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any way participate in the proceedings, would be "deemed to have applied for a discharge and should be bound by any order or discharge granted by the court." The court held that the statute gave it the effect of an involuntary bankruptcy assignment, and that the lien of the attachment was paramount to that of the assignee's title. Writing the opinion, Chief Judge Andrews said: "Effect cannot be given here to this coercive feature in the Wisconsin law, except by giving extra-territorial effect to the law of that State. The assignor had no power to make such a condition, and if it is legal it is by force of the statute alone. This feature is one of the distinguishing tests of an insolvent or bankrupt | law." The corporation acted voluntarily in the sense of executing the transfer, for it might well have refrained from executing it at all, but the statute by effecting a discharge of his indebtedness without the creditor's consent, was, nevertheless, involuntary and coercive as regards both the corporation and its creditors. The Wisconsin statute above referred to, has received a similar construction by the courts of Illinois in a well considered case. (Townsend v. Coxe, Ill. Sup. Ct., 1894; 37 N. E. Rep. 689; Rhawn v. Parce, 110 Ill. 350, is also an instructive case on this subject.)

And as a rule there is no difference whether by virtue of an act in bankruptcy the debtor is coerced into making an assignment of his estate, or whether he by a voluntary assignment sets the law in motion which discharges him of his indebtedness without the consent of his creditors. (Barth v. Backus, supra; Rhawn v. Parce, supra; Townsend v. Coxe, supra, Warner v. Jaffray, 96 N. Y. 254; Weider v. Maddox, 66 Texas, 372; Hutchinson v. Peshine, 16 N. J. Eq. 169; Holmes v. Remsen, 20 Johns. 229.)

Proceeding on the same line of reasoning it is held that as between the States of the Union, a discharge in bankruptcy by the law of one State will not bar the rights of a creditor who is a citizen of another State, and not a party to the proceedings, from pursuing his remedy against the debtor in such other State. And this is said to be settled by a substantial concurrence of authorities. (Phelps v. Boreland, 103 N. Y. 410; Goodsell v. Benton, 13 R. I. 225; Hills v. Carter, 74 Me. 156.)

As to voluntary general assignments, it is a general rule that if they are valid under the law of the place of execution, they will be recognized as valid and effective everywhere, unless contrary to the positive law or public policy of the place where the property is situate; that is, if there is no conflict between the lex loci contractus and the lex rei sitæ then they are effective to pass title to the assignee as against all creditors of the assignor, but if there is a conflict, the law of the situs supercedes and controls. (Egbert v. Baker, 58 Conn. 319; National

Bank of Rockville v. Walker, 61 id. 154; May v. First National Bank, 122 III. 551; Henderson & Co. v. Chase, 35 Ill. App. 155; Lipman v. Link, 20 id. 359; Chafee v. Fourth National Bank, 71 Me. 514; Caflin v. Kelling, 83 Ky. 649; May v. Wannamacher, 111 Mass. 282; Butler v. Wendle, 57 Mich. 62; Askew v. La Cynge Exchange Bank, 83 Mo. 366; Guillander v. Howell, 35 N. Y. 657; Ockerman v. Cross, 54 id. 29; Warner v. Jaffray, 96 id. 254; Thompson v. Fry, 51 Hun, 296; Kelstadt v. Rieley, 55 How. Pr. 373; Nassau Bank v. Yendes, 44 Hun, 55; Varnum v. Camp, 13 N. J. Law, 326; Long v. Girdwood, 150 Pa. St. 413; Weider v. Maddox, 66 Texas, 372; Schroder v. Tompkins, 58 Fed. Rep. 672; Caskie v. Webster, 2 Wall. Jr. 131; Barnett v. Kinney, 147 U. S. 476; Bholen v. Cleveland, 5 Mason, 175; Hanford v. Paine, 32 Vt. 443; Cook v. Van Horn, 81 Wis. 291.)

NATURE OF THE LAW OF THE SITUS.

The question as to the nature of the law of the situs arose in the case of Warner v. Jaffray, 96 N. Y. 248. A resident of New York made a general assignment for the benefit of creditors of all of his property, part of which was personal property situated in Pennsylvania. The assignment was recorded in Pennsylvania March 18, 1881. Prior to that time, and on March 1, 1881, the defendant went into the State of Pennsylvania and obtained a warrant of attachment on the personal property there situated. The question before the court was, whether the assignment effected a transfer of such property to the assignee, so that it could not subsequently be attached in the courts of Pennsylvania by creditors residing in New York:

The Pennsylvania statute provided that all assignments by non-residents should be recorded in the county where the property, real or personal, was situated, and that they should take effect from the date of such recording only.

The Court of Appeals held that the assignment, until recorded, was in conflict with the positive law of Pennsylvania and could have no effect there as against such attaching creditors. Earl, J., writing the opinion, said: "It is a general rule that a voluntary transfer of personal property is to be governed, everywhere, by the law of the owner's domicile, and this rule proceeds on the fiction of the law that the domicile draws to it the personal estate of the owner wherever it may happen to be. But this fiction is by no mean of universal application, and yields whenever it is necessary for the purpose of justice that the actual situs of the thing should be examined, and always yields when the law and public policy of the State where the property is located have prescribed a different rule of transfer from that of the State where the owner lives."

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courts, differs from that of the other States, in that they hold the assignment to be invalid and inoperative to pass title until the creditors, or some of them, have given their unqualified assent to it in some manner, and is inoperative against attaching creditors, except to the amount due the assenting creditors, and to that amount it is operative. This distinction is suggested in Faulkner v. Hyman, 142 Mass. 53; and we submit, assuming the assignment is valid according to the common law above referred to, and is in derogation of no statute law of the State, that it will be valid and effective to pass title to the assignee even against domestic creditors of

The question arose squarely in the leading case of Guillander v. Howell, 35 N. Y. 657, over a general assignment executed by an insolvent debtor in New York, containing preferences, valid under the laws of that State, part of his property being situated in the State of New Jersey, where it was subsequently seized by attaching creditors residents of New Jersey. The statute of New Jersey declared all assignments, containing preferences, void as against the public policy of the State. Here was clearly presented a conflict of laws. It was held that such assignment could have no extra-territorial effect, it being hostile to the policy of the laws of New Jersey, as against such creditors. Peckham, J., said: | Massachusetts. The law of New York cannot operate there except by comity or courtesy, and as to property actually situated in New Jersey, that State has the conceded right to legislate; she may declare what alone will transfer the title as against her citizens, creditors of the assignee."

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Discussing the question in Weider v. Maddox, 66 Texas, 372, Stayton, J., said: "It seems, however, to be everywhere admitted that a general voluntary assignment for the benefit of creditors, made by an insolvent debtor, in accordance with the laws of the place of his domicile, will pass all his personal property, wherever situated, unless the operation of such assignments is limited or restrained by some law of the State in which the property is situated." In the opinion the learned judge cites many authorities.

Again, it was said in the Princeton Mfg. Co. v. White, 68 Ga. 98, that "Whatever may have been the rulings in the past relative to the general operation of bankrupt or involuntary assignments, it is now well settled in most States that all voluntary assignments, if valid where made, and not repugnant to the lex rei sita, will be enforced."

Thus we see that a voluntary general assignment is effective to pass title to all the assignor's personal property wherever situated, if it is not in conflict with the lex rei sita as against both foreign and domestic creditors. But in Frank v. Babbitt, 155 Mass. 115, a late case, the court said: "This court has frequently held that a voluntary assignment made by a debtor living in another State, for the benefit of his creditors, would be regarded as valid here," the only qualification being "that this court would not sustain them, if, to do so, would be prejudicial to the interests of our own citizens or opposed to public policy." This and other Massachusetts cases are often cited as departing from the general rule, and making a distinction in favor of creditors residing in Massachusetts. But this is only an apparent, and not a real, distinction, at most, which may be explained away by the fact that the common law, as declared by the Massachusetts

In Indiana, Louisiana and Vermont by the common law, an assignment is held inoperative to pass title to the assignee until he has taken possession of the property, either personally or by agent. (Woolson v. Pipher, 100 Ind. 306; Reynolds v. Adden, 136 U. S. 354; Rice v. Curtis, 32 Vt. 460.) But in New York the assignment takes full force and effect as soon as it is executed (Nicoll v. Spowers, 105 N. Y. 1) and actually delivered (McIthargy v. Chambers, 117 N. Y. 523).

Under the law of the situs we may note for convenience four general features, to wit:

First. That when there is no conflict between the law of the place of the assignment and the law of the situs, the assignment will be enforced as against all subsequent leinors, both foreign and domestic.

Second. When the assignment contravenes some statute defining a great public policy of the law and prohibiting transfers deemed to be injurious, it will not pass title to the assignee of the debtors' estate situated within the State where such statute governs, except as a matter of comity or courtesy.

Third. When there is a statute requiring the recording or filing of the assignment, in terms intended to govern all assignments, both domestic and foreign, as the Pennsylvania statute, an assignment not so recorded or filed will be ineffectual to pass title to the property within such State.

Fourth. Statutes which regulate the mode of execution, distribution, filing of schedules, and the like, and secure a just distribution of the estate of the debtor, usually, are applicable to assignments executed by debtors residing in such State, and can have no extra-territorial effect so as to effect assignments executed without the State.

As to the nature and policy of the law of the situs which may be in conflict with the operation and validity of the foreign assignments, expressions are to be found in many opinions from which the inference may be drawn that it rests in the discretion of the court to declare the policy of the law, and to give or deny effect to such assignments as they may or may not appear injurious to the rights of citizens

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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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. The 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."

Was lows:

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. 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.

The marked tendency of the decisions is that the policy of the lex rei sita 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 fol"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

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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 inter-
poses 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 sita 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.

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. bernia 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

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, 130 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 detri-State to invoke the aid of our courts against a ment 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.)

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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. Ludden, 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 para

mount 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."

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CHANGING BOUNDA

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 RIES.- 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.)

TION.

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OFFICER OF CORPORA

RECEIVERS SELECTION --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.)

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