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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 confer 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 bis 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 of tended 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 riglit 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 sitæ 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 Howell, there is a dictum by PECKHAM, J., as folassignor upon a compliance with the statute.


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. (Hanford 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 tak

to be, assuming that we have a voluntary ing a contrary view on this subject of doinicile, and assignment valid at common law, that until 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. C., 7 Wall. 159), debtor's property wherever it may have its situs. but in a late case before the U. 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 a 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 Utah? property, the nature of the assignment, and the The court held that it was not, and when that was nature and effect of the lex rei site does not quite determined the whole case was decided, and the settle the question; for biere again the courts are discussion as to the residence of the attaching credidivided, many of them bolding that in case of a tors was obiter dictum. Notwithstanding this deconflict 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 Illinois 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. (Chafee v. Fourth National Bank, 71 Me. creditor pursuing his remedy by attachment in 514; Frank v. Babbitt, 155 Mass. 114; Julliard v. Illinois subsequent to the assignment. The assign- May, supra ; May v. First National Bank, supra; ment was valid by the law of New York, the com- Green v. Wallis Iron Works, 49 N. J. Eq. 48; mon residence of the creditor and assignee, but in Thurston v. Rosenthral, 42 Mo. 474; 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 N. J. Eq. 462; Bryan v. Brisbain, 26 Mo. 423.) to the lien of the attachment. (Julliard v. May, 130 In New York and some other States a contrary III. 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 creditor 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 III. 551.) Sheldon, Ch. J.,

same priority of lien as a citizen of this State. Hiwriting the opinion said:— "The true rule of pub- bernia National Bank v. Lacombe, 84 N. Y. 367, lic policy is this, that a voluntary assignment made

which is a leading case on the subject. And this abroad, inconsistent in substantial respects, with our

rule applies to foreign creditors coming into this statute, should not be put 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, 140 N. 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 Massa

was urged that the attaching creditors stood in po chusetts attaching property having its situs in better position than the creditors from whom they Illinois, the question was squarely presented.

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 made, 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 attachinent creditors stood 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 National Bank case as folassignment; only domestic creditors can question its lows: "A foreign creditor rightfully in the courts validity. (Long v. Girgwood, 150 Pa. St. 413.) of this State, pursuing a remedy given by the



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 life 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 tional Bank of Rockville v. Walker, 61 Conn. 154;

What the boundaries of a municipal corEx parte Dickinson, 29 So. Car. 453; Jenks v. Ludden, 34 Minn. 482; Kidder v. Tuffts, 48 N. H. 121; ticular piece of territory lies within or without the

poration are, where they are, and whether a parMoore v. Church, 70 Iowa, 208; Boston Iron Co. v.

corporate limits of a municipality are all matters Boston Locomotive Works, 51 Me. 591.) This is said to be the strictly logical doctrine. municipal corporations and the power to enlarge or

for judicial determination; but the power to create 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

Rep. 34. States." (U. S. Constitution, Art. 4, Sec. 2.) The

JUDGMENT--RES JUDICATA. New York doctrine accords to a non-resident credi

-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 any 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

without prejudice or not, such former suit is not a laws of the State where the property is situated.

bar to the second suit. Gerber v. Gerber (111.], 40 If in any case, by interstate comity or courtesy the courts of one State ought to recognize an assign

N. E. Rep. 581.)

RECEIVERS ment, in conflict with the policy of the law, there

SELECTION OFFICER OF CORPORAwould seem to be a greater reason why they should

-- While an officer 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 diversity 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. C., III.], 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), a 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. Co. (U. S. C. C., Tex.], 67 Fed. CRIMINAL PRACTICE

Rep. 9.) Where one indicted for murder in the first degree

REMOVAL OF CAUSES RIGHT OF INTERVENER TO was convicted of murder in the second degree, and REMOVE.--An intervener who introduces bimself the clerk inadvertently entered in the record that into a pending action in a State court, solely to he was found guilty as harged, 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 Kep. 762.)

Fed. Rep. 1.)



business matters, should be addressed to THE ALBANY LAW


our only hope for proper solutions of such unThe Albany Law Journal. fortunate strifes lies in the legal judges who

should have at their back the trust and confiALBANY, AUGUST 17, 1895.

dence of the people. If judges fail in such

matters, then public confidence is lost and all Current Lopics.

faith in our legal institutions fail. While writ

ing on this subject let us look at the account of [All communications intended for the Editor should be ad- the mass meeting held last Saturday night in dressed simply to the Editor of THE ALBANY LAW JOURNAL. All letters relating to advertisements, subscriptions, or other

New York, it says: JOURNAL COMPANY.]

The meeting was called to order by Lucien

Sanial, who presided. He said: 'In the name "HROUGH the kindness and courtesy of of the Hebrew trades I congratulate you to

Judge Dillon, we are enabled to publish night upon the size of this meeting. Many of this week the proceedings and judgment in the you came here from Russia to escape from the case of Wright & Co. v. Hennessey, which was tyranny of the Czar, and now you find yourdecided in the Queen's Bench Division late in selves tyrannized by capitalists to an July. Judge Dillon is taking a much needed rest

worse extent. at Karlsbad, and it is greatly appreciated by

“You are the men who make the presidents the JOURNAL that he took some of his leisure and judges of this country, and you can take time to write us of the decision, which is most

them from their high office by the ballot.' important. As Judge Dillon shows, there are He was followed by Daniel De Leon, who three points involved in the decision.

said : 'The fight is on every day in the shops, First. Under the Common Law of England and at the polls on election day. The judges no person or association of persons has a right of the Supreme Court are put on the bench by to boycott another; for example, to say to an the capitalists, and they obey them. The capiother if you do not employ members of such talists control the judges.' and such an organization we will injure you in “Several speeches to the same effect were your business by inducing employers to made, and Patrick Murray offered the followrefuse to employ you or to break their contracting resolutions, which were adopted : with you, or by inducing men employed by you Whereas, nine cap manufacturers have to strike.

locked us out for twelve weeks for the purpose Second. Such conduct, if done intentionally of breaking our union and denying to us our and for the purpose of injuring the person so constitutional right to organize into a lawful boycotted, is in law malicious and is actionable organization, and, in damages.

Whereas, The scheme was made and atThird. Under the existing procedure acts in tempted to be carried out not for the purpose England, such an action for damages may be alone of reducing our wages to a point of brought, and their may be united therewith starvation, but also for the purpose of inan application for an injunction restraining creasing the prices of the hats and caps in the the defendants from inducing or endeavoring market, thereby misrepresenting the present to induce persons to break the contract made difficulties to the community at large to draw with the plaintiff and from continuing to write the inference of a strike, the difficulty being or publish libels concerning the plaintiff in con- only a lockout, and, nection with his business.

"Whereas, The manufacturers have emThere are, however, two phases of the deci- ployed different ways and means to utterly sion which are specially pleasing and which if destroy our union, and, after taking legal followed in this country will bring many bene- steps, secured an order of injunction deprivficial results. Both parties to labor controver-ing us of the liberty granted us by the Constisies and fights must realize that each have tution from walking in the public streets, their rights which will be strictly enforced by persuading individuals, etc., and going to the competent and trustworthy courts. All talk extent of preparing false and defamatory of other tribunals is unworthy of notice and charges of conspiracy, and yet have failed to

VOL. 52 - No. 7.


hurt us or to discourage our ranks, although had renounced the old are pronounced bigathe courts have always supported the manu- mists. Not only this, but the ownership of facturers; then, be it

property is involved in much litigation. The " Resolved, to publish the names of manu- consequences are too apparent and disagreefacturers who have entered into the conspiracy able to require to be commented upon. and denounce them as tyrants. Further, be it The inconsistencies of our State divorce laws

Resolved, to stand firm together, one for are so notorious and numerous that they have all and all for one, until the unions shall re- tended somewhat to discredit the marriage receive recognition and our demands are granted; lation. In this State adultery only is accepted and it is also resolved that all among us who as reason for an absolute divorce, and only the are now employed by other manufacturers will party aggrieved may remarry within the State. assist our locked out brothers, paying them | But the party who is prohibited from remarrytheir wages, so as to enable them to stay out as ing in this State may go across the State line long as it may be necessary, and further re- into New Jersey or Pennsylvania, remarry, resolved to call the attention of the working turn to New York State, and his marriage then classes of the city of New York to the fact that be accepted as legal. More than that, couples the highest court in the city, the Supreme who cannot obtain divorce in this State may go Court, is assisting the manufacturers in their to other States for reasons the most trivial, such unjust and uncalled for battle against labor, as incompatibility of temperament, which is a and unless wage slavery be abolished such in- legal term for natural cussedness, may rid justice will continue.'

themselves of the old love to be on with the On the one hand there appears the attempt to organize laboring people, while on the other The facility with which divorces are obtained the employers refuse to recognize any such in South Dakota, Oklahoma and Chicago has body and attempt to disrupt it.

afforded a rich field for the humerous paraOn the one hand the courts are bound to graphers, but they have a serious and scandaprotect the rights of labor and on the other lous side. The fact that couples thus lightly they must insure individuals from any in- divorced almost always remarry has resulted in justice from any person or association. In this a sort of progressive polygamy. instance we believe the Supreme Court of New America, the most enlightened and Christian York city did its duty and we also can see the country in the world, is scandalized and put to vast good that the Queen's bench did in Wright the blush before all Christendom by her divorce & Co. v. Hennessy. Perhaps, however, the laws. The God-given and divinely sanctioned pleasantest and least important result of the institution of matrimony was not intended to case in question will be to recognize the be entered into lightly or ill-advisedly. There simplicity of remedies in joining them in one

are cases where great mistakes are made by inaction. Our own code and practice has many

nocent parties, but if divorces are difficult to instances of this kind but many others may be obtain, there is likely to be a more mature conintroduced with good results.

sideration of marriage and all it involves before the words are spoken that should never be un

said. The attitude of the Roman Catholic The unfortunate results of each State having church in opposing all divorces may lead to statutes which differ from others becomes more some unhappiness, but taken as a whole it conand more apparent as time passes and decisions forms more closely to the teachings of religion are made by various courts.

than that of any other church. If the ProtestThe recent decision of the Oklahama Su ant body do not teach divorce, they at least preme Court, invalidating a number of divorces tacitly sanction it. granted in that territory within the last few

"What God hath joined together let no man years, has directed attention anew to the need put asunder.” And even the non-professor of of an uniform national divorce law. Under the religion, if he be an earnest man, can but view decision of this court, many people who have with alarm the increasing lightness with which assumed new marriage vows as lightly as they lour courts hold the marriage tie and the home,

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