N. Y. 325; Mount Holly Turnpike Co. v. Ferree, 17 N. J. Eq. 117; Prall v. Tilt, 28 N. J. Eq. 479; Merchants' Bank v. Livingston, 74 N. Y. 223. These cases rest on the principle that it is more just and reasonable, where one of two innocent parties must suffer loss, that he should be the loser who has put trust and confidence in the deceiver than a stranger who has been negligent in trusting no one. Allen v. Maury & Co., 66 Ala. 10.

It being an established principle of law that certificates of stock are not to be regarded as negotiable paper, it is not permissible to prove a custom or usage among stock brokers to the contrary. No usage is good which conflicts with an established principle of law any more than one which contravenes or nullifies the express stipulations of a contract. Dickinson v. Gay, 83 Am. Dec. 656, and note, 664; E. T., Va. & Ga. R. Co. v. Johnston, 75 Ala. 576; Lehman v. Marshall, 47 Ala. 362.

The decree of the court below is in accordance with these views, and must be affirmed.

Note. While shares of stock are almost universally held to be non-negotiable, yet they approach very nearly to having such qualities when they pass by indorsement and delivery of the certificate. 1850, Harris v. Bank of Mobile, 5 La. Ann. 538; 1856, Mechanic's Bank v. N. Y. & N. H. R., 13 N. Y. 599; 1857, Mandelbaum v. N. A. Min. Co., 4 Mich. 465; 1861, Bridgeport Bank v. N. Y. & N. H. R., 30 Conn. 231; 1868, Shaw v. Spencer, 100 Mass. 382, 97 Am. Dec. 107, 1 Am. Rep. 115; 1870, Mechanic's Bank v. Merchants' Bank, 45 Mo. 513, 100 Am. Dec. 388; 1870, State v. Bank of State, 45 Mo. 528; 1871, McNeil v. Tenth Nat'l Bank, 46 N. Y. 325, 7 Am. Rep. 341; 1871, First National Bank v. Lanier, 11 Wall. (78 U. S.) 369; 1873, Hall v. Rose H. & E. R. Co., 70 Ill. 673; 1874, Bercich v. Marye, 9 Nev. 312; 1875, Sherwood v. Meadow Val. M. Co., 50 Cal. 412; 1877, Weyer v. Second Nat'l Bank, 57 Ind. 198; 1883, Barstow v. Savage Min. Co., 64 Čal. 388, 49 Am. Rep. 705; 1886, Young v. South Tredegar Iron Co., 85 Tenn. 189, 4 Am. St. R. 752; 1887, Supply D. Co. v. Elliott, 10 Colo. 327, 3 Am. St. Rep. 586; 1890, Hammond v. Hastings, 134 U. S. 401; 1892, Clark v. Am. Coal Co., 86 Iowa 436, 17 L. R. A. 557, 53 N. W. Rep. 291; 1893, Brinkerhoff-Farris, etc., Co. v. Home L. Co., 118 Mo. 447; 1896, Craig v. Hesperia L. & W. Co., 113 Cal. 7, 54 Am. St. Rep. 316; 1896, Knox v. Eden Musee Am. Co., 148 N. Y. 441, 51 Am. St. Rep. 700; 1899, Masury v Ark. Nat'l Bank. 93 Fed. Rep. 603, 35 C. C. A. 476; 1902, Farmers Bank v. Diebold Safe Co., 66 O. S. 367, 58 L. R. A. 620.

[Reid sued out an attachment against Haley, which the sheriff levied on the stock of Haley in a plank-road company by making an entry to that effect upon the attachment. The court overruled a mo

1 Only part of opinion given.

tion by the defendant to dismiss the attachment, and exceptions were taken.]

BENNING, J. To "levy means to seize—to take corporeally. It follows that what can not be seized-what can not be taken corporeally-can not be levied on. And as the law is not to be presumed to require impossibilities when it requires an executing officer to levy on both personal and real estate, it is not to be presumed to intend to require him to levy on such personal or real estate as it is impossible to levy on; that is to say, as it is impossible to seize to take corporeally. What precise idea the sheriff meant to express by the word "levied" when he returned that he had "levied" the attachment upon one hundred shares in the corporation I am at some loss to conceive.

Reversed.

Note. At common law shares are not attachable. 1812, Denton v. Livingston, 9 Johns. (N. Y.) 96; 1819, Williamson v. Smoot, 7 Martin (La. O. S.) 31, 12 Am. Dec. 494; 1823, Nashville Bank v. Ragsdale, Peck (Tenn.) 296; 1858, Evans v. Monot, 4 Jones Eq. (N. C.) 227; 1866, Foster v. Potter, 37 Mo. 525; 1873, Merchants' M. I. Co. v. Brower, 38 Texas 230; 1885, Barnard v. Ins. Co., 4 Mackey (D. C.) 63; 1887, Rhea v. Powell, 24 Ill. App. 77; 1889, Duncanson v. Nat'l Bank, 7 Mackey (D. C.) 348.

But statutes generally provide for the taking of shares by execution or attachment. 1821, Howe v. Starkweather, 17 Mass. 240; 1830, Hussey v. Manufac. & M. Bank, 10 Pick. (Mass.) 415; 1838, Castle v. Carr, 16 N. J. Law 394; 1882, Shenandoah Valley R. Co. v. Griffith, 76 Va. 913; 1889, Union Bank v. Byram, 131 Ill. 92; 1894, Thompson v. Wells, 57 Ill. App. 436; 1895, Ditty v. Bank, 112 Ala. 391; 1902, Ball v. Towle Mfg. Co., 67 O. S. 306, 93 Am. St. R. 682, 65 N. E. 1015.

Under some statutes only the legal interest is attachable. 1881, Van Norman v. Jackson, Cir. J., 45 Mich. 204; 1888, Weller v. Pace Tobacco Co., 2 N. Y. Supp. 292; 1893, Gypsum Plaster & S. Co. v. Kent, C. J., 97 Mich. 631. But under other statutes the equitable interest is also. 1854, Bank of St. Mary's v. St. John, 25 Ala. 566; 1866, Middletown Sav. Bank v. Jarvis, 33 Conn. 372; 1894, Tufts v. Volkening, 122 Mo. 631.

"Stock" can not be the subject of replevin, because of its incorporeal nature. 1899, Ashton v. Heydenfeldt, 124 Cal. 14, 56 Pac. Rep. 624.

Sec. 219. Same.

(7) Location of shares for attachment.

PLIMPTON v. BIGELOW.

1883. IN THE COURT OF APPEALS OF NEW YORK. 93 New York

592-602.

[Appeal from order of general term of supreme court reversing an order of the special term vacating a levy by attachment upon stock.] ANDREWS, J. This action is brought by the plaintiffs, residents of Massachusetts, against the defendant, a resident of Pennsylvania, upon

Arguments and parts of opinion omitted.

several promissory notes of the defendant, made and delivered in Massachusetts and payable generally. The plaintiffs procured an order for the service of the summons upon the defendant by publication, and also a warrant of attachment against his property. The sheriff of the city and county of New York, to whom the warrant was directed, undertook to execute it by levying upon 439 shares of the stock of the Hat Sweat Manufacturing Company, a Pennsylvania corporation, incorporated under the laws of that state, owned by the defendant, and for which he held and then had, in the state of Pennsylvania, stock certificates issued and delivered to him at the office of the company in Philadelphia, in February, 1882, at which place the stock and transfer books of the company then were and still are kept. The sheriff, for the purpose of making the levy, left with the secretary of the company in the city of New York a certified copy of the warrant of attachment, together with the notice prescribed by section 649 of the Code of Civil Procedure. The formal proceedings were taken to complete the levy, and the shares were subjected to the attachment, provided they were liable to attachment under section 647 of the code. That section declares that "the rights or shares which the defendant has in the stock of an association or corporation, together with the interest and profits thereon, may be levied upon, and the sheriff's certificate of the sale thereof entitles the purchaser to the same rights and privileges with respect thereto, which the defendant had when they

were attached."

The question here is whether this section applies to shares of stock of a foreign corporation. It is to be observed that the section is one of the provisions of a system of proceedings by attachment, and is to be construed in view of the fundamental principle upon which all attachment proceedings rest, that the res must he actually or constructively within the jurisdiction of the court issuing the attachment in order to any valid or effectual seizure under the process. In the case of tangible property, capable of actual manucaption, it must have an actual situs within the jurisdiction. But credits, choses in action and other intangible interests are made by statute susceptible of seizure by attachment. The same principle, however, applies in this case as in the other, the res, that is the intangible right or interest, to be subject to the attachment, must be within the jurisdiction. But it is manifest from the nature of this species of property that it must be a constructive or statutory presence only, founded upon some char acteristic fact which determines its locality. Where the defendant who owns a credit is within the jurisdiction there is no difficulty through proceedings in personam in reaching and applying it in discharge of his debt to the plaintiff. But where he is out of the jurisdiction, and the debt or duty owing to him, or the right he possesses exists against some person within the jurisdiction, attachment laws fasten upon that circumstance, and by notice to the debtor or person owing the duty or representing the right, impound the debt, duty or right to answer the obligation which the attachment proceeding is instituted to enforce. In the case supposed, the debt, duty or right for

the purpose of attachment proceedings is deemed to have its situs or locality in the jurisdiction.

We now come more directly to the inquiry upon which the case now under review depends, viz.: Whether the shares of a non-resident defendant in the stock of a foreign corporation can be deemed to be within this state, by reason of the fact that the president or other officers of the corporation are here engaged in carrying on the corporate business. We do not overlook the fact that we are construing a section of the code, the language of which is sufficiently general to include foreign corporations, but they are not expressly named, and for the purpose of determining whether foreign corporations were intended to be included, it is a relevant inquiry whether upon general principles the right which a stockholder in a corporation has, by reason of his ownership of shares, is a debt or duty of the corporation, existing in a foreign jurisdiction wherever the officers of the corporation may be found engaged in the prosecution of the corporate business. If the corporation, by having its officers, and by transacting business in a state other than its domicile of origin, is deemed to be itself present as an entity in such foreign state, to the same extent and in the same sense as it is present in the state which created it, it may be conceded that its shares might be properly attached in such foreign jurisdiction.

But we regard the principle to be too firmly settled by repeated adjudications of the federal and state courts, to admit of further controversy, that a corporation has its domicile and residence alone within the bounds of the sovereignty which created it, and that it is incapable of passing personally beyond that jurisdiction. (Bank of Augusta v. Earle, 13 Pet. 519; Lafayette Ins. Co. v. French, 18 How. (U. S.) 404; Merrick v. Van Santvoord, 34 N. Y. 208; Stevens v. Phoenix Ins. Co., 41 N. Y. 150.) But it is equally true that a foreign corporation is permitted to sue in the courts of this state and that suits in personam may be brought against it by service of process on its officers or agents within the jurisdiction. (Code, §§ 432, 1780; Gibbs v. Queen Ins. Co.') But suits by or against foreign corporations are not maintained on the theory that the corporation litigant is here in person, or that the corporate entity attends its officers in their migrations from one state to another, or that it is itself present wherever its property may be, or its business may be transacted. The jurisdiction, as I understand, rests upon the ground that as a corporation must act by agents, it may, through its agents, subject itself to the jurisdiction of a foreign tribunal.

The right which a shareholder in a corporation has by reason of his ownership of shares is a right to participate according to the amount of his stock in the surplus profits of the corporation on a division, and ultimately on its dissolution in the assets remaining after payment of its debts. (Burrall v. Bushwick Railroad Co., 75 N. Y. 211.) It is this right and interest which is made liable to attachment under the section referred to. The right of the shareholder is derived from the corporation under its charter, or the laws 163 N. Y. 114.

of the state which created it. It is enforceable by judicial proceeding in the local courts, and in case of a dissolution of the corporation the local courts alone can be resorted to to wind up its affairs and distribute its assets. It seems impossible to regard the stock of a corporation as being present for the purpose of judicial proceedings except at one of two places, viz., the place of residence of the owner, or the place of the residence of the corporation.

The foreign corporation is not here because its agents are here, nor because it has property here; nor is the stock here because the corporation has property, or is conducting its business in this state. The individual members of a corporation are not the owners of the property of the corporation, or of any part of it. The abstract entity-the corporation-is the owner and only owner of the property. We do not doubt that shares for the purpose of attachment proceedings may be deemed to be in the possession of the corporation which issued them, but only at the place where the corporation by intendment of law always remains, to wit, in the state or country of its creation. In all other places it is an alien. It may send its agents abroad or transact business abroad as any other inhabitant may do, without passing personally into the foreign jurisdiction or changing its legal residence. But such agents are not the corporation, and do not represent the corporation in respect to rights as between the corporation and its shareholders incident to the ownership of shares.

It is not necessary to this case to define the limits of legislative power in subjecting intangible property to attachment by notice served upon such person or corporation as may be designated by the legislature. Manifestly the res can not be within the jurisdiction, as a mere consequence of a legislative declaration, when the actual locality is undeniably elsewhere. But in respect to intangible interests, as we have said, there can be no actual seizure of the thing, and it can be bound only by notice to some one who represents the thing. In case of a debt, notice to the debtor residing within the jurisdiction is the ordinary proceeding to attach the debt, and if the debtor is a corporation, and the corporation is a domestic one, there is no difficulty. But in some of the states foreign corporations having an agent, or a place of business within the state, may be charged under what is called the trustee process, or as garnishee. (Barr v. King, 96 Pa. St. 485; Nat'l Bank v. Huntington, 129 Mass. 444.) In these proceedings the trustee or garnishee is joined with the principal defendant as a party to the action, and the debt owing by the trustee or garnishee is ascertained and the liability of the trustee and garnishee is adjudged in the action. There may be no difficulty upon principle in compelling a corporation which has an agent and officer in another state and is transacting business there to respond in garnishment proceedings for the debt, although the creditor-the principal defendant -is a non-resident, and if bound to respond, it is certainly just that the judgment which compels the corporation to pay the debt to the plaintiff should protect it in making such payment against a subse