of Hollowell v. Miller, 17 Md. 308, and Cockey v. Ensor, 43 Md. 266.

The motion to dismiss this appeal will therefore be granted, costs to be paid by the appellants.

Appeal dismissed, with costs.

(115 Md. 685)

DE BEARN et al. v. DE GALARD DE BRASSAC DE BEARN, Count and Prince of Bearn and Chalais.

(Court of Appeals of Maryland. June 22, 1911.) ATTACHMENT (§ 62*) — JURISDICTION-AIDING ATTACHMENT.

Where bonds may not be reached by attachment against a debtor because they are registered in the names of others, equity has no power to change the registration at the instance of attaching creditors merely to make the bonds subject to attachment, in the absence of fraud or some ground of equity jurisdiction. [Ed. Note. For other cases, see Attachment, Dec. Dig. § 62.*]

Cross-Appeal from Circuit Court No. 2 of Baltimore City; James P. Gorter, Judge. Action by Louis Elie Joseph Henry de Galard de Brassac de Bearn, Count and Prince of Bearn and Chalais against Ross R. Winans and others, in which Francois de Bearn and others filed a cross-petition. From an order sustaining a demurrer to the cross-petition, the cross-petitioners appeal.

Affirmed.

BURKE, J. This is an appeal from an order of circuit court No. 2 of Baltimore city, passed on the 9th day of December, 1910, sustaining a demurrer to the cross-petition of the appellant, filed in the cause on October 27, 1910.

The circumstances under which the crosspetition was filed are fully stated in the opinion of Chief Judge Boyd, filed April 5, 1911, in the case of Prince de Bearn v. Winans et al., 80 Atl. 1071. After referring at some length to the prior controversies over the bonds involved in this case, and to the pending attachments, and also to the petition of the Prince, filed October 21, 1910, the opinion proceeds as follows: "The attaching creditors filed an answer and a cross-petition, in which they alleged that the appellant had filed in the Court of Appeals a petition praying that the lower court should be directed to forthwith sign an order turning over to him or his solicitor and attorney in fact the bonds referred to, but that said petition was dismissed by this court, and that

decree of June 6th. They also alleged that the attachments were still pending. A demurrer to the cross-petition was sustained; and hence it will be unnecessary to discuss that at length, further than to say that the learned judge who sustained the demurrer, but also dismissed the petition of the appellant, filed an opinion in which, as well as in the orders passed by him, he gave the reasons which induced him to adopt the course pursued by him.

As to the demurrer, he took the position that, if the effect of the decision of this court in 111 Md. 434, 74 Atl. 626, was to make the bonds subject to attachment, there was no occasion for a court of equity granting the relief sought in the cross-petition; and, if, on the other hand, they were not in such condition as to be subject to attachment, and in order to make them so it was necessary for a court of equity to change or modify them, then, in his opinion, that court had no power to change the form of property, so as to make it subject to attachment, when it was not subject to attachment in its present

form, and should not aid the statutory remedy of attachment by altering the form of property. In the cross-petition, the attaching creditors had asked the court to pass an order declaring the distribution and registra

tion of the bonds in the names of the infant

children to be illegal, invalid, and of no effect; that the bonds be brought into that court by the American Bonding Company and Alexander Brown & Sons, but that they should not be taken from the custody of said American Bonding Company and Alexander Brown & Sons pending the determination of the attachment suit, and that when they were brought into that court that the clerk make upon each of them an indorsement as follows: "Registration in name of Henry Ross Joseph Gaston de Galard de Bearn or Beatrice Neva Marie Cecile de Galard de Bearn, as the case may be, is hereby canceled by order of the circuit court No. 2 of Baltimore city, bearing date the - day of 1910, in the cause of de Bearn v. Winans et al."

The cross-petition clearly showed that the object of the petitioners in having such an order passed was to enable them to reach the bonds by the attachments, or at least to remove what was supposed to be an obstacle in their way of so reaching them. The only possible standing they have in a court of equity is as interveners for the benefit of their attachments, as they have no interest in the bonds, excepting as they claim to have as attaching creditors. Under such circumstances, we think the court was right in refusing to take the action prayed for in that cross-petition, merely for the purpose of aiding the attachment. The cases of Harper v. Clayton, 84 Md. 346, 35 Atl, 1083, 35 L. R. A.

Md.)

225

The reasons which induced the learned judge of the superior court of Baltimore city to release the bonds from the operation of the attachment are thus stated in this opinion: "It seems to me, where the writ affects in the hands of the garnishee anything but credits, the only thing upon which it can operate, the sole property liable, is property upon the sale of which the title would vest in the purchaser, or the title to which the court could, under the proceedings, vest in the purchaser. In this case, we have the writ operating upon certain registered coupon bonds. If judgment in personam were to be rendered against the custodians of those bonds for the market value of the bonds, I fail to see how it would be possible for him to save himself harmless against that judgment, because of the absence of power in him to sell and transfer the title. If the custodian could not transfer, and there is no person before the court with power to transfer, the title, I do not see how the court could render a judgment of condemnation under which the bonds could be sold on execution." It was upon this distinct and sole ground that the bonds and attached coupons were released.

In the recent case of the Prince v. Winans and Latrobe, Trustees, 80 Atl. 730, decided February 23, 1911, 1911, the court, speaking through Judge Pearce, said: "But we are of opinion that there was error in directing, as the decree did, that these bonds should remain not only where,' but 'as, they now are,' and in failing to direct that, in some proper manner, the registration of said bonds in the names of said infant children should be canceled. The Prince was entitled, under the opinion of this court in 111 Md., 74 Atl., to a clear and unfettered title to these bonds whenever they should be delivered, or should become deliverable, to him, and this was an essential part of any decree made in conformity with said opinion." The failure so to provide in the decree appealed from will require its reversal, but, as we have said above, it correctly required said bonds to remain "where they now are," and properly provided that such action of the court should be without prejudice to the rights of either the attaching creditors or of the complainants in this case.

When the case is remanded, the decree then to be passed should provide for cancellation of the registration of said bonds in the names of the infant children of the Prince, in such manner as the circuit court 81 A.-15

ander Brown & Sons parties, if deemed necessary), and should also provide that such cancellation shall in no wise affect the rights of any of the parties to the attachments pending at the date of the decree of June 6, 1910, or to any other attachments that any of said attaching creditors may have since caused to be issued, or may hereafter cause to be issued, pending the ultimate delivery of said bonds, or any of them, to said Prince to be held in his own absolute right, as he was declared by this court, in the opinion in 111 Md., 74 Atl., supra, to be entitled to hold them.

And in the case of the Prince de Bearn v. Winans et al., 80 Atl. 1071, decided April 5, 1911, Judge Boyd, speaking of the bonds involved in these attachment cases, said: "It is true the bonds were registered, but if in the attachment cases it be held that they can be made subject to the operation of the attachment, and are condemned in the hands of the garnishee, or any of them, then undoubtedly a court of equity would be authorized, by proper proceedings, to have them transferred in such way as would make the judgments effective. There is no longer any doubt about their belonging to the appellant, and if they can be condemned, what we have said about a court of equity not giving its aid would not apply, if it becomes necessary to have its aid in enforcing judgments, if such be obtained." It is therefore obvious that the bonds should not have been released, for the reasons stated in the opinion of the lower court.

In the brief of the appellee, that portion of the opinion of the lower court quoted above is transcribed and relied upon, and it is declared "that upon the uncontroverted evidence before the court the learned judge could have reached no other conclusion." This contention was fully answered in the opinion in the two recent cases referred to above.

[2] The only other ground upon which it is insisted that the bonds were properly discharged is that the only lawful process whereby the registered corporate debts may be attached is under section 18, art. 9, and section 392, art. 23, of the Code, and, since the records show that these sections were not, and could not be, complied with, the bonds are not attachable, and were properly released. Section 18, art. 9, of the Code of 1904, provides that: "An attachment may be laid on any interest which the defendant has or may be entitled to in the stock of any corporation, or in the debts of any corporation, transferable upon the books of such corporation; and it shall be the duty of the sheriff or other officer, in laying said attachment, to comply with the requirements contained in article 23, title 'Corporations' of this Code, in relation thereto." Section 392,

art. 23, of the Code reads as follows: "The sheriff or other officer, upon being instructed to levy such writ on any such stock or debt, shall deliver to the president or chief officer, or leave at the place of business of such corporation, a notice in writing, stating that he has seized the stock or debt of the defendant (naming him), and the purpose for which he has seized the same, and shall retain a copy of such notice, and return it with the writ."

The argument of the appellee is thus stated in his brief: "While section 18, art. 9, declares it to be 'the duty of the sheriff or other officer in laying said attachment to comply with the requirements contained in article 23, title "Corporations," of this Code, in relation thereto,' the sheriff, for whom it would have been impossible to deliver any notice to the president or chief officer of either of the respective debtor corporations, or leaving at the place of business of such corporation respectively the notice prescribed by section 392 of article 23, obeyed the appellants' instructions, and delivered to persons alleged to have 'joint custody and control' of written certificates of corporate debt registered outside of the state certain notices, subscribed and subsequently filed in behalf of the appellants, stating that the respective attachments were intended to bind such debt. To uphold such means of attachment would amount to reading into the statute a provision substantially to the effect that an attachment may be laid on any interest which the defendant has or may be entitled to in the debt of any corporation transferable upon the books of such corporation, by leaving notices with such persons as may have custody or control of the written evidences of such debt issued by debt of corporations outside of the state."

The sections of article 23 of the Code of 1904, referred to in section 18, art. 9, of the Code of 1904, are sections 391 to 401, inclusive, under the subtitle "Execution against the stock of corporations"; but it is evident from section 417 of article 23 that these sections are applicable only to corporations formed under the general laws of this state. These sections were all repealed by the act of 1908, c. 240, which substituted certain new sections in lieu of those repealed. Section 43 of the act of 1908, c. 240, makes provision for the execution or attachment of shares of stock of corporations of this state, provides the duties of the sheriff and of the officers of the corporations, but is silent upon the subject of the registered debt of corporations. It is therefore, we think, quite apparent that the order appealed from cannot be sustained by virtue of the sections of the Code of 1904 relied upon by the appellee. [3] Section 10 of article 9 of the Code provides that "any kind of property or credits

belonging to the defendant, in the plaintiff's own hands, or in the hands of any one else, may be attached; and credits may be attached which shall not then be due." The bonds attached in this case are within the jurisdiction of the court, and the circuit court No. 2 has jurisdiction over the appellee 'and his infant children, and may acquire at any time jurisdiction over the custodians of the bonds. and in the event of the condemnation of the bonds in the hands of the garnishees, or any of them, it would have the undoubted power "by proper proceedings to have them transferred in such way as would make the judgment effective." The bonds attached are the absolute property of the defendant in the attachments. Their registration in the names of his infant children is a mere shadow upon the title, which the court has power, and which it is its duty, to remove. It is its duty to cancel the registration of the bonds in the names of the infant children, and it may appoint a trustee with authority to authorize the cancellation of the bonds upon the books of the railroad companies. There is no reason to suppose that these companies would ignore the decree of a court having full power and jurisdiction over the parties and the subject-matter. On the contrary, there is every reason to think that they would give full faith and credit to the decree. But, if such an improbable thing should happen that they should refuse to recognize the validity of the decree, it cannot be doubted that the Prince, or any one succeeding to his title, would have the right in the proper forum to compel the cancellation of the registration of the bonds in the names of the infants.

It is not necessary to determine in these appeals the general question as to whether or not registered coupon bonds of foreign corporations are in all cases liable to attachment, when located in this state. What we do decide is that these particular bonds are property, within the meaning of section 10. art. 9, of the Code of 1904, and that under the special facts appearing in the records, and under the principles announced in the prior cases referred to in this opinion, these bonds are liable to attachment, and in the event of the appellants succeeding in the attachment suits the bonds may be condemned and sold.

[4] As to the bonds attached, the final judgment to be entered must be a judgment of condemnation against the specific bonds, and not a judgment in personam for their value against the garnishees, or any of them. Upon such a judgment, a writ of fieri facias may be issued and the bonds sold, after the cancellation of their registration shall have been made conformably to the previous decisions of this court referred to in this opinion.

Order reversed, and case remanded, with costs to the appellants above and below.