of the State, whose laws the courts administer, and within whose limits the property may be found. Speaking of this, Stayton, J., in Weider v. Maddox, said: "Such a rule seems to us to confer upon the courts a power too little restricted, too unqualified and unlimited, to be tolerated in any country governed by laws. What, upon such a matter is to be deemed injurious to the rights of the citizens of the State in which the property is situated, should be the subject of legislative and not judicial discre

tion."

The majority of cases arise over the construction of statutes regulating the recording or filing of assignments, or preferences contained therein.

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An interesting case lately came before the Supreme Court of the United States, Barnett v. Kinney, 147 U. S. 476. A citizen of Utah made an assignment of all his property for the benefit of his creditors, containing preferences, to another citizen of Utah, which was valid by the laws of Utah and by the common law. Part of his property was situated in Idaho, of which the assignee had taken possession. This property was subsequently attached in Idaho by a resident of Utah. The Revised Statutes of Idaho provided that "no assignment of any insolvent debtor, otherwise than as provided in this title, is legal or binding on creditors, that creditors should share pro rata without priority or preference whatever," and for a discharge of the assignor upon a compliance with the statute. Was the assignment in conflict with the laws of Idaho Chief Justice Fuller, in writing the opinion, remarked, that "while the statute of Idaho provided a pro rata distribution without preferences in assignments under the statute, it did not otherwise deal with the distribution of his property by a debtor, nor prohibit preferences by non-residents debtors and creditors through an assignment valid by the laws of the debtors' domicile. No just rule required the courts of Idaho, at the instance of a citizen of another State, to adjudge a transfer, valid at common law and by the law of the place where it was made, to be invalid because preferring creditors elsewhere, and, therefore, in contravention of the Idaho statute and the public policy therein indicated in respect to its own citizens, proceeding thereunder. The law of the situs was not incompatible with the law of the domicile."

By a mere casual reading of this decision it is difficult to harmonize it with the decisions construing the New Jersey statute forbidding preferences, and like statutes; but there were certain features, looking at the context of the statute, which led the court to conclude that it was not the legislative intent that it should apply to all assignments both domestic and foreign — it is a question of legislative intent.

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Again the question arose over the construction of a similar statute as effecting an assignment executed in the State of New York covering property situated in the State of South Carolina. (Ex parte Dickinson, 29 S. C. 453.) The statute of South Carolina contained this provision, "Any assignment by an insolvent debtor of his or her property for the benefit of creditors, in which any preference or priority is given to any creditor by the terms of said assignment, over any other creditor, shall be absolutely null and void and of no effect whatever." The court held that this statnte declared a great public policy of the law forbidding preferences, and that the word "any" covered every assignment, either foreign or domestic, affecting property in the State of South Carolina. court said: "The language of the Act is any assignment,' etc., and to adopt a construction contended for by the respondent it would be necessary for us to interpolate some such words as are found in the Missouri statute, 'hereinafter made in this State,' or some equivalent words; and this we have no right to do."

The

The marked tendency of the decisions is that the policy of the lex rei site must be declared and fixed by positive rules of law, if not by legislative enactment, and not left to the discretion of the courts in determining each particular case. In Guillander v. Howell, there is a dictum by PECKHAM, J., as follows: "What is injurious to the rights of citizens where the property is situate, should be the subject of positive legislation, and not left to the discretion of the courts and this is probably the true rule, assuming the transfer to be valid according to the common law of the situs, although the rule is sometimes more broadly expressed.

It has long been the policy of commercial States not to embarass the full transmission of the title to personal property; and has justly been considered a discourteous and illiberal policy in one State to abridge or fetter the operation of foreign contracts or to embarass foreign owners of personal property within its limits, in the full and free enjoyment of its beneficial use or its ready and unrestricted transfer. (Hanford v. Paine, 32 Vt. 443.)

Regarding such statutes for the protection of creditors it has been held that if the Legislature had intended such acts to apply to the case of foreign assignments making them invald when but for the act, they would have been valid, that purpose would have been particularly expressed. (In re Paige & Sexmith Lumber Co., 31 Minn. 136.)

These authorities show us the nature of the law of the situs which may or may not interfere with the operation of a foreign assignment, and that a voluntary assignment will be given a universal effect unless there is some meritorious and well defined

policy of the law intervening. And the true rule seems to be, assuming that we have a voluntary assignment valid at common law, that until such legislative policy is positively declared, and interposes a direct obstruction, to the operation of such assignment, it would be effectual to transfer the debtor's property wherever it may have its situs.

DOMICILE OF THE ATTACHING CREDITORS. By the domicile of the parties seeking a remedy we mean any party or creditor invoking the law of the situs and pursuing a remedy thereunder. And the fact that we have determined the situs of the property, the nature of the assignment, and the nature and effect of the lex rei site does not quite settle the question; for here again the courts are divided, many of them holding that in case of a conflict only creditors residents of the situs can invoke the law of the situs to defeat the assignment. This is the rule in Illinois, Pennsylvania, New Jersey, Maine, Massachusetts, Missouri, and some other States.

In Illinois the question arose as to the effect of a New York assignment on property situate in Illinois as between the New York assignee and a New York creditor pursuing his remedy by attachment in Illinois subsequent to the assignment. The assignment was valid by the law of New York, the common residence of the creditor and assignee, but in conflict with the law of Illinois. The court gave full force and effect to the assignment in preference to the lien of the attachment. (Julliard v. May, 139 Ill. 87.) The question again arose upon a similar state of facts except that the attaching creditor was a resident of Massachusetts. The court upheld the assignment executed in New York. (May v. First National Bank, 122 Ill. 551.) Sheldon, Ch. J., writing the opinion said: - The true rule of public policy is this, that a voluntary assignment made abroad, inconsistent in substantial respects, with our statute, should not be put in execution, to the detriment of our citizens, but that for all other purposes, if valid by the lex loci, it should be carried fully into effect." In that case the assignor being a resident of New York, the creditor a resident of Massachusetts attaching property having its situs in Illinois, the question was squarely presented.

So in a late case in Pennsylvania it was held that a resident of a foreign State could not by an attachment in Pennsylvania obtain a lien paramount to that of an assignee's title under an assignment executed by a citizen of another State. The rule rests upon inter-state comity, and the courts will make no discrimination by allowing citizens of other states to invoke the aid of such courts to defeat the assignment; only domestic creditors can question its validity. (Long v. Girgwood, 150 Pa. St. 413.)

The Federal Courts have been considered as taking a contrary view on this subject of domicile, and as allowing all creditors, both domestic and foreign to invoke the law of the situs against the validity of the assignment when there was a conflict (Green v. Van Buskirk, 5 Wall. 307; s. c., 7 Wall. 159), but in a late case before the U. S. Supreme Court, Ch. J. Fuller reviews and discusses at length the decisions holding the same principle as the Illinois courts just mentioned, and seems to favor that view. But all this discussion was unnecessary for the decision; the real point for decision was, whether the assignment was in conflict with the laws of Utah? The court held that it was not, and when that was determined the whole case was decided, and the discussion as to the residence of the attaching creditors was obiter dictum. Notwithstanding this decision the question in the United States Courts is an open one yet to be decided; but with a strong dictum by the chief justice in favor of the Illinois doctrine.

In many States it is the settled rule of law that only domestic creditors can invoke the lex rei sita in opposition to the validity of the foreign assignment. (Chafee v. Fourth National Bank, 71 Me. 514; Frank v. Babbitt, 155 Mass. 114; Julliard v. May, supra; May v. First National Bank, supra ; Green v. Wallis Iron Works, 49 N. J. Eq. 48; Thurston v. Rosenthral, 42 Mo. 474; Halstead v. Strauss, 32 Fed. Rep. 279; Bently v. Whitmore, 19 N. J. Eq. 462; Bryan v. Brisbain, 26 Mo. 423.)

In New York and some other States a contrary view is firmly established. It is a general rule in this State that a foreign creditor rightfully in the courts of this State may enforce his remedy to the same extent, in the same manner, and with the same priority of lien as a citizen of this State. Hibernia National Bank v. Lacombe, 84 N. Y. 367, which is a leading case on the subject. And this rule applies to foreign creditors coming into this State to invoke the aid of our courts against a foreign general assignment which is repugnant to the policy of our law. (Barth v. Backus, 140 N. Y. 230; see statement of facts above.) In this case it was urged that the attaching creditors stood in no better position than the creditors from whom they took title, who were residents of Wisconsin, the State in which the assignment was made, and hence were bound by the assignment; but the court, Ch. J. ANDREWS writing the opinion, held that the attachments were liens paramount to the title of the assignee under the assignment, assuming that the attachinent creditors stood in no better position than the Wisconsin creditors, and quoted approvingly from the Hibernia National Bank case as follows: "A foreign creditor rightfully in the courts of this State, pursuing a remedy given by the

statues of the State, may enforce that remedy to the same extent, in the same manner and with the same priority of lien as a citizen of the State." (To the same effect are Warner v. Jaffray, supra; Keller v. Paine, supra.

The foregoing is the rule adopted in Maryland, Connecticut, South Carolina, Minnesota, New Hampshire, Iowa and Maine. (Brown v. Smart, 69 Md. 327; Paine v. Lester, 44 Conn. 196; First National Bank of Rockville v. Walker, 61 Conn. 154; Ex parte Dickinson, 29 So. Car. 453; Jenks v. Lud

den, 34 Minn. 482; Kidder v. Tuffts, 48 N. H. 121; Moore v. Church, 70 Iowa, 208; Boston Iron Co. v. Boston Locomotive Works, 51 Me. 591.)

This is said to be the strictly logical doctrine. The Constitution of the United States provides that "The citizens of each State shall be entitled to the privileges and immunities of citizens in the several States." (U. S. Constitution, Art. 4, Sec. 2.) The New York doctrine accords to a non-resident credi

tor who invokes the aid of our courts and complies with all the requirements of the law, a right paramount to that of a non-resident debtor who utterly ignores the policy of the law and seeks to transfer his estate by a conveyance at variance with the laws of the State where the property is situated. If in any case, by interstate comity or courtesy the courts of one State ought to recognize an assignment, in conflict with the policy of the law, there would seem to be a greater reason why they should recognize and enforce the rights of a non-resident creditor who voluntarily comes into that State, invokes the aid of its courts, submits to its remedy, and complies with its laws. It is a choice between non-residents; one seeks to avoid the law of the situs in transferring his property by an assignment in conflict thereto, the other voluntarily invokes its aid, submits to its remedies and complies with all its provisions. To which should comity accord the better right? The court in Jenks v. Ludden, commenting on the Illinois doctrine, above referred to, denominates it as "narrow and provincial, and of questionable constitutionality."

EMINENT DOMAIN-DAMAGES.-The refusal of the court to allow a reversioner, upon his application, to be made a party defendant in a suit brought by the holder of the life estate against a city for damage to the land caused by the widening of a street, was error, although such reversioner had refused to join in the suit at request of the plaintiff. (Jones v. City of Asheville [N. Car.], 21 S. E. Rep. 691.)

MUNICIPAL CORPORATIONS CHANGING BOUNDARIES. What the boundaries of a municipal corporation are, where they are, and whether a particular piece of territory lies within or without the corporate limits of a municipality are all matters for judicial determination; but the power to create municipal corporations and the power to enlarge or restrict their boundaries are legislative ones. - (City of Hastings v. Hansen [Neb.], 63 N. W. Rep. 34.

JUDGMENT-RES JUDICATA.-Where, in a suit for

divorce, the bill shows that a former bill was filed

for the same cause, and that such bill was dismissed

by the complainant, but neither the pleadings nor

the evidence shows whether any answer to the former bill was filed, or whether the dismissal was without prejudice or not, such former suit is not a bar to the second suit. Gerber v. Gerber [Ill.], 40 N. E. Rep. 581.)

RECEIVERS SELECTION OFFICER OF CORPORATION.--While an officer of a corporation, whose misfortunes have made a receivership necessary, is not ineligible to employment as receiver, yet, where the corporation is one that covers a vast diversity of conflicting interests, and especially of speculation, an officer should not be appointed without careful scrutiny of his official and personal antecedents, and one who is or has been a speculator in the stock of the corporation should never be appointed. (Olmstead v. Distilling and Cattle Feeding Co. [U. S. C. C., Ill.], 67 Fed. Rep. 24.)

REMOVAL OF CAUSES. Under Act Aug. 13, 1888 (25 Stat. 433, § 2), a cause cannot be removed from a State to a federal court on the ground that it is one arising under the Constitution, laws, or treaties of the United States, unless the fact so appears by the plaintiff's statement of his own claim. (Caples v. Texas & P. Ry. Co. [U. S. C. C., Tex.], 67 Fed. Rep. 9.)

REMOVAL OF CAUSES- RIGHT OF INTERVENER TO REMOVE. An intervener who introduces himself into a pending action in a State court, solely to assist in its defense and to protect himself against a liability for indemnifying the original defendant, can confer no jurisdiction on the federal court that the original defendant could not confer. (Olds Wagon Works v. Benedict [U. S. C. C. of App.]. 67 Fed. Rep. 1.)