President, &c., of Bank of Commerce agt. The Rutland & Washington R. R. Co. and general managing agent of said defendant, which service was this day made at Salem, in the county of Washington, which summons was left with him. A. G. Farwell.-Sworn to before me this 9th day of May, 1854, James Gibson, Wash. Co., Judge."

The bill of exchange mentioned above was as follows:

"Office of the Rutland and Washington Railroad Company, West Poultney, Vt., Jan. 2d, 1854. Four months after date, pay to the order of James W. Baldwin, treasurer, at the American Exchange Bank, New-York, twenty-five thousand dollars, value received. The Rutland and Washington Railroad, by W. C. Clark, President of the Rutland and Washington Railroad Company. To James W. Baldwin, Treasurer Rutland and Washington Railroad Company, Boston, Mass. $25,000. Accepted. Payable at the American Exchange Bank, NewYork. James W. Baldwin, Treasurer Rutland and Washington Railroad Co. (Endorsed) James W. Baldwin, Treasurer."

It appeared by the moving affidavits that the defendant was a foreign corporation, chartered by the state of Vermont, and having its office at Poultney in that state; and the plaintiff was a bank corporation, chartered by the state of Massachusetts, and located in Boston. That T. H. Canfield was the defendant's superintendent and general managing agent at the time the summons and attachment were served; and that the sheriff had seized property belonging to defendant to the amount of $40,000. That a summons and attachment were served,—the summons being served on Mr. Canfield.

The affidavits on the part of the plaintiffs stated that Farwell was a director and agent of the Bank of Commerce; that the cause of action arose in this state, and that the suit was commenced by service of the summons before the attachment was issued. That about forty miles of the road of the defendant were in the county of Washington, in this state, and the corporation was in possession of cars, engines, &c., here. That the plaintiffs paid the money to the defendant's treasurer for the bill of exchange, upon which the suit is brought; and that payment having been refused upon being regularly demanded,

President, &c., of Bank of Commerce agt. The Rutland & Washington R. R. Co. it had been protested. That the defendant had leased its property to T. H. Canfield to keep it from its creditors; and if the attachment should be set aside, the plaintiffs would lose their debt; and that subsequent attachments have been issued against the defendant.

J. C. HOPKINS, for the motion.

L. J. Howe, for the plaintiffs.

HAND, Justice. It appears by the affidavit of Farwell, upon which the attachment was granted, and also on the affidavits read on both sides on this motion, that Mr. Canfield, on whom the summons was served, was the superintendent and general managing agent of the defendant, and they were operating their road and doing a large business here. Upon such an officer or agent service can be made within § 134 of the Code.

The interpretation of our statutes, in relation to suits against foreign corporations, is not free from difficulty. The revised statutes authorized a resident of the state to commence a suit against them in the supreme court, by an attachment. (2 R. S. 459, § 15.) In 1849 that statute was altered, by authorizing suits against them, (in that court, and in the superior court, and court of common pleas in New-York,) for the recovery of any debt or damages "arising upon contract made, executed, or delivered within this state, or upon any cause of action arising therein;" which suits "may be commenced by complaint and summons, together with an attachment as now provided by law, and such complaint and summons may be served," as provided by §§ 113, 114 of the Code. (Laws of 1849, ch. 107.) The title of the revised statutes, which included this section, was retained by § 390 of the Code of 1848. The revision of the Code, in April, 1849, provided for service of summons on certain of its officers, &c., in suits against "a corporation,” (§ 134,) and on foreign corporations by publication, (§ 135;) and also for an attachment against them. (§§ 227, 229.) A new section was also added, authorizing suits against foreign corporations by a resident of the state, for any cause of action; and by a

President, &c., of Bank of Commerce agt. The Rutland & Washington R. R. Co.

nonresident "when the cause of action shall have arisen, or the subject of the action shall be situated within the state." (§ 427.) But the provisions of the revised statutes on the subject were excepted as before. (§ 471.) By the amendments of the Code in 1851, which are still in force, service of a summons can be made upon the officers, &c., of a foreign corporation, only when it has property within this state, or the cause of action arose therein; (§ 134;) and in those cases, too, service may be made by publication. (§ 135.) No change was made in 1851 and in 1852 in section 427; nor were any amendments then made materially affecting the question before us in § 471, or those relating to attachments. But § 471 was slightly amended in 1852, and yet the clause that excepted this title of the revised statutes was retained. This shows that it was intended those provisions should still remain in force, though probably the pleadings and practice, except where otherwise specially provided, should be under the Code.

These suits, however, are not alike in all respects. The circumstances under which they may be commenced are not the same. (Laws of 1849, ch. 107; Code, § 134-5, 427.) And the bond in one case is for costs, and in the other the undertaking is for costs and damages; and in one suit it would seem to be for the benefit of the plaintiff; other creditors are allowed to share in the proceeds in the other. (2 R. S. 461, § 30; Code, § 237.) In one case, I think, there must be an application and an affidavit, and an attachment must issue; in the other, none of these seem to be necessary to the prosecution of the suit. There are other distinctions not important here. It has been intimated that there can be no proceeding against a foreign corporation other than against its property. But the Code makes no distinction in respect to the manner and effect of entering judgment against corporations and against others. All remedies in equity, too, are now enforced in this court; and § 427 is not consistent with the rule suggested. There are cases where a suit against a foreign corporation may be necessary, though not for the "recovery of money." (§ 227.) What effect would be given to such a judgment in another state even

President, &c., of Bank of Commerce agt. The Rutland & Washington R. R. Co.

where service is made upon the president, &c., here, is another matter. (D'Arcy agt. Ketchum, 11 How. 165; Louisville Railroad Co. agt. Letson, 2 Id. 497.) Service on an officer or agent may not be tantamount to personal service upon a private person. (Ang. and Ames on Corp. 395-403.)

The counsel for the plaintiffs claims that the attachment is valid under either statute. But, as I understand the affidavits, the suit was brought under the Code, and of course must conform thereto.

There has been some diversity of opinion, whether a motion to set aside an attachment can be made directly to the court; and, if so, whether any, and what affidavits can be used on the motion. (Morgan agt. Avery, 7 Barb. 656, 664; Genin agt. Tompkins, 12 id. 265; in re, Griswold, 13 id. 412; Conklin agt. Dutcher, 5 How. 386; White agt. Featherston, 7 id. 357; Bank of Lansingburgh agt. McKie, id. 360; Voorhies' Code, § 229,.241.)

It seems to me, with all respect, that it is correct practice for the court to entertain a motion in the first instance. This court has general jurisdiction in law and equity; (Const. Art. 6, § 3;) and certainly must have power over all orders and process made or issued in a cause pending therein. And the attachment, especially when a suit is pending under the Code, may be deemed of the nature of a process of the court, and, on the question of jurisdiction, unlike a mere special proceeding. And I see no objection to the use of affidavits on both sides. The attachment issues ex parte, and it seems unjust that property to any amount, in this case said to be forty thousand dollars, should be taken out of the hands of the owner, and in some cases sold, &c., upon the mere ex parte affidavit of the other party, when perhaps there is, in fact, no foundation whatever for the proceeding. Possession may be required by giving security; but, unless there is some known rule of practice to the contrary, this burden should not be imposed without opportunity to be heard. In a case before the Code, where the objection was that the plaintiff was a nonresident, it was said, that a motion to set aside the attachment for irregularity would

President, &c., of Bank of Commerce agt. The Rutland & Washington R. R. Co. have been the best mode of raising the question. (Downes agt. Phoenix Bank of Charleston, 6 Hill, 298, BRONSON, J. And see Code, § 324; Blake agt. Losy, 6 How. 108; Lindsay agt. Sherman, 5 id. 308; Chitt. Gen. Pr. 33.) And I see no question of jurisdiction or practice in the way of this course. The court would not try the merits of the action upon conflicting affidavits; nor should the attachment be set aside for every irregularity. The motion should be disposed of as in other cases of erroneous practice. Where the proceedings are in good faith, and the ground on which the attachment was issued actually existed, and the blunder is not gross, I see no objection to amending the proceedings on terms, taking care that the defendant shall not be prejudiced in any manner as to security, &c.

But the point most strenuously contested on this motion is, that the plaintiffs and defendant being nonresidents, and the bill of exchange made and accepted out of the state, this suit can not be maintained here.

I suppose it will not be doubted, that the plaintiffs have the same right to sue here, as any other nonresident, if the nature of the claim is such as should be enforced by a corporation. That right has been settled a long time, both in law and equity, (Henriques agt. Dutch West India Company, 2 Ld. Raymond, 1532; Silver Lake Bank agt. North, 4 Johns. C. R. 370; 6. Cow. 46; 4 Barb. 127; 1 Dan. Pr. 28; 19 Wend. 10,) and has finally been recognized by our statute. (2 R. S. 457, §1.) And, as to suits against a foreign corporation, except § 427, the provisions of the Code, and those of the revised statutes as amended, make no distinction between a resident and a nonresident plaintiff.

But it is said the defendant must be considered nonresident; and it appearing not only by the oirginal affidavit, but by those used on this motion, that the cause of action did not arise within this state, no suit can be maintained thereon; and consequently the attachment should be discharged.

We have seen that a suit may be commenced under the revised statutes where the contract is made, executed, or delivered here, or the cause of action arose here; and by § 427 of