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1 Case & Com. 1 (1894-1895)

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    Case. and Comment,

                                 NOTES OF'

            RECENT IMPORTANT, INTERESTING DECISIONS.

INDEX TO ANNOTATION OF THE LAWYERS' REPORTS, ANNOTATED.

                  LEGAL NEWS NOTES AND FACETIYL.


'vot. 1.


MAY, 1894.


No. 1.


         CASE AND COMMENT.
  Monthly. Subscription, 50 cents per annum post-
  paid. Included with subscription to the L. R. A.
  and Gn. Dig. also the Law. Ed. U. S. Rep.
  Copyright 1894, and entered in the Post office at
iochester, N. Y., as second-class matter, by
   THE LAWYERS' Co-OPERATIVE PUn. CO.,
                           Rochester, N. Y.
           M ae, York, 177 aroadway.
 c;-IrhOffices: Chicago, Lakeside luilding.
           I Boston, 10 Treront Street.

 N these days of industrial and commercial
     developments it is not to be expected that
 he science of the law can or will fail in growth
 aid change to keep pace with the conditions
 4! which it is applied. To the lawyer, knowl-
 edge of its growth is a necessity, and a neces-
 qity appreciated in direct ratio with his ability,
 ambition and success. In the mass of opinions
 pf the courts handed down from the thousand
 jurisdictions of the country, the valuable, the
 pseful, that which really marks an advance in
 reasoning, or a novel application of settled
 rules, is commingled, an interminable hotch-
 pot, with the far larger proportion which is
 of interest only to the counsel who took part
 n tie case or the litigants affected by its result.
 To the proper presentation of this lesser
 fraction which is the greater, our labors are
 Tirected in the L. R. A.-to the sufficient indi-
 cation of the gist of all, in the General Digest.
 We have sometimes felt it a hardship that
 the well settled and arid limitations of a law
 report oir a digest Iroposition debarred us from
 the comments and comparisons which must
 occur to those familiar with the practical
 exigencies of the profession and the courts-
 now devoting their labor to lightening (or

 prtctice. We think too, barring egotism, our
observations may be of interest, perhaps of
value. Hence this leaflet.
                           Tim, EDITOiS. I


   Garnishment against Non-resident.
   A question growing daily more important is
that of the right of garnishment of a debt due
to a non-resident by service upon his debtor
only, or by mere constructive service on the
non-resident creditor. It is a proceeding which,
although upheld in some states, is open to the
gravest objections. How it can be regarded
a§ due process of law to take away a man's
property, although that property may be only
a chose in action or right to demand money
from another, where he is not given any actual
notice of the proceeding and is not even within
the jurisdiction of the court, it is difficult to
see. The only possible ground of jurisdiction
seems to be that the debt has a situs for the
purpose of the garnishment proceeding at the
place where the debtor is found; and that the
proceeding is, in a certain sense, a proceeding
in rene like an attachment of tangible property.
But the theory is based on a fiction as absurd
as it is unjust in practice. Since the debtor
by virtue of his relation to the debt is entirely
unaffected by the success or failure of the
garnishment proceeding, there is no justice in
regarding him as the representative of the
property interest of his creditor against whom
the garnishment proceeding is brought. The
conrt in one place pithily expresses the true
situation by saying that there was no property,
but rather an absence of property at the
residence of the debtor, if the creditor resided
elsewhere.
  ,But this claim of jurisdiction based on the
situs of the debt at the residence of the debtor
is not less pernicious than unsound. It per-
nits the property of a non-resident to be
practically confiscated in any state where his
debtor may be found by proceedings to which
he is not in apy true sense a party, and of
which M may not have the slightest actual


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