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U. S. 186; Rev. St. U. S. § 308. The claim originally held by the defendant Randall was not, properly speaking, a debt due from the United States, but arose from the fact that the United States held certain funds received from Great Britain under a treaty with that power, which were to be distributed, through appropriate channels, to those who had suffered from depredations upon our commerce during the late civil war. This in no way affected the character of the draft, which was given in pursuance of an adjudication in favor of Randall by the commissioners of Alabama claims. Even before merger in the draft, the equitable interest in such a claim would have passed to an assignee in bankruptcy. Leonard v. Nye, 125 Mass. 455. It cannot be assumed that the assistant treasurer of the United States would have disregarded any transfer of the draft by operation of law, or in the course of judicial proceedings, conducted by a court having jurisdiction over the person of the actual holder thereof, who was in possession of it by virtue of his relation to or authority from Randall, to whose order it was payable. Nor, had payment thereof been refused, would the transferee have been remediless. The court of claims of the United States would have been open to him, and it has the right, under statutes which give it jurisdiction for the purpose, to hear and determine all claims "founded upon any contract, express or implied, with the government of the United States." Milford v. Com., 144 Mass. 64, 10 N. E. Rep. 516, and cases cited.

It has been found that the debt was actually due from Randall to the complainant; and after service of process in this case upon Manning, and after service of an injunction upon him, forbidding its transfer to Randall, the draft being at that time in Boston, the amount claimed by Manning as due upon his alleged lien was settled by mutual agreement, and the draft was sent to Randall, in New York, and was there indorsed by him. Payment of it was made at the subtreasury in Boston, thereafter, and the amount received by Randall, or his agents, was the sum of $1.852.21, which was the amount due, over and above $793.81, which had been settled as the amount of Manning's lien, and which Manning then or previously received. As the rights of the parties were fixed at the time of notice of the lis mota, no temporary injunction was perhaps necessary forbidding any transfer of property until the final decree. Maxwell v. Cochran, 136 Mass. 73. But it is found that the indorsement and payment of the draft was procured by Manning in willful disobedience of the order of the superior court, and in contempt of its lawful authority. Under these circumstances, he has incurred a liability commensurate with the value of the property which he has thus succeeded in withdrawing from the control of the court, and prevented from being applied to the lawful claims of Randall's creditors. Proceedings for contempt may be either for the purpose of inflicting punishment upon one who has willfully disobeyed a lawful order of the court, or for the purpose of obtaining the result which might have been reached by the enforcement of its decree but for the intervertion of the wrongful act of the party violating its order, or, in appropriate cases, for both purposes. Cartwright's Case, 114 Mass. 234; Maxwell v. Cochran, ubi supra; Stimpson v. Putnam, 41 Vt. 238; Thweatt v. Gammell, 56 Ga. 98; Matthews v. Spangenberg, 15 Fed. Rep. 813.

With the suit brought by the complainant McCann was also heard one brought by one Willard, under precisely similar circumstances, which, for that reason, does not require any separate consideration, as there was no dispute between McCann and Willard as to the proportions in which they were to receive the fund if it was afterwards appropriated to them.

We are of opinion that the presiding judge in the superior court rightfully held that Manning was bound to make up and pay to the complainant, and others standing in like relation, the balance of the draft over and above the sum of $793.81, namely, the sum of $1,852.21, with interest thereon from the 28th day of March, 1885, (which was the day of payment of the draft,) to

passing of the final decree. A majority of the court is of opinion that the entry should be, decree affirmed.

FIELD, J., (dissenting.) Mr. Justice W. ALLEN and myself are unable to assent to the opinion of the court. The decree in this case is not a decree in the proceedings for contempt against Manning, and the question need not be considered whether Manning could not be punished for violating the injunction, although the bill should be dismissed. The decree is the final decree in the cause, and it proceeds against Manning on the ground that he has, during the pendency of the suit, put wrongfully out of his possession property of Randall which had been equitably attached in the suit, and which he could have been compelled to deliver to the court or to the plaintiff, to be applied in satisfaction of the debt due from Randall to the plaintiff.

The first questions of law arise upon the appeal from the orders overruling the demurrers of each of the defendants, but the same questions of law were raised upon rulings requested, which were refused. The fundamental question in the case is whether the superior court had any jurisdiction over the draft to apply it to the payment of the debt due to the plaintiff from Randall. Manning's interest in the draft could not be so applied, because he was not indebted to the plaintiff. After Manning had been paid the amount of his claim, he held the draft as an agent or bailee of Randall. The court had no jurisdiction to render a personal decree against Randall, as he had never been a resident of the commonwealth, or served with process within the commonwealth, or appeared generally in the suit. This is now the settled law, under the constitution of the United States; and, before the adoption of the fourteenth amendment of that constitution, it was settled here that no decree in equity could be rendered against such a defendant which could bind him personally to do anything. Eliot v. McCormick, 144 Mass. 10, 10 N. E. Rep. 705; Walling v. Beers, 120 Mass. 549; Spurr v. Scoville, 3 Cush. 578; Moody v. Gay, 15 Gry, 457. As was said in Moody v. Gay, ubi supra: "A court of equity can only deal with persons who can be compelled by process to perform its decrees, and with property which is either situated within the limits to which its jurisdiction extends, or which can be reached through the action of parties who are amenable to its authority." The draft was drawn by one officer of the United States upon another officer, payable out of the moneys of the United States, and it was, in effect, a negotiable promissory note of the United States. Com. v. Butterick, 100 Mass. 12; Miller v. Thompson, 3 Mann. & G. 576. The United States were not and could not have been made parties to the suit. If this draft had been drawn by a private person upon himself, and he had been a resident of this commonwealth, it might be contended that he would have been liable to trustee process in an action at law against Randall; for, although a complete copy of the draft does not appear in the papers, it is not contended that the draft was payable on time. But whether this could have been done in the case supposed, and Manning have been admitted as a claimant to the extent of his interest, is immaterial, because the United States are not amenable to trustee process, and this remedy at law does not exist. Pub. St. c. 183, § 34, cl. 1; Scott v. Hawkins, 99 Mass. 550; Fay v. Sears, 111 Mass. 154; Macomber v. Doane, 2 Allen, 541; Darling v. Andrews, 9 Allen, 106. As the United States are not amenable to any process issuing from a state court, the inquiry is whether there is any procedure in this common wealth whereby a creditor can reach and apply to the payment of a debt due to him from the defendant a debt due to the defendant from another person, when neither the defendant nor that other person is amenable to the process of the court. The case may be considered as if the facts were that a citizen of Maryland, in payment of a debt, had given his promissory note to a citizen of New York, payable to him or his order, and had intrusted the note to a citizen of Massachusetts for delivery to the

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payee, and a citizen of Maine had attached the note, by the equitable process used in the suit, while it was within the commonwealth and held by the citizen of Massachusetts for the purpose of delivering it to the payee. It is conceded that a state has jurisdiction over all persons and property within its limits, and may subject all property found within its limits to the payment of debts due, not only to its citizens, but to the citizens or subjects of other states whom it permits to sue in its courts. To what extent and in what manner such property may be taken, depends upon the laws of the state. Other states may or may not recognize titles to property acquired in this manner, but the courts of a state must proceed according to the statutes of the state, if they are constitutional and valid statutes, and according to its customary law. It is now considered that a person who has never been a citizen of a state, or domiciled within it, and who is not personally found within it and served with process, or who has not, by an appearance in the suit, or by contract, or in some other manner, submitted himself to its jurisdiction, owes no duty to the state to appear before, and submit himself personally to the decisions of, its court. Schibsby v. Westenholz, L. R. 6 Q. B. 155; Freeman v. Alderson, 119 U. S. 185, 7 Sup. Ct. Rep. 165.

It has been suggested that, even if this court could not directly apply this draft to the payment of the debt due from Randall to the plaintiff, it could sequester it for the purpose of compelling Randall to perform any decree it might have rendered against him. No such attempt, however, was made in this case. A writ or commission of sequestration is a process of contempt against the property of the defendant, for the purpose of compelling him to obey or perform some order or decree of the court. After the subpoena has been served, it may be issued to compel him to appear or to put in his defense, or to obey any decree, interlocutory or final, which the court may make. Chattels and choses in action may be sequestered, and the debtors of the defendant, if parties to the suit, or, if not, by ancillary proceedings making them parties, may be compelled to pay the money they owe to the defendant into court. Grew v. Breed, 12 Metc. 363. A sufficient reason why no writ of sequestration, as distinct from process of execution, ought to issue in this case against Randall, is that he has never been in contempt, because the court can make no order or decree which he is personally bound to perform. A writ of sequestration ought only to issue after the defendant has been served with such process as makes him subject to the jurisdiction of the court, according to the law of the tribunal. A writ of sequestration may, perhaps, issue against a defendant who is without the jurisdiction, but resident within it, and who has absconded to avoid the service of process; but there is no satisfactory authority for issuing such a writ against a defendant who has never been subject to the jurisdiction, in order to compel him to appear in a suit brought for the collection of a debt. If this draft can be seized, it must be by some process whereby it, or the proceeds of it, or the debt of which it is evidence, can be taken and held, and ultimately applied to the payment of the debt due to the plaintiff, and not by any sequestration of it, if it cannot be so taken and applied, in order to compel Randall personally to appear in the suit, and pay the debt established by the decree.

It is argued that this draft is a chattel found within the commonwealth, and therefore may be taken and applied to the payment of the plaintiff's debt. It may be assumed, without consideration, that there is nothing in the fourteenth amendment of the constitution of the United States which prevents this from being done. The question is whether such a proceeding is authorized by our laws. For certain purposes, bills and notes are regarded in this commonwealth as chattels. They may be the subject of conversion. King v. Ham, 6 Allen, 298. They were not the subject of larceny at common law; but have been made so by statute, in connection with books of account, and written contracts, receipts, and releases, etc. Pub. St. c. 203, § 20. They

MASS.DEC.15-18 N.E.-37

are goods, wares, and merchandise, within the meaning of the statute of frauds, (Baldwin v. Williams, 3 Metc. 365;) and they may be the subject of a gift, either inter vivos or causa mortis, and so may savings bank books, and some other evidences of debt, (Sessions v. Moseley, 4 Cush. 87; Bates v. Kempton, 7 Gray, 382; Chase v. Redding, 13 Gray, 418; Sheedy v. Rouch, 124 Mass. 472; Pierce v. Bank, 129 Mass. 425; Grover v. Grover, 24 Pick. 261; Hunt v. Hunt, 119 Mass. 474; Taft v. Bowker, 132 Mass. 277.) They were not liable to be taken on execution at common law, and they have not been made liable by statute. Insurance Co. v. Weeks, 7 Mass. 438; Perry v. Coates, 9 Mass. 536. Pub. St. c. 171, § 33, provides that "bank-notes and all other bills or evidences of debt issued by a moneyed corporation, and circulated as money, may be taken on execution, and paid to the creditor at their par value, as money collected, if he will accept them; otherwise they shall be sold like other chattels." But bills of exchange and promissory notes, which do not circulate as money, are not included in the statute. In England, by statute, an execution may be levied upon bills of exchange, promissory notes, bonds, and other securities for money, and the sheriff or other officer is authorized to sue for and recover the sums secured. 1 & 2 Vict. c. 110, § 12. Promissory notes of third persons are not goods, effects, and credits within the meaning of our statutes relating to trustee process. The maker of the note may be summoned as the trustee of the holder if the note is not payable on time, or is overdue. Lupton v. Cutter, 8 Pick. 298; Lane v. Felt, 7 Gray, 491; Hancock v. Colyer, 99 Mass. 187. Promissory notes were admissible in evidence under the money counts in the old forms of pleading; and an action at law can be maintained against the maker of a promissory note which has been lost or destroyed when a bond of indemnity will afford complete protection to the defendant; and, when it will not, a writ in equity can be maintained. The loss or destruction of the note is not an extinguishment of the debt of which it is evidence. Fales v. Russell, 16 Pick. 315; Almy v. Reed, 10 Cush. 421; McGregory v. McGregory, 107 Mass. 543; Tower v. Bank, 3 Allen, 387; Tuttle v. Standish, 4 Allen, 481; Bank v. Harkins, 101 Mass. 370; Tucker v. Tucker, 119 Mass. 79; Hinckley v. Railroad Co., 129 Mass. 52. For the purpose, therefore, of reaching and applying the promissory note of a third person, to the payment of a debt due to the plaintiff from the owner of the note, the note, in this commonwealth, is not regarded as a chattel, but as the evidence of a debt, although, by reason of the law-merchant, it is evidence of a peculiar character. There are only two methods in this commonwealth whereby a note has been so applied. One is by making the persons liable on the note parties to the suit, and compelling them to pay what they owe into court, or to the plaintiff in the suit; and the other is by compelling the owner of the note to assign it, that it may be delivered to the plaintiff, or may be sold or collected, and the proceeds paid into court, or to the plaintiff. It is because there is no remedy at law that the plaintiff brings this suit in equity; and, as his debt has not been reduced to a judgment, his bill is not within the general equity jurisdiction, and he must rely upon the statutes. Pub. St. c. 151, § 2, cl. 11; St. 1884, c. 285, § 1; St. 1851, c. 206; St. 1858, c. 34; Gen. St. c. 113, § 2. In all the cases reported under these statutes, in which a promissory note has been reached and applied in equity, either the persons liable on the note have been parties defendant, and brought by process within the jurisdiction of the court, and compelled to pay the amount due into court or to the plaintiff; or the principal defendant, owner of the note, has been made a party, and brought within the jurisdiction of the court, and compelled to deliver up the note, and, in effect, to assign it; or all these persons have been brought before the court.

The first case reported is Silloway v. Insurance Co., 8 Gray, 199. The defendant was a foreign insurance company, doing business in this commonwealth, under the statutes, and Edwards was its general agent in this com

17 N.E.

monwealth, appointed in pursuance of the statutes. Both defendants were served with process, appeared, and answered, and the company in its answer set up certain objections to the bill by way of demurrer. The case was heard by the full court on the bill and answer. The plaintiff was a creditor of the company on policies of insurance which it had issued, under which losses had occurred, and he had brought an action at law, but was unable to find property which could be attached; and the bill alleged that Edwards had in his hands property of the company, "consisting of promissory notes given to the company in payment of premiums or policies of insurance issued by" it "in this commonwealth." In this case the court had full jurisdiction over both defendants for the purpose of collecting a debt due from the principal defendant; and, although the company was a foreign corporation, it had, under the statutes, appointed a citizen of the coinmonwealth "a general agent upon which all lawful process against the company may be served, with like effect as if the company existed in this state," and the process against the company had been served upon this general agent. The next case is Sanger v. Bancroft, 12 Gray, 365. The bill was brought to collect a debt due to the plaintiff from Bancroft, who resided in California, and to reach a mortgage of land in this commonwealth given by Brigham to Bancroft to secure the payment of a promissory note, and the mortgage had been assigned, without consideration, to Tubbs. The note secured by the mortgage had not been assigned. Apparently, Bancroft was not served with process, but Brigham and Tubbs were. The note was not within the commonwealth, and was held by Bancroft, or some person unknown. The bill was dismissed. The third case is Davis v. Werden, 13 Gray, 305. It does not appear by the report whether Couch was a party to the suit, but the papers on file show that he was served with a subpoena within the common wealth. It was a bill brought by a creditor of Couch & Werden, formerly copartners in this commonwealth, where the plaintiff and Couch continued to reside, to attach certain promissory notes given by Couch to Werden, and put by Werden into the hands of Royce, in this commonwealth, for collection. Werden, at the date of the bill, resided in Illinois. There was a decree for the plaintiff, but the form of it does not appear. Royce, as well as Couch, the maker of the notes, was within the jurisdiction of the court, and was served with process within the commonwealth. In Moody v. Gay, 15 Gray, 457, the principal defendants, Gay and Pitkin, debtors of the plaintiff, were inhabitants of this commonwealth, and parties to the suit, and the property reached was a mortgage to Pitkin of real estate in this commonwealth. In Barry v. Abbott, 100 Mass. 396, the original papers show that Abbott, Blood, and Chamberlain were all residents within the commonwealth, and duly served with process, and appeared and answered. In Tucker v. McDonald, 105 Mass. 423, all the parties to the chose in action were before the court. In Insurance Co. v. Sears, 109 Mass. 383, Sears, the owner of the policy of insurance, was a party served with process, and subject to the jurisdiction of the court. Insurance Co. v. Abbott, 127 Mass. 558, decides that proceedings under Gen. St. c. 113, § 2, now Pub. St. c. 151, § 2. cl. 11, are in the nature of an equitable trustee process, and that some other person than the plaintiff's debtor must be made a defendant, and that a bill cannot be maintained for the purpose of compelling a defendant by injunction to hold in his own possession his property until a decree be obtained against him, in order that the property may be taken and applied to the payment of the debt established by the decree. Some of the earlier cases in which there was no equitable trustee before the court are criticised and explained in the opinion.

The plaintiff relies especially upon St. 1884, c. 285, § 1, passed since the decision in Insurance Co. v. Abbott. That statute was apparently passed to change the law as declared by the following decisions of this court: Chapman v. Publishing Co., 128 Mass. 478; Insurance Co. v. Abbott, ubi supra;