
    * James L. Owen v. Obediah Miller and Others.
    Where a person, then residing in Ohio, sold a tract of land to two persons, also • residing in Ohio, and took notes payable to his order, and a mortgage to ■ secure the purchase money, and then removed to New Jersey, where, under a writ of attachment issued against him as an absconding debtor, the notes were seized and afterward sold: Held, that the notes were merely evidences of indebtedness, and the seizure of them in New Jersey gave no power to-divest the property in the debt secured by the notes and mortgage, which is to be regarded as existing where the makers of the notes, the debtors, resided.
    Civil action. Reserved in the district court of Marion county.
    The plaintiff filed a petition on the 7th of June, 1854, in the-court of common pleas of Marion county, to recover the possession, of a tract of land, described in the petition, from the defendant, Miller.
    On the 3d of July, 1854, the plaintiff amended his petition, making Arthur Carmichael, Nancy Carmichael, John Wiley, and.' Mary Wiley, defendants.
    The amended petition states that on and before the 21st day of March, 1843, the plaintiff was the owner and in possession of the.tract of land. That on that day he sold and conveyed the land to - the defendants, Arthur Carmichael and John Wiley, and took a mortgage to secure the purchase money, for which notes were given. That the notes were 'abstracted from the trunk of the plaintiff, without his knowledge or consent, and delivered up to the makers, Carmichael and Wiley, by one Jonathan S. Christie. That no part of said notes have ever been paid to the plaintiff, and said mortgage deed has become absolute, and entitles the plaintiff to the • possession of said premises.
    The petition farther states, that on the 6th day of March, 1847, Carmichael and wife sold their interest to *John Wiley, and convoyed by deed of quit-claim of that date. That afterward, on -the same day, Wiley and his wife executed a mortgage on the promises to Jonathan S. Christie, to secure the payment of $1,132, to be paid, $200 in one year, $200 in two years, $200 in three years, ■ $200 in four years, $200 in five years, and $132 in six years, with-interest from said date. That on the 9th day of March, 1848, William S. Conant, of the State of New York, pretending to be 'the assignee of said last-mentioned notes and mortgage, filed his '■bill in chancery to foreclose said mortgage; upon which bill such proceedings were had, that, at the June term, 1848, of said court, .-a decree was entered for the amount of said notes, and interest then due, and the premises ordered to be sold. That afterward the said premises were sold under said decree to Obediah Miller for the sum of $667, and the sale confirmed and a deed made to rsaid Miller, who thereupon took possession, and holds the same in violation of the rights of the plaintiff. That Miller had full -knowledge of the plaintiff’s mortgage at the time of his purchase. 'That ho knew that the notes made by Carmichael and Wiley to -the plaintiff, had been taken from the plaintiff fraudulently, and -without consideration, and without his knowledge.. That the lien • of the mortgage under which he purchased was subsequent to the -mortgage of the plaintiff, and in violation of the plaintiff’s right.
    The plaintiff, therefore, asked judgment for the amount of the motes secured by his mortgage, and for the sale of the’ mortgaged ■premises, or for a judgment for the possession of the land, and for -other proper relief.
    To the petition and amended petition the defendant, Miller, answered : That after the sale and conveyance of the premises by the plaintiff to Carmichael and Wiley, on the 21st of March, 1843, and the execution by them of a mortgage to the plaintiff, he returned to -the State of New Jersey, where he had formerly resided, taking with him the mortgage and the notes therein mentioned. That afterward, *on the 21st of November, 1845, in Sussex county, New Jersey, the plaintiff became and was indebted to the estate ■ of Alpheus Owen and to other other persons in the sum of one thousand dollars. That on or about that day the plaintiff ab■■sconded from said county and state, and from his creditors in said state, and, on the same day, Frances Owen, administratrix, and -James Uane, administrator of the estate of Alpheus Owen, deceased, sued out of the court of common pleas of said county of •Sussex, a writ of attachment, under the law of New Jersey, under which writ, and in pursuance of the laws of said state, the said promissory notes secured by said mortgage were seized by the sheriff of said county, and such proceedings were afterward had that, on the 2d of January, 1847, the said notes were sold, assigned, and indorsed to Frances Owen, one of the plaintiffs in said suit, together with the money due or to become due thereon, for the use and benefit of the creditors of said plaintiff, filing their claims under said attachment, by auditors duly appointed by said court, and acting under the laws of the said state. That the said notes were delivered by said creditors to the said Frances Owen, and under th.e laws of said state became her property, and she became possessed of all the rights therein of the said plaintiff.
    The answer further states, that Frances.Owen sold and delivered the said notes to one Alvah Beemer, who sold and delivered the ■same to Jonathan S. Christie, then residing in Ohio, but now in the city of New York. That Christie afterward, on the 6th of March, 1847, presented said notes to John Wiley (who had purchased the rights of Carmichael, subject to the mortgage), “and sold the ■same to said Wiley (the same not being yet due), for the consideration of $1,132 (being the amount of said notes).”
    The answer then sets out the notes taken for said sum of $1,132, and the mortgage executed by Wiley and wife to secure their payment, in substance as stated in the amended petition, and proceeds : That Jonathan S. ^Christie sold and delivered to one William S. Conant, of New York, the notes so given by Wiley, and that said Conant, on the 9th day of March, 1848, in the court of common pleas of Marion county, filed his bill to foreclose, against Wiley and wife. The proceedings are then set out in substance as stated in the amended petition, showing that Obediah Miller became the«purchaser for $667, and received a deed. The answer then states : “And the said John Wiley thereupon, in consideration of defendant’s said purchase, delivered up said first-named notes to this defendant, who thereupon released the mortgage of said Wiley and Carmichael to the said James L. Owen, as will appear by a copy of the mortgage and release hereto attached.” The answer further states, that “ defendant denies that he knew said notes had been taken from plaintiff fraudulently, and without consideration, and without his knowledge. Defendant says that he was informed, and believed, that said notes had been taken from. plaintiff in pursuance of the laws of the State of New Jersey, and" that the proceeds thereof had been applied to the payment of said plaintiff’s honest creditors.”
    The defendant states, as a counter-claim, that, should his title to the said premises fail by reason of any defect in said proceedings and conveyance, under which he claims, then, by the sale and assignment of said promissory notes under the order of the court in Now Jersey, there was paid and applied to the benefit of the said plaintiff, the sum of three hundred dollars, and that by the provisions of the act of March 2, 1846, entitled 11 an act for the protection of purchasers at judicial and tax sales ” (44 Ohio L. 114), he, the defendant, is entitled to be subrogated to the rights of the said creditors of said plaintiff to the amount of said money so paid and applied as aforesaid, with interest thereon from the time of such payment ; and that the same is a lien upon the lands.
    The statutes of New Jersey, exhibited to the court, provide, *that not only money, goods, and chattels may be seized under the writ of attachment, but also “ books of accounts, bonds,, bills, notes, papers, or writings.” The statutes also provide that if the sale of the goods and chattels, lands and tenements, does not produce money sufficient to pay the debts, the auditors who are appointed to ascertain and report the amount of the debts, other creditors, as well as the plaintiff, being entitled to come in under the proceeding, “ shall assign to the said plaintiff and creditors, the ehoses in action, rights, and credits of the said defendant, in porportion to their respective debts, so as aforesaid ascertained, which assignment shall vest the property and interest of the said defendant in suchassignee, so as he may sue for- and recover the same in his own name and for his own use,” .... 11 and further, the moneys so-distributed, as also the moneys which may be received by virtue of such assignment, shall operate as a payment of such debt, in whole or in part, as the case may be.” Nixon’s Dig. 38.
    It appears from the record of the proceedings in New Jersey, that the two notes given by "Wiley and Carmichael to the plaintiff, one for $600 and one for $532, the first payable in five and the second in eight years, from the 18th of March, 1843, without interest, was seized and appraised at $881.76. There was other property seized : a book account appraised at $13, one yoke of oxen at $G0, and one cow at $9, but none of this property appears to be afterward mentioned. Auditors were appointed who reported a number-of debts, mostly of small amounts, in addition to that of the plaintiff, which was $600, and making an aggregate of about $1,000. The report was confirmed, and afterward an order was entered, judgment having been rendered against the defendant in attachment for the debts reported to bo due, “ that the auditors, or any two of them, appointed by the court in the above-stated writ of attachment, make sale and assurance of the goods and chattels which were attached.” The auditors ^afterward report that they have made sale and distribution. Amount of sale of the two promissory notes, giving copies, $300. “ Which above-stated notes and the moneys due and to become due thereon, were sold and transferred by us to Frances Owen for the sum of three hundred dollars.” Then follows a statement of the sums distributed: to the plaintiffs in attachment $103.27, to other creditor various small amounts, and to the plaintiffs, to pay the costs of the attachment proceedings, $87 ; making an aggregate of $299.98. No action of the court appears to have been had upon this report. There is nothing in the record which shows personal service or an appearance by the defendant in the attachment. The judgment is rendered after three defaults had been entered. Proof, independent of the record, is furnished of a publication in a newspaper. There is also evidence that the plaintiff stated that an attachment had been taken out against him, and the notes seized, of which he had been informed by his wife.
    P. Bunker, and J. 3. & 3. G. Godman, for plaintiff.
    
      O. Bowen and J. Bartram, for defendant.
   G-holson, J.

Personal property has been said to have no situs, but to follow the domicile or person of the owner. Thus, in case of intestacy, the law of the place where the owner of personal property had his domicile governs its distribution, wherever it may be situate; -and in case of a transfer of personal property valid by the law of the place whore it is made, effect will be given to it in the place where the property in fact exists, unless some policy of the local law be infringed. But this principle properly applies only where the claim of the owner ceases, as in case of intestacy, by dekth, or where, by his voluntary agreement, he has parted with his claim. It has no proper application where an attempt is made to take the property from him ^against his consent. The rules of law on this subject are clearly expressed in a case decided in the state in which the proceedings were had upon the effect of which we are to decide: “ The general principle is fully and unequivocally settled that personal property is transferable according to the law of the country where the owner is domiciled. A transfer of personal property, therefore, good by the law of the owner’s domicile, or by.the laws of the place where it is made, is valid wherever the property may be situate.” Frazier v. Fredericks, 4 Zab. 162, 166, citing Story Confl. Laws, secs. 393, 384; 2 Kent’s Com. 454; Varnum v. Camp, 1 Green, 329. Et vid. Thomson v. Adv. Gen., 12 Cl. & Fin. 1; Bunbury v. Bunbury, 1 Beav. 320, 328; Black v. Zachaire, 3 How. U. S. 483. “ The principle applies to a voluntary conveyance of property by the owner, not to a conveyance by operation of law. An assignment by law has no legal operation out of the territory of the law-maker. Such, at least, is conceded to be the decided weight of American authority.” 4 Zab. 166, citing Milne v. Morton, 6 Binn. 361; Blake v. Williams, 6 Pick. 307; Holmes v. Remsen, 20 Johns. 266; Story Confl. Laws, sec. 410; 2 Kent’s Com. 406. Et vid. Speed v. May, 17 Penn. St. 91; Booth v. Clark, 17 How. 322; Hoyt v. Thompson, 1 Seld. 320, 353; S. C., 19 N. Y. 207.

It appears to be generally conceded that, as a matter of comity :an assignee in bankruptcy or under insolvent proceedings may, in .another jurisdiction, the claims of creditors in that jurisdiction not ■interfering, sue to recover the personal property of the bankrupt ■or insolvent. A suit for such purpose, whether allowed in the name of the bankrupt or of the assignee, when commenced by the as.-signee, ought not to be defeated by the act or release of the bankrupt. Holmes v. Remsen, 20 Johns. 229, 267; Abraham v. Plestboro, 3 Wend. 539, 550, 551; Hoyt v. Thompson, 1 Seld. 320, 340; S. C., 19 N. Y. 207-226. It would seem to follow that property which might be recovered by suit, might be obtained by the assent or agreement of the *parties. interested. Bank of Augusta v. Earle, 13 Pet. 519, 591. Upon these principles, if the claimant under the proceedings in attachment stood in the position of the ■assignee of a bankrupt, or of a receiver of an insolvent company -or corporation, a settlement made with the debtor might present -plausible grounds for its enforcement. But in the class of cases in ■which this comity has been exercised, there was jurisdiction over «the person, which has been regarded as giving the assignee or recoiver a quasi authority, even beyond the jurisdiction of the court ajDpointing him as the agent and representative of the owner of the property. The very foundation of the principle assumes that there was jurisdiction over the person, and it is in no respect based upon a jurisdiction over the thing.

It thus appears that whether this application of the principle of comity be correct or not, it has no bearing upon the present case. We have here no jurisdiction over the person—such proceedings in attachment as the present very clearly lay no foundation out of the jurisdiction in which they arc instituted, for any persbnal claim, or for any claim which supposes a personal authority proceeding from the party against whom they are directed. Out of that jurisdiction the proceedings can only be regarded as proceedings against property, and property not within the jurisdiction can not be affected. It is a fundamental principle, that no man is to be deprived of his property without his consent or by due process of law. To constitute due process of law, and make it effectual to change the title to property, there must be jurisdiction over the person of the owner, or over his property.

We are brought, then to the simple question whether the promissory notes given for a debt, being in New Jersey, and the makers of the notes, or the debtors, residing in Ohio, the property was in New Jersey or in Ohio? In substance, there is a sum of money in the hands of one man, to which another has title or claim, and the evidence of *that title or claim is a j>romise in writing to pay the money. Upon principle, it would seem clear that the subject-matter to which the title or claim relates is the property, and not the evidence showing the title or claim.

This question has arisen in cases involving the jurisdiction to grant administration or letters testamentary. Of such cases it has been said: “ As to the locality of many descriptions of effects, household and movable goods, for instance, there never could be any dispute; but to prevent conflicting jurisdictions between different ordinaries, with respect to choses in action and title to property, it was established as law that judgment debts were assets, for the purpose of jurisdiction, where the judgment is recorded; leases where the land lies; specialty debts where the instrument happens to bo; simple contract debts where the debtor resides at the time of the testator’s death; and it was also decided that, as bills of exchange and promissory notes do not alter the nature of the simple

contract debts, but are merely evidences of title, the debts due on these instruments were assets where the debtor lived, and not where the instrument was found.” Attorney-General v. Bouwens, 4 M. & W. 171-191.

The payee of a promissory note has a property vested in him, but it is in action, not in possession. 2 Bla. Com. 468. It consists in the contract of the maker, and this contract has been said to differ from other contracts in two important particulars: 1. It is assignable, whereas a chose in action at common law is not; and, 2. The instrument itself gives a right of action, for it is presumed to be given for value, and no value need be alleged as a consideration for it. Foster v. Dawber, 6 Exch. 839, 853. This difference may lead to the idea that there is property in the evidence of the contract; but really the contract constitutes the property-—it is property in action. The thing in action has peculiarities which distinguish it from other things in action, but it is still, in law, a thing in action.

*The effect of a seizure of a note under process of law, can gain no force from the rules of the commercial law, which rules are only intended to regulate the right of j>arties depending upon their voluntary acts and agreements. The seizure of a note payable to bearer, or indorsed in blank, would not constitute the officer an indorsee or holder in the commercial sense of those terms. The officer would hold under the statute giving him the authority to seize, and not by contract. He would have the rights which that statute gave, and not those of an indorsee, or holder, in the usual course of business. It might happen that a subsequent holder of a note payable to bearer, or indorsed in blank, seized by an officer and put in circulation, would have the right to enforce its payment. But it would be upon the same principle, that a note of like description, lost or stolen, might be a valid claim in the hands of an innocent holder. No such principle applies in this case. The notes were payable to order, and not indorsed by the payee, but were assigned by a writing on the notes, in such a way as to show clearly the origin of the title.

In accordance with these views, we feel bound to come to the conclusion, that the proceedings in attachment, in,New Jersey, have not divested the plaintiff of the right to recover the debt due to him from a resident in this state, and secured by a mortgage upon property in this state. It is a harsh proceeding and likely to lead to great sacrifice of property, to sell a debt, even when the tribunal has jurisdiction over the debtor, but when the debtor resides in a distant state, it must almost invariably prove ruinous to the owner of the debt. We should not feel called upon by any principle of comity to give effect to such a proceeding.

We have considered the question in the strongest light in which it can be placed for the defendant, but while we are diffident in expressing an opinion as to the law of another state, in opposition to the action of its officers, wo ^strongly incline to the conclusion that the statutes of.New Jersey do not contemplate a sale of a debt where the debtor resides in that state, and much less where he resides in another jurisdiction. That these notes, under the statutes of New Jersey, regulating proceedings in attachment, are tobe regarded as choses in action, and not goods and chattels, is, we think, clearly to be inferred from the language of those statutes; and, if we understand the provision of the statute, choses in action are to bo assigned to the plaintiff and creditors proving their claims, and are not to be sold as goods and chattels. It also appears that choses in action, when so assigned, do not constitute a payment, but “ the moneys which may be received by virtue of such assignment, shall operate as payment.” If this view of the statutes of New Jersey be correct, the sale of the notes by the auditors was unauthorized and void; and it will be observed, that this sale never received judicial sanction, the record showing no action of the court confirming the sale and distribution made by the auditors.

These considerations bear upon another branch of the ease, the counter-claim of the defendant Miller, in which he insists that he is entitled to a credit for the amount applied to the payment of the debts of the plaintiff, under the proceedings in New Jersey. If, under the construction of the statutes of New Jersey, we have suggested, the sale of the notes was unauthorized and void, no right can be founded upon that transaction, and the claims against the plaintiff exist to their full extent. If the plaintiff should bo sued upon those claims, he could not rely upon an unauthorized and void transaction, as a payment or satisfaction. That they were so void might be shown as well by those prosecuting their claims against the plaintiff, as by the plaintiff himself. Rangely v. Webster, 11 N. H. 299, 306. Had property of the plaintiff, in fact being in New Jersey, been taken and appropriated to the payment of his debts, by a proceeding which only in another ^jurisdiction would be regarded as invalid, this might be deemed a satisfaction. Id. 309. But such a result can not be claimed, where the proceeding is void in the place where it is had.

It necessarily follows, from the view we have taken of the proceedings in attachment, that they not only do not affect the property of the plaintiff in this state, but in no manner bind him personally. The record of those proceedings, therefore, constitute no evidence of any indebtedness due from the plaintiff to persons in New Jersey. He would be at full liberty, before he could be charged with those claims, to contest their validity and amount. We do not think he can be called upon to enter into such a contest in this case with the defendant, Miller. It can not be pretended that the defendant, or any of the parties under whom he claims, were authorized by the plaintiff, either expressly or by implication, to pay his debts. The defendant, therefore, could only claim as being subrogated to the part of the several claims of which the supposed payment has been made. Now there would be an insuperable difficulty in allowing him to sue the plaintiff for a fractional part of twenty different claims. -

The act for the protection of purchasers at judicial and tax sales, on which the defendant relies in his answer, has, we think, no application to this case. That act, so far as it affects judicial sales, supposes that the plaintiff or the defendant has title to the property, and that it is liable for the debt due to the plaintiff, but, from some defect in the proceedings, the attempt to make it liable has failed. The defect here is not a defect in the proceedings, which are all regular enough, but a defect in the title of all the parties to those proceedings, as against the plaintiff in this action.

In every view we can take of the counter-claim of the defendant, we see no ground upon which it can be sustained. A judgment will be rendered, finding that the notes given to the plaintiff by Carmichael and Wiley, are due *and unpaid; that they are secured by a mortgage on the premises; and unless the amount due shall be paid, the mortgaged premises shall be sold. In view of the circumstances of the case, a longer time than usual will be allowed before an order of sale is to be issued. The time will be six months. And we shall also order that each party pay his own costs.

Brinkerhoee, C. J., and Scott, Sutliee, and Peck, JJ., concurred.  