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any way participate in the proceedings, would be Bank of Rockville v. Walker, 61 id. 154; May v. “deemed to have applied for a discharge and should First National Bank, 122 Ill. 551; Henderson & Co. be bound by any order or discharge granted by the v. Chase, 35 Ill. App. 155; Lipman v. Link, 20 id. court.” The court beld that the statute gave it the 359; Chafee v. Fourth National Bank, 71 Me. 514; effect of an involuntary bankruptcy assignment, Caflin v. Kelling, 83 Ky. 649; May v. Wannamacher, and that the lien of the attachment was paramount | 111 Mass. 282; Butler v. Wendle, 57 Mich. 62; to that of the assignee's title. Writing the opin- Askew v. La Cynge Exchange Bank, 83 Mo. 366; ion, Chief Judge Andrews said: “Effect cannot be Guillander v. Howell, 35 N. Y. 657; Ockerman v. given here to this coercive feature in the Wisconsin Cross, 54 id. 29; Warner v. Jaffray, 96 id. 254; law, except by giving extra-territorial effect to the Thompson v. Fry, 51 Hun, 296; Kelstadt v. Rieley, law of that State. The assignor had no power to 55 How. Pr. 373; Nassau Bank v. Yendes, 44 Hun, make such a condition, and if it is legal it is by 55; Varnum v. Camp, 13 N. J. Law, 326; Long v. force of the statute alone. This feature is one of | Girdwood, 150 Pa. St. 413; Weider v. Maddox, 66 the distinguishing tests of an insolvent or bankrupt | Texas, 372; Schroder v. Tompkins, 58 Fed. Rep. law."

The corporation acted voluntarily in the 672; Caskie v. Webster, 2 Wall. Jr. 131; Barnett sense of executing the transfer, for it might well v. Kinney, 147 U. S. 476; Bholen v. Cleveland, 5 have refrained from executing it at all, but the Mason, 175; Hanford v. Paine, 32 Vt. 443; Cook v. statute by effectivy a discharge of his indebtedness Van Horn, 81 Wis. 291.) without the creditor's consent, was, nevertheless, involuntary and coercive as regards both the cor

NATURE OF THE LAW OF THE Situs. poration and its creditors. The Wisconsin statute The question as to the nature of the law of the above referred to, has received a similar construc situs arose in the case of Warner v. Jaffray, 96 N. tion by the courts of Illinois in a well considered Y. 248. A resident of New York made a general

(Townsend v. Coxe, Ill. Sup. Ct., 1894; 37 assignment for the benefit of creditors of all of his N. E. Rep. 689; Rhawn v. Parce, 110 III. 350, is property, part of which was personal property also an instructive case on this subject.)

situated in Pennsylvania. The assignment was reAnd as a rule there is no difference whether by corded in Pennsylvania March 18, 1881. Prior to virtue of an act in bankruptcy the debtor is coerced that time, and on March 1, 1881, the defendant into making an assignment of his estate, or whether went into the State of Pennsylvavia and obtained a he by a voluntary assignment sets the law in motion warrant of attachment on the personal property which discharges him of his indebtedness without there situated. The question before the court was, the consent of his creditors. (Barth v. Backus, whether the assignment effected a transfer of such supra; Rhawn v. Parce, supra; Townsend v. Coxe, property to the assignee, so that it could not subsupra; Warner v.

Jaffray, 96 N. Y. 254; Weider v. sequently be attached in the courts of Pennsylvania Maddox, 66 Texas, 372; Hutchinson v. Peshine, 16 | by creditors residing in New York: N. J. Eq. 169; ilolmes v. Remsen, 20 Johns. 229.) The Pennsylvania statute provided that all assign

Proceeding on the same line of reasoning it is ments by non-residents should be recorded in the held that as between the States of the Union, il dis- county where the property, real or personal, was charge in bankruptcy by the law of one State will situated, and that they should take effect from the not bar the rights of a creditor who is a citizen of date of such recording only. another State, and not a party to the proceedings, The Court of Appeals held that the assignment, from pursuing his remedy against the debtor in until recorded, was in conflict with the positive law such other State. And this is said to be settled by of Pennsylvania and could have no effect there as a substantial concurrence of authorities. (Phelps v. against such attaching creditors. Earl, J., writing Boreland, 103 N. Y. 410; Goodsell v. Benton, 13 the opinion, said: “It is a general rule that a volunR. I. 225; Hills v. Carter, 74 Me. 156.)

tary transfer of personal property is to be governed, As to voluntary general assignments, it is a gen- everywhere, by the law of the owner's domicile, and eral rule that if they are valid under the law of the this rule proceeds on the fiction of the law that the place of execution, they will be recognized iis valid domicile draws to it the personal estate of the owner and effective everywhere, unless contrary to the wherever it may happen to be. But this fiction is positive law or public policy of the place where the by no mean of universal application, and yields property is situate; that is, if there is no contlict whenever it is necessary for the purpose of justice between the lex loci contractus and the ler rei situe that the actual situs of the thing should be exthen they are effective to pass title to the assignee amined, and always yields when the law and public as against all creditors of the assignor, but if there policy of the State where the property is located is a conflict, the law of the situs supercedes and have prescribed a different rule of transfer from that controls. (Egbert v. Baker, 58 ('onn. 319; National of the State where the owner lives."


The question arose squarely in the leading case of courts, differs from that of the other States, in that Guillander v. Howell, 35 N. Y. 657, over a general they hold the assignment to be invalid and inoperaassignment esecuted by an insolvent debtor in New tive to pass title until the creditors, or some of York, containing preferences, valid under the laws them, have given their unqualified assent to it in of that State, part of his property being situated in some manner, and is inoperative against attaching the State of New Jersey, where it was subsequently creditors, except to the amount due the assenting seized by attaching creditors residents of New creditors, and to that amount it is operative. This Jersey. The statute of New Jersey declared all as distinction is suggested in Faulkner v. Hyman, 142 signments, containing preferences, void as against Mass. 53; and we submit, assuming the assignment the public policy of the State. Here was clearly is valid according to the common law above referred presented a conflict of laws. It was held that such to, and is in derogation of no statute law of the assignment could have no extra-territorial effect, it State, that it will be valid and effective to pass title being hostile to the policy of the laws of New Jersey, to the assignce even against domestic creditors of as against such creditors. Peckham, J., said : Massachusetts. "The law of New York cannot operate there except In Indiana, Louisiana and Vermont by the comby comity or courtesy, and as to property actually mon law, an assignment is held inoperative to pass situated in New Jersey, that State has the conceded title to the assignee until he has taken possession of right to legislate; she may declare what alone will the property, either personally or by agent. (Wooltransfer the title as against her citizens, creditors of v. Pipher, 100 Ind. 306; Reynolds v. Adden, the assignee."

136 U. S. 354; Rice v. Curtis, 32 Vt. 460.) But in Discussing the question in Weider v. Maddox, New York the assignment takes full force and effect 66 Texas, 372, Stayton, J., said: “It seems, how as soon as it is executed (Nicoll v. Spowers, 105 N. ever, to be everywhere admitted that a general vol Y. 1) and actually delivered (McIthargy v. Chamuntary assignment for the benefit of creditors, made bers, 117 N. Y. 523). by an insolvent debtor, in accordance with the laws Under the law of the situs we may notc for conof the place of his domicile, will pass all his per- venience four general features, to wit: sonal property, whererer situateil, unless the opera First. That when there is no conflict between the tion of such assignments is limited or restrained by law of the place of the assignment and the law of some law of the State in which the property is situ- the situs, the assignment will be enforced as against ated.” In the opinion the learned judge cites many all subsequent leinors, both foreign and domestic. authorities.

Seronil. When the assignment contravenes some Again, it was said in the Princeton Mfg. Co. v. statute detining a great public policy of the law and White, 68 Ga. 98, that Whatever may bave been probibiting transfers deemed to be injurious, it will the rulings in the past relative to the general opera not pass title to the assignee of the debtors' estate tion of bankrupt or involuntary assignments, it is situated within the State where such statute govnow well settled in most States that all voluntary crus, except is il matter of comity or courtesy. assignments, is valid where made, and not repug

Thiril. When there is a statute requiring the renant to the lex rei sita, will be enforced."

cording or filing of the assignment, in terms inThus we see that a voluntary general assignment tended to govern all assignments, both domestic is effective to pass title to all the assignor's personal and foreign, its the Pennsylvania statute, an assignproperty wherever situated, if it is not in conflict ment not so recorded or filed will be ineffectual to with the lex rei situr as against both foreign aud dopass title to the property within such State. mestic creditors. But in Frank v. Babbitt, 155 Fourth. Statutes which regulate the mode of exeMass. 115, a late case, the court said: “This court cution, distribution, filing of schedules, and the has frequently held that a voluntary assignment like, and secure a just distribution of the estate of made by a debtor living in another State, for the the debtor, usually, are applicable to assignments benefit of his creditors, would be regarded is valid executed by lebtors residing in suchi State, and can here," the only qualification being that this court have no extra territorial effect so as to effect assignwould not sustain them, if, to do so, would be

ments executed without the State. prejudicial to the interests of our own citizens or As to the nature and policy of the law of the situs opposed to public policy." This and other Massil- | which may be in conflict with the operation and chusetts cases are often cited as departing from the validity of the foreign assignments, expressions are general rule, and making a distinction in favor of | to be found in many opinions from which the infercreditors residing in Jassachusetts. But this is ence may be drawn that it rests in the discretion of only an apparent, and not it real, distinction, it the court to declare the policy of the law, and to most, which may be explained away by the fact that give or deny effect to such assignments as they may the common law, as declared by the Massachusetts or may not appear injurious to the rights of citizens



of the State, whose laws the courts administer, and Again the question arose over the construction of within whose limits the property may be found. a similar statute as effecting an assignment executed Speaking of this, Stayton, J., in Weider v. Maddox, in the State of New York covering property situsaid: “Such a rule seems to us to conser upon the ated in the State of South Carolina. (Ex parte courts a power too little restricted, too unqualified Dickinson, 29 S. C. 453.) The statute of South and unlimited, to be tolerated in any country gov- Carolina contained this provision, “Any assignment erned by laws. What, upon such a matter is to be by an insolvent debtor of his or her property for deemed injurious to the rights of the citizens of the the benefit of creditors, in which any preference or State in which the property is situated, should be priority is given to any creditor by the terms of the subject of legislative and not judicial discre- said assignment, over any other creditor, tion."

shall be absolutely null and void and of no effect The majority of cases arise over the construction whatever." The court held that this statnte deof statutes regulating the recording or filing of as clared a great public policy of the law forbidding signments, or preferences contained therein. preferences, and that the word “any” covered

An interesting case lately came before the Su- every assignment, either foreign or domestic, affectpreme Court of the United States, Barnett v. Kinney, ing property in the State of South Carolina. The 147 U. S. 476. A citizen of Utah made an assign- court said : “ The language of the Act is 'any ment of all his property for the benefit of his credit- assignment,' etc., and to adopt a construction conors, containing preferences, to another citizen oftended for by the respondent it would be necessary Utah, which was valid by the laws of Utah and by for us to interpolate some such words as are found the common law. Part of his property was situated in the Missouri statute, “hereinafter made in this in Idaho, of which the assignee had taken posses- State,' or some equivalent words; and this we have sion. This property was subsequently attached in no right to do." Idaho by a resident of Utah. The Revised Statutes The marked tendency of the decisions is that the of Idaho provided that “no assignment of any in- policy of the lex rei situ must be declared and fixed solvent debtor, otherwise than as provided in this by positive rules of law, if not by legislative enacttitle, is legal or binding on creditors,

ment, and not left to the discretion of the courts in that creditors should share pro rata without priority determining each particular case. In Guillander v. or preference whatever,” and for a discharge of the Ilowell, there is a dictum by PeckIAM, J., as folassignor upon a compliance with the statute. Was lows: "What is injurious to the rights of citizens the assignment in conflict with the laws of Idaho ? where the property is situate, should be the subject Chief Justice Fuller, in writing the opinion, re- of positive legislation, and not left to the discretion marked, that “while the statute of Idaho provided of the courts and this is probably the true rule, a pro rata distribution without preferences in as- assuming the transfer to be valid according to the signments under the statute, it did not otherwise common law of the situs, although the rule is somedeal with the distribution of his property by a debtor, | times more broadly expressed. nor prohibit preferences by non-residents debtors and It has long been the policy of commercial States creditors through an assignment valid by the laws not to embarass the full transmission of the title to of the debtors' domicile. No just rule required the personal property; and has justly been considered a courts of Idaho, at the instance of a citizen of an discourteous and illiberal policy in one State to other State, to adjudge a transfer, valid at common abridge or fetter the operation of foreign contracts law and by the law of the place where it was made, or to embarass foreign owners of personal property to be invalid because preferring creditors elsewhere, within its limits, in the full and free enjoyment of and, therefore, in contravention of the Idaho statute its beneficial use or its ready and unrestricted transand the public policy therein indicated in respect fer. (IIanford v. Paine, 32 Vt. 443.) to its own citizens, proceeding thereunder. The Regarding such statutes for the protection of law of the situs was not incompatible with the law of creditors it has been held that is the Legislature had the domicile."

intended such acts to apply to the case of foreign By a mere casual reading of this decision it is assignments making them invald when but for the difficult to harmonize it with the decisions constru- act, they would have been valid, that purpose ing the New Jersey statute forbidding preferences, would have been particularly expressed. (In re and like statutes; but there were certain features, Paige & Sexmith Lumber Co., 31 Minn. 136.) looking at the context of the statute, which led the These authorities show us the nature of the law court to conclude that it was not the legislative of the situs which may or may not interfere with intent that it should apply to all assignments both the operation of a foreign assignment, and that a domestic and foreign — it is a question of legisla- voluntary assignment will be given a universal effect tive intent.

unless there is some meritorious and well defined

policy of the law intervening. And the true rule The Federal Courts have been considered as takseems to be, assuming that we have a voluntary ing a contrary view on this subject of domicile, and assignment valid at common law, that mul such as allowing all creditors, both domestic and foreign legislative policy is positively declared, and inter- to invoke the law of the situs against the validity poses a direct obstruction, to the operation of such of the assignment when there was a conflict (Green assignment, it would be effectual to transfer the v. Van Buskirk, 5 Wall. 307; s. (., î Wall. 159), debtor's property wherever it may have its situs, but in a late case before the l'. S. Supreme Court,

Ch. J. Fuller reviews and discusses at length the deDOMICILE OF THE ATTACHING CREDITORS.

cisions holding the same principle as the Illinois By the domicile of the parties seeking it remedy courts just mentioned, and seems to favor that view. we mean any party or creditor invoking the law of But all this discussion was unnecessary for the dethe situs and pursuing a remedy thereunder. And cision; the real point for decision was, whether the the fact that we have determined the situs of the assignment was in conflict with the laws of l’talı? property, the nature of the assignment, and the The court beld that it was not, and when that was nature and effect of the ler rei site does not quite determined the whole case was decided, and the settle the question; for bere again the courts are discussion as to the residence of the attaching credidivided, many of them holding that in case of a tors was obiter dictum. Votwithstanding this veconflict only creditors residents of the situs can cision the question in the United States Courts is an invoke the law of the situs to defeat the assignment. open one yet to be decided; but with a strong dicThis is the rule in Illinois, Pennsylvania, New tum by the chief justice in favor of the Ninois Jersey, Maine, Massachusetts, Missouri, and some doctrine. other States.

In many States it is the settled rule of law that In Illinois the question arose as to the effect of a only domestic creditors can invoke the lex rei sita: New York assignment on property situate in Illinois in opposition to the validity of the foreign assignas between the New York assignee and a New York ment. ((hafce v. Fourth National Bank, îl Me. creditor pursuing his remedy by attachment in 514; Frank v. Babbitt, 155 Mass. 11-1; Julliard v. Illinois subsequent to the assignment. The assign- | May, supra; May v. First National Bank, spru; ment was valid by the law of New York, the com Green v. Wallis Iron Works, 19 N. J. Eq. 18; mon residence of the creditor and assignee, but in Thurston v. Rosenthral, 42 Mo. 174; Halstead v. conflict with the law of Minois. The court gave Strauss, 32 Fed. Rep. 279; Bently v. Whitmore, full force and effect to the assignment in preference | 19 V. J. Eq. 162; Bryan v. Brisbain, 26 Mo. 423.) to the lien of the attachment. (Julliard v. May, 13') In New York and some other States a contrary Ill. 87.) The question again arose upon a similar view is firmly established. It is a general rule in state of facts except that the attaching cre litor was this State that a foreign creditor rightfully in the a resident of Massachusetts. The court upheld the courts of this State may enforce his remedy to the assignment executed in New York. (May v. First

same extent, in the same manner, and with the National Bank, 122 111. 5.51.) Sheldon, ('h. J.,

same priority of lien as a citizen of this State. Iliwriting the opinion said: • The true rule of pub- bernia National Bank v. Lacombe, 81 N. Y. 367, lic policy is this, that a voluntary issignment made which is a leading case on the subject. Ind this abroad, inconsistent in substantial respects, with our

rule applies to foreign (reclitor's coming into this statute, should not be plit in execution, to the detri-State to invoke the aid of our courts against a ment of our citizens, but that for all other purposes, foreign general assignment which is repugnant to if valid by the lex loci, it should be carried fully the policy of our law. (Barth v. Backus, 1-10V. Y. into effect." In that case the assignor being a resi- 230; see statement of facts above.) In this case it dent of New York, the creditor a resident of Massat

was urged that the attaching creditors stood in no) chusetts attaching property having its situs in better position than the creditors from whom they Illinois, the question was squarely presenteil. took title, who were residents of Wisconsin, the State

So in a late case in Pennsylvania it was held that in which the assignment was madle, and hence were a resident of a foreign State could not by an attach- | bound by the assignment ; but the court, Ch. J. ment in Pennsylvania obtain a lien paramount to ANDREWS writing the opinion, held that the attachthat of an assignee's title under an assignment exe ments were liens paramount to the title of the cuted by a citizen of another State. The rule rests assignee under the assignment, assuming that the upon inter-state comity, and the courts will make attachment creditors stool in no better position no discrimination by allowing citizens of other than the Wisconsin creditors, and quoted approvstates to invoke the aid of such courts to defeat the ingly from the Hibernia Vational Bank case as folassignment; only domestic creditors c'an question its lows: "A foreign creditor rightfully in the courts validity. (Long r. Girgwood, 150 Pa. St. 413.) of this State, pursuing a remedy given by the


Rep. 34.

statues of the State, may enforce that remedy to EMINENT DOMAIN-DAMAGES.—The refusal of the the same extent, in the same manner and with the court to allow a reversioner, upon his application, to same priority of lien as a citizen of the State.” (To be made a party defendant in a suit brought by the the same effect are Warner v. Jaffray, supra; Keller holder of the lise estate against a city for damage v. Paine, supra.

to the land caused by the widening of a street, was The foregoing is the rule adopted in Maryland, error, although such reversioner had refused to join Connecticut, South Carolina, Minnesota, New in the suit at request of the plaintiff. (Jones v. Hampshire, Iowa and Maine. (Brown v. Smart, 69 City of Asheville [ N. Car.], 21 S. E. Rep. 691.) Md. 327; Paine v. Lester, 44 Conn. 196; First Na

MUNICIPAL CORPORATIONS CHANGING BOUNDAtional Bank of Rockville v. Walker, 61 Conn. 154 ;

What the boundaries of a municipal corEx parte Dickinson, 29 So. Car. 453; Jenks v. Lud

poration are, where they are, and whether a parden, 31 Minn. 482; Kidder v. Tuffts, 48 N. H. 121;

ticular piece of territory lies within or without the Moore v. Church, 70 Iowa, 208; Boston Iron Co. v.

corporate limits of a municipality are all matters Boston Locomotive Works, 51 Me. 591.)

for judicial determination; but the power to create This is said to be the strictly logical doctrine. municipal corporations and the power to enlarge or The Constitution of the United States provides that

restrict their boundaries are legislative ones.-“The citizens of each State shall be entitled to the City of Hastings v. Hansen (Neb.], 63 N. W. privileges and immunities of citizens in the several States." (C. S. Constitution, Art. 4, Sec. 2.) The New York doctrine accords to a non-resident credi

JUDGMENT-RES JUDICATA. -Where, in a suit for tor who invokes the aid of our courts and complies for the same cause, and that such bill was dismissed

divorce, the bill shows that a former bill was filed with all the requirements of the law, a right para- by the complainant, but neither the pleadings nor mount to that of a non-resident debtor who utterly

the evidence shows whether an answer to the ignores the policy of the law and seeks to transfer

former bill was filed, or whether the dismissal was his estate by a conveyance at variance with the laws of the State where the property is situated.

without prejudice or not, such former suit is not a

bar to the second suit. Gerber v. Gerber [111.], 40 If in any case, by interstate comity or courtesy the

N. E. Rep. 581.) courts of one State ought to recognize an assign

RECEIVERS SELECTION - OFFICER OF CORPORAment, in conflict with the policy of the law, there would seem to be a greater reason why they should

TION.--While an oflicer of a corporation, whose misrecognize and enforce the rights of a non-resident fortunes have made a receivership necessary, is not creditor who voluntarily comes into that State, in- ineligible to employment as receiver, yet, where the vokes the aid of its courts, submits to its remedy, corporation is one that covers a vast div ity of and complies with its laws. It is a choice between conflicting interests, and especially of speculation, non-residents; one seeks to avoid the law of the

an officer should not be appointed without careful situs in transferring his property by an assignment scrutiny of his official and personal antecedents, in conflict thereto, the other voluntarily invokes its and one who is or has been a speculator in the aid, submits to its remedies and complies with all

stock of the corporation should never be appointed. its provisions. To which should comity accord the Olmstead v. Distilling and Cattle Feeding Co. [U. better right? The court in Jenks v. Ludden, com

S. C. ('., Ill. ), 67 Fed. Rep. 24.) menting on the Illinois doctrine, above referred to, REMOVAL OF CAUSES. Under Act Aug. 13, 1888 denominates it as narrow and provincial, and of (25 Stat. 433, § 2), à cause cannot be removed from questionable constitutionality."

a State to a federal court on the ground that it is EDWARD L. RANDALL. one arising under the Constitution, laws, or treaties Binglamton, N. Y.

of the United States, unless the fact so appears by

the plaintiff's statement of his own claim. (Caples Abstracts of Recent Decisions.

v. Texas & P. Ry. ('o. [U. S. C. C., Tes.], 67 Fed. CRIMINAL PRACTICE

Rep. 9.) Where one indicted for murder in the first degree REMOVAL OF ('AUSES RIGHT OF INTERVENER TO was convicted of murder in the second degree, and REMOVE.- An intervener who introduces himself the clerk inadvertently entered in the record that into a pending action in a State court, solely to he was found guilty as charged, instead of guilty assist in its defense and to protect himself against a of murder in the second degree, the court could, liability for indemnifying the original defendant, during the term, order the clerk to ccrrect the can confer no jurisdiction on the federal court that error, without first requiring the presence of de- the original defendant could not confer. (Olds fendant. (State v. McNamara (Ark.], 30 S. W. Wagon Works v. Benedict [U. S. C. C. of App.), 67 Rep. 762.)

Fed. Rep. 1.)

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