; Fithian v. Railroad Co., 31 Pa. St. 114; Wabash v. Dougan, 142 Illinois, 248; Berry v. Davis, 77 Texas, 191; Nichols v. Hooper, 61 Vermont, 295; Samuel v. Agnew, 80 Illinois, 553; Richardson v. Lester, 83 Illinois, 55; B. & O. S. W. Ry. v. Adams, 60 L. R. A. 396; Campbell v. Home Ins. Co., 1 S. C. N. S. 158; Glover v. Wells, 40 Ill. App. 350; Roche v. Ins. Co., 2 Ill. App.

198 U. S.

Argument for Defendant in Error.

360; Moore v. C., R. I. & P. Ry., 43 Iowa, 385; Cochran v. Fitch, 1 Sandf. Ch. 142; Mahany v. Kephart, 15 W. Va. 609; Holland v. M. & O. Ry., 84 Tennessee, 414; Pomeroy v. Rand, McNally & Co., 157 Illinois, 176; Cole v. Flitcraft, 47 Maryland, 312; Bank v. Merchants' Bank, 7 Gill (Md.), 415; Brengle v. McClellan, 7 G. & J. (Md.) 434; Newland v. Reilly, 85 Michigan, 151; Felt Mill v. Blanding, 17 R. I. 297; Cohoon v. Morgan, 38 Vermont, 236; Black on Judgments, §§ 593, 857, 859, 923; Rood on Garnishment, §§ 242, 245.

Mr. John H. Small for defendant in error:

The Maryland court, in the garnishment proceeding of Epstein v. Balk and Harris, garnishee, was without jurisdiction, and the judgment can be collaterally attacked in the courts of North Carolina.

The jurisdiction of the Maryland court may be attacked in this action, even to the extent of contradicting the recital contained in the record. Thompson v. Whitman, 18 Wall. 457; Knowles v. Gaslight & Coke Co., 19 Wall. 58; Kilbourn v. Thompson, 103 U. S. 198; Noble v. Union River Logging Co., 147 U. S. 173; 1 Greenleaf on Evidence (Lewis edition), § 548. If Balk had no property in that State the Maryland court was without jurisdiction. Pennoyer v. Neff, 95 U. S. 714.

Facts essential to establish the jurisdiction of the State court must appear affirmatively by allegation or affidavit before the process of the court can issue authorizing the attachment or garnishment of the res.

While the debtor (the defendant) and the garnishee are both non-residents, no garnishment process can issue against such non-resident temporarily in the State at the instance of a plaintiff domiciled in the State. A non-resident cannot be held as garnishee. Rood on Garnishment, p. 21, note 5, § 15.

One who is only temporarily in a State and in which he does not reside cannot be subjected to garnishment. Waples on Attachment and Garnishment, 227; Drake on Attachment, 5th ed., § 474; Everett v. Conn. &c. Co., 4 Colo. App. 513.