THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW AMERICAN INTEE-STATE LAW. BY DAVID RORER, HI 7 OP THE IOWA BAB. AUTHOR OF " EOBER ON JUDICIAL AND EXECUTION BALES. EDITED BY LEVY MAYER, OF THE CHICAGO BAB, CHICAGO: OALLAGHAN AND COMPANY. 1879. Entered according to Act of Congress, in the year 1879, BY DAVID RORER, In the Office of the Librarian of Congress, at Washington, D. C. UAZLITT & HEED, MABDEK. LUSE & Co., I'lllNTERS. STERKOTYFEI18. 1T2 and 174 Clark St. 139 aud 141 Monroe St. TABLE OF CONTENTS. CHAPTER I. Introduction 1 CHAPTER II. Comity Natural Right Law of Nations and Universal Law 4 * CHAPTER III. CORRELATION OF GOVERNMENT CITIZENSHIP AND ALLEGIANCE SUABILITY OF STATES. I. State and National Sovereignty. Duality and Unity of Government 9 II. Citizenship and allegiance 19 III. Suits between two or more States 20 IY. Suit against a State by a Citizen of another State. . . 21 9 '.'' CHAPTER IV. INTER-STATE RIGHT OF SUIT JURISDICTION AL REQUISITES. I. A Constitutional Right, as well as by Comity 22 II. Personal Juriscfiction: When Necessary 2'2 III. Proceedings in rem 23 IV. Sealed and Unsealed Instruments 24 V. Non-Residents Personally Suable if Found and Served 25 VI. Jurisdiction Obtained by Fraud 26 (iii) 6874 .Qfi IV CONTENTS. VII. Foreign Corporations, Executors and Administrators. 26 VIII. Service on a Member of a Firm, as against a Non- Resident Member thereof 27 CHAPTER V. CONCURRENT CIVIL JURISDICTION, STATE AND NATIONAL. I. Extent Thereof 28 II. Suit in Name of Legal Owner in United States Circuit Court 29 III. Citizenship and Proof of Value in Controversy in United States Courts 30 IV. Decisions of National Courts 31 V. Jurisdiction of two or more Districts in one State. ... 31 VI. Jurisdiction in Naturalization Proceedings 32 CHAPTER VI. COMMON LAW, CIVIL LAW AND LAW OF STATE AND NATIONAL COURTS. I. The Common Law and Civil Law as State Laws 33 II. United States Courts Administer State Laws 34 III. But not as to Forms of Process, unless Adopted 35 IV. Processes of State Courts may be Adopted 36 V. Rulings of State Courts: When Followed 36 VI. National Powers and Jurisdiction of Courts not Af- fected by State Laws 37 CHAPTER VII. INTER-STATE EQUITY JURISDICTION AND PRACTICE. I. Concurrent State and National Equity Jurisdiction ... 39 II. Equity Practice and Rules in United States Courts ... 40 III. Jurisdiction in United States Courts of Executors and Administrators 41 IV. Enjoining judgment of United States Court in same Court 42 V. State Court may act by Injunction on Person of Defend- ant to Prevent Suit in another State . . .42 CONTENTS. V CHAPTER YIII. INTER-STATE LAW OF CONTRACTS. I. The Law of the Contract 45 II. The Law of Performance 50 III. The Law of the Remedy 52 IV. Statutory Bonds made in State Proceedings 54 V. Statutory Bonds taken in National Proceedings.. . . 56 YI. Rule of Damages 58 VII. Contracts made with a View to Violate Law of an- other State 58 VIII. Statute of Frauds 60 IX. Commercial Paper and Endorsement thereof 60 X. Mortgage Lien 68 XL Laborer's Lien 70 XII. Contracts of Affreightment 71 XIII. Warehouse Receipts 72 XIV. Stoppage in transitu 73 XV. Inviolability of Contracts 75 XVI. Usury 80 CHAPTER IX. RULES OF PROPERTY AND RIGHT THE SAME IN STATE AND NATIONAL COURTS. I. When the Local Rules of Law are followed by United States Courts 84 II. Blind Conformity to State Rulings not Required of United States Courts 86 CHAPTER X. ACTIONS AND SUITS ON JUDGMENTS AND DECREES. I. Actions on Judgments of other States 87 II. Actions on Decrees of other States 92 III. Actions in State Court and United States Court on Judgments of Either 94 IV. Action on Conditional and Interlocutory Judgments. 95 V. Action on Joint Judgment 96 VI CONTENTS. VI. Action on a Judgment on Penal Bond 97 VII. Competency of the Record as Evidence 98 VIII. Change of State Government 100 IX. Judgments and Decrees in Proceedings in rem 100 X. Defenses to Suits on Judgments and Decrees 102 CHAPTER XL INTER-STATE PROOF OF RECORDS, JUDICIAL PROCEEDINGS AND LAWS. I. National Provisions of Law on the Subject 110 II. Proof of Records and Judicial Proceedings in Pur- suance thereof 113 III. Proof of Statute Laws of the State under the Act of Congress 117 IV. Proof of State Laws as at Common Law and under State Statutes . 119 V. Proof of Proceedings of Justices of the Peace. . . . 122 VI. Proof of Records of Office Books 123 CHAPTER XII. PROCEEDINGS BY FOREIGN ATTACHMENT. I. The Attachment 124 II. Process of Garnishment 127 CHAPTER XIII. INTER-STATE INSOLVENT DISCHARGE BY STATE COURT. I. The Court must have Jurisdiction of the Creditor's Person 132 II. Distribution of Insolvent's Assets 136 CHAPTER XIV. ACTIONS FOR TORTS AND TRANSITORY ACTIONS. I. Actions of Trespass vi et armis 140 II. Actions of Trespass on the Case for Torts 143 III. Abatement and Bar of Actions 145 CONTENTS. Vll CHAPTER XY. PENAL AND STATUTOEY ACTIONS NOT ENFORCEABLE IN OTHER STATES. I. One State cannot Enforce the Statutes and Penal Laws of another 148 II. A State cannot, in Virtue of its own Penal Laws, Punish Acts Committed against the Laws of an- other 149 III. Statutory Actions for Death of a Person 155 IV. Statutory Remedy by Indictment for Death of a Person 164 V. Statutory Action for Penalty for Usury 165 CHAPTER XVt. EXTRA TERRITORIAL FORCE OF LAWS. I. State Laws have no Extra Territorial Force 167 II. What Acts done under them Abroad are Binding at Home 169 CHAPTER XYII. STATUTES OF LIMITATION. I. The Plea of Limitations goes to the Remedy Af- forded by the Law of the Forum 171 II. State Power to Limit Actions on Judgments of other States 173 III. The Statutes do not apply to Suit by State or United States 174 IY. Statutes Limiting Suits on Judgments of other States Operate Prospectively 174 Y. In some States a Previous Bar in another is a good Plea 174 YI. Ability of a Corporation of another State to Plead the Statute.. , 176 Viii CONTENTS. CHAPTER XVIII. MARRIAGE AND DIVORCE INTER-STATE VALIDITY THEREOF. I. The Institution of Marriage and Inter-State Valid- ity thereof. 177 II. Divorce. Jurisdiction to Grant the Same 179 III. Inter-State Validity of Divorce 181 IV. Inter-State Custody of Children. Enforcement of Alimony 183 V. Inter-State Effect of Former Adjudication 185 CHAPTER XIX INTER-STATE LEGAL STATUS OF PERSONS. I. Residence and Domicile Defined and Distinguished. 186 II. Domicile of Infants, Minors and Adults 188 III. Citizenship 189 IV. Legal Capacity to Act 190 CHAPTER XX. LEGAL STATUS AND JURISDICTION OF PERSONAL PROPERTY AND PERSONAL INTERESTS. I. The Legal Status follows the Owner 194 II. Exceptions to the Rule 1 95 III. Sales and Transfers Valid where Made, are Valid Elsewhere 197 IV. Distribution of a Deceased Person's Movables .... 200 V. The Locality and Situs of Money Obligations and Debts 202 VI. Mortgages of Personal Property 203 VII. Subscriptions to Capital Stock 203 VIII. Voluntary Assignments 204 IX Where Personal Property is Taxable 204 CONTENTS. IX CHAPTER XXI. LEGAL STATUS AND JURISDICTION OF LANDS. I. Jurisdiction as to Land is Local 207 II. Title Passes only by the Lex Rei Sitce 208 III. Courts of other States may Act upon the Owner's Person to Coerce a Conveyance 211 IV. One State Owning Lands within another 213 Y. Government Lands 213 CHAPTER XXII. CRIMINAL JURISDICTION. I. Of the National Courts 215 II. Of the State Courts 216 III. "Writ of Error from United States Supreme Court to State Court 216 IV. Incidents to National Local Jurisdiction 217 V. Inter-State Extradition of Fugitives from Justice.. 218 VI. .Power of one State to Enforce the Penal Laws of another and to Punish Crimes Committed in an- other , 227 VII. Larceny at Common Law by Bringing Stolen Prop- erty into a State 228 VIII. Crimes Committed Partly in one State and Party in another 239 IX. Crimes Committed in a State without the Offender being therein 241 X. No Concurrent Criminal Jurisdiction in State and National Courts 244 CHAPTER XXIII. THE POLICE POWER. I. The Police Power is in the States '246 II. Its Extent 246 III. This Power Remained in the Original States 247 IV. ' And by Parity of Right is in the New States 247 X CONTENTS. CHAPTER XXIV. INTER-STATE RIGHTS, POWERS AND DUTIES OF EXECUTOR8, ADMINIS- TRATORS AND GUARDIANS. I. Where Letters Testamentary and of Administration should be Granted 248 II. The Powers, Liabilities and Duties of Executors and Administrators are Local 250 III. Inter-State Actions by and against Executors and Administrators on Foreign Judgments 257 IV. Executors and Administrators Suing in their own Right 259 V. Non-Residence and Removal from the State 261 VI. Statutory Power to Act in other States 263 VII. Wills; Probate; Validity of. How Far Binding in Courts of other States 264 VIII. Guardians of Minors and Lunatics 266 IX. Dower 269 X. Jurisdiction of National Courts in Matters of Pro- bate 269 XI. Pleadings in Inter-State Suits in Probate Matters. . 272 CHAPTER XXV. PRIVATE CORPORATIONS AND WORKS 1-XISTING IN TWO OR MORE STATES. I. Power to Sell Capital Stock thereof on Execution.. 273 II. Power to Tax Mortgage Debt thereof by the States. 275 III. Liability to Suit for Common Law Cause of Action 277 IV. Power of United States Court as to Mortgage Fore- closure and Sale of Property Situated in two States 279 CHAPTER XXVI. FOREIGN PRIVATE CORPORATIONS. I. Inter-State Suits by and against Foreign Corpora- tions 280 II. Right of a State to Exclude Corporations of other States., . 285 CONTENTS. XI III. Foreign Corporations may do Business in a State if not Prohibited. What Law Governs their Con- tracts ...................................... 288 IY. Inter-State Power to Hold Lands ................ 290 Y. Inter-State Suit against Stockholders to Enforce Individual Liability ......................... 290 VI. Inter-State Consolidation of Railroad Corporations. 291 VII. Police Pow r er over Foreign Corporations in a State. 293 CHAFFER XXVII. RECEIVERS, OTHER TRUSTEES AND TRUST FUNDS. I. Receivers of State Courts have no Power in other States ..................................... 295 II. State Courts have no Power over Effects in the hands of a Receiver of United States Court ........... 296 III. Receivers of Different Courts cannot Sue each other as Such .................................... 296 IV. Trust Funds will be Followed into other States ____ CHAPTER XXVIII. ADMIRALTY AND COMMON LAW JURISDICTION IN MARITIME CASES. I. Admiralty Jurisdiction ........................ 301 II. Maritime Liens ............................... 304 III. Maritime Torts ............................... 305 IV. Common Law Jurisdiction of Maritime Cases ..... 306 CHAPTER XXIX. INTER-STATE COMMERCE. I. The Term Commerce. Power to Regule Inter- State Commerce ............................ 30$ II. Until Controlled by Congress, it is Free ......... 311 III. State Regulation of Vessels Engaged in Commerce. Tax of Commanders, and of Arrivals, and of Inter- State Passengers by Land and by Water ........ 314 IV. State Property Tax of Vessels Engaged in Inter- State Commerce . , .317 Xll CONTENTS. V. Pilotage 320 VI. Warehousing and Elevating 321 VII. State Control of Bayous and Sloughs of Rivers .... 321 CHAPTER XXX. STATE TAXATION OF NATIONAL BANKS, BONDS AND CREDITS. I. State Taxation of National Banks ; of Shares of Stock in the Same 322 II. State Tax on National Bonds and Credits 324 CHAPTER XXXI. BANKRUPTCY. I. Effect on Jurisdiction of State Court 326 II. Fixed Liens 32T III. State Insolvent or Bankrupt Laws 327 IV. State Insolvent Laws: How Affected by National Bankrupt Law 329 CHAPTER XXXII. WRIT OF HABEAS CORPUS. I. From a State Court 331 II. From a United States Court 332 III. The Return of the Writ 332 CHAPTER XXXIII. EIGHT OF COMMON IN WASTE PLACES AND WATERS, AND RIGHT OF EMINENT DOMAIN. I. In the Tide Waters and Waste Places 334 II. In the Navigable Inland Rivers and Land There- under 334 III. Ownership and Local Jurisdiction of Boundary Waters 335 IV. Right of Eminent Domain 335 CONTENTS. Xlll CHAPTER XXXIY. JURISDICTION OVER STATE BOUNDARY RIVERS. I. Admiralty Jurisdiction of United States 336 II. The Territorial State Boundary as to Things Per- manent 336 III. Concurrent State Jurisdiction and its Exercise on the Whole River, Except as to Things Permanent. 337 CHAPTER XXXY. POWER OF THE STATES TO LICENSE INTER-STATE FERRIES. I. The Power to License is a Police Power 347 II. The Extent Thereof and Effect of its Exercise 348 CHAPTER XXXVI. REMOVALS TO UNITED STATES COURT. I. When the Proceeding is had for Acts done under Authority of the United States 352 II. Removals under the Act of Congress of March 3d, 1875 353 III. The Right of Removal cannot be Limited or Bar- gained Away 354 IY. Citizenship can only be Disputed by Plea in Abate- ment 357 Y. Citizenship: How Stated by Corporation Plaintiff. 357 YI. United States Court is the Judge of the cause of Removal 359 VII. Removal by National Corporations 360 CHAPTER XXXVII. TRANSITION FROM TERRITORIAL TO STATE GOVERNMENT. I. Judgments Rendered During Transition Period . . . 361 II. Disposition of Records of the Territorial Courts . . 362 III. Effect of Change of Government on Territorial Debts . . 363 TABLE OF CASES CITED NAMES OP OASES. WHERE REPORTED. WHERE CITED. Ableruan v. Booth 21 How. 506 23,382. Ackerson v. Erie R. R. Co 2 Vroom, 309 144. Adams . Gay 19 Vt. 358 50. . Lisher 3 Black f. 241 ....112. v. Robertson 37 111. 45 82. v. People 1 N. Y. 173 241, 242. v. Way 33 Conn. 419 112. Adriance v. Lagrave 59 N. Y. 110 223. ^tnalns. Co. v. Aldrich 38 Wis. 107 89. v. Harvey ..11 Wis. 394 284. Aldrich v. ^Etna Ins. Co 8 Wall. 491 69. v. Kinney 4 Conn. 380.. ...88, 106. Allen v. Atlanta St. R. R. Co 50 Geo. 503 158. v. Merchants' Bank 22 Wend. 215 64. v. Newberry 21 How. 245 302. C.Williams 12 Pick. 297 72. Allisons Nash 16 Tex. 560 172. Allshouse. Ramsay 6 Whart. 331 60. Almy . California 24 How. 169 310, 314. Althorf v. Wolfe 22 N. Y. 355 343. Alton. 111. Trans. Co 12 111. 38 174. Ames*. Hoy 12 Cal. 11 88. Amisc. Smith 16 Pet. 803 36. Anderson, Ex parie 16 Iowa, 595 331, 332. Anderson v. Drake 14 John. 114 64. v. Wheeler 25 Conn. 603 132, 134, 135. Andrews Herriot 4 Cow. 508 25, 52. . Mich. Cent. R. R. Co 99 Mass. 534 281, 282. v. Montgomery 19 John. 162 182. 0. Pond 13 Pet. 65 46,49,50, 51,60,81. Anstedtt). Sutler..: 30111. 164 46,47,48. Antelope, The 10 Wheat 66 4, 227,340. Apperson v. Bolton *. 29 Ark. 418 265. Applegate v. Smith .. 31 Mo. 166 266. (xv) XVI CASES CITED. Archer t>. Dunn 2 W. & 8. 327. ...58. Armory t>. Armory 5 Otto, 186 850. Arms v. Conant 86 Vt. 744 289. Armstrong t>. Carson 2 Dal. 802 106. t. Lear 12 Wheat. 169. ..251. t>. Toler 11 Wheat. 258.. .50, 58. Arndt t>. Arndt 15 Ohio, 33 101, 102. Arnold t). Potter 22 Iowa, 194 26, 49, 50, 51, 65, 68, 81, 148. t>. Roraback 8 Allen, 429 100. Arnottt). Webb 1 Dill. 362 107. Aspdent;. Nixon 4 How. 467 257, 258. Atkinson v. Atkinson 15 La. Ann. 491. .202. Atwood v. Protection Ins. Co 14 Conn. 555 204. Augusta v. Dunbar 50 Geo. 387 205. Auld*. Butcher 2 Kan. 135 174 Austen v. Miller 5 McL. 153, and 13 How. 218 35. Aymarc. Sheldon 12 Wend. 444 64. Ayres v. Audubon 2 Hill, (S. C.) 601.65. B. Bagnell v. Broderick 13 Pet. 436 214. Bags of Linseed 1 Black, 108 302. Bailey c. Hudson Riv. R. Co 49 N. Y. 70 71. Baird t>. Daly 57 N. Y. 236 303, 307 Bakers. Brown 18 111.91 172. Balch, Exparte 3 McL. 221 146. Baldwins Hale 1 Wall. 223 132, 135,328. Balfour v. Chew 5 Mart. (N. s.) 517.112. Balnie v. Wombaugh 38 Barb. 352 81. Bait. & Ohio R. R Co. v. Gary 28 Ohio St. 208 ..355. v. Gallahue 12 Gratt. 655 129. t>. Glenn 28 Md. 287 288. v. May 25 Ohio St. 347 ..129. Baltzell v. Nosier 1 Iowa, 588 106. Banchor t>. Fisk S3 Maine, 316.. ..134. v. Mansel 47 Maine, 58 198. Bank tJ. The Supervisors 7 Wall. 26 324 Bank of Alabaman. Dalton 9 How. 522 Augusta v. Earl e 13 Pet. 519 4,5, 10, 46, 168, 280, 285, 289. Commerce t>. Corns, of Taxes.2 Black, 620 322, 324 Edwardsville v. Simpson 1 Mo. 184 280. Hamilton v. Dudley's Lessee .2 Pet. 492 37, 85. Kentucky t>. Wister 2 Pet. 318 284. Marietta v. Pindall 2 Rand. (Va.) 465.280. North America v. Wheeler... 28 Conn. 433 90, 146, 147. CASES CITED. XV11 Bank of Rochester . Gray 2 Hill, 228 25. v. Jones 4 N. Y. 497 71. U. S. . Daniel 12 Pet. 32 10, 30. . Donnally 8 Pet. 361 46, 52, 53, 68, 172. v. Halstead 10 Wheat. 51 38. 9. Lee 13 Pet. 107 198,199. . Wittkowski 64 N. C. 464 252. Beer. Hooper 32 Miss. 246 132. Beer Co. . Massachusetts " 7 Otto, 25- 246. Beers . Alabama 20 How. 527 21. 2 XV111 CASES CITED. Boers . Haughton 9 Pet. 829 88, 40, 76, 79, 80. c. Rhca 5 Tex. 849 132. Bein . Heath 12 How. 168 40. Belfast, The 7 Wall. 624 801,302,303,804,305, 306, 307, 808. Bell v. Mayor, etc., of Vicksburg 23 How. 443 85. Bennett v. Bennett Deady, 299 18, 112. Benninghoff v. Oswell 37 How. Pr. 235.. 222. Berthelemy v. Johnson 3 B. Mon. 90 178. Bcthell v. Bethell 54 Ind. 428 47,211. Uidclis v. James 6 Binn. 321 120. Diddle v. Wilkins 1 Pet. 686 272. Billings v. Russell 23 Penn. St 191. .92. Binghamton Bridge Co., The 3 Wall. 51 75, 77. Bird p. Hayden 1 Robert. 391 98. v. The Steamboat Josephine 39 N. Y. 19 301. Birdseyu. Butterfleld 34 Wis. 52 122. Bischoffn. Wethered 9 Wall. 813 23. Bishop . Bishop Penn. St. 112 180. Bissell v. Briggs 9 Mass. 462 88, 108. 9. Edwards 5 Day, 263 116. v. Mich. South. & North. Ind. R. R. Co 22 N. Y. 258 292, 293. v. Wheelock 11 Cush. 277 99. Black v. Zacharie 3 How. 483 204 Blackstone Manf. Co. v. Inhabitants of Blackstone 13 Gray, 488 205. Blair v. Mil. & Prairie du Chien R. R. Co 20 Wis. 254 156. Blake v. Davis 20 Ohio, 281 201, 209. v. Williams 6 Pick. 286 138. Blanchard v. Russell 13 Mass. 1 10, 46, 50, 167, 168, 329, 348. Bliss v. Brainard 41 N. H. 256 47,50,58. Blodget v. Jordan 6 Vt. 580 116. Blystone v. Burgett 10 Ind. 28 33, 68. Board of Public Works o. Columbia College 17 Wall. 521 22,23. Bodet). State 7 Gill, 326 814. Boggs v. Mercer Co 14 Cal. 279 213. Bonnafee r. Williams 8 How. 674 29. Bonsall v. Isett 14 Iowa, 309 88. Booth v. Clark 17 How. 322 295,296. Boothby t>. Plaisted 51 N. H. 436 48, 59. Burden v. Borden 5 Mass. 67 251. v. Fitch 15 John. 121 112, 182. Boswell v. Dickerson 4 McL. 262 126. c.Otis 9 How. 336 24, 167. Bowen . Bradley 9Abbott,(N.s.)395.82. CASES CITED. XIX Bowman v. Harding 56 Maine, 559, &4 Nat. Bank. Reg. 5 326,327. Miller 25 Gratt. 331 82. v. Wathen 2 McL. 377 349. Boycet). Grundy 3 Pet. 210 39,41,207. , Boyd v. Barrenger 23 Miss. 270 174. 0. Ellis 11 Iowa, 98 46,50. V. Lambeth 24 Miss. 433 252. v. Rockport Steam Mills 7 Gray, 406 44. v. Urquhart 1 Sprague, 423 .. .125. Boyer*. Edwards 13 Pet. 65 81. Boyle v. Zacharie 6 Pet. 348, 635 ...34, 40, 72, 132, 133, 136, 328. Brabston-0. Gibson 9 HOT?. 263 66. Bradley v. Bank of Indiana 20 Ind. 528 145. p. People 4 Wall. 459 322,323. Bradstreet, Exparte 7 Pet. 634 30. Brady v. Chicago 4 Biss. 448 157. Brand, In re 3 Nat. Bank. Reg. 85 327. Brandon v. Loftus .4 How. 127 30. Brashear v. West 7 Pet. 608 204. Breedlove v. Nicolet 7 Pet. 413 135. Brent . Armfield 4 Or. C. C. 579. ..186. v. Chapman 5 Cr. 358 175. Brewster-o. Wakefleld 22 How. 118 38. Briggsg. French 1 Sum. 504 43. Brigham v. Henderson 1 Cush. 430 134. Bright v. Currie 5 Sandf. 433 261. Brine*. Insurance Co. 6 Otto, 627 ..35,36,37,84,208,209. Brinkley . Brinkley 50 N. Y. 184 147, 179, 185. Briscoe, In re 51 How. Pr. 422. .225. Briscoe v. Bank of Kentucky 11 PeL 257 21, 75. British Am. Land Co. -o. Ames 6 Met. 391 280. Broadhead v. Noyes 9 Mo. 56 52. Branson^. Kinzie 1 How. 311 76, 79. Brooks v. Floyd 2 McCord, 364 ...261. Brookshire. Dubose 2 Jones Eq. 276.. 252. Broomefl. U. S 15 How. 143 57. Broughton . Bradley 34 Ala. 694 249. Brown's Case 112 Mass. 409 221. Brown v. Aclair ' 1 Stew. & Port. 49.122. t>. Birdsall 29 Barb. 549 97. v. Brown 4 Eclw. Ch. 343.. .252. 0. Camden & Atl. R. R. Co 83 Penn. St. 316.. 72, 346. v. Clarke ...A How. 4 13. v. Desmond 100 Mass. 267 100. v. Edson 23 Vt. 435 201, 207, 209. v. Gibbons .. ...37 Iowa, 654 327. XX CASES CITED. Brown t>. Joy 9 John. 231 146. . Maryland 12 Wheat. 419 .. .310, 311, 324. v. Mclntire 43 Barb. 844 144. v. Parker 28 Wis. 21 175. t>. Phillips 10 Iowa, 210 86. Browne . Strode 5 Cr. 803 263. Browning t>. Andrews 8 McL. 576, and 13 How. 21 8... 35. Bruce v. Smith 3 Harr. & J. 499.198. t>. State 11 Gill& J. 882--S7. Bryan . Hickson 40 Geo. 405 43. Bryant . Hunter 3 Wash. C. C. 48.106. Buchanan t>. Alexander 4 How. 20 12, 13. Buck p. Colbath 3 Wall. 334 12, 338. Bucknera. Finley 2 Pet. 586 10, 66,67. Buffumc. Stimpson ' 15 Allen, 591 99. Buford c. Hickman Hempst. 232 18, 112,115. Bulkley v. N. Y. & N. H. R. R. Co. ...27 Conn. 479 156. Bullen t>. Runnels 2 N. H. 255 345. Burbank v. Fay 65 N. Y. 57 213. Burlock v. Taylor 16 Pick. 335 204. Burn v. Cole 1 Ambl. 415 201, 254. Burnham v. Rangeley 1 Wood. & M. 7..186, 187, 188. Burnley c. Stevenson 24 Ohio St. 474.. 213. Burroughs v. Bloomer 5 Denio, 532 176. Burrows v. Miller 5 How. Pr. 51 146. Burtist). Burtis Hopk. Ch. 557 ...179. Burton v. Stewart 11 Ind. 238 88. Butler, Succession of XI. Chicago Legal News, 52 265. Butler 0. Farnsworth 4 Wash. C. C. 101 . 186. v. Myer 17 Ind. 77 50. Butters v. Olds 11 Iowa, 1 51, 65. Butz v. Muscatine . . . . .8 Wall. 575 .. , . .37. C. Cabellr>. Cabell 1 Met. (Ky.) 8 19.. 177, 178. Caldwell t>. Carrington 9 Pet. 86 46, 100. Callaway v. Doe 1 Blackf. 372 209. Camfranque v. Burnell 1 Wash. C. C. 340.46. Campbell, In re 1 Nat. Bank. Reg. Sup. 36 829. Campbell v. Nichols 33 N. J. Law, 81.62, 65. t>. Tousey 7 Cow. 64 251. Canal Co. v. Railroad Co 4 Gill & J. 1 285. Canfield v. Miller 13 Gray, 274 88. Cannon t?. New Orleans 20 Wall. 577 310. Carey v. Berkshire R. R. Co 1 Cush. 475 158, 160. * CASES CITED. XXI Carey v. Cin. & Chi. R. R. Co 5 Iowa, 357 118, 284 Carleton v. Bickford 13 Gray, 591 102. Carlisle v. Chambers 4 Bush, 268 46. v. State 32 Ind. 55 343. Carnagie v. Morrison 2 Met. 397 46. Carpenter v. Dexter 8 Wall. 513 34, 208, 210, 264. v. Pike 30 Vt. 81 92. v. Spooner 2 Sandf. 717 26,222. Carrington v. Breiit 1 McL. 167 60. Carroll v. East St. Louis 67 111. 568 290. Carson v. Hunter 46 Mo. 467 172. ase. Clarke 5 Mas. 70 186. Castellofl. Landwehr 28 Wis. 522 157. Catlin v. Hull 21 Vt. 152 206. . Underbill 4 McL. 199 115. Cayuga Co. Nat. Bank v. Daniels 47 N. Y. 631 71. Chamberlain v. Ward 21 How. 548 304, 305, 307. Charnberlin v. Ball 15 Gray, 352 112. v. Wilson 45 Iowa, 149 248. Champion v. Doughty 18 N. J. Law, 3 _-140. Chandler . Warren 30 Vt. 510 88. Chapman v. Robertson 6 Paige, 627 46, 82. v. Wilber 6 Hill, 475 242. Chappedelaine v. Dechenaux 4 Cr. 306 263. Charles River Bridge Co. v. Warren Bridge 11 Pet. 420 76. Chase v. Chase 6 Gray, 157 .^ 180. Chatham Bank v. Allison 15 Iowa, 357 61, 62. Chautauque County Bank v. Risley ...19 N. Y. 369 296. Cheever v. Rutland & Ben. R. R. Co. ..39 Vt. 653 70. . Wilson 9 Wall. 108 7,34,178,181,210,264. Cherokee Nation v. Georgia 5 Pet. 1 2, 20. Cherry v. Slade 3 Murph. 82 156. v. Speight 28 Tex. 503 90. Ches v. The Appeal Tax Court 3 How. 133 78. Chiapellaa. Brown 14 La. Ann. 189. .347. Chicago v. Robbins 2 Black, 418 85, 86. Child v. Eureka Powder Works 45 N. H. 547 ]47. Childress v. Emory 8 Wheat. 642 263, 269. Chilvers v. People 11 Mich. 43 347. Chiracs. Chirac 2 Wheat. 260 32. Chittenden v. Brewster 2 Wall. 191 12, 14, 15. Christ Church v. Philadelphia 24 How. 300 287. Christmass v. Russell 5 Wall. 290 105, 107, 108, 173. Christy v. Pridgeon ^.4 Wall. 196 84. v. Vest 36 Iowa, 285 248. Church v. Cole 1 Hill, 645 88. Churchill v. Boyden 17 Vt 319 249,456. Chy Lung v. Freeman 2 Otto, 275 313. Cinn., etc., R. R. Co. v. Wynne 14 Ind. 385 147. XX11 CASES CITED. City Bank t>. Rome, W. & O. R. R. Co..44 N. Y. 130 72. City, etc.. Ins. Co. . Carrugi 41 Geo. 600 282. City Ins. Co. of Providence v. Commer- cial Bank 68111.348 207. Claremont v. Royce 42 Vt 730 290. Clark, Ex parte 9 Wend. 219 222. 225. Clark v. Binninger 88 How. Pr. 341, and 39 Id. 363.329. t>. Braden 16 How. 635 1. v. Clark 8 Cush. 385 182, 183. v. Grahurn 6 Wheat. 577 201, 208,209. c. Smith 13 Pet. 195 34,38. Clayest). Hooker 4 Hun, 231 82. Clemmert). Cooper 24 Iowa, 182 98, 116. Cleveland, Pains. & Aslit. R R. Co. v. Pennsylvania 15 Wall. 300 10. 167, 202,203. Clopton v. Booker 27 Ark. 482 190. Clymore o. Williams 77111.618 125. Coal Co. v. Blatchford 11 Wall. 172 263. Coburn . Harvey 18 Wis. 147 33. Cohens t>. Virginia 6 Wheat. 264 9, 10,217,218. Cole v. Duncan 3 Chi. Leg. News, 323 329. Collett v. Keith 2 East, 260 118. Collins v. Chicago 4 Biss. 472 322. v. Rodolph 3 G.Greene, 299.132. Colt D.Eves 12 Conn. 243 19. Columbia Dela. Bridge Co. v. Geisse ..38 N. J. Law, 39.348, 350. Commerce, The 1 Black, 574 803. Commercial & Farmers' Bank v. Pat- terson 2 Cr. C. C. 346.. .120. Commonwealth v. Alger 7 Cush. 84 246. v. Andrews 2 Mass. 14 229, 234, 236. v. Aves 18 Pick. 193 50,58. v. Beaman 8 Gray, 497 229. 9. Chesapeake & Ohio R. R. Co 27 Gratt. 344 275. v. Cullins 1 Mass. 116 229. 233, 234, 235, 236, 243. . Deacon 10 S. & R. 129 .. .219, 220, 223. v. Eastern R R. Co. ..5 Gray, 473 164. v. Green 17 Mass. 515 220, 227. v. Holder 9 Gray, 7 229. t>. Howard 13 Mass. 221 164. v. Hunt 4 Cush. 49 182. v. Kinney '. 6 The Reporter, 733 192. . Macloon 101 Mass. 1 240. . Metropolitan R R. Co. . . - - 107 Mass. 236 .... 164 CASES CITED. XX111 Commonwealth v. Milton 12 B. Mon. 212.. .286. v. Phillips 11 Pick. 28 112. v. Rhoads 37 Penn. St. 60. ..267. v. Upricharcl 3 Gray, 434 229, 234, 236, 243. v. Van Tuyl 1 Met. (Ky.) 1.'...240. Compton v. Wilder 7 Am. Law Record, 212 220. Conantu. Van Schaick 24 Barb. 87 75. Connecticut Mut. Life Ins. Co. v. Cross.18 Wis. 109 288, 28y. Conner v. Elliott 18 How. 591 269. Consequas. Willings Pet. C. C. 225 58, 120. Con way v. Taylor 1 Black, 603 347, 348, 349, 350. Cook v. Hull 3 Pick. 270 345. v. Moffat 5 How. 295 50, 51, 132, 133, 134, 328. W.Pennsylvania 11 Chicago Legal News, 65 314. v. Thornhill 13 Tex. 293 267. . Wilson Litt,Sel.Cases,437.120. Cookendorfer v. Preston 4 How. 317 12. Cooley v. Wardens of Phila 12 How. 299 315, 320. Cooper v. Dismal Swamp Canal Co 2 Murph. L. & Eq. (N. C.)195 273,274. v. Galbraith 3 Wash. C. C. 546.226. v. Reynolds .10 Wall. 308 88, 126, 167. v. Smith 25 Iowa, 269 124. Corbettfl. Nutt 10 Wall. 464 212. Corfleld v. Coryell 4 Wash. C. C. 371. 225, 286, 310, 335. Corner v. Mallory 31 Md. 468 327. Corning v. McCullough 1 N. Y. 47 75. Corwin v. N. Y. & Erie R. R. Co 13 N. Y. 42 156. Cottier Cole 20 Iowa, 481 104. Council Bluffs o. Kansas City, etc., R. R. Co 45 Iowa, 338 310. Courses. Stead 4 Dal. 22 30. Courtney v. Carr 6 Iowa, 238 124. Courtois v. Carpenter 1 Wash. C. C. 376.46. CovingtonDrawBridgeCo.fl.Shepherd-20 How. 227 286. Cowles v. Mercer Co 7 Wall. 118 355. COX-B. U. S 6 Pet. 172 46,51,56,65. Crafts v. Clark 38 Iowa, 237 120. Cragin v. Lamkin 7 Allen, 395 44, 119, 121. Craig v. Brown Pet. C. C. 352 112, 113, 115, 117. Crandall v. Nevada 6 Wall. 35 10,315. Crane v. Reeder 21 Mich. 24 174. Craven o. Craven 27 Wis. 418 181. Crawford v. Burnham 4 Am. Law Times, (o. s.) 228 30. v. Graves 15 La. Ann. 243. .251. Crenshaw v. Anthony Mart. & Yer. 102. 198. XXIV CASES CITED. Crosby t>. Berger 8 Edw. Ch 538. .50. e. Leavitt 4 Allen, 410 248. Crouch*. Crouch 80 Wis. 667 130. c. Hall 15111.263 83. Croudson*. Leonard 4 Cr. 133 101. Crowe. Coons 27 Mo. 512 132. Crusoe*. Butler 86 Miss. 150 211. Culbreth, Ex parte 49 Cal. 436 223,225. Curtis*. Bradford 83 Wis. 190 142, 143. Cutter*. Davenport 1 Pick. 81 209,252. D. Dacosta*. Davis 4 Zab. 319 46. Dakin*. Pomeroy 9 Gill, 1 198. Danforth*. Penny 3 Met. 564 128. *. Thompson 34 Iowa, 243 87, 88, 92, 129. Dangerfield *. Thruston 20 Mart. 232 251. Daniels v. Hudson R. Ins. Co 12 Cush. 416 49. v. Willard 16 Pick. 36 204. Darby*. Mayer 10 Wheat. 465 .. .208, 209. D'Arcy *. Ketchum 11 How. 165 100,101,113,133, 167. Darrah *. Watson 36 Iowa, 116 87, 88, 117. Darrance*. Preston 18 Iowa, 396 23, 88, 112. Darts. Goss 24 Mich. 266 97. Dartmouth College *. Woodward 4 Wheat. 518 75, 178. Dater *. Earle 3 Gray, 482 46. Davenport*. Karnes 70 111. 465 82. *. Miss., etc., R. R. Co 12 Iowa, 539 202, 275. Davidson *. Lawrence 49 Geo. 335 174 *. Nebaker 21 Ind. 334 88. *. Sharpe 6 Ired. 14 102. Davis*. Bronson 6 Iowa, 410 46, 50, 58, 68. *. Curry 2 Bibb, 238 120. *. Davis 30 111. 180 188. *. Estey 8 Pick. 475 254. t>. Garr 6 N. Y. 124 83. *. Headley 22 N. J. Eq. 115. .105. *. Morton 4 Bush, 442, and 5 Id. 160 66, 145. c. Smith 5 Gen. 274 ]Q2. Dawes *. Boylstnn 9 Mass. 337 255. t>. Head 3 Pick. 128 196, 254. Day *. Bardwell 97 Mass. 246 329. Dean v. Chapin 22 Mich. 275 18. De Armond *. Bohn 12 Ind. 607 145. De Berner *. Drew 39 How. Pr. 466..2S3. De Couche*. Savetier 8 John. Ch. 190 ..194. CASES CITED. XXV Dehon n. Foster 4 Allen, 545, and 7 Id. 57 43,44. De Lanes. Moore 14 How. 253 198, 200. De Lovio . Boit 2 Gall. 474 301, 303. Den v. Sharp 4 Wash. C. 0. 609.190. Dennison c. Williams 4 Conn. 402 87. Dennistoun v. Draper 5 Blatch. 336 353, 359. Denny v. Williams 5 Allen, 1 60. Dcpauw v. New Albany 22 Ind. 204 205. Depeau v. Humphreys 8 Mart. (N. s.) 1 ..46, 82. Derrickson v. Smith .3 Dutch. 166 98, 148, 156,291. De Sobry v. De Laistre 2 Harr. & J. 181. .120, 194. Despardo. Churchill 53 N. Y. 192 194, 196, 197. Dewing v. Perdicaries 6 Otto, 193 .76. De Wolf t>. Johnson 10 Wheat. 367 .. .46, 47, 48, 50, 65, 83, 148. Dial 0. Reynolds 6 Otto, 340 42. Dickens . N. Y. Cent. R. R, Co 1 Abb. Dec. 504.. 157. Dickinson . McCraw 4 Rand. (Va.) 158.251. Diggs v. Wolcott 4 Cr. 178 16, 42. Dimick v. Brooks 21 Vt. 569 55, 95, 96, 98. Ditson v. Ditson 4 R. I. 87 180, 181, 182. Dixou . Ramsay 3 Cr. 319 27, 251,252,253. v. Thatcher .14 Ark. 141 121. Dodge v. Perkins 4 Mas. 435 30. v. Woolsey .18 How. 331 10, 75, 76, 78. Doe v. Collins 1 Ind. 24 168. D. Litherberry 4 McL. 442 188. v. McFarland 9 Cr. 151 251. . Woody 4 McL. 75 266. Donnelly v. Corbett 7 N. Y. 500 132, 134, 135, 328. Dorr, Exparte 3 How. 103 332. Dougan . Chainplain Trans. Co 6 Lans. 430, and 56 N. Y. 1 303,306,307. Douglas . Oldham 6 N. H. 150 52. Doulson v. Matthews 4 T. R. 503 140. Dow**. Rowell 12 N. H. 49 fll, 64. Downer n. Chesebrough 36 Conn. 39 46. Dow'sCase 18 Penn. St. 37. ..225. Dows v. Greene 24 N. Y. 638 71. Doyle?;. Continental Ins. Co 4 Otto, 535 287, 355, 356. Drake v. Gilmore 52 N. Y. 389 .....157. Ducat . Chicago 10 Wall. 410 285/287. Duffies v. State 7 Wis. 672 153. Dufresne v. Weise 1 Wis. Leg. News, 209 144. Duncans Darst 1 How. 301 11, 16, 331,333. v. Helm 22 La. Ann. 418..65, 81. v. McCullough 4 S. & R. 480 64. o. U. S 7 Pet. 435 46, 56. XXVI CASES CITED. Dundas r. Bowler 3 McL. 400 61, 189. Dunlapr. Cody 31 Iowa, 260 108. Dunn v. Adams 1 Ala. 527 64. v. Clark 8 Pet. 1 42. Dunscomb v. Bunker 2 Met. 8 47. Dupasseur t. Rochereau 21 Wall. 180 31. Dupuy r. Wurtz 53 N. Y. 556 196. Butcher v. Dutcher 89 Wis. 651 181. Duvall v. Fearson .. ..18 Md. 502 .. ..105. E. Eagle, The 8 Wall. 21 802. Barnes, Exparte 2 Story, 822 329. Earl t. Raymond 4 McL. 233 146. Eaton & Hamil. R. R. Co. v. Hunt ....20 Ind. 457 145. Edith, The 4 Otto, 518 305. Edmonds v. Montgomery 1 Iowa, 143 101. Edwards v. Elliott 21 Wall. 532 308. Egglesonfl. Battles 26 Vt. 548 189. Egleston v. Charleston 1 Tread. (S. C.) Const. 45 205. Ela r. Edwards 13 Allen, 48 250, 257. Elders Reel 62 Penn. St. 808.. 181. Elliott v. Ray 2 Blackf. 81 183. Ellis . Maxson 19 Mich. 186 122. v. White 25 Ala. 540 33. Elmendorffl. Taylor 10 Wheat. 152. ..87, 84. Elmore v. Mills 1 Hayw.(N.C.) 359.120. Emerson v. Patridge 27 Vt. 8 69. Emery v. Berry 28 N. H. 473 121. Engel v. Scheuerman 40 Geo. 206 4a Ennist). Smith 14 How. 400 8, 200,207 Erickson v. Nesmith 4 Allen, 233, 46 N. H. 871, and 15 Gray, 221 98,291. Erwin v. Lowry 7 How. 172 297. Eubanksc. Bank 34 Geo. 407 179. Evans v. Anderson 78 111. 558 46, 82. v. Davenport 4 McL. 574 190. v. Tatem 9 S. & R. 252 93. Everett v. Vendryes 19 N. Y. 436 63. Express Co. c. Kouutze 8 Wall. 342 355. Eyreo. Storer 37 N. H. 114 209. F. Fabert). Hovey 117 Mass. 107 90. Fanning v. Gregoirc 16 How. 524 347, 349. CASES CITED. XXV11 Fanners' Loan & Trust Co. T.McKinney.6 McL. 1 290. Farmers' & Mechanics' Bank 9. Smith.6 Wheat. 131 76, 328. Farmers' & Merchants' Ins. Co. v. Needles 52 Mo. 17 295. Farnesworth 9. Terre Haute, etc., R. R. Co 29 Mo. 75 27. Farnum v. The Blackstone Canal Co...l Sum. 47 291, 292. Farr . Lacld 37 Vt. 158 92. Farrington v. Wilson 29 Wis. 383 268. Faulkner v. Dela. & Rar. Canal Co 1 Denio, 441 283. Fay v. Oatley 6 Wis. 42.. 222, 225. Felch v. Bugbee 48 Maine, 9 132, 133, 134, 135. 138. Fellows v. Blacksmith 19 How. 366 1, 2, 20. v. Pres.& TrusteesofMenasha.il Wis. 558 118, 119. Fenwick v. Sears 1 Cr. 259 27, 251, 252. Ferguson v. Clifford 37 N. H.-86 68, 203. v. Harwood 7 Cr. 408 114, 116. Ferrill v. Commonwealth 1 Duvall, 153 229. Fetter, In re 3 Zab. 311 221. Field v. Gibbs Pet. C. C. 155 106. v. Sanderson 34 Mo. 542 100. Findlay v. Bank of U. 8. 2 McL. 44 30. Finley v. Philadelphia 32 Penn. St. 381.. 206. First Nat. Bank of Cinn. 9. Kelly 57 N. Y. 34 71. Plymouth v. Price.33 Md. 487 98, 148, 156, 291.' Toledo 9. Shaw .. .61 N. Y. 283 71, 72. Fisher 9. N. Y. Cent. R. R. Co 46 N. Y. 644 156. 9. Otis 3 Chand. S3 46. Fitch v. Remer 1 Biss. 337 49. Fitzsimmons v. Marks 66 Barb. 333 125. Fletcher v. Peck... 6 Cr. 88 75, 76. 9. Spaulding 9 Minn. 64 173. Flint & Pere Marquette R. R. Co. v. Lull 28 Mich. 510 156. Florida v. Georgia 17 How. 478 20. Flowers . Foreman '. 23 How. 132 172. Ford 9. Buckeye State Ins. Co 6 Bush, 133 47. Forest 9. Forest 6 Duer, 102 180. Forward 9. Harris 30 Barb. 338 60. Foster v. Davenport 22 How. 244 314. 9. Glazener 27 Ala. 391 10, 160. 167, 168. . Julien 24 N. Y. 28 64. 9. Master, etc., of New Orleans.4 Otto, 246 310. 9. Neilson 2 Pet. 253 1,20. Fourcher, Marquise de Circe, Succes- sion of 11 Chicago Legal News, 52 265. Fourkea. Fleming 13 Md. 392 203. Fourvergne v. New Orleans 18 How. 470 265. Fowler 9. Hecker.. ...4 Blatch. 425 30. XXV111 CASES CITED. Foxt>.Hoyt 12 Conn. 497 92. Foxcroflc. Mallett 4 How. 353 87,85. Francis t>. The Harrison 1 Sawyer, 355 305. Franklin v. Twogood 25 Iowa, 520 36, 48. Frazicr t>. Willcox 4 Rob. (La.) 519..280. Freeholders of Hudson Co. . State ...4 Zab. 718 349. Freeman v. Howe 24 How. 450 12, 13,338. Freese t>. Brownell 35 N. J. 285 60, 62, 63. French v. Hall 9 N. H. 137 46. v. Lafayette Ins. Co 5 McL. 461 190. Fretz v. Bull 12 How. 468 302. Frink v. Sly 4 Wis. 310 27. Frith v Sprague 14 Mass. 235 120. Frost v. Brisbin 19 Wend. 11 186. Frothinghain p. Barnes 9 R. I. 474 97. Fulton, The Robert 1 Paine, 621 338. G. Gaines v. Chew 2 How. 609 40. t. Gaines 9 B. Mon. 295 178. i>. Henner 24 How. 553 264. t>. New Orleans 6 Wall. 642 264. v. Relf 15 Pet. 9 40. Galpino. Page 18 Wall. 350 107. Garcia v. Lee 12 Pet. 511 1, 20. Gardner v. Lewis 7 Gill, 377 138. v. Lindo 1 Cr. C. C. 78 115. v. Thomas 14 John. 135 143, 143, 155. Garrett . Beaumont 24 Miss. 377 174. Gassies . Ballon 6 Pet. 761 19, 30, 225. Gate City, The 5 Biss.200 306. Gay v. Lloyd 1 G. Greene, 78.. 122. Gelpcke v. Dubuque 1 Wall. 175 85,86. Gelstonc. Hoyt 3 Wheat. 246 1. Genesee Chief, The, t>. Fitzhugh 12 How. 443 301, 302, 306, 310, 336. Georgia v. Johnson 4 Wall. 500 20. v. Stanton 6 Wall. 50 1, 2, 20. Gibbons v. Ogden 9 Wheat. 1 246,310,313,347,348. Gibbs 0. The Queen Ins. Co 63N.Y. 114 282. Gibson v. Chew 16 Pet. 315 67. v. Chouteau 13 Wall. 92 174. v. Stevens 8 How. 384 72. Gilbert v. Moline Water Power & Manf. Company 19 Iowa, 319 87, 337,338,841. Gilchrist v. Cannon 1 Cold. 581 249. Gillespie v. Hunnahan 4 McCord, 503... 64. Gillette. Hall 32 Iowa, 220 175. Gilman v. Gilman 53 Maine, 184 269. CASES CITED. XXIX Oilman v. Lockwood 4 Wall. 409 132, 828. . Philadelphia 3 Wall. 713 320, 324. B.Williams 7 Wis. 329 14. Gist. Lybrand 3 Ohio, 307 64. Gleason v. Gleason 4 Wis. 64 179, 180. Glen v. Hodges 9 John. 67 142, 143. Glenn v. Smith 2 Gill & J. 493.. 251. v. Thistle 23 Miss. 42 51, 211. Globe, The 2 Blatch. 427 23. Goddarde. Sawyer 9 Allen, 78 209. Gold v. Housatonic R. R. Co 1 Gray, 424 128, 129. Golden t>. Cockrill 1 Kan. 259 69. Gooclall v. Marshall 11 N. H. 88 249, 256. o. Tucker.. 13 How. 469 258. Goodwin v. Jones 3 Mass. 514 251, 252. Gordon v. The Appeal Tax Court 3 How. 133 78. Gorman v. Marsteller 2 Cr. C. C. 311. ..140, 141. t>. Pacific R. R. Co.. 26 Mo. 441 156. Governor t>. Wood worth 63 111. 254 174. Governor of Geo. v. Mandrazo 1 Pet. 110 20. Graeme v. Harris 1 Ball. 456 252. Graham, Exparte 3 Wash. C. C. 456.28. Graham o. Monsergh 22 Vt. 543 148, 149, 150, 152, 153. Grants. Bledsoe 20 Tex. 456 105. v. Healey 3 Sumn. 523 72. v. King 31 Mo. 312 130. v. McLachlin 4 John. 34 101. Grattan v. Appleton 3 Story, 755 196. Greasonsfl. Davis 9 Iowa, 219 120, 253. Green v. Biddle 8 Wheat 1 75. v. Creighton 23 How. 90 12,40,42. t. Hudson Riv. R. R. Co 2 Keyes, 294. ....157. v. Neal's Lessee 6 Pet. 291 31, 37,84. . Rugely. 23 Tex. 539 200,201,202. v. Sarmiento 3 Wash. C. C. 17 & Pet. C. C. 74.47, 106. v. VanBuskirk 7 Wall. 139 & 5 Id. 307.. 69, 70, 101,138,139. Greenough, In re 81 Vt. 279 221. Greenwood v. Curtis 6 Mass. 358 46, 50, 168, 178. Griffin v. Eaton 27 111. 379 89. t>. Griffin 47 N. Y. 134 179. Griffith v. Frazier 8 Cr. 9 22, 23, 262. Grimes v. Talbert 14 Md. 169 249. Griswold c. Pratt 9 Met. 10 329. Grossmeyera U. S 4 Nott & H. 1...3. Grover v. Grover 30 Mo. 400 100. Guillander i>. Howell 35 N.Y. 657 69, 194, 195, 19,6, 197. Gut v. Minnesota 9 Wall. 35 30, 85. XXX CASES CITED. H. Hacker v. Stevens 4 McL. 535 125, 146. Racket t>. Bonnell 16 Wis. 471 99, 120. Hnckettstown Bank t>. Rhea 6 Lans. 455 49. Hade t>. Brotherton 3 Cr. C. C. 594 ...114, 116. Hudley t>. Dunlap 10 Ohio St. 1 ....287. p. Russell 40 N. H. 109 291. Hagan v. Lucas 10 Pet. 400 12, 13, 14. Hagenc. Kean 3 Dill. 124 157. Haggart v. Morgan 5 N. Y. 422 186. Hahnemannian Life Ins. Co.t>. Beebe.,48 111. 87 280, 281. Hakes v. Shupe 27 Iowa, 465 23, 112. Hall v. Costello 48 N. H. 176 34. t. Harrison 21 Mo. 227 260. D.Williams 6 Pick. 232 92,106. Halliburton v. Fletcher 22 Ark. 453 99. Halsey D. McLean 12 Allen, 438 98, 148, 156. v. Stewart 4 N. J. 366 26. Ham v. Rogers 6 Blackf. 559 140. v. State 17 Ala. 188 229. Hamilton v. Kneeland 1 Nev. 40 33. v. State 11 Ohio, 435 229, 236, 237, 238. Hampton . McConnel 3 Wheat. 234 106, 117. Hanberry v. Hanberry 29 Ala. 719 180, 181. Handly v. Anthony 5 Wheat. 374 343. Hanover . Turner 14 Mass. 227 179, 182. Hanover Fire Ins. Co. v. Tomlinson...6 Thomp. & C. 127 & 3 Hun, 630.. 96. Hanson v. Hiles 34 Iowa, 350 71. Hapgood v. Jennison 2 Vt. 294 109, 255. Harding v. Alden 9 Greenl. 140 181. Hardy v. De Leon 5 Tex. 211 188. Harper c. Butler 2 Pet. 239 261. Harriott *. N. J. R. R Co 2 Hilt. 262 281. Harris v. Burton 4 Har. (Del.) 66. .211. . Dennie 3 Pet. 292 13. p. Hardeman 14 How. 334 112. Harrison v. Edwards 12 Vt. 648 172. t>. Harrison 20 Ala. 629 183. v. Sterry 5 Cr. 289 136, 138. Harshey v. Blackmarr 20 Iowa, 161 106. Hart B.Anthony 15 Pick. 445 128. e.Bostwick 14Fla. 162 174. c.Lindsey 17 N. H. 235 267. Harteauv. Harteau 14 Pick. 181 181. HartlandD. Church 47 Maine, 169. ...204. Harvey t. Marshall 9 Md. 194 209. . Richards 1 Mas. 881 42, 194, 196, 197, 254, 255. CASES CITED. XXXI Hatch v. Chi. R. I. & Pac. R. R. Co.... 6 Blatcli. 105 37, 355. v. Seeley 37 Iowa, 493 326, 237. Hatcher. McMorine 4 Dev. 122 61. Haussknecht v. Claypool 1 Black, 431 30. Haverhill Ins. Co. . Prescott 42 N. H. 547 284. Hawkins, In re 2 Nat. Bauk. Reg'. 122 329. Hawkins v. Barney 5 Pet. 456 76. Hawley v. Hunt 27 Iowa, 303 132, 133. Hawthorne. Calef 2 Wall. 10 75, 76. Hayden . Davis 3 McL. 276 50. Hayne v. Delieselline 3 McCord, 374...205. Hays v. Pacific Mail Steamship Co.. ..17 How. 596 318, 320. Healy . Root 11 Pick. 389 291. Heebner . Eagle Ins. Co 10 Gray, 131 283. Helfenstein v. Cave 3 Iowa, 287 53. Helms v. Rookesby 1 Met. (Ky.) 49. ..265. Hemmaker . State 12 Mo. 453. 229. Henderson v. Griffin 5 Pet. 151 37, 84. v. Mayor of New York 2 Otto, 256 313. . Rost 15 La. Ann. 405..251. 0. Staniford 105 Mass. 504 89. Hendrick. Brandon 9 Iowa, 319. 124. Henry v. Doctor 9 Ohio, 49.. 209. v. State. 7 Cold. 331 229. Herndon v. Ridgway 17 How. 424 23. Heyward, In re 1 Sandf. 701 221, 222, 223 Hiestand v. Kuns.... 8 Blackf. 345 189. Hill . Broughton 10 Wend. 75 118. v. Holmes 4 Lans. 388 180. . Jennison 14 Pet. 540 220, 226. v. Mallett Morris, (la.) 82 ..192, 193. v. Remsen 20 John. 229 & 4 John. Ch. 460.. 138, 194, 204, 251. Holt v. Alloway 2 Blackf. 108 88. Home Ins. Co. e. Davis 29 Mich. 238 287. v. N. W. Packet Co.. -.32 Iowa, 323 306. Hooper v. Scheimer 23 How. 235 214. Hope Mut. Life Ins. Co. v. Taylor 2 Rob. (N.Y.) 278.290. Hopkins . Coburn 1 Wend. 292 26. v. Hopkins 35 N. H. 474 181. Hopson, Matter of 40 Barb. 34 216. Hornet. The 2 Abb. (N. s.) 3S..3. Houghton v. Maynard 5 Gray, 552 134. v. Page 2 N. H. 42 46. v. Raymond 1 Sandf. 682 88. Housberger, In re 2 Nat. Bank. Reg. 33 327. Houston v. Newland 7 Gill & J. 480 ..139. Hover t). Penn. R.R. Co 25 Ohio St. 667. .156. How T. Kane 2 Finn. 531 361. Howard v. Bugbee 24 How. 461 79. Hoyt v. Thompson 5 N.Y. 320 & 19 N.Y. 207 5,296. Hubbard v. Supervisors 23 Iowa, 130 323. Hubbell v. Hubbell 3 Wis. 662 179, 180. Huey's Appeal 1 Grant's Cases, 51. 190, 191, 192. Huff v. Hutchinson 14 How. 586 58. Hughes, In re Phillips (N. C.) Law, 57 21. Hughes t. Hughes 14 La. Ann. 85.. .190. t). Klingender 14 La. Ann. 857..5. Hull v. Augustine 23 Wis. 383 119, 122. Humphreys T. Humphreys 3 P. Wins. 349 ...254. Humphries v. Dawson 38 Ala. 199 145. Hunt v. Columbian Ins. Co 55 Maine, 290 296. v. Hunt 44 N. Y. 27 118. v. Lyle 8 Yerg. 142 112. v. Palao 4 How. 589 862. v. Pownal 9 Vt 411 54, 55. v. Standart 15 Ind. 33 60, 61. Hunter c. State 40N.J. Law, 495.240. u. U. S 5 Pet. 173 137. Kurd v. Jarvis 1 Pinn. 475 130. Huse v. Flint 29 Iowa, 501 64. t>. Hamblin 29 Iowa, 501 64. v. McDaniel 29 Iowa, 501 64. Hutchins v. Hanna .. ...8 Ind. 533 .. ..61. CASES CITED. XXX111 Hutchins 0. New England Coal Min. Co 4 Allen, 580 289. Hyde 0. Stone 20 How. 170 38, 40, 41. Hylton 0. Brown 1 Wash. C. C. 298.186. I. 111. Cent. R. R Co. 0. Carraher 47 111. 333 156. v. Cobb -.48 111. 402 128. Ilsley v. Nicholls 12 Pick. 270 108. Indiana 0. Helmer 21 Iowa, 370 148, 151, 156. v. John 5 Ham. 218 54, 56. Inglis v. Usherwood . 1 East, 515 73. Ingraham v. Chicago, D. &M. KB. Co.. 34 Iowa, 249 321. v. Geyer 13 Mass. 146 44. 0. Hart 11 Ohio, 255 118. Inman Steamship Co. v. Tinker 4 Otto, 238 310. Insurance Co. v. Dunn 19 Wall. 214 287, 355. .Morse 20 Wall. 445 37, 41, 286, 287, 288, 355, 356. v. Pechner 5 Otto, 183 358, 359. Irvine v. Lowry 14 Pet. 293 124. 0. Marshall 20 How. 558 214. Ives v. Allyn 12 Vt. 589 265. 0. Finch.. ,..28 Conn. 112 1. -87. J. Jackson 0. Ashton 8 Pet. 148 30. v. Chew 12 Wheat. 153.. .85. v. Hanna 8 Jones Law, 188.213. Jacquette v. Hugunon 2 McL. 129 106, 172. Jaffray v. Dennis 2 Wash. C. C. 253.58. Jameson v. Gregory 4 Met. (Ky.) 363. .46. Jeflerson Branch Bank 0. Skelly 1 Black, 436 75. Jefferson, The Thomas 10 Wheat. 428. ..302, 303. Jeffersonville R. R. Co. 0. Swayne 26 Ind. 447 249. Jenkins 0. Kinsley 3 John. Cases, 474.112. Jenness 0. Jenness 24 Ind. 355 181, 188. Jerusalem, The 2 Gall. 191 305. Jeter v. Fellowes 32 Penn. St. 465.. 203. Johns 0. State 19 Ind. 421 243, 244. Johnson 0. Butler 2 Iowa, 535 88. 0. Copeland 35 Ala. 521 .196. 0. Dalton 1 Cow. 543 .1 142, 155. 0. Gregory 4 Met. (Ky.) 363. .59. v. Holley 27 Mo. 594 101. 0. Lexington 14 B. Mon. 648.. .206. 3 XXXIV CASES CITKD. Johnson . Mclntosh 8 Wheat. 543 2x4. v. Rannalls 6 Mart. (x. 8.) 621. 112. Jones*. Berkshire 15 Iowa, 248 208. c.Jones 18 Ala. 248 66, 172. c. League 18 How. 76 857. c. Leonard 13 West. Jur. 15.. 224. c. Spencer 15 Wis. 583 100, 101. t>. Taylor 30 Vt. 42 68, 139, 203. v. Walker 2 Paine, 688 1. v. Winchester 6 N. H. 497 128. Jordan v. James 5 Ham. 88 74, Jose Ferreira dos Santos, Case of 2 Brock. 493 220. Josephine, Steamboat, Lire 39 N. Y. 19 11. Joslyn, In re 3 Nat. Bank. Reg. 118 327. Judge of Probate t>. Hibbard 44 Vt. 597 154, 156. Junction Railroad v. Ashland Bank.. .12 Wall. 226 49, 65, 81. Juneau Bank v. McSpedan 5 Biss. 64 26. K Kanaga v. Taylor 7 Ohio St. 134. ..82. Kansas Pac. R. R. Co. v. Miller 2 Col. 442 157. Karrick v. Pratt 4 G. Greene, 144. .250, 251. Kashawfl. Kashaw 3 Cal. 312 180. Kean v. Rice 12 S. & R. 203 ...92, 120. Keary v. Farmers' & Merchants' Bank. 16 Pet. 89 .35. Keep v. Sanderson 12 Wis. 352 131. Kellam v. Toms 38 Wis. 592 95. Keller v. N. Y. Cent. R. R. Co 2 Abb. Dec. 480.. 157. Kelley v. Drury 9 Allen, 27 132, 328. Kdly v. Crapo 45 K Y. 86 194, 196. Kendall v. U. S 12 Pet. 520 23. . Windsor 6 R. I. 4.53 43. Kennebec Co. v. Augusta Ins. Co 6 Gray, 204 283 Kennedy v. Brent 6 Cr. 187 125. c. Knight 21 Wis. 340 49,65. Kentucky . Bassford 6 Hill, 527 10. v. Dennison, Gov. of Ohio.. 24 How. 66 20, 219, 220, 221, 244. Kermott v. Ayer 11 Mich. 181 122. Kerre. Kerr 41 N. Y. (2 Hand,) 272 182. v. Moon 9 Wheat. 565 27, 190,208,209, 210, 251, 252, 264. Kettering v. Jacksonville 50 111. 39 314. Kidder v. Packard 13 Mass. 81 128. Kilgore v. Dempsey 25 Ohio St. 413 . .82. Kill v. Hollister 1 Wilson, (Eng.) 129 355. * \ CASES CITED. XXXV Kimbro v. Bank of Fulton 49 Geo. 419 174. King, The v. Johnson 6 East, 583 141, 143. King. Vance 46 Ind. 246 101, 126. v. Wilson 1 Dill. 555 30. Kinney v. Commonwealth 6 The Keporter, 733 178. Kinnier v. Kinnier 45 N. Y. 535 90. Kirkman v. Hamilton 6 Pet. 20 67. Kirkpatrick v. Taylor 10 Rich. L. 393 ..252. Kittredge . Emerson 15 N. H. 227 94. Klinck v. Price 4 West Va. 4 46. Klingfl. Sejour 4 La. Ann. 128... 190. Knapp . Abell -. 10 Allen, 485 ....97. Knowles v. Gas Light & Coke Co 19 Wall. 58 103. Koblea. The People 85 111. 336 154. Kruset). Kruse.. ..25 Mo. 68.. ..180. L. Lafayette Ins. Co. e. French 18 How. 404 88, 102, 112, 282, 285 287, 357. Lagrave's Case 14 Abb. Pr. (N. s.) 333 223. Laird v. Dickerson 40 Iowa, 665 125. Lampson . Arnold ..19 Iowa, 479 70. Land v. Land 14 Sm. & M. 99 ..189. Lane c. Vick 3 How. 464 85. Lanfear v. Sumner .17 Mass. 100 69. Langdon v. Goddard 2 Story, 267 : 264, 265. v. Potter 11 Mass. 313 251. Langley v. Perry 2 Nat. Bank. Reg. 180 329. Lanusseeu. Barker 3 Wheat. 101 72. Lapham v. Olney 5 R. I. 413 209. Larkinu. Wilson 106 Mass. 120 129. LaterettD. Cook 1 Iowa, 1 120, 122. Lathrop v. Union Pac. R. R. Co 1 Me Arthur, 234 .281. Latimer v. Union Pac. R. R. Co 43 Mo. 105 104, 201. 207, 209. Latinet). Clements 3 Kelly, 426 258. Lauman v. Des Moines Co 29 Iowa, 310 323. Lawrence t>. Bassett 5 Allen, 140 63. v. Jarvis 32 111. 304 22, 88. v. Lawrence 3 Barb. Ch. 71 . ..260. Lazier v. Wescott 26 N. Y. 146 147. Le Barren?). Le Barron 35 Vt. 365 179. Le Breton . Nouchet 3 Mart. 60 192. Lee v. Selleck 33 N. Y. 615 51, 83. Leffingwell . Warren 2 Black, 599 85, 86, 172. Legg v. Legg 8 Mass. 99 118. XXXVI CASES CITED. Leighton t>. Kclsey 57 Maine, 85 326, 327. Leland v. Manning 4 Hun, 7 260. . Wilkinson 6 Pet 817 114, 117, 121. Leonard v. New Bedford 16 Gray, 292 '204. Le Roy t>. Beard 8 How. 451 25, 53. V. Crowninshield 2 Mas. 151 172. Leverick t>. Adams 15 La. Ann. 310.. 268. Levy v. Levy 78 Penn. St. 507..46, 48, 49, 65. Lewis t>. Darling 16 How. 1 212. t>. Doolittle 7 John. 45 254. v. Headley 36 111. 433 82. v. McFarland 9 Cr. 151 259, 260. v. Sutliff 2 G.Greene, 186.114. Lexingtons Milton 12 B. Mon. 212...286. Libbey v. Hodgdon 9 N. H. 394 280, 282. License Cases 5 How. 504 246, 314. License Tax Cases 5 Wall. 462 314. Lickbarrow v. Mason 2 T. R. 63, and 2 Smith's L.C.1147.71. Lincoln v. Battelle 6 Wend. 475 171,175. v. Tower 2 McL. 473 23.24,92,124,125,126. Lindsays Hill 66 Maine, 212 83. Lindsey v. Miller 6 Pet. 666 174. Linseed, Bags of 1 Black, 108 302. Lionberger v. Rouse 9 Wall. 468 323,324. Livingston v. Jefferson 1 Brock. 203 140, 141,209, 243. v. Mayor of N. Y 8 Wend. 85 19. v. Smith 5 Pet. 89 125. v. Story 9 Pet. 632, 12 Id. 339, 13 Id. 359.35, 40. Lloyd v. Perry 32 Iowa, 144 175. Lonsdale v. Brown 4 Wash. C. C. 86 .10. Loomis v. Farnum 14 N. H. 119 256. Loring v. Marsh 2 Cliff. 311, 469 ..31. Lorman v. Benson 8 Mich. 18 33. v. Clarke 2 McL. 568 29,34 Lottawanna, The 21 Wall. 558 303, 304, 809. Louisville, Cm. & Charl. R. R. Co. v. Letson 2 How. 497 190. Loves. Cherry 24 Iowa, 204 186, 187. Loving v. Pairo 10 Iowa, 282 204, 208. Low v. Andrews 1 Story, 38 60. v. Bartlett 8 Allen, 259 250, 256, 257. Lower. Lowe 40 Iowa, 223 107. Lowry v. West. Bank of Geo 7 Ala. 120 61. Loycl v. Reynolds 29 Ind. 299 145. Lucas v. Tucker 17 Ind. 41 209. Luther v. Borden 7 How. 1 1, 20, 85. Lyman v. Brown 2 Curt. 559 145. Lyon v. Mcllvaine 24 Iowa, 9 70. CASES CITED. XXXVII M. MacGregor v. MacGregor 9 Iowa, 65 212. Mackay c. Gordon 34 N. J. 289 122. Mackey v. Coxe 18 How. 100 254, 255, 863. Maguire v. Maguire 7 Dana, 181 178. v. Pingree 30 Maine, 508 82. Mahler v. Norwich & N.Y. Trans. Co.. .35 NVY. 352 335, 388. Mahurin t>. Bickford 6 N. H. 507 116. Malletta. Dexter 1 Curt. 178 338. Maltby v. Reading & Col. R. R. Co... .52 Perin. St. 140..275. Manchester, In re 5 Cal. 237 223, 224. Manley v. Manley 3 Finn. 390 179, 180 Mann v. ^Etna Ins. Co 38 Wis. 140 & 40 Id. 549 89. Manrofl. Almeida 10 Wheat. 473 304. Marbury v. Madison 1 Cr. 166 3. Marine Bank of Chicago v. Wright.. .48 N. Y. 1.. 71. Marsh v. Putnam 3 Gray, 551 328. Marshall v. Bait. & Ohio R. R. Co 16 How. 314 190. v. Grimes 41 Miss. 27 348. Martin t>. Mobile & Ohio R. R. Co 7 Bush, 116 289, 290. v. Potter 11 Gray,37 44. . Waddell 16 Pet. 367 334,335. Marline v. International Life Ins. So.. .53 N. Y. 339 282. Marx v. Fore 51 Mo. 69 90, 102. Mason v. Haile 12 Wheat. 370. ...76. 79, 80. v. Lawrason 1 Cr. C. C. 190 ...18, 112. v. Wash Breese, 16 120. Hassle t>. Watts 6 Cr. 148 37,43,212. Mathers Bush 16 John. 233 328. Mathuson . Crawford 4 McL. 540 46. Maxwell*. Campbell 45 Ind. 360 267. . Stewart 22 Wall. 77 & 21 Id. 71 107,127. Mayberry v. Concord R. R. Co 47 N. H. 391 156. Mayer. Hellman 1 Otto, 496 330. Mayhew v. Thatcher .6 Wheat. 129 88, 114, 117. Mayor, The, v. Lord 9 Wall. 409 16. McCarthy v. Chi. R. I. & P. R.R. Co.. .18 Kan. 46. 156, 160, 161. McClerry v. Matson 2 Ind. 79 200. McClintick v. Cummins 3 McL. 158 47. McClung o. Silliinan 6 Wheat. 598 15, 84, 172. McCluny 0. Silliman 3 Pet. 270 84. McClure v. Bates 13 Iowa, 77 250, 251. McComber v. Jaffray 4 Gray, 82 130. McCord v. Woodhull 27 How. Pr. 54. . . 176. McCormick v. Penna. Cent. R. R. Co.. .49 N. Y. 303 283. v. Sullivant 10 Wheat. 192 190, 208, 210. McCracken v. Hayward 6 How. 603 79. XXXV111 CASES CITED. McCready c. Virginia 4 Otto, 391 334. McCulloch t>. Maryland 4 Wheat. 310 10, 324, 825 D.Norwood 58 N. Y. 562 & 4 Jones & S. 188.34, 119. McCutchenc. Marshall 8 Pet. 220 37. McDaniel t>. Chi. & N. W. R. R. Co.... 24 Iowa. 412 47, 51, 59. McDermott . Clary 107 Mass. 501 102. McDougald t>. Carey 38 Ala. 320 83. McDurfee . Port. & Roch. R. R. Co.. .52 N. H. 430 277. McElrath r>. Pitts. & Steub. R. R. Co.. .55 Penn. St. 189..212, 279, 293. McElinoyle v. Cohen 18 Pet 312 171, 172,250. McFall v. Commonwealth 2 Met. (Ky.) 394.. 343. McFee v. South Car. Ins. Co 2 McCord, 503 ...56. McGee . Mathis 4 Wall. 143 75, 76, 77. McGiffertt>. McGiffert 31 Barb. 69 180. McGill 0. Armour 11 How. 142 271. McGilvray B. Avery 30 Vt. 538 147. McGoon v. Scales 9 Wall. 23 208. McGruder t>. Bank of Washington 9 Wheat. 598 64. McGuire v. Gallagher 2 Sandf. 402 88. Mcllvainet?. Coxe 4 Cr. 209 10. Mclntire v. Parks 3 Met. 207 46,59. McJilton v. Love 13 111.487 146. McKay . Funk 37 Iowa, 601 327. McKeent). Delancy 5 Cr. 22 87. McKenna v. Fiske 1 How. 241 140. 141, 142, 143, 155. McKim v. Willis 1 Allen.512 132. McKowena. McGuire 15 La. Ann. 637.. 188. McLaurine v. Monroe 80 Mo. 462 101. McLean v. Lafayette Bank 8 McL. 622 212. v. Meek 18 How. 16 258. McMicken v. Webb 11 Pet. 25 31. McMillan v. McNeill 4 Wheat. i>09 132, 327, 328. McNiel, Ex parte 13 Wall. 236 15,309, 315, 320,321. McNiel o. Holbrook 12 Pet. 48 30. McNutt v. Bland 2 How. 9 263,331. McQueen v. Middletown Manf. Co 16 John. 5 283. McVicker v. Beedy 31 Maine, 314 102. Means v. Hapgood 19 Pick. 105 204. Mearsc. Sinclair 1 WestVa. 185. ..267. Medway v. Needham 16 Mass. 157 7, 177, 178, 192. Meekin v. Creditors 19 La. Ann. 497 & 3 Nat. Bank. Reg. 126 329. Melhop v. Doane 81 Iowa, 397 100, 101. Memphis v. Overton 3 Yerg. 387 349,351. Merchants' Ins. Co.c. DeWolf..* 33 Penn. St. 45.. .90. Meredith v. Hinsdale 2 Caines, 362 25. Merrill v. George 23 How. Pr. 331..26. Mervin n. Kumbel .. -.23 Wend. 293 ....97. CASES CITED. XXXIX Mewstero. Spalding 6 McL. 24 18, 112 Middleton v. McQrew 23 How. 45 37 Middough t>. St. Jos. & Den. R. R. Co.,51 Mo. 520 &3 Am. R.W. Rep. 261.27. Miles v. Caldwell 2 Wall. 35 84. e. Collins 1 Met. (Ky.) 308.. 33, 100 Miller v. Brenham 68 N. Y. 83 171. v. Davison 31 Iowa, 435 130. T>. Dungan 36 N.J. Law, 21. .102, 125. t>. Hoe 2 Cr. C. C. 622.. .129. B.Jones 26 Ala. 247 249. e. Southwest. R. R. Co 55 Geo. 143 158. . Tiffany ._._.! Wall. 298 46,65. Mills*. Duryee.. 7 Cr. 481 92, 106, 107, 117. v. Thornton 26 111. 300 194, 197, 204. Milne v. Moreton 6 Binn. 365 5, 69. v. Van Buskirk 9 Iowa, 558 88, 105. Milnor v. N. Y. & N. H. R. R. Co 53 K Y. 363 282, 289 Milwaukee & St. Paul R. R. Co. v. Mil. & Minn. R. R. Co 20 Wis. 165 296. Miner B.Austin 45 Iowa, 221 249. Mississippi v. Johnson 4 Wall. 475 1. Miss. &Mo. R. R. Co. 0. Ward 2 Black, 485 337. Missouri v. Iowa 7 How. 660 & 10 Id. 1 20. Mitchel v. U. S 9 Pet. 712 214. Mitchell 0. Bunch 2 Paige, 606 146. v. Gray 18 Ind. 123 112. v. Harmony 13 How. 115 141, 142. Molyneux v. Seymour 30 Geo. 440 101. Monroe. Douglass 5 N. Y. 447 34, 120, 209. Moore v. Chi. R. I. & Pac. R. R. Co.. ..43 Iowa, 385 125, 129. v. Clopton 22 Ark. 125 47. v. Gwynn 5 Ired. 187 120. v. Lobbin 26 Miss. 304 174. v. Parker 25 Iowa, 355 88. v. Robbins 6 Otto, 530 214. Morgan v. Curtenius 20 How. 1 86, 115. v. King 30 Barb. 9 33. v. New Orleans R.R. Co 2 Woods, 244 51, 208. v. Parham 16 Wall. 471 318. Morrill v. State 38 Wis. 428 311. Morrison v. Burns 40 Mo. 491 ._ 305 Morrissey v. People 11 Mich. 327 234 Morsemanr. Younkin 27 Iowa, 350 322, 323. Morton v. Skinner 48 Ind. 123 223. v. Smith 2 Dill. 316 208, 209, v. Valentine 15 La. Ann. 150.. 90, 91. Moses Taylor, The 4 Wall. 411 11, 12,301,303. Mostyn. Fabrigas Cowp. 161 141, 143. Xl OASES CITED. Mottt. Coddington 1 Robert. 2G7 213. Moultrie t>. Hunt 23N.Y. 894 6, 194,200. Mowry t>. Crocker 6 Wis. 326 204. Mud Creek Draining Co. v. State 43 Md. 23C 285. Muller v. Dows 4 Otto, 444 212. 279,291, 293. Mumford v. Wardwell 6 Wall. 423 835. Mumrnac. Potomac Co 8 Pet. 281 78. Munn t>. Illinois 4 Otto, 118 246, 821 Murray D. Charleston 6 Otto, 432 80, 202, 203, 205. t>. Gibson 15 How. 421 174. D. Marsh 2 Hayw. (N. C.) 290 18,112. Musson r>. Lake 4 How. 262 61. Myers t>. San Francisco 42 Cal. 215 157. N. Nash p.Tupper 1 Caines, 402 171. Nashville & Chat. R. R. Co.v. Eakin.,6 Cold. 582 156. National Bank v. Commonwealth 9 Wall. 353 322, 323. v. Nichols 4 Biss. 315 280. National Bank of Mich. v. Green 33 Iowa, 140 61, 62. National Mut. Fire Ins. Co. v. Pursell.10 Allen, 231 283. National State Bank of Osk.0. Young.25 Iowa, 311 322. Nations v. Johnson 24 How. 195 87, 93. Naylorc Moffat 29 Mo. 126 252. t. Moody 2 Blackf. 247 252. Neale . De Garay 7 T. R. 243 141, 143. Nelsons. Toterall 7 Leigh, 201 8. Nesmithu. Sheldon 7 How. 812 37, 84 Neves v. Scott 13 How. 268 34. New Albany o. Meekin 3 Ind. 481 320. New Albany & Salem R. R. Co. v. Til- ton 12 Ind. 3 156. Newburg Petroleum Co. v. Weare 27 Ohio St. 343. .289. Newby v. Von Oppen L. R. 7 Q. B. 293..2S2. Newcomb v. Peck 17 Vt.302 92. Newell t. Coit 1 Ohio, 519 209. v. G. W. Ry. Co 19 Mich. 336 281. v. Haydeu 8 Iowa, 140 53. New Jersey v. New York 3 Pet 461 & 5 Id. 284 20. p.Wilson 7Cr. 164 75. New Jersey Steam Nav. Co. t>. Mer- chants' Bank 6 How. 344 304, 306. Newman v. Kershaw 10 Wis. 333 65. v. Willett 52111.98 265. Newport r. Taylor 16 B. Mon. 699... 350. Newton p. Cocke 5 Eng. 169 264. CASES CITED. xli New York Dry Dock Co. v. Hicks ...5 McL. Ill 290. New York & Erie R. R. Co. v. Shepard.5 McL. 455 190. New York Floating Derrick Co. . New Jersey Oil Co 3 Duer, 648 290. Nibletfl. Scott 4 La. Ann. 245.. .18, 94. Nichols v. Cornelius 7 I ml. 611 228. . Levy 5 Wall. 433 85. Noonan v. Bradley 9 Wall. 394 252. Norris v. Beach 2 John. 294 26. U.Harris 15 Cal. 226 33,34. v. Mumforcl 4 Mart. 20 69. V. State 33 Miss. 373 237. North Bank . Brown 50 Maine, 214 146. North. Cent. Ry. Co. . Scholl 16 Md. 331 242. North. Ind. R. R. Co. . Lake Erie & Louis. R.R. Co...8l Ind. 283 292. Palmer t>. Yarrington 1 Ohio SL 258 47. Parham v. Pulliam 5 Cold. 497 81. Parker v. Hotchkiss 1 Wall. Jr. 269 ...26. v. Kane ". 22 How. 1 87. Parsons v. Bedford 3 Pet. 438 29, 39, 307. . Lyman 20 N. Y. 103 196, 197. Partee v. Silliman 44 Miss. 72 190, 194. Passenger Cases 7 How. 283 310,313,314,315,316, 317. Patchen v. Wilson 4 Hill, 57 261. Patterson, In re 1 Nat. Bank. Reg. Supplement, 27. 326, 327. Patterson v. Kentucky 11 Chicago Legal News, 183 246,247. Paul v. Virginia 8 Wall. 168 285, 286, 288, 313. Paulding t>. Hudson Manf. Co 2 E. D. Smith, 38.283. Pawlet v. Clark 9 Cr. 292 75. Payne v. Hook 7 Wall. 425 38,40,41, 355. Payson v. Payson 1 34 N. H. 518 181. Peale c.Phipps 14 How. 368 12, 297, 298. Pearsall v. Dwight 2 Mass. 84 50, 118,168. Pease v. Howard 14 John. 470 172. u. Peck 18 How. 595 86. Peckt>. Jenness 7 How. 625 16, 42. Pecks v. Mayo 14 Vt. 33 51, 65, 82. Pennington v. Gibson 16 How. 65 34,87,88,93,210,264. Pennoyer v. Neff. 5 Otto, 714 10, 11, 100, 101, 102, 112, 124, 126, 167. Pennsylvania v. Ravenel 21 How. 103 188. e. Wheeling Bridge Co. .13 How. 518 40, 215, 310, 348. Pennsylvania Co. v. Sloan 10 Chicago Legal News, 381 176. Pennsylvania R. R. Co. v. Riblet 66 Penn. St. 164.. 156. Penobscott R. R. Co. v. Bartlett 12 Gray, 244 204. Pensacola Tel. Co. v. West. Union Tel. ) 6 Otto, 1, and 2)4, 10, 11, 12, 288, 309, Co ) Woods, 643.. j 310,311. Pensenneau v. Pensenncau 22 Mo. 27 300. People v. Babcock 11 Wend. 587 349. 350. v. Brady 56 N. Y. 182 222. 223, 225. v. Burke 11 Wend. 129 229,234. c. Cent. R. R. Co. of N. J 48 Barb. 478 346. 0. Commissioners, etc 23 N.Y. 224 & 242.202, 204, 205, 206, 318. . Commissioners, etc 4 Wall. 244 323. v. Commissioners, etc 58 N. Y. 242 318. t>. Commissioners, etc 47 N. Y. 501 287. D. Commonwealth 4 Wall. 244 322. t>. Curtis . . . . 50 N. Y. 321 226. CASES CITED. xliil People v. Dawell , 25 Mich. 247 90, 181. v. Eastman 25 Cal. 601 202, 275. v. Folsom 5 Cal. 373 29,34. v. Gardner 2 John. 477 .229, 233, 234. p. Gilbert 18 John. 228 174. v. Kelly 38 Cal. 145 216, 244. c.Lambert 5 Mich. 349 122. v. Loughbridge 1 Neb. 11 229, 238. v. Mosier 2 Park. Cr. Cases, 195 228 O.Murray 5 Park. Cr. Cases, 577 216,245. v. N. Y. & Staten Is. Ferry Co.. .68 N. Y. 71 335. v. Rensellaer & S. R.R. Co 15 Wend. 114 285. v. Roper 35 N. Y. 629 287. v. Schenck 2 John. 479 229,233. v. Society for Propagating the Gospel 1 Paine, 653 285. o. St. Louis 10 111. 350 321. v. Tibbetts 19 K Y. 523 334, 335. v. Williams 24 Mich. 156 229, 230, 231. People's Ferry Co. v. Beers 20 How. 393 304. Pepoon v. Jenkins 2 John. Cases, 119.112, 120. Pereles v. Watertown 6 Biss. 79 174. Perkins v. Williams 2 Root. 462 252. Perry Manf. Co. v. Brown 2 Wood.& M. 450.208. Person . Grier 66 1ST. Y. 124 26. Petchell v. Hopkins 19 Iowa, 531 175. Pfitzer, Ex parte 28 Ind. 450 223. Phelpsfl. O'Brien 2 Dill. 518 37, 356. Phila. Loan Co. v. Towner 13 Conn. 249 48, 49, 65, 83. Phila. & Wil. R.R. Co. v. Maryland... 10 How. 376 292. Phila. Wil.& Bait. R. R. Co.t>. Howard.13 How. 307 114. v. Quigley.21 How. 202 142, 143. Phillips v. Phillips 22 Wis. 256 181. v. Bloornington 1 G. Greene, 498. .349. Phinney v. Baldwin 16 111. 108 50, 58. Piatt v. Oliver 2 McL. 268 23. Pickard v. Bailey 26 N. H. 152 120, 121. Pickering v. Fisk 6 Vt. 102 5,54, 55, 50, 96, 154, 156, 340. Picquetfl. Swan 3 Mas. 469 251. Pierce v. Reed 2 N. H. 359 95. Pine Grove t>. Talcott 19 Wall. 666 85. Pipon v. Pipon 1 Ambl. 26 201. Piqua Branch Bank . Knoop 16 How. 369 34,37, 75, 79. Pittsburgh v. First Nat. Bank 55 Penn. St. 45. . .322. Planters' Bank v. Sharp 6 How. 301 79. Plestoro v. Abraham 1 Paige, 236 loS. Plumleightx Cook 13111.669 33. xliv OASES CITED. Plymouth, The 8 Wall. 20 801,305. Poe v. Duck 5 Md. 1 182, 135. Polk v. Wendal 9 Or. 87 80, 87. Pollard v. Baldwin 22 Iowa, 328 107. v. Dwight 4Cr. 421 124,359. . Hagan 8 How. 212 334, 335. Pomeroy . Ainsworth 22 Barb. 118 50, 51. v. Manhattan Life Ins. Co.... 40 111. 398 283. Pond*. Makepeace 2 Met. 114 252. Pondsford *. Johnson 2 Blatch. 51 192. Pope v. Nickerson 3 Story, 466 46, 82. Porter v. Heydock 6 Vt. 374 255. Potter*. Hiscox 30 Conn. 508 268. v. Titcomb 22 Maine, 300 265. Poultney v. Lafayette 12 PeL 473 40. Powell v. De Blane 28 Tex. 66 90. Power v. Hathaway 43 Barb. 214 171. Pratt v. Adams 7 Paige, 615 81. . Chase 44 N. Y. 597 328. v. Northam 5 Mas. 95 40. Prentiss v. Barton 1 Brock. C.C. 389. 186, 190. Preston, In re 6 Nat. Bank. Reg. 545 327. Price v. Hickok 39 Vt. 292 100. t>. Johnston 1 Ohio St 390 ...207, 209. v. Morris 5 McL. 4 ....263. Prigg v. Commonwealth 16 Pet. 539 220. Prince*. Bartlett 8 Cr. 431 136. Probate Court*. Kimball 42 Vt. 320 248, 250, 254. *. Matthews 6 Vt. 269 109, 255. Proctor*. Moore 1 Mass. 198 132. Protector, The 12 Wall. 700 3. Providence Bank *. Billings 4 PeL 514 75. Pryce*. Security Ins. Co 29 Wis. 270 283. Pugh*. Bussel 2Blackf. 394 132. Purdy *. N. Y. & N. H. R. R. Co 61 N. Y. 453 247, 293, 294. Putnam *. Putnam 8 Pick. 433 178, 182, 192. Q Quincy Coal Co. t>. Hood 77 111. 68 158. R. Rabun v. Rabun 15 La Ann. 471.. .198. Racine & Miss. R. R. Co. *. Farmers' Loan & Trust Co 49 111. 331 291, 292. Rafael *. Verelst.. ,..2Wni.Black.l055.141. CASES CITED. Railroad Bank v. Evans 82 Iowa, 202 122, 123. Railroad Co. 9. Barron 5 Wall. 90 343. v. Harris 12 Wall. 65 277, 278. V. Husen 5 Otto, 465 9, 10, 246, 247, 310, 311, 013.' v. Jackson 7 Wall. 262 202, 275, 320. v. Pennsylvania 15 Wall. 300 275. v. Steam Tow Boat Co 23 How. 215 303. v. Ward 2 Black, 485 341. v. Whiton 13 Wall. 270 355. Randall v. Brighain 7 Wall. 523 31, 85. Rankin . Goddard 54 Maine, 28, and 55 Id. 389 102,105. Rape 15. Heaton 9 Wis. 301 101, 103, 104. Rathbun v. North. Cent. R. R. Co 50 N. Y. 656 176. Ray v. Underwood 3 Pick. 302,...:. 128. Raynhamu. Canton 3 Pick. 293 120. Read v. Bertrand 4 Wash. C. C. 514. 190, 226. Reed v. Bullington 11 Nat. Bank. Reg. 408 327. v. Ross 1 Bald. C. C. 36. .18, 94. ^.Taylor 32 Iowa, 209 329, 330. Reese v. Mut. Benefit Ins. Co.. 23 N. Y. 516 33. Reg. v. Madge 9 C. & P. 29 229. Reid, Ex parte 2 Sneed, 375 207. Reidfl. Boyd 13 Tex. 241 105. v. Morrison 2 W. & S. 401 64. Reindeer, The 2 Wall. 384 304. Rex v. Anderson 2 East, P. C. 772, c. 16, s. 156 ....229. v. Prowse ,. Ry. & M. 349 229. Rhode Island v. Massachusetts 12 Pet. 657 10, 20 Rice. Houston 13 Wall. 66 263. Richards*. Dutch 8 Mass. 506 255, 256. v. Globe Bank 12 Wis. 692. 65. v. Polgreen 13 S. & R. 393 ...172. Richardson v. Burlington 33 N. J. 190 148, 151, 152. v. N. Y. Cent. R. R. Co 98 Mass. 85 145, 156, 163. v. Ver. & Mass. R. R. Co.. .44 Vt. 613 164, 278. Rickett v. Henderson 2 Cr. C. C. 157 ...125. Rieman v. Shepard 27 Ind. 288 204. Riggs t). Johnson Co 6 Wall. 166 11, 12, 15, 16. Riley. Lamar 2 Cr. 344 132. . Moseley 44 Miss. 37 252. '. Riley 3 Day, 74 251. Ripple 0. Ripple 1 Rawle, 386 112, 120. Roach v. Chapman 22 How. 129 41, 305, 308. Robb v. Chi. & Alt. R. R. Co 47 Mo. 540 27. v. Halsey 11 Srn. & M.140..60, 83. Robert Fulton, The 1 Paine, 621 338. Xlvi CASES CITED. Robert t>. Hodges 1 C.E. Green, 299. 105. Roberts c. Caldwell 5 Dana, 512 92. Robertson v. Crandall 9 Wend. 425 261. Robinson, Exparte 6 McL. 355 338. Robinson v. All. & G. W. R. R. Co 06 Penn. St 160.. 297. t>. Bland 2 Burr. 1679 8. t>. Campbell 8 Wheat. 212 25, 35, 89, 40. D.Flanders 29 Ind. 10 223. r. Merchants' Dispatch 45 Iowa, 470 71. v. Prescott 4 N. H. 450 116. Roche . Washington 19 Ind. 53 177. Rockville & Wash. Turnpike Road Co. . Andrews 2 Cr. C. C. 451 ...120. Rogers v. Gwyn 21 Iowa, 58 105, 106. v. Odell 39 N. H. 417 14-5. 147. t>. Rogers 15 B. Mon. 292.. .105. Roop v. Clark 4 G. Greene, 294.. 114. Roosac. Crist 17 111.450 47. Root v. Brothersou 4 McL. 230 208. Rosec. Hiraely 4 Cr. 269 101. v. Thames Bank 15 Ind. 292 61. ROSSB. Duval 13 Pet. 45 84. 7). Page 6 Ham. (Ohio) 166.349. v. State ,...55 Geo. 192 216. Ruggles t. Keeler 3 John. 261 66, 171, 172. Rundle v, Del. & Rar. Canal Co 1 Wall. Jr. 275... 140. Runyana. Coster 14 Pet. 122 290. Reese v. Hut. Benefit Ins. Co 23 N. Y. 516 33. Rush v. Rush 46 Iowa, 648 182. Russel v. Buck 14 Vt. 147 64. Russell v. Southard 12 How. 139i 35. Ryan . Bindley 1 Wall. 66 30,85. t>. Clanton.. ,..3 Strob. 412. . ,..68. S. Sabine v. Fisher 37 Wis. 376 264. Sampson v. Burton 4 Nat. Bank. Reg. 1. 326. Samuel, The 1 Wheat. 9 404. Sanderson t>. Bradford 10 N. H. 260 204. Sandford v. Chase 3 Cow. 381 26. . McCreecly 28 Wis. 102 261. Sangamon & Morgan R. R. Co. v. Mor- gan Co 14111. 163 205. Satterlee v. Matthcwson 2 Pet. 880 76, 77, 78. Saul P. His Creditors 5 Mart. (N. s.) 569.4. Saunders v. Williams 5 N. H. 213 204 Savage t>. Marsh 10 Met. 595 134. CASES CITED. xlvii Savary. Savary 3 Iowa, 271 46, 68. Sawyer v. Thompson 24 N. H. 510 128. Sayre v. Helme 61 Penn. St. 299.. 252. Schollenberger, Exparte 6 Otto, 369 ..'...AS. Schonwald v. Schonwald 2 Jones' Eq. 367. .181. Schwinger 9. Hickok 53 N. Y. 280 22, 23. Scofieldix Day 20 John. 102 58. Scott v. Blanchard 8 Mart. (N. s.) 303.112. v. Cleveland 3 T. B. Mon. 62.. 116. w.Jones 5 How. 343 1, 20. 9. Noble 72 Perm. St. 115.. 102. 9. Seymour 1 Hurl. & C. 219.141, 143. Scoville 9. Canfield 14 John. 338 4,52,148,227,291,340. Scribner 9. Fisher 2Gray,43 132. Scudder v. Union Nat. Bank. 1 Otto, 406 46, 50, 51, 52, 60, 171. Seaver v. Robinson 3 Duer, 622 26. Secombe 9. Railroad Co 23 Wall. 108 85. Secrist 9. Green 3 Wall. 744 208, 210, 264. Security Ins. Co. . Taylor 2 Biss. 446 .. 252. Sedgwick 9. Menck 1 Nat. Bank. Reg. 204 329. v. Place 1 Nat. Bank. Reg. 204 329. Seevers 9. Clement 28 Md. 426 145. Selectmen of Boston 9. Boylston 2 Mass. 384 109, 255. Sell*. Miller 11 Ohio St. 331.. .190, 209. Selma, Rome & Dal. R. R.Co.0. Lacey.48 Geo. 461 156, 159. . Tyson. 48 Geo. 351 281. Sevier 9. Roddie 51 Mo. 580 101. Seymour v. Butler 8 Iowa, 304 10, 46,47. Shafer v. Bushnell 24 Wis. 372 179, 181. Shaffer 9. Bolander 4 G. Greene, 201 . .46. Shaft 9. Phcenix Mut. Life Ins. Co 67 N. Y. 544 360. Shaw. Wood 8 Ind. 518 61. Shelby . Bacon 10 How. 56 12, 338. 9. Guy 11 Wheat. 361. ...30, 37, 84, 85, 175. Sheldon v. Rice 30 Mich. 296 260. 9. Sill .' 8 How. 441 66. Shelton v. Marshall 16 Tex. 344 47, 90, 203. u. Tiffin. 6 How. 163 106, 190. Sheppard 9. Steele 43N. Y.(4 Hand)55.308. Sherlock 9. Ailing 3 Otto, 99, and 48 Ind. 184 309, 314, 343, 344. Sherman 9. Gassett 9111.521 83, 148, 149. Shields v. Thomas 18 How. 253 93. Short 9. Trabue 4 Met. (Ky.) 299. .46, 61. Shultz v. Pulver 3 Paige, 182 194, 201. Shumway 9. Stillman 4 Cow. 292, and 6 Wend. 447 92, 106, 182. Sill 9. Worswick 1 H. Black. 665..194, 195. xlviii OASES CITED. Silver Lake Bank t>. Harding 5 Ham. 545 110. Simmons v. Commonwealth Binn. 617 229. Simons t>. Cook 29 Iowa, 324 122. Simpson t>. State 4 Humph. 456 ...227, 229. Sims v. Hundley 6 How. 1 30. Sinnott v. Davenport 22 How. 227 11, 12, 314. Sisk e. Woodruff 15 111. 15 121. Skinner v. Maxwell 68 N. C. 400 297. Slack v. Gibbs 14Vt.357 148. 153,227. Slade v. Slade 58 Maine, 157 181. Slanter . Chenwith 7 Ind. 211 257. Slaughter v. Commonwealth 13 Gratt. 767 286. Sloan 0. Waugh 18 Iowa, 224 175. Smith, Exparte 3 McL. 121 221, 222, 224, 225. Smith, The General 4 Wheat. 438 404. Smith t> Boston, C. & M. R R Co 83 N. H. 337 129. t>. Bull 17 Wend. 323.... 140, 242. v. Chicago & N.W. RR Co... .23 Wis. 267 204. v. Godfrey 28 N. H. 379 46, 199. v. Kernochen 7 How. 198 357. v. McCutcheon 38 Mo. 415 112. v. Mclver 9 Wheat. 532 12, 338. . McLean 24 Iowa, 322 68. v. Mead 3 Conn. 253 46, 65. v. Mut. Life Ins. Co 14 Allen, 338 291. v. Peckham 39 Wis. 414 264. . Smith -.2 John. 235 51, 64, 65, 132. . Smith 17 111.481 89. v. Union Bank of Georgetown.,5 Pet. 518 251. v. Webb 1 Barb. 231 251,252,260. Sneed v. Wister 8 Wheat. 690 66, 84. Snelling v. Watrous 3 Paige, 314 222. Snyders. Wise 10 Penn. St. 157. .116. Society for Propagation of Gospel v. New Haven 8 Wheat. 464 75. Sohn v. Waterson 1 Dill. 358 172. Somerville v. Somerville 5 Ves. 751 201, 254. v. Wimbish 7 Gratt. 205 349. Sortwell v. Hughes 1 Curt. 244 59. Soule v. Chase 39 N. Y. 342 132. Southwest. R R Co. o.Paulk 24 Geo. 356 156. Sparks v. White 7 Humph. 86 252. Speed?. May 17 Penn. St. 95.. .139. Sprague v. Hartford, Prov. & Fisk. R. R Co 5 R I. 233 293. Springers. Foster 2 Story, 382 132, 338. St Albanst). Bush 4 Vt 58 18,94. St Lawrence, The 1 Black, 522 304. St. Louis v. Wiggins Ferry Co 40 Mo. 580, and 11 Wall. 423 26, 27, 205, 318, 319. CASES CITED. xllX Stacey t>. Thrasher 6 How. 44 257,258. Stanfield v. Fetters _ ., 7 Blackf. 558 91. Stanley t>. State 24 Ohio St. 166 ..229, 237, 238. Starkweather v. Loomis 2 Vt. 573 116. Starr. Pease 8 Conn. 541 179. State v. Adams 4 Blackf. 146 244. v. Armington 17 Alb. Law Jour. 451 180,182. t>. Bartlet 11 Vt. 650 237. v. Bennett 14 Iowa, 479 229, 232. v. Brown 1 Hayw. (N. C.) 100 229. v. Cameron 2 Finn. 490 337, 343. v. Carter 3 Dutch. 499 227, 240. v. Circuit Judge 33 Wis. 127 352, 359. v. Cummings 33 Conn. 260 33, 229. v. Douglass 17 Maine, 193 229. c.Doyle 40 Wis. 175 & 220. 288. t>. Elder 54 Maine, 381. ...216, 245. v. Ellis ...3 Conn. 186 229,238,241. v. Freeholders of Hudson Co 3 Zab. 206 351. v. Grady.. 34 Conn. 118 240,241. v. Grand Trunk Ky. Co. 60 Maine, 176 158, 160, 164, 165. v. Groome 10 Iowa, 308 18G. v. Hufford 28 Iowa, 391 222,225. v. Independent School Dist 44 Iowa, 227 285. v. Kennedy 76 K C. 251 178, 192. v. Knight Taylor (N. C.) 65.4, 227, 240, 340. v. Le Blanch 31 N. J. 82 229. v. Main 16 Wis. 398 169. v. Maine Cent. R R. Co 60 Maine, 490 164. t>. McBride 1 Rice, 400 244,245. v. Medbury 3 R. I. 138 334,335. v. Metz 5 Dutch. 122 345. v. Minnick 15 Iowa, 123 187. v. Moore 26 N. H. 448 240, 241. v. Mullen 35 Iowa, 199 337, 341, 342, 343. v. Newman 9 Nev. 48 229. v. Palmer 18Vt.570 185. . Pike 15 N. H. 83. 245. . Reonnals 14 La. Ann. 276. .229. v. Seay 3 Stew. 123 229. v. Simpson 45 Maine, 608 229. v. Tuller.. 34 Conn. 280 216, 244. v. Underwood 49 Maine, 181 229. o.Williams 35 Mo. 229 229. v. Wyckoff 31 N.J.Law, 65..240, 241. v. Zulich 5 Dutch. 409 216, 244. State Bank of Ohio v. Knoop 16 How. 369 34, 37, 75, 79. State Freight Tax Case ..15 Wall. 232 310. 1 CASES CITKD. State Tonnage Tax Cases 12 Wall. 204 810. Steamboat Co. t>. Chase 16 Wall. 522 307. Steamboat Josephine, In re 39 N. Y. 19 11. Steamboat Orleans t>. Phoebus 11 Pet. 175 41, 84. Steamship Co. v. Jolitfe 2 Wall. 450 815, 320. t>. Port Wardens 6 Wall. 31 814, 315,320. Stearns v. Burnham 5 Greenl. 201 251. Steele v. Spencer 1 Pet. 552 208. Steere v. Walling 7 R. 1.317 204. Stephenson t>. Bannister 3 Bibb, 369 120. t>. Piscataqua Fire & Mar. Ins. Co 54 Maine, 70 355. Stevens v. Gaylord 11 Mass. 256 249,251,254. v. Mangum 27 Miss. 481 92. v. Norris 30 N. H. 466 134. v. Phoenix Ins. Co 41 N. Y. 149 287. Stevenson v. Gray 17 B. Mon. 193... 7, 177, 178, 192. Stewart v. Gray Hempst. 94 115. v. Jessup 51 Ind. 413 241. Stiles v. Davis 1 Black, 101 125. Stillman v. White Rock Manf. Co 3 Wood.& M. 538.344, 345. .Stone v. Scripture 4 Lans. 186 252. v. Tibbetts 26 Maine, 110 134. Strong v. Stevens 4 Duer, 668 146. Struble v. Malone .3 Iowa, 586 107. Stuart v. Hines 33 Iowa, 60 327. Sturclevaut v. Pike 1 Ind. 277 212. Sturges v. Crowninshield 4 Wheat. 122 52, 75, 79, 327, 328, 329. Sturgis t>. Boyer 24 How. 117 304,305,307. Suarez v. Mayor of N. Y 2 Sandf. Ch. 173 ..198. Sunu. Underwood 49 Maine, 181 237. Supervisors v. Durant 9 Wall. 415 16. t. U. S 18 Wall. 71 85. Button v. Warren 10 Met. 451 182. Suydam v. Broadnax 14Pet.67 38, 40, 41, 132, 270, 328, 355. t>. Williamson 24 How. 427 31, 84. Swan . Smith.. 26 Iowa, 87 22, 25. Swarthoute. N. J. Nav. Co 48 N. Y. 209 306, 307. Swatzel v. Arnold 1 Woolw. 383 252, 253,254. Swearingen v. Morris 14 Ohio St. 424 ..44, 194, 195, 196. v. U. 8 11 Gill & J. 373.. 174. Swift v. Tyson 16 Pet. 1.. 37, 271. T. Talbott v. Merchants' Dis.& Trans. Co..41 Iowa, 247 50, 59, 60. Tulcott . Delaware Ins. Co. .. ..2 Wash. C. C. 449. 115. CASES CITED. U Talmage v. Chapel 16 Mass. 71 252,272. Tanner v. Allen Litt.Sel. Cases, 25. 148. Tarble's Case 13 Wall. 397 11, 12, 381, 332, 333. Tardy v. Morgan 3 McL. 358 201,207,209. Tatem v. Wright 3 Zab. 429 286. Taylor, The Moses 4 Wall. 411 11, 12, 301, 303, 304, 306. Taylor v. Boardman 25 Vt. 581 69, 198. v. Brown 5 Cr. 234 37. . Carpenter 2 Wood. & M. 1.. 106. v. Carryl 20 How. 583 12,338. v. Drew 21 Ark. 485 50. t>. Martin 2 Curt. 454 1. v. Runyan 13 Iowa, 474, & 9 Id. 522 98,118. v. Shew 39 Cal. 536 90. . Taintor 16 Wall. 366 220. Teagleo. Deboy 4 Blackf. 134 144. Tegler. Shipman 33 Iowa, 194 48, 59. Terrettv. Taylor 9 Cr. 43 75. Thatcher v. Powell 6 Wheat. 119 30,37. Thayerc. Brooks 17 Ohio, 489 241, 242,243. t>. Elliott 16 N. H. 102 50. Thelussone. Smith 2 Wheat. 396 136, 137. Thomas v. Robinson 3 Wend. 267 116. 0. Southard 2 Dana, 475 23. Thomason v. State 15 Ind. 449 314. Thompson, In re 1 Wend. 45 186. Thompson v. Alger 12 Met. 428 36. v. Charnock 8 T. R. 139 355. v. Emmert 15 111. 415, and 4 McL. 96 101,106,124,126. .. 0. Holton 6 McL. 386 75. 0. Ketcham 4 John. 285 47,51,65. ^.Phillips Baldwin, 246 37. 0. Tioga R. R. R. Co 36 Barb. 79 176. v. Waters 25 Mich. 214 4, 5, 288, 290. . Whitman 18 Wall. 457 102, 103, 107, 112, 167, 294. T. Wilson 2 N. H. 291 251. Thomson c. Lee Co. 22 Iowa, 206 18, 94. Thorndice v. Rice 24 Am. Law Rep. 19 183. Thome v. Walking 2 Ves. Sr. 35 201. Thorner v. Batory 41 Md. 593 96. Thornhill . Bank of La 3 Nat. Bank. Reg. 110 329. Thorp v. Craig 10 Iowa, 461 62, 64. Thorpe t>. Rutland & Ben. R. R. Co... .27 Vt. 140 246. Thornton, Exparle 9 Tex. 635 223, 225. Hi CASES CITED. Thrasher t>. Everhart 3 Gill & J. 234. ..52. Thumb*. Gresham 2 Met. (Ky.) 306. .249. Tilden t>. Blair 21 Wall. 241 63. Tingley e. Bateman 10 Mass. 343 128. Tioga R. R. Co. v. Blossburg& Corning R.R.Co 20 Wall. 137 85,176. Titus t>. Scantling 4 Blackf. 89 47. Tobin r. Walkinshaw 1 McAllister, 186. 186. Toland . Sprague 12 Pet. 300 124. Tolen . Tolen 2 Blackf. 407 ....181. Tombigbee R. R. Co. v. Kneeland 4 How. 16 280. Toulandon v. Lachenmeyer 37 How. Pr. 145.. 171. Towne. Smith 1 Wood. &M. 137. 134, 135,138. Townes t>. Durbin 3 Met. (Ky.) 352. .196. Townsend v. Jennison 9 How. 407 171. Trabue t>. Short 5 Cold. 293, & 18 La. Ann. 257... 61. Treadway v. Chicago& N.W. R. R Co.. 21 Iowa, 351 358. Trecothick t>. Austin 4 Mas. 16 251. Trevor v. The Steamboat Ad. Hine 17 Iowa, 349 304. Trice v. Hannibal & St. Jo. R. R. Co.. .49 Mo. 438 156. Trigg v. Conway Hcmpst. 538 115. Trotters. White 108. & M. 607. ..260. Trustees of Vernon Society v. Hills.. .6 Cow. 23 285. Turnbull v. Payson 5 Otto, 418 112. Turner v. American Baptist Miss 5 McL. 344 213. v. Ireland 11 Humph. 447 ..92. v. Linam 55 Geo. 253 260. . Waddington 3 Wash. C. C. 126.115. Tyler t>. People 8 Mich. 320 229, 239,240. t. Thompson 44 Tex. 497 256. c. Trabue 8 B. Mon. 306 120. D.Wilkinson.. ...4 Mas. 397.. ,..344. U. Union Bank v. Jolly 18 How. 503 38,40,270, 271,355. Union Mut. Life Ins. Co. v. Lewis 11 Chi. Leg. News, 139 251,256. United States v. Baker ..5Blatch. 6 3. t>. Bank of North Car. ..6 Pet. 29 137. t>. Bevans 3 Wheat. 337 309. t>. Booth 21 How. 506 332. t>. Bryan 9 Cr.374 136. . Coolidge 1 Wheat. 415 215. . Crosby 7CM15 208, 209,210. v. Cruikshank 2 Otto, 542 10, 248. . Davis.. ..2 Sum. 482.. ..220. CASES CITED. Hii United States v. Dunham 21 Monthly Law Rep. 591 30. 7). Fernandez 10 Pet. 803 214. v. Fisher 2 Or. 358 136. v. Fox 4 Otto, 315 201, 208, 209, 215. v. Hoar 2 Mas. 311 174. v. Holliday 3 Wall. 407 1. v. Rowland 4 Wheat. 108 34, 39, 40, 41, 136. o. Hudson 7 Cr. 32 215. B.Hughes 11 How. 552, & 4 Wall. 232 214. . Johns 4 Dall. 412, & 1 Wash. C. C. 363.117. v. Keokuk 6 Wall. 514 11, 12,43. t>. La Vengeance . 3 Dall. 297 304. v. Le Baron 19 How. 73 57. D.Morrison 4Pet.l24 37. v. New Bedford Bridge Co... 1 Wood. &M. 401 .29. v. Palmer 3 Wheat. 610 1. . Peters 5 Cr. 115 16. v. Reese 2 Otto, 214. 10, 248. c. Rillieux 14 How. 189 214. 73. State Bank 6 Otto, 30 300. t>. Stephenson 1 McL. 462 56. t>. The Amedy 11 Wheat. 392 114, 117,304. v. The Betsey 4 Cr. 442 304. t>. Villato 2 Dall. 370 32. 0. Wells 11 Am. Law Reg. (N. s.) 494 146. v. Wood 2 Wheeler's Cr. Cases, 326 18, 112. United States Trust Co. v. Lee 73 111. 142 290. Urtetiqui t>. D'Arcy 9 Pet. 692 359. V. Van Allen n. The Assessors 3 Wall. 573 322, 323,324. Van Alstine v. Lemons 19 111. 394 172. Van Ankin v. Westfall 14 John. 233 144 Van Antwerp v. Hulburd 7 Blatch. 426 3. Van Buren v. Downing 41 Wis. 122 311. Van Ness -P. Pacard 2 Pet 137 29, 34. Van Reimsdyk v. Kane 1 Gall. 371 148. Van Santwood v. Randford 12 John. 198 25. Van Schaick t. Edwards 2 John. Cases, 355 .148. Vance v. Campbell 1 Black, 427 30. Vaughan v. Barclay 6 Whart. 392 21 2. t>. Northup 15 Pet. 1 27,251, 252,297,299. v CASES CITED. Venice t>. Murdock 2 Otto, 494 85. Vermilyat). Beatty 6 Barb. 429 251 Vickery t. Beir 16 Mich. 50 252. Vischer t>. Vischer 12 Barb. 640 180. Vliett). Camp 13 Wis. 198 66. Voorhees, In re 82N.J. Law, 141.221. Vose v. Cockroft 44 N. Y. (5 Hand,) 415 301,304. v. Philbrook 3 Story,336 30. W. Wagner v. Bissell 3 Iowa, 396 33. Wakefield v. Ives 35 Iowa, 238 183. Wales c. Alden 22 Pick. 245 44, 130. Walker*. Leight 30 Iowa, 310 99. v. Maxwell 1 Mass. 104 118. v. Walker 9 Wall. 743 42, 269. Walsh. Dart 12 Wis. 635 119. . Durkin 12 John. 99 146, 147. Walters v. Chicago, R. I. & Pac. R. R. Co 41 Iowa, 71 157. t>. Steamboat Mollie Dozier...24 Iowa, 192 304. Wanzer . Bright 52 111. 35 20, 223. Ward. Maryland 12 Wall. 418 313. D.Morrison 25 Vt. 593 69. 9. Quinlivin 57 Mo. 425 105. Warder . Arell 2 Wash. (Va.) 282.8, 10, 46, 47, 66. Waring v. Clarke 5 How. 441 301, 302, 306. Warren v. Flag 2 Pick. 448 11G. v. Hofer 13 Ind. 167 189, 200. 9. Lynch 5 John. 239 25, 52,53. 73. McCarthy 25111.95 93,99,102. 73. Union Nat. Bank 7 Phila. 156 296. Warren Manf. Co. c.^Etna Ins. Co 2 Paine, 502 24, 106, 124. 125, 126. Washington A. & G. Steam Packet Co. t>. Sickles 24 How. 333 114. Watchman, The 1 Ware, 232 138. Waters. Barton 1 Cold. 450 173. 73. Day.. 10 Vt. 487 153. Watkinst>. Holman 16 Pet. 26 201, 207,208,209,212. Watson p. Bourne 10 Mass. 337 132. 73. CabotBank 5 Sandf. 423, & 4 Duer, 600, note. 283. 73. Jones 13 Wall. 679 42. v. Mercer 8 Pet. 88 78. 73. State 36 Miss. 593 229. v. Tarpley 18 How. 517 88, 270,271. Watts t). Kinney 23 Wend. 484 140, 243. CASES CITED. Iv Watts . Waddle 6 Pet, 389 207,208.212. Wayland v. Porter-field 1 Met. (Ky.) 638. .260. Waymanu. Southard 10 Wheat. 1 38. Webber v. Howe 36 Mich. 150 48. Webster . Cooper 14 How. 488 85. . Massey 2 Wash. C. C. 157.47. v. Rees 23 Iowa, 269 120, 175. Weil v. Loweiithal 10 Iowa, 575 23. Welch 9. Sykes 8 111. 197 92, 106. Weld v. Chapman 2 Iowa, 524 348, 349. Wells v. Wells 35 Miss. 638 210,211. Weltonti. Missouri 1 Otto, 275 309,310,311,313,314. Wescott v. Brown 13 Ind. 83 92. West Cambridge v. Lexington 1 Pick. 506 182. Western & Atl. R. R. Co. v. Strong 52 Geo. 461 156. Westervelt v. Lewis 2 McL. 511 23, 24, 92, 106, 125. Weston . Charleston 2 Pet. 449 324, 325. v. Morse 40 Wis. 455 304. Wheaton v. Peters 8 Pet. 591 29, 34. Wheeler. Burrow 18 Ind. 14 188, 189. Whetstone v. Whetstone 31 Iowa, 276 108. Whipple v. Thayer 16 Pick. 25 204. Whistonw. Stodder 8 Martin, 95 46. Whitaker v. Bramson 2 Paine, 209 146. Whitcomb v. Whitcomb 46 Iowa, 437 182. White, Exparte.. 49 Cal. 434 223, 225. White v. Howard 38 Conn. 442 290. . Howard 46 K Y. 144 190, 191,208. c. Knapp 47 Barb. 549 33 v. Merritt 7 N. Y. 352. 89. v. White 7 Gill & J. 208...212. v. Whitman 1 Curt. 494 146. White River Bank v. Downer 29 Vt. 332 88. Whitford v. Panama R. R. Co 23 N. Y. 465 122, 145, 156, 161, 162. Whitney, Exparte 13 Pet. 404 40. Whiton . Chi. & N. W. R. R. Co. 25 Wis. 124 355. Wilcox v. Hunt 13 Pet. 378 30, 46. v. Jackson 13 Pet. 499 213, 214. v. Wilcox 10 Ind. 436 180. Wilkinson v. Leland 2 Pet. 627 76, 201, 207, 209. Williams, In re 3 Nat. Bank. Reg. 74 327. Williams v. Armroyd 7 Cr. 433 101. v. Ayrault 31 Barb. 364 145. v. Bacon... 10 Wend. 636 223. v. Benedict 8 How. 107 271, 297,298, 299. v. Bruffy 6 Otto, 176 76. v. Cheney 8 Gray, 206 284. v. Creswell 51 Miss. 817 289. v. Haines 27 Iowa, 251 52, 53. v OASES CITED. Williams t>. Kirtland 13 Wall. 806 85. t>. Penn. R. R. Co 9 Phila. 298 260. . Suffolk lus. Co 18 Pet. 415, and 8 Sum. 270 1,20,85. c. Tearney 8 S. & R 58 805. t>. Wade 1 Met. 82 64. t>. Wilkes 14 Penn. St. 228..112. t>. Williams 5 Md. 467 196. Willingsr. Consequa Pet. C. C. 802 46,58. Wills v. Cowper 2 Ohio, 124 209. Willson v. Blackbird Creek Marsh Co.. 2 Pet. 245 809. Wilson v. Carson 12Md.54 203. v. Lazier 11 Gratt. 477 121. v. McKenzie 7 Hill, 219 142. v. Stratton 47 Maine, 120.. ..199. Windsor v. Jacob 2 Tyler, 192 50. Wisconsin v. Duluth 2 Dill. 406 1. Wiswall v. Sampson 14 How. 52 296, 297, 299 Womack v. Dearman 7 Port. 513 112. Wood c.Davis 18 How. 467 358. v. Matthews 2 Blatch. 370 ....353, 359. D. Warner 15 N. J. Eq. 81. ..212. t>. Watkinson 17 Conn. 500 102. Woodbridge v. Allen 12 Met. 470. 132. Woodhull v. Wagner Baldwin. 296 132, 185, 828. Wood Hydraulic Co. v. King 45 Geo. 34 289. Woodruff v. Trapnall 10 How. 190 77. Woodward v. Mich., etc., R. R. Co 10 Ohio St. 121 ..145, 156, 163. v. Roane 23 Ark. 523 .5. D. Willard 33 Iowa, 542 87, 88. Woodworth v. Spring 4 Allen, 321 266, 267. Worster v. Winnipiseogee Lake Co 25 N. H. 525 140. Wright v. Bales 2 Black, 535 30. v. Bartlett 43 N. H. 548 51. . Hollingsworth 1 Pet. 165 30. v. Wright 24 Mich. 180 179, 180. Wyman v. Mitchell 1 Cow. 816 328. Y. Tates v. Tates 18 N. J.Eq. 280..181. Yeatman r>. Cullen 5 Blackf. 240 64. Yelverton . Conant 18 N. H. 123 145. York & Maryland Line R R Co. . Winans 17 How. 30 284. Young v. Harris 14 B. Mon. 447.. .50. v. O'Neal 3 Sneed, 55 250, 251. *. Thayer 1 G. Greene, 196..114, 117. CASES CITED. Ivii Ziegenfuss, Ex parte .2 Ired. Law, 463 . 329. Zipcey v. Thompson 1 Gray, 243 44. AMERICAN INTEK-STATE LAV. OHAPTEE I. INTRODUCTION. The object of this volume is to treat of American Inter-State Law as the same exists under our peculiar system of duplex gov- ernment, and it is therefore no part of our purpose to discuss the doctrine of international law, or law of nations, as the same exists between, and is recognized by, nations and states that are entirely foreign to each other; but to this we will only refer when necessary in connection with the more immediate subject of our work. Nor is it our purpose, except as its relevancy may incidentally occur, to treat of the political powers, or of the political func- tions, of the several departments of the State or national govern- ments; for, as a general principle, the exercise of these is not the subject of judicial cognizance or control. 1 Thus, in Wil- liams v. Suffolk Ins. Co., 2 the Supreme Court of the United States advert to this as a settled principle, in these words : " In the cases of foster v. Neilson, 2 Pet. 253, 307, and Garcia v. Lee, 12 Pet. 511, this court has laid down the rule, that the ac- tion of the political branches of the government, in a manner that belongs to them, is conclusive." In the case of Mississippi 1 Gelston v. Hoyt, 3 Wheat. 246 ; Jones, 5 How. 343 ; Luther v. Borden, Taylor v. Martin, 2 Curt. 154; Fel- 7 How. 1; United States o. Holliday, lows v. Blacksmith, 19 How. 3G6; 3 Wall. 407 ; Jones v. Walker, 2 Paine, Clark v. Braden, 16 How. 635; United 688; Georgia v. Stanton, 6 Wall. 50; States v. Palmer, 3 Wheat. 610; Wil- Mississippi v. Johnson, 4 Wall. 475; liains v. Suffolk Ins. Co., 13 Pet. 415; Wisconsin v. Duluth, 2 Dillon, 406. Garcia v. Lee, 12 Pet. 511 ; Scott . " 13 Pet. 420. 2 AMERICAN INTER-STATE LAW. v. Johnson, President of the United States, 1 there was an appli- cation by bill in equity for a writ of injunction, to restrain the President from executing certain acts of Congress, and the Su- preme Court of the United States, in denying the application, said: "Suppose the bill filed and the injunction prayed for allowed. If the President refuse obedience, it is needless to ob- serve that the court is without power to enforce its process. If, on the other hand, the President complies with the order of the court, and refuses to execute the acts of Congress, is it not clear that collision may occur between the executive and legislative departments of government? May not the House of Represen- tatives impeach the President for such refusal? And, in that case, could the court interfere in behalf of the President thus endangered by compliance with its mandate, and restrain by injunction the Senate of the United States from sitting as a court of impeachment? Would the strange spectacle be offered to the public world of an attempt by this court to arrest proceed- ings in that court? These questions answer themselves." So, also, in the case of Fellows v. Blacksmith* in which the valid- ity of an Indian treaty was attempted to be drawn in question, the Supreme Court of the United States said: "An objection was taken on the argument, to the validity of the treaty, on the ground that the Tonawanda band of the Seneca Indians were not represented by the chiefs and head men of the band, in the ne- gotiations and execution of it. But the answer to this is, that the treaty, after executed and ratified by the proper authorities of the government, becomes the supreme law cf the land, and the courts can no more go behind it for the purpose of annull- ing its effect, and operation, than they can behind an act of Congress." In the case of The Cherokee Nation v. Georgia? and cited in Georgia v. Stantonf the United States Supreme Court, MAR- SHALL, Ch. J., said: "The bill requires us to control the legis- lature of Georgia, and to restrain the execution of its physical force. The propriety of such an interposition by the court may lie well questioned.- It savors too much of the exercise of polit- ical power, to be within the province of the judicial department." J 4 Wall. 500. * 5 Pet. 1. * 19 How. 366. 6 Wall. 73. INTRODUCTION. 6 In the same case, JOHNSON, J., said in reference to the bill of complaint: " Much of the matters herein contained by way of complaint, would seem to depend for relief upon the exercise of political powers; and, as such, appropriately devolving upon the executive, and not the judicial department of the government." 1 American Inter-State Law Defined. The term American Inter-State Law, as here used, embraces the law which governs the American States in their dealings and relations with each other, as well as with the national government, and the extent of recognition and binding force which is accorded the citizens and laws of each State, and of the national government, in the American courts. 3 1 Any case which asks the court to 'The term American Inter- State entertain jurisdiction of a political Law is somewhat akin to American question, and to decide it, will not be private international law, but it is considered by the same. To do so much broader and more comprehen- would encroach upon the supreme sive. On the general subject the powers of the co-ordinate branches reader is referred to Story's Conf. of of government. U. S. v. Baker, 5 Laws; Wharton's Conf. of Laws; Blatchf. 6; The Hornet, 2 Abb. 35; Burge's Commentaries on Colonial The Protector, 12 "Wall. 700 ; Van Ant- Law ; Gardner's Institutes of Ameri- werp v. Hulburd, 7 Blatchf. 426 ; can Law ; Westlake's Private Interna- Grossmeyer v. U. S., 4 Nott & H. 1 ; tional Law, and Foote's Private Inter- Marbury v. Madison, 1 Cr. 166. national Law, a work just published in England. COMITY. CHAPTER II. COMITY NATURAL EIGHT LAW OF NATIONS AND UNIVERSAL LAW. 1. Comity. Although the relations of the several American States to each other do not rest upon the ordinary principles of comity alone, yet these relations are not such as to exclude the doctrine of comity from their inter-state code, or from their con- duct toward each other as separate states, for municipal purposes; but such rather as should increase their good neighborhood and regard for each other. 1 The observance of comity is not a matter of obligation, ordi- narily, between states, but is mere matter of voluntary courtesy and favor, which may be extended or withheld at pleasure. 2 It is in virtue of this voluntary consent, expressed or implied, and this only, that the laws of one entirely independent state are en- forced or administered in the courts of another, to any extent, or in any respect whatever in the absence of compact or treaty stipulations providing therefor. 3 But where no inhibition to the exercise thereof exists, then such comity is impliedly permitted, as to such matters, and to such an extent, as does not conflict with the local policy, or differ from the local laws of the forum, when the rights of persons are involved, which are of a transitory nature. 4 Not, however, for the enforcement of penalties, or in penal actions, or matters of police, or for the punishment of offenses against the state; 8 nor 1 Bank of Augustas. Earle, 13 Pet. * Story's Conf. of Laws, 38; Pen- 519; Thompson v. Waters, 25 Mich. sacola Tel. Co. . Western Union Tel. 214. Co., 2 Woods, 643 ; S. C. 6 Otto, 1. 8 Story's Conf. of Laws, g 36, 38; * Story's Conflict of Laws, 621; Bank of Augusta v. Earle, 13 Pet. 519 ; The Antelope, 10 Wheat. 66 ; Scoville Saul v. His Creditors, 5 Martin, (N. 8.) . Canfleld, 14 John. 338 ; State . 569. Knight, Taylor's Law and Eq. (N. C.) 1 Story's Conf. of Laws, 38. 65. NATUKAL EIGHT. 5 as to statutory rights of action, or- statutory remedies. 1 This comity is not the comity of the courts, though sometimes so called, but is the comity of the state, and is merely administered by the courts, where permitted by the state, as other laws are administered. 3 In a case cited in the note the ruling is unam- biguous and express, that " comity extends only to enforce obli- gations, contracts, and rights under provisions of law of other countries, which are analagous or similar to those of the state where the litigation arises." 3 So, too, it was said in Arkansas, that the rule of comity will not be enforced as against domestic law or the legal rights and interests of citizens, or to their injury. 4 When a government undertakes to enforce or administer laws of other communities, care must be taken that no injury results therefrom to its own citizens. 5 The municipal laws of a State are of no force in other States, and cannot in other States confer a right. They have no extra-territorial force as laws. 6 But where they enter into a contract they are regarded, and enforced, as a part of the contract, and not as mere laws. 2. Natural Right. It is a well settled maxim of the law that "natural right is that which has the same force among all men." 7 It is written on the hearts of all mankind. Hence it is that there are certain rights and liabilities which, being per- sonal, and founded in natural right, do follow the person of the parties into every country into which they may come. These 1 Pickering v. Fisk, 6 Vt. 102. Jus- ferent States and countries could tice CHKISTIANCY, in treating this scarcely exist." subject in Thompson v. Waters, 25 2 Bank of Augusta v. Earle, 13 Pet. Mich. 214, uses the following Ian- 519; Thompson v. Waters, 25 Mich. guage: " But upon the principle of 214, 240. comity, which is a part of the law of 3 Hughes v. Klingender, 14 La Ann. nations, recognized, to a greater or 857. less extent, by all civilized govern- 4 Woodward v. Roane, 23 Ark. 523. , ments, effect is frequently given in 5 Woodward v. Roane, 23 Ark. 523, one State or country to the laws of 527 ; Olivier v. Townes, 2 Mart. (N. s.) another, in a great variety of ways, 93. especially upon questions of contract 6 Milne v. Morton, 6 Binn. 365 ; rights to property, and rights of ac- Hoyt v. Thompson, 19 N. Y. 207; tion connected with, or depending Woodward v. Roane, 23 Ark. 523, 537. upon, such foreign laws, without 7 Branch's Priucipia, 69; Jus natur- which commercial and business in- ale est quod apud homines eandem habet tercourse between the people of dif- potentiam. 7 Co. 12. 6 LAW OF NATIONS AND UNIVERSAL LAW. natural rights and liabilities are of the law of nature, and are parcel of the law of nations; they are a species of universal law, and are binding upon, and are recognized and enforced in, the courts of all civilized countries, in times of peace. The enforce- ment thereof does not depend upon the citizenship or allegiance of the parties, nor upon the place or country in which the right of action accrues, but the same are enforceable in the courts of all other States and countries by implied permission in law, to sue against those thus liable who are there found. Law of Nations and Universal Law. These principles of nat- ural right and national law are common to the jurisprudence of all countries, as a part of the law of nations, or great communi- ties of states and sovereignties, and are thereby a part of the domestic code of each, and by these the people of each are bound to those of the others, in their personal transactions. They have grown up as a necessary result of commerce and intercourse between organized governments and courts which are foreign to and independent of each other. They are not mere creatures of comity, enforceable at the will of neighboring states, as matter of favor or good neighborhood, but are of as truly binding authority as are the local laws of each binding on its own citizens, subjects, officers and courts. They are of that part of the law of nations which are not only obligatory upon the sovereign or aggregate community, but are of an inter-state character in the transactions of individuals, and are a necessity as well of the social fabric as of inter-state intercourse, commerce and trade. They are not the creatures of special enactments, but are tacitly acknowledged and enforced in all civilized countries. Nor is the local law anywhere made to give way to their enforce- ment, for they are themselves a part of the local law by virtue of their universality. 1 In the language of Sir William Black- 1 Moultrie v. Hunt, 23 N. Y. 394, civilized nations agree, as a general 396. Justice DENIO, speaking in this rule, to recognize titles to movable case of the universal recognition of property created in other States or the title to personal property, says : countries in pursuance of the laws ex- " Every country enacts such laws as isting there, and by parties domiciled it sees fit as to the disposition of per- in such States or countries. This law sonal properly, by its own citizens, of comity is parcel of the municipal either inter vitos or testamentary; but law of the respective countries in these laws are of no inherent obliga- which it is recognized." tion in any other country. Still, all LAW OF NATIONS AND UNIVERSAL LAW. 7 stone, these rules of law " result from the principles of natural justice in. which all the learned of every nation agree," and are in England adopted to their full extent by the common law, and are held to be the law of the land." 1 Such, too, they were, and still are, in the American States, irrespective of the national Constitution and Union. Though sometimes re-enacted, yet their re-enactment is not regarded as the introduction of new rules of law, but simply as declaratory of these rules of universal and national law, without which, as is well said by the same learned jurist, a state or kingdom would " cease to be a part of the civilized world." * * * "In mercantile questions, such as bills of exchange and the like; in all marine causes relating to freight, average, demurrage, insurance, bottomry, and others of a similar nature; and in the law merchant, which is a branch of the law of nations, they are regularly and constantly adhered to. So, too, in disputes relating to prizes, to shipwrecks, to hos- tages, and ransom bills, there is no rule of decision but this great universal law, collected from history and usage, and from such writers of all nations and languages as are generally approved and allowed of." 3 " The law of nations," says the same learned author, " is a sys- tem of rules, deducible by natural reason, and established by universal consent among the civilized inhabitants of the world, in order to decide all disputes, to regulate all ceremonies and civ- ilities, and to insure the observance of justice and good faith in that intercourse which must frequently occur between two or more independent states, and the individuals belonging to each." Among the laws of inter-state general recognition may also be classed the laws of marriage 3 and divorce, 4 by which such as are valid where consummated or obtained are regarded as valid in law in all other states, unless the marriage be polygamous, in- cestuous, immoral, or otherwise obnoxious to the moral senses of civilization. Also, the law which requires the movable property of a person 1 Black.'s Com. Book 4, 67. 8 2 Kent, *92 ; Medway v. Needham, 8 Black.'s Com. Book 4, 67. Wheat- 16 Mass. 157 ; Stephenson v. Gray, 17 on's International Law, 1-17 ; B. Mon. 193. Woolsey's International Law, 3-5. 4 Cheever t>. Wilson, 9 Wall. 108, 123. s LAW OF NATIONS AND UNIVERSAL LAW. who dies intestate to be distributed in accordance with the law of the country wherein was his domicile at the time of his death, irrespective of where the property may be, or of the place at which he may die; and which always regards movable property as disposable according to the law of the owner's domicile. 1 And, the equally well recognized principle that contracts valid by the law of the place where they are made, or lex loci con- tractus, are valid in every other country or State. The excep- tions to this rule will be noticed hereafter, under the proper head in relation to contracts. 8 So, also, we will notice others, under their proper order. 1 Ennis v. Smith, 14 How. 400, 465, 466. 2 Story on Conf. of Laws, 273 ; Kelson v. Fotterall, 7 Leigh. 201; Warder t>. Arell, 2 Wash. (Va.) 282, 295. In this case, one of the earliest American decisions on the subject, the Court of Appeals of Virginia, ROANE, J., say: "This contract hav- ing been made in Pennsylvania, with- out a view to performance in any other State, the agreement made upon the trial of the cause, referring to those laws, was an act of supererogationi and entirely unnecessary, for it is clear that the laws of that country where a contract is made must govern the fate of it. The rule which I have just mentioned is laid down in the case of Robinson v. Bland, 2 Burr. 1679, and is well explained and illustrated in Fonblanque's excellent 'Treatise of Equity,' 2 vol. p. 443. It is true that the laws of one country have not, of themselves, an extra-territorial force in another; but, by the general assent of nations, they are always regarded, in contracts formed there. A distinc- tion, however, is attempted in this case, under the idea that this is a penal law, and that the courts of one coun- try will never execute the penal laws of another. The principle is true, but inapplicable. The law of 1777 points out a mode of discharging debts different from that which is custo- mary; it may produce an injury, but it is not therefore penal." STATE AND NATIONAL SOVEREIGNTY. CHAPTEK III. CORRELATION OF GOVERNMENT CITIZENSHIP AND ALLEGIANCE SUABILITY OF STATES. I. STATE AND NATIONAL SOVEREIGNTY. DUALITY AND UNITY OF GOV- ERNMENT. II. CITIZENSHIP AND ALLEGIANCE. III. SUITS BETWEEN TWO OR MORE STATES. IV. SUIT AGAINST A STATE BY A CITIZEN OF ANOTHER STATE. 1. State and National Sovereignty. Duality and Unity of Government. We will now proceed under this and the subse- quent heads of the present chapter, to treat somewhat of the correlation of our government and courts; in doing which, being aware of the difficulty of the task, and of the sacred ground on which we tread, we will carefully confine ourselves to the law of adjudicated cases. We will endeavor to regard our complex, yet beautiful, system of interwoven State and national sovereignties and jurisprudence, not as embodying any actual conflict of law, but rather as an harmonious whole, composed of so many inde- pendent, yet kindred, parts, each moving in its own proper sphere, and not necessarily impeded, or interfered with, by the others, believing as we do, that if conflict occurs it is by reason of one or more of them departing from their proper spheres of action. 1 The true line of demarcation between the respective powers of State and national courts is not always very percepti- ble or easily defined, but, for that very reason, it devolves upon both to be cautious in the exercise of doubtful authority. 2 Paramount Authority of National Courts. Whenever a ques- tion of paramount jurisdiction arises, the national courts are, in 1 Ex parte Holman, 28 Iowa, 88. jurist, Chief Justice MARSHALL, Per DILLON, J.: "Each court must says: "The national and State sya- keep within its own orbit." Id. p. 112. tern are to be regarded as one whole." Cohens v. Virginia, 6 Wheat. 264, 419. 2 Railroad Company v. Husen, 5 In this case, our great and eminent Otto, 465, 470, 474. 10 UNITY AND DUALITY OF OUR GOVERNMENT. the very nature of things, as well as by the provisions of the Constitution, the supreme arbiters thereof. 1 In the case of Railroad Company v. Ifusen, the learned Judge STRONG, realizing that imperfectness which is common to all created things, and therefore as affording no argument against the value of our duplex system of government, says,, in relation to one of those respective powers: "What that power is, it is difficult to define with sharp precision, * * * and as its range sometimes comes very near to the field committed by the Con- stitution to Congress, it is the duty of the courts to guard vigi- lantly against any needless intrusion." 3 The same may be said, with equal propriety, in reference to all doubtful questions inci- dent to our governmental system. The line of approach must be carefully kept in the foreground, and any intrusion thereon most vigilantly avoided. Unity and Duality of Our Government. Though the citizens of the several States are one people and one nation, under the unity of the national government as the supreme authority within the limitations of the Constitution, 3 yet the States them- selves are severally sovereign, independent, and foreign to each other, in regard to their internal and domestic affairs. 4 Such being the case, it results therefrom that the State constitutions and laws have no extra-territorial force, anywhere, except as con- ceded to them by mere comity. 5 "Were it otherwise, their con- dition would be incompatible with State sovereignty and independence of each other, inasmuch as the extra-territorial force of the laws of one within the territorial boundaries of an- 1 Pensacola Telegraph Co. v. West- 4 Cohens v. Virginia, 6 Wheat. 414; era Union Tel.Co., 6 Otto, 1 and 10. Mcllvaine v. Coxe, 4 Cr. 209 ; Bank 8 5 Otto, 470, 474. of the U. S. v. Daniel, 12 Pet. 32; U. 8 McCulloch v. Maryland, 4 Wheat. S. v. Cruikshank, 2 Otto, 542, 550; 316; Dodge v. Woolsey, 18 How. 336, Buckner v. Finley, 2 Pet. 586; Pen. 347 ; Lonsdale v. Brown, 4 Wash. noyer v. Neff, 5 Otto, 714. C. C. 86; Buckuer v. Finley, 2 Pet. 6 Bank of Augusta v. Earle, 13 Pet 586 ; Bank of U. S. v. Daniel, 12 Pet. 519 ; Blanchard v. Russell, 13 Mass. 1 ; 32 ; Rhode Island v. Massachusetts, 12 Kentucky v. Bassford, 6 Hill, 527. Pet. 657; Warder v. Arell, 2 Wash. Seymour v. Butler, 8 Iowa, 304; Pen. (Va.) 282, 298; U. S. v. Reese, 2 Otto, noyer v. Neff, 5 Otto, 714; Cleveland. 214, 217; U. 8. T>. Cruikshank. 2 Otto, Painesville & Ash. R. R. Co. t. Penn. 542, 550; Crandall v. ]S T evada, 6 Wall, sylvania, 15 Wall. 300; Foster c. Glass- 35, 43; Cohens v. Virginia, 6 Wheat. encr, 27 Ala. 391. 414, 419. UNITY AND DUALITY OF OUR GOVERNMENT. 11 other, would be common alike to all, and none would be either sovereign or independent in their accustomed domestic and internal affairs. But notwithstanding this sovereignty of the several States, within their territorial limits, yet that sovereignty is limited and restricted .therein by the national Constitution; for the powers of the States and of the national government, both exist, and are exercised, within the territorial limits of the respective States, as separate and distinct sovereignties, acting separately and inde- pendently of each other within their respective spheres, and making therein a duality of government. 1 Bat the sphere of action of the national government is as far beyond the judicial powers of the State courts, as if the divisional line of power was marked out by land-marks and boundaries visible to the eye, and sensible to the touch. And so are the processes of each within their spheres of action. Neither may intrude upon the other; within their proper limits or spheres of power and authority neither is responsible to the other; but in cases of con- flict of authority, if any such occur, the authority of the United States is supreme over all, so far as is necessary to sus- tain and preserve the rightful supremacy of the national Consti- tution, courts and laws. 3 This power results to the Federal courts from the fact that the Constitution of the United States, and the laws passed in pursuance thereof, are declared by the Constitution itself to be the supreme law of the land, and the judges of every State are bound thereby, " anything in the con- stitution or laws of any State to the contrary notwithstanding.'' 3 If conflicts of power or jurisdiction unhappily arise, the national 1 Pennoyer v. Neff, 5 Otto, 714; In ment of the United States, within the re Steamboat Josephine, 39 N. Y. 19, scope of its powers, operates upon 24. every foot of territory under its juris- 2 Tarble's Case, 13 Wall. 397, 406, diction. It legislates for the whole 407; U. S. . Keokuk, 6 Wall. 514,516; nation, and is not embarrassed by Riggs v. Johnson Co., 6 Wall. 166, 195, State lines. Its peculiar duty is to 196 ; Duncan . Darst, 1 How. 301, protect one part of the country from 310 ; The Moses Taylor, 4 Wall. 411 ; encroachments by another, upon the Sinnot v. Davenport, 22 How. 227 ; national rights which belong to all." Pennoyer v. Neff, 5 Otto, 714, 733; 3 14th amendment; Tarble's Case, 13 Pensacola Telegraph Co. v. Western Wall. 397, 406 ; Sinnot v. Davenport, Union Telegraph Co., 6 Otto, 1 and 10. 22 How. 227; Pennoyer . Neff, 5 In the case last cited the United States Otto, 714, 733, Supreme Court say: "The govern. 12 CONCURRENT JURISDICTION OPPOSING PROCESS. authority has supremacy, and the questions are to be decided by national courts. 1 Concurrent Jurisdiction. Where there is concurrent power in the courts, as on some subjects there is, the general rule of law is that the tribunal which first obtains jurisdiction of the sub- ject matter of the suit or particular case, will retain and dispose of it; but to this there is the exception which allows certain suits to be removed from the State courts to the circuit courts of the United States. 2 Opposing Process. And so where processes from different courts, State and Federal, are attempted to be levied upon prop- erty of a common defendant, the first levy accompanied with actual possession places the property in legal custody, and will be respected. 3 If this rule of law be violated, and property levied on and re- duced to possession, by the Marshal of the United States, on process from a United States court, be taken out of his posses- sion by a sheriff, on the process or orders of a State court, the remedy therefor, of the Marshal, or plaintiff in the writ under which he held the property, is not by injunction from the United States court to restrain the illegal interference simply as such, but the remedy is at law, by action of trespass against the sheriff, or by an attachment against that officer from the United States court, to enforce the proper deference to its process and authority. 4 And, upon the same principle, money in the hands of an offi- cer of the United States, and which he holds for purposes of dis- bursement under the national law, cannot be reached by garnishee process from a State court, in behalf of a creditor of one to whom such money is, by law, about to be paid. 6 Thus, where a purser Tarble's Case, 13 Wall. 397, 407; Holman, 28 Iowa, 88, 105; Chittenden I*. 8. v. Keokuk, 6 Wall. 514; Riggs v. Brewster, 2 Wall. 191, 197; Smith v. v. Johnson Co., 6 Wall. 166; The Mo- Mclver, 9 Wheat. 532. ses Taylor, 4 Wall. 411 ; Sinnot v. Dav- * Taylor v. Caryl, 20 How. 583, 594 ; enport, 22 How. 227 ; Pensacola Tele- Freeman v. Howe, 24 How. 450; Buck graph Co. v. Western Union Telegraph v. Colbath, 3 Wall. 334 ; Hagan v. Co., 6 Otto, 1, 10. Lucas, 10 Pet. 400. s Shelby v. Bacon, 10 How. 56 ; 4 Cookendorfer v. Preston, 4 How. Green v. Creighton, 23 How. 90 ; Peale 317. v. Phipps, 14 How. 368; Riggs v. B Buchanan v. Alexander, 4 How. Johnson Co., 6 Wall. 166, 196 ; Exparte 20. SEVERAL EXECUTIONS. 13- in the United States Navy held moneys payable to certain sea- men as wages, was garnished, by State process, at the suit of a boarding-house keeper, to whom such seamen were indebted for board, the Supreme Court of the United States held that the money was the money of the government until paid over by the purser, and therefore the process of garnishee would not lie, and also for the reason that such proceeding is calculated to obstruct or suspend the functions of government, for that, if allowable, it might equally extend to all the monetary relations of the gov- ernment arid its distributing agents. 1 So goods imported, but not yet entered in a custom house of the United States, are not liable to attachment or other State process against them or their owner. They are in the custody of the United States, and can only be removed from such custody by the persons, and in the manner, contemplated by the acts of Congress. Every proceeding interfering with, or disturbing that custody, is unlawful. 2 The first levy of goods and chattels, whether under State or Federal process, places the property in the custody of the law, and withdraws it from liability to the process of the other. By the levy a special property in the goods is vested in the officer, and he may maintain an action for them, if deprived of their custody. Hence two levies under different authorities are in- compatible, for the property cannot, at the same time, vest in both the officers. 3 Several Executions held by the Same Officer, or by Different Officers. An officer levying and having two or more executions, against the same defendant, if no legal preference attach to either^ may levy both upon the same goods, and, there being no priority on either, the proceeds will be proportionately applied on both (or, if there be priority, the court, if requested, may apply the funds); and, if a levy has first been made on one writ, and an- other comes afterwards into an officer's hands, he may apply any surplus proceeds, after satisfying the first, upon the latter writ. 4 But, in case the writs are held by different officers, this be- comes, in a manner, impracticable, and more especially so where 1 Buchanan v. Alexander, 4 How. 20. v. Clarke, 4 How. 4 ; Freeman v. Howe> 8 Harris v. Dennie, 3 Pet. 292. 24 How. 450. 3 Hagan v. Lucas, 10 Pet. 400 ; Brown 4 Hagan v, Lucas, 10 Pet. 400, 403. 14 THE JURISDICTION FIRST ATTACHING CONTROLS. the writs and the officers represent and rest for their authority upon different jurisdictions, as where one is an officer of a State court and the other an officer of a Federal court, and each hold- ing a writ or writs against the same execution defendant. 1 Exempt Property, if Levied on, Recoverable by Suit. Though property levied on lawfully by an officer of a United States court cannot be levied on by State process while thus in the hands of the Marshal, yet it has been held that, if the levy be illegal or wrongful, as where the property levied on execution is exempt by law from execution, levy and sale, that the debtor owner of the property may maintain an action in the State court, against the Marshal personally, for the property. 2 The Jurisdiction first Attaching Controls. "Where a State or a Federal court first obtains jurisdiction of a subject matter of litigation, of which these courts have concurrent jurisdiction in law, the court in which jurisdiction thus actually attaches, draws to itself all the attributes of the case, and is entitled to exclusive control and jurisdiction to determine and dispose of the whole case. Therefore, if the defendant therein be subsequently im- pleaded, of the same subject matter in a State court, he may suc- cessfully plead the pendency of the proceedings in the Federal court in bar of the action or proceedings in the State court. 3 And if he be sued as a trustee, he is bound so to plead, or else account for any loss that occurs from omitting such duty. 4 Therefore, in cases within the concurrent jurisdiction of the State and national courts, where jurisdiction first attaches over the subject matter of the particular case, in the Federal court, the defendant therein, if sued afterwards, in the same matter, in a State court, may plead the pendency of the suit in the Federal court in bar of the action in the State court, and such plea is effectual in law. If the ruling in the State court be against the validity of the plea, then the defendant has a remedy by writ of error or appeal, as the case may be, to the Supreme Court of the United States, under the twenty-fifth section of the judiciary act. 5 So, where an assignee, for the benefit of an insolvent's cred- itor, is first brought into a United States court, by a bill in 1 Hagan v. Lucas, 10 Pet. 400. 1 Oilman v. Williams, 7 Wis. 329. Ibid. * Chittenden v. Brewster, 2 Wall Ibid. 191, 197. CASES OF CONFLICT. 15 equity to set aside the assignment as fraudulent, filed therein be- fore the institution of any proceeding against him, on the same subject, in a State court, and after being thus impleaded in the Federal court, he is sued in a State court in reference to the same subject matter, he may not only thus defend, successfully, by pleading to the latter proceeding the pending suit in the Fed- eral court, but is bound so to do, or else be held responsible in the Federal court for the consequences, or losses, incurred to the trust fund by omitting so to do. 1 In Cases of Conflict United States Supreme Court the Arbiter. The ultimate decision in cases of conflict, or doubtful right, as to the correlative powers of the Federal and State courts, is the appellate power of the Supreme Court of the United States; in all matters touching these powers, the decision of this tribunal, within the pale of its jurisdiction, is supreme. 2 State courts have no control whatever over the officers and agents of the national government, as to the discharge of their duties or powers, and cannot by writs of mandamus enforce per- formance of acts pertaining thereto, 3 nor restrain the same by injunctions. 4 In Ex parte McNiel, the Supreme Court of the United States, speaking of these correlative powers of the Federal and State governments, and the regulation thereof, say: "In the complex system of polity which prevails in this country, the powers of government may be divided into four classes. Those which be- long exclusively to the States. Those which belong exclusively to the national government. Those which may be exercised con- currently and independently by both. Those which may be exercised by the States, until Congress shall see n't to act upon the subject. The authority of the State then retires and lies in abeyance until the occasion for its exercise shall recur." 6 In illustration of these principles, that court holds that the com- mercial power vested in Congress by the Constitution is partly of this last character. That some of the rules necessary in the regulation of that subject, from the nature of things, must be uniform throughout the country; and that to that extent the 1 Chittenden v. Brewster, 2 Wall. ' McClung . Silliman, 6 Wheat. 191. 598. 8 Ex parte Holman, 28 Iowa, 88. * Riggs 0. Johnson Co., 6 Wall. 160. 5 13 Wall. 236. 16 INJUNCTIONS RELATIVE POWERS. power to make them must necessarily be exclusively in Congress, as clearly so as if expressly declared. That others may be allowed to vary, with varying circumstances and differences of locality. That in the latter cases, the States may prescribe the rules to be observed, until Congress shall supersede them by its own enact- ments, made in virtue of the national Constitution, which is the supreme law. 1 Injunctions. State courts cannot, by injunction or otherwise, stay or arrest the processes, or jurisdiction, of a United States court, or in any manner interfere therewith. It is not by reason of paramount jurisdiction of the Federal courts that this can- not be done, but because in their sphere of action the Federal courts are independent of the State tribunals. 8 So, for the same reason. State courts are exempt from all interference of the Fed- eral tribunals. 3 The United States circuit courts, and the State courts, act separately and independently of each other, and, in the language of the United States Supreme Court, " in their re- spective spheres of action, the process issued by the one is as far beyond the reach of the other as if the line of division between them was traced by land-marks and monuments visible to the eye." 4 This, too, although their action be within the same terri- torial limits. Belative Powers. The national Constitution has clearly and wisely defined the respective spheres of these State and national judiciaries, and their relative subordination to, or supremacy of, each other, by an express grant of the powers of the national courts, thereby indicating with equal clearness and wisdom those appertaining to the courts of the States, in this, that by the same instrument it is declared that: " The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States, respectively, or to the people." 6 This clause evidently refers as well to judicial powers as to others, and the deduction therefrom is that when the judicial 1 Ex parte McNiel, 13 Wall. 236. 409, 414 ; The Supervisors v. Durant, 9 5 Riggs v. Johnson Co., 6 Wall. 166 ; Wall. 415 ; U. S. v. Peters, 5 Cr. 115. Ex parte Holman, 28 Iowa, 83 ; Dig^s 3 Riggs v. Johnson Co., 6 Wall. 166 ; v. Wolcott, 4 Cr. 178 (such procedure Ex parte flolman, 28 Iowa. 88. is prohibited by act of Congress, 1 * Riggs v. Johnson Co., 6 Wall. 166, Stat. at Large, 335) ; Duncan v. Darst, 195, 196. 1 How. 301 ; Peck v. Jenness, 7 How. 6 10th Amendment to the Constitu- 612, 625 ; The Mayor . Lord, 9 Wall. tion. RELATIVE POWERS- 17 powers which, by the Constitution, are expressly granted to the United States courts, are stated and, enumerated, then all other rightful judicial powers of republican governments are to be rec- ognized as remaining with the States, and are in the courts thereof, respectively, so far as their exercise has been authorized by the respective State legislatures and constitutions; or unless modified or restricted by some express prohibition of the Consti- tution of the United States. To enumerate these grants, then. By Section 2 of Article III. of the Constitution, it is declared that: "The judicial power shall extend to all cases in law and equity arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority; to all cases affect- ing ambassadors, other public ministers and consuls; to all cases of admiralty and maritime jurisdiction; to controversies to which the United States shall be a party; to controversies between two or more States; between a State and citizens of another State, between citizens of different States, between citizens of the same State claiming lands under grants of different States, and between a State, or citizens thereof, and foreign States, citizens or subjects. In all cases affecting ambassadors, other public ministers and consuls, and those in which a State shall be a party, the Supreme Court shall have original jurisdiction. In all the other cases, before mentioned, the Supreme Court shall have appellate juris- diction, both as to law and fact, with such exceptions, and under such regulations, as the Congress shall make." Here, then, is the extent of the national judicial power. All else, except where prohibited, remains in the States; and except such, if any, as may be conferred by subsequent constitutional amendments. How this grant of power has been distributed by Congress, among the several national courts, is not material to this treatise, other than in a general way, as our more immediate purpose is to treat of the inter-State relation and distribution of the judicial powers, as between the State and national judiciaries, and also, as to the inter-State relations of the several States themselves, and their courts, toward each other, and not to the practical or administrative exercise thereof by the courts of either the one or the other, further than may incidentally become necessary in prosecuting the main purpose of this work. 2 18 DOMESTIC CHARACTER OF JL'DGMKNTS. Domestic Character of Judgments. Judgments of the national courts are not foreign to the courts of the respective districts, nor are they foreign in their relation to the courts of the several States; but are domestic and homogenous throughout the na- ' O O tion, in like manner as those of the State courts are throughout O the States in which they are rendered. 1 The judgments, decrees and proceedings of the national courts prove themselves everywhere by the seal of the court from which they emanate, and need no such additional authenticity as the judge's certificate, or other evidence of their genuineness, than a certificate of the clerk and the seal of the court. These are prima, facie evidence of their validity in all other American courts, State and national. They do not come within the provisions of Section 1 of the 4th Article of the Constitution, or the act of Congress relative- to the authentication of records and judicial proceedings of 'the several States, in each State, but are of them- selves entitled to full faith and credit in every State and Terri- tory, and wherever our national jurisdiction extends, and in every department thereof. 2 In like manner the records and proceedings of the State and Territorial courts, certified and authenticated by the clerk, and seal of the court, so as to give them authenticity in the courts of the same State, will also give them authenticity and credit in the courts of the United States, without the particular authenti- cation prescribed by act of Congress in respect to their authentication for use in the courts of another State; for the act of Congress in that respect is not applicable to the records and proceedings certified from a State to a Federal-court, these courts not being foreign to each other, as the State courts of the differ- ent States are. 8 Trial by Jury. Private Property for Public Use. The provis- ion of the United States. Constitution that secures the right of 1 Ex parte Schollenberger, 6 Otto, Cases, 326 ; Murray v. Marsh, 2 Hayw. 309, 376, 379, may be cited as bearing (N. C.) 290; Buford . Hickman, upon this subject. Hernpst. 232; Mason v. Lawrason, 1 - Article 4, Cons. U. S.; Thomson v. Cr. C. C. 190; Mewster . Spalding, 6 Lee Co., 22 Iowa, 206 ; Reed v. Ross, 1 McLean, 24; Bennett . Bennett, Bald. C. C. 36; Niblet u. Scott, 4 La. Deady, 299; Dean c. Chapin, 22 Mich. Ann. 245 ; St. Albans v. Bush, 4 Vt. 275. 58 ; Barney v. Patterson, 6 Harr. & J. 8 Mewster v. Spalding, 6 McLean, 182; U. S. t. Wood, 2 Wheeler's Cr. 24; Bennett v. Bennett, Deady, 299. TKIAL BY JURY CITIZENSHIP. 19 trial by jury, has reference to trial in courts of the United States, and not to those of the several States. 1 Likewise the provision that private property shall not be taken for public use, without compensation therefor. This inhibition binds the Federal gov- ernment only, and is not obligatory upon the governments of the States. 3 In the case here referred to, of Barron v. Mayor, etc., of Baltimore, the Supreme Court of the United States, MAKSHALL, C. J., say: "The Constitution was ordained and es- tablished by the people of the United States for themselves, for their own government, and not for the government of the indi- vidual States. Each State established a constitution for itself, and in that constitution provided such limitations and restric- tions on the powers of its particular government as its judgment dictated." 3 2. Citizenship and Allegiance. The Constitution of the United States declares that all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States, and of the State wherein they reside. 4 This amendatory declaration but reflects the prior annuncia- tions of the Supreme Court, in respect to the citizens of the United States being, in virtue thereof, citizens of the States in which they reside. 5 In the case here cited, of Gassies v. Ballon, the party alleged that he was a naturalized citizen of the United States, and resided in the State of Louisiana. The allegation was held to be equivalent to an averment direct that the party making it was a citizen of the State of Louisiana. MARSHALL, Ch. J., in delivering the opinion of the court, said: "A citizen of the United States, residing in any State of the Union, is a cit- izen of that State." 6 Thus the citizenship of the State, where resident, is recognized as flowing from that of citizenship of the United States, both by the Federal ruling of the Supreme Court, and by the Constitution as subsequently amended, being a reflex of the unity of government and national supremacy referred to in the preceding section of this chapter. Or, as Chief Justice i Proffatt on Trial by Jury, 83; 8 7 Pet. 247. Livingston . Mayor of New York, 8 4 Article 14, 1, of Amendments to Wend. 85, 100 ; Colt v. Eves, 12 Conn, the Constitution. 243. ' Gassies v. Ballon, 6 Pet. 761. 8 Barron, etc. v. Mayor, etc., of Bal- Ibid, timore, 7 Pet. 243. 20 SUITS BETWEEN TWO OR MORE STATES. MARSHALL expresses it, " The national and State system are to be regarded as one whole." This supremacy and sovereign unity of government, in a national point of view, is still more strongly indicated in the oath of allegiance required by law of Congress to be administered to persons when being naturalized. The sworn allegiance is that he will support the Constitution of the United States, and not of any State. 3. Suits between Two or More States. In suits between two States, involving a civil controversy, the Constitution vests the jurisdiction exclusively in the Supreme Court of the United States. 1 Such jurisdiction is limited to civil controversies, as contra- distinguished from those of a political nature. It is necessary that some right of property, or pecuniary interest, or value, be involved for determination of the court. Mere political inter- ests or questions will not, alone, confer jurisdiction, for such are not the subject of judicial investigation or control, as lias been shown in Chapter I. of this work. The political right to be a State cannot be determined in any court. Such questions do not come within the compass of judicial authority, but are to be determined by the political departments of the government. So, in regard to the right of a State to be a member of the American Union. In all these cases, the action of the political depart- ments the President and Congress of the United States de- termines the matter, and will be accepted and conformed to by the courts, as a finality. But where the proper element of juris- diction is present in a cause, jurisdiction thus far will not be prevented by the presence of political elements. 8 1 2, Art. 3, Cons, of U. S. ; Rhode v. Blacksmith, 19 How. 366 ; Foster v. Island v. Massachusetts, 12 Pet. 657. Neilson, 2 Pet 253; Garcia . Lee, 13 2 Georgia v. Stauton, 6 Wall. 74; Pet. 511 ; Williams v. Suffolk Ins. Co., Georgia u. Johnson, 4 Wall. 500; 13 Pet. 415 ; Luther v. Borden, 7 How. Rhode Island v. Massachusetts, 12 1 ; Scott v. Jones, 5 How. 343. The Pet. 657, 755; New Jersey fl.NewYork, State must be a party on the record. 3 Pet. 461, and 5 Pet. 284; Kentucky Osborn v. Bank of U. S. 9 Wheat 738. v. Ohio, 24 How. 66 ; Florida v. Geor- But a suit against a governor of a gia, 17 How. 478; Missouri . Iowa, 7 State, as such, answers this require- How. 660, and 10 How. 1 ; Cherokee ment Governor of Georgia t>. Man- Nation v. Georgia, 5 Pet 1 ; Fellows drazo, 1 Pet 110. SUIT AGAINST A STATE. 21 4. Suit Against a State by a Citizen of Another State. Upon general principles, a sovereign State cannot be sued, unless by consent. 1 The second section of the third article of the national Consti- tution, however, as originally adopted, rendered the States suable, not only as against each other, but at the suit of citizens of other States, and vested jurisdiction of such cases in the Supreme Court. 3 But, by subsequent amendments of the Con- stitution, the suing of a State in the courts of the United States is entirely inhibited, except in cases of suits between two or more States. 3 Thus the right of one State to sue another still remains, and the jurisdiction of such suits is exclusive in the Supreme Court, as we have seen in the preceding section of this chapter. 1 Beers v. Alabama, 20 How. 527; 'Art, XI. of Amendments to the Briscoe v. Bank of Kentucky, 11 Pet. Constitution of the U. S. 257 ; Bank of Washington t>. Arkan- * Hollingsworth v. Virginia, 3 Dall. sas, 20 How. 530. 378. 22 INTER-STATE RIGHTS OF SUIT. CHAPTEE IV.. INTER-STATE EIGHTS OF SUIT JURISUICTIONAL REQUISITES. I. A CONSTITUTIONAL RIGHT, AS WELL AS BY COMITY. II. PERSONAL JURISDICTION: WHEN NECESSARY. III. PROCEEDINGS IN REM. IV. SEALED AND UNSEALED INSTRUMENTS. V. NON-RESIDENTS PERSONALLY SUABLE IP FOUND AND SERVED. VI. JURISDICTION OBTAINED BY FRAUD. VII. FOREIGN CORPORATIONS, EXECUTORS AND ADMINISTRATORS. VIII. SERVICE ON A MEMBER OF A FIRM AS AGAINST A NON-RESIDENT MEM- BER THEREOF. 1. A Constitutional Right, as well as by Comity. Not only as matter of comity, which under the unity of our national govern- ment may not be withheld, but also in virtue, of the 2d section of the 4th article of the Constitution, which declares that " the citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States," and which adds to comity an absolute and binding law, the citizens and inhabitants of each State have a right to sue, and are liable to be sued, in the courts of all the States, in all such actions and suits in law and in equity as in their nature come within the sphere of inter- State jurisdiction. 1 2. Personal Jurisdiction : When Necessary. But to sustain a personal judgment against a defendant, personal jurisdiction must be had, either by appearance or by personal service of process, made within the territorial limits of the State where suit is brought; and non-residence is no objection to such jurisdic- tion where personal service is thus made. 3 Personal Jurisdiction, Is not attainable in the courts of one State against a citizen or resident of another State by personal 1 Story on the Constitution, 1805, without jurisdiction is void. Griffith 1806; Cooley's Const. Lim. *15, and v. Frazier, 8 Cr. 9; Schwinger v. Note 4, *16. Hickok, 53 N. Y. 280; Freeman on 1 Swan v. Smith, 26 Iowa, 87; Board Judgments, g 564, 566; Lawrence . of Public Works c. Columbia Col- Jarvis, 32 111. 304. lege, 17 Wall. 521. But judgment PROCEEDINGS IIST REM. 23 service of process made in such other and different State than the one in which suit is sought to be brought, and a personal judg- ment rendered against a defendant who has not personally ap- peared, or otherwise submitted to the jurisdiction of the court, and upon whom 110 other service of process than the above has been made, is null and void ; for the processes and laws of a State have no extra-territorial operation or force as against citizens or persons residing in a different State. 1 Nor will personal juris- diction be obtained by publication of notice in newspapers, or other publication of notice against or to such non-resident or ab- sent defendant, so as to justify or sustain a personal judgment against him, but such personal judgment, rendered without other jurisdiction of the person of the defendant than publica- tion, is null and void, as well where rendered as elsewhere, not- withstanding any law of the forum authorizing the same; for such law can have no extra-territorial force to affect the defend- ant personally outside the jurisdiction of the State wherein the judgment is rendered. 2 3. Proceedings in rem. But proceedings in rem, may, for any just cause, be prosecuted against the property of a non-resi- dent, situated in any State, by proceedings in the courts of the State wherein the property is situated, if so allowed by law, upon such publication of notice, or constructive service, as is the prac- tice of such State, and judgment against the property may be rendered accordingly, when otherwise justified in law, for such property being within the actual jurisdiction of the forum, the power of the State and its courts over the same does not depend upon personal service and jurisdiction of the defendant's per- son; 3 but no personal judgment, in such proceeding, there hav- 1 Bates 0. Chicago, and K W. R. R. 19 Iowa, 200, 262; Board of Public Co., 19 Iowa, 260 ; Hakes 0. Shupe, 27 Works 0. Columbia College, 17 Wall. Iowa, 465 ; Weil 0. Lowenthal, 10 521 ; Griffith 0. Frazier, 8 Cr. 9 ; Iowa, 575 ; Ableman 0. Booth, 21 How. Schwinger 0. Hickok, 53 N. Y. 280; 506; Piatt 0. Oliver, 2 McLean, 268; Bischoff 0. Wethered, 9 Wall. 812; Westervelt 0. Lewis, Ibid. 511; Lin- Freeman on Judgments, 127; coin 0. Tower, Ibid. 473 ; Kendall 0. Storey's Conf. of Laws, 546 and U. S., 12 Pet. 526; Herndon v. Riclg- 546. way, 17 How. 424 ; Griffith v. Frazier, 3 Darrance 0. Preston, 18 Iowa, 396 ; 8 Cr. 9 ; Freeman on Judgments, Banta v. Wood, 32 Iowa, 469 ; The 564,566. Globe, 2 Blatchf. 427; Thomas 0. 8 Banta 0. Wood, 32 Iowa, 469; Southard, 2 Dana, 475. Bates v. Chicago & X. W. R. R. Co., 24 INTER-STATE RIGHTS OF SUIT. ing been only such constructive service, will be valid, and no recovery in an action can be had thereon, anywhere. 1 So the same right and liability, of suing and being sued in the cir- cuit courts of the United States, exists between citizens of dif- ferent States, where the amount in controversy, and citizenship of the parties, or other legal requisites, are shown, which bring the same within the jurisdiction of said court. But to sustain a judgment in personam, personal service must be had, and a citizen of one State cannot be arrested, in any case, on civil process from such circuit court in a different State than that wherein he resides. 8 4. Sealed and Unsealed Instruments. Interesting questions sometimes arise as to the character in which an instrument made in one State, and sued on in the courts of another, is to be re- garded in the forum of the latter State; as, for instance, the ques- tion as to whether an instrument is sealed or not, will govern the nature of the action brought thereon. Thus, in some States a mere scroll is by law given the import and force of an actual seal ; in others an actual or real seal is re- quired, as an impression on wax, or other impressible substance; and yet, in others still, seals are abolished entirely. Now, in an action on such instruments in the courts of the State where made, no difficulty may arise in relation to their true character; but when sued on in the court of a different State, where the rule of local law as to a seal varies from that where the instrument was made, the question arises at once as to whether the local law, that is the law of the forum, shall pre- vail, or that of the State wherein the instrument was made, shall govern in giving character to it, as a sealed or an unsealed in- strument for, if a sealed instrument, it is a deed, or writing obligatory, and suit must be in covenant or debt, but if unsealed, then it is but a simple contract, and assumpsit will lie. The Su- preme Court of the United States hold that, notwithstanding the general law, the lex loci contractus governs as to the obligation and character of an instrument, when not made performable elsewhere; that nevertheless, without impairing the obligation 1 Boswell v. Otis, 9 How. 336; Lin- 502; Westervelt v. Lewis, 2 McLean, coin v. Tower, 2 McLean, 473; War- 511 ; Banta v. Wood, 32 Iowa, 469. ren Manf. Co. v. Etna Ins. Co., 2 Paine, 3 See Revised Statutes of U. S. of 1874, p. 139, 739. NON-RESIDENTS PERSONALLY SUABLE, 25 of that rule, in enforcing a remedy on it elsewhere, the law of the forum, or place where the suit is brought, prevails, and it is to be treated as sealed or unsealed accordingly as it would be if ^lade in the State where the suit is pending. 1 Thus, the law of New York requires an actual seal of wafer or wax, 2 and, if not so sealed, the form of action on an instru- ment is assumpsit. 3 By the law of "Wisconsin, it is provided that " any instrument to which the person making the same shall affix any device, by way of seal, shall be adjudged and held to be of the same force and obligation as if it were actually sealed." In an action in the Circuit Court of the United States for the Southern District of New York, upon an instrument made in Wisconsin, with a view to performance in Wisconsin, as, for in- stance, a deed of warrantee for Wisconsin lands, suit being brought on the warranty, the action was brought in assumpsit, according to the practice on simple contracts in New York, and it was held that the action was rightfully brought, as to the form thereof, and, the case having gone to the Supreme Court of the United States, that court affirmed the ruling in that respect. 4 The Su- preme Court of the United States, WOODBUEY, J., say of the form of action : " It was obliged to be in assumpsit in the State of New York. * * * We hold this, too, without impairing at all the principle that in deciding on the obligation of the instru- ment as a contract, and not the remedy on it elsewhere, the law of Wisconsin, as the lex loci contractus, must govern." 5 5. Non-residents Personally Suable, if Found and Served. It is no objection to the jurisdiction of a State court over the person of a defendant, that he resides in a different State, pro- vided personal service be had upon such defendant in the State where the action or suit is brought, and provided the nature of the action or suit, and the subject-matter thereof, be such as is actionable in that jurisdiction, or may therein be enforced. 6 Every citizen or resident of a State or territory is liable to suit, in personam, in every other State and territory wherein he may 1 Robinson v. Campbell, 3 Wheat. 198 ; Bank of Rochester v. Gray, 2 212; Le Roy v. Beard, 8 How. 451; Hill, 228. Meredith v. Hinsdale, 2 Caines, 362. 4 Lc Roy v. Beard, 8 How. 451. * Warren v. Lynch, 5 John. 239. 6 Le Roy v. Beard, 8 How. 464, 465 , 3 Andrews v. Herriott, 4 Cow. 508; Robinson v. Campbell, 3 Wheat. 212. Van Santwood v. Saudford, 12 John. 6 Swan v. Smith, 26 Iowa, 87 ; Free- man on Judgments, 566. 26 INTER-STATE RIGHTS OF SUIT. be found and served with personal notice, on causes of action arising in such State, as also in actions of such a transitory na- ture that suits may he maintained thereon in the courts of a different State than that wherein the right of action accrued; as, for instance, such causes of action as follow the person of a debtor, or other defendant, as contradistinguished from those ot a local character, rendered so by their relation to local things, or by growing out of and dependent upon local statutes, in the State where the cause of action arises other than that wherein the defendant is sued. 1 6. Jurisdiction Obtained by Fraud. But jurisdiction ob- tained by fraud is invalid, as where, if by false or fraudulent means, a party is induced to come from another State into the jurisdiction of the court, in order to procure service on him in a judicial proceeding, the court will set the service aside on mo- tion and proof of the improper means thus used. 3 Service on a Non-resident, if a Witness. And so, if jurisdic- tion be obtained of the person of a defendant who is resident of another State, by personal service of process in a suit against him, made upon him whilst attending within the State where thus sued as a witness in a cause pending in the courts of such State, the service of such process will be set aside upon proper applica- tion; for it is the policy of the law to protect suitors and wit- nesses from service of process in civil actions, whether. the process be such as required their arrest, or be merely in the nature of a summons. Service in such cases will be set aside, as well upon general principles as upon positive law, if there is such. 8 7. Foreign Corporations, Executors, and Administrators. It is not definitely settled whether a corporation may be sued by service on its officers or agents doing business in another State 4 The ruling in Missouri is that a private corporation, incorporated under the laws of another State, is not liable to be sued person- ally, within the State of Missouri, by ordinary process of sum- 1 Story's Conf. of Laws, 538. Pr. 831 ; Halsey v. Stewart, 4 K J. 3 Carpenter . Spooner, 2 Sandf. 3G6; Juneau Bank v. McSpedan, 5 717 ; Wanzer . Bright, 52 111. 35. Biss. 64; Parker v. Hotchkiss, 1 Wall. 3 Person t>. Grier, 66 N.Y. 124; Nor- jr. 269. ris v. Beach, 2 John. 294; Sanford v. 4 St. Louis t>. Wiggins Ferry, 40 Mo. Chase,3Cow.381;Hopkinst>. Coburn, 580; Angel and Ames on Corp. 1 Wend. 192; Seaver v. Robinson, 3 402-407. Duer, 622 ; Merrill v. George, 23 How. SERVICE OX A MEMBER OF A FIRM. 27 mons, unless such foreign corporation has its chief office or place of business in said State of Missouri; and that, if such chief office and place of business be not therein, then proceedings against such foreign corporation can only be had in rein, as by process of attachment. 1 So executors and administrators are not subject to an action or suit against them in their fiduciary capacity in the courts of a State other than the State wherein their authority is granted to them. 2 8. Service on a Member of a Firm as Against a Non-resident Member Thereof. Service is not good against a non-resident de- fendant by being made upon a member of a firm, of which firm defendant is also a member; nor is it good against the firm, so as to authorize a declaration and proceeding against the firm, where the prcecipe and writ show the origin of the action to be against a natural person as defendant. By such a proceeding and service no jurisdiction of the person of the real defendant is obtained, and no cause is legally instituted, or brought into legal existence, against the firm, upon which to sustain an action or judgment. 8 1 Middough v. St. Jos. & Den. R R. Co., 51 Mo. 520 ; Same case, 3 Am. Rw. Reps. 461 ; Farnesworth^.Terre Haute, etc., R. R. Co., 29 Mo. 75 ; St. Louis v. Wiggins' Ferry Co., 40 Mo. 580 ; Robb . Chicago & Alt. R. R. Co., 47 Mo. 540. This subject will receive fur- ther treatment. See post, Chap. 25, 3. 2 Vaughan v. Northup, 15 Pet. 1;. Fenwick v. Sears, 1 Cr. 259 ; Dixon's Execrs. v. Ramsay's Execrs., 3 Cr. 319 ; Kerr v. Moon, 9 Wheat. 565. See post, Chap. 24. 8 Frink v. Sly, 4 Wis. 310. 28 CONCURRENT JURISDICTION. CHAPTER Y. CONCURRENT CIVIL JURISDICTION, STATE AND NATIONAL. I. EXTENT THEREOF. II. SUIT IN NAME OP LEGAL OWNER IN UNITED STATES CIRCUIT COURT. III. CITIZENSHIP AND PROOF OF VALUE IN CONTROVERSY IN UNITED STATES COURTS. IV. DECISIONS OF NATIONAL COURTS IN CASES OF CONCURRENT JURISDIC- TION. V. JURISDICTION OF Two OR MORE DISTRICTS IN ONE STATE. VI. JURISDICTION IN NATURALIZATION PROCEEDINGS. I. EXTENT THEREOF. Under the national Constitution and laws, the circuit courts of the United States have original cognizance concurrent with the courts of the several States, of all suits of a civil nature at common law, or in equity, where the matter in dispute exceeds, exclusive of costs, the sum of five hundred dollars, in the following enumerated cases, viz.: 1. Suits arising under the Constitution, laws, or treaties of the United States; 2. Suits in which the United States are plaintiffs or peti- tioners; 3. Suits in which there is a controversy between citizens of different States; 4. Suits between citizens of the same State claiming lands under grants of different States; 5. Suits in a controversey between citizens of a State and for- eign states, citizens, or subjects. 1 And in naturalization pro- ceedings. But no one can be arrested, in any such suit, in one district for trial in another. 8 1 Act of Cong. March 3, 1875; Judi- ciary Act, 1 Stat. at Large, 78, 11. ciary Act, 1 Stat, at Large, 78, 11 ; See, also, ex parte Graham, 3 Wash. Desty's Federal Procedure, 71, 1, C. C. 456. 1 Act of Cong. March 3, 1875 ; Judi- COMMON LAW CIVIL JURISDICTION. 29 Common Law Civil Jurisdiction. The term common law civil jurisdiction, as here used, is intended, in the language of the United States Supreme Court, to " embrace all suits which are not of equity and admiralty jurisdiction, whatever may be the peculiar form which they may assume, to settle legal rights;" and not such proceedings only " as in forms and practice con- form strictly to those of the old common law." 1 For there is no common law of the United States, as a nation; but the na- tional courts (except in criminal cases) administer the laws of the respective States wherein they are held. 3 Common and Civil Law as the Basis of State Jurisprudence. And although the common law prevails in most of the States to a certain extent, in their local jurisprudence, and forms the basis of their judicial system, yet its continued existence in their more modern codes and revisions is of so modified a character as to retain merely its leading principles and outlines, while again, in some of them, the civil law is to be regarded as the origin of their system. 8 For the purpose, however, of discussing the sub- ject matter of this section, it is intended, as above stated, to em- brace all civil proceedings which do not belong to equity and maritime jurisdiction. II. SUIT IN NAME OF LEGAL OWNER, IN UNITED STATES CIRCUIT COURT. A person having the requisite qualification as to citizenship, and the legal right of the subject matter of the suit, may sue in the United States Circuit Court without regard to the cit- izenship of others who may be interested in the proceeds of the suits. Hence a note to bearer, for use of others named, as for instance, an unincorporated company, may be sued in such court by the bearer thereof, as the law places the legal interest in him. The courts have nothing to do with the trust, nor with the citi- 1 Parsons v. Bedford, 3 Pet. 433, 446, court, yet it may be resorted to, to as- 447. sist in deciding certain questions af- 4 Wheaton v. Peters, 8 Pet. 591 ; Lor- ter the jurisdiction has attached. U. man v. Clarke, 2 McLean, 568; Van S. v. New Bedford Bridge, 1 Woodb. Ness v. Packard, 2 Pet. 137 ; People v. & M. 401 ; Gardner's Institutes, 301, Folsorn, 5 Cal. 373. Though the com- 302. mon law cannot be resorted to as giv- 3 See post, 1, Chap. 6 ; Cooley on ing jurisdiction to the United States Const. Lim. *21-25. 30 CONCURRENT JURISDICTION. zenship, of those to whom the equitable interest in the proceeds may be going. 1 III. CITIZENSHIP AND PBOOF OF VALUE IN CONTROVERSY. In an action or suit, in a circuit court of the United States, by , citizen of one State against a citizen of another, it is not neces- sary that the plaintiff's petition, bill, or declaration should allege or state that the State of which either party is a citizen is one of the United States. It is sufficient if the State itself be named, and the court will necessarily take notice of the fact, if such it be, that such State is one of the United States, composing the Union, or national government. 3 So, when citizenship of a litigant party, of a State, is neces- sary to be averred or stated in pleading, an allegation that the party is a citizen of the United States, naturalized in a certain State, and residing therein, is held to be equivalent to an aver- ment that the party is a citizen of that State. 3 To confer juris- diction, the citizenship must be shown or alleged in the body of the bill or declaration, in such manner and place as to be trav- ersable, and not merely in the caption. 4 Proof made of Value, to confer Jurisdiction. And when the nature of the action or suit is such that the demand is not for money, as for instance in an ejectment or other suit for land, and the law does not require the value thereof to be stated in the declaration or petition, then the practice in the United States courts is to allow the value to be proven in evidence. 8 Rules of Evidence. The rules of evidence in a State are also r.ules of evidence in the courts of the United States, under the 34:tli section of the judiciary act, while sitting within the limits of such State; and such State rules of evidence are always followed by the Federal courts sitting in a State, as well in commercial cases as in others. 6 The construction given to 1 Bonn afee D.Williams, 3 How. 574. * Ex parte Bradstreet, 7 Pet. 634, 2 Wright c.Hollingsworth, 1 Pet. 165. 647 ; Crawford v. Burnham, 4 Am. Law * Gassies v. Ballou, 6 Pet. 761. Times, (o. s.) 228. 4 Jackson v. Ashton, 8 Pet. 148; Ryan v. Bindley, 1 Wall. 66, 68; Findlays. Bank of U. S., 2 McL. 44; Vance v. Campbell, 1 Black, 427; Bayerque . Haley, 1 McAll. 97 ; Wright v. Bales, 2 Black, 535 ; Sims v. Dodge v. Perkins, 4 Mass. 435 ; Vose Hundley, 6 How. 1 ; Brandon v. Loft- o.Philbrook, 3 Story, 336; Course v. us, 4 How. 127; McNiel v. Holbrook, Stead, 4 Dal. 22. 12 Pet. 48; Wilcox t. Hunt, 13 Pet. DECISIONS OF NATIONAL COURTS. 81 State laws by State courts govern the United States court, 1 unless the law should be of a general nature, not confined to the locality or State. IY. DECISIONS OF NATIONAL COURTS. . Whether decisions of the national courts are to be regarded as paramount rules of law or not, depends in some respects upon the character of the subject matter of the cause in which they are rendered, and the manner of obtaining jurisdiction of the action. In cases of concurrent jurisdiction with the State courts, as where the jurisdiction of the Federal courts rests upon the citizenship of the parties, and in which the State laws are ad- ministered, then if the questions involved are such as in regard to which the State decisions are deferred to by the Federal court, it results therefrom that the dignity and force of the judgment as a rule of law, as also the validity and effect thereof, is only such as is accorded to judgments of State courts, under similar circumstances. 3 Y. JURISDICTION, Two OR MORE DISTRICTS IN ONE STATE. When a State is divided into two districts, and a United States Circuit Court is held in each district, a defendant who is a citizen of such State may be sued in either district, if found and served therein, by a citizen of a different State. It is no defense as against the jurisdiction of the court that the defendant resides in the other district than the one in which he is sued. The fact of being- o found and served within the district in which he is sued brings the case within the very language of the act of the law. It takes it out of the prohibition of the judiciary act, that " no civil suit shall be brought in the courts of the United States, against an inhabitant of the United States, by any orig- inal process, in any other district than that whereof he is 378; Haussknecht v. Claypool, 1 Bank of U. S. v. Daniel, 12 Pet. 33; Black, 431 ; II. 8. v. Dunham, 21 Green v. Neal, 6 Pet. 291 ; Suyclam . Monthly Law Rep. 591; Fowler v. Williamson, 24 How. 427; Randall v. Hecker, 4 Blatchf. 425. Brigham, 7 Wall. 523; Loring v. 1 Gut v. Minnesota, 9 Wall. 35 ; King Marsh, 2 Cliff". 311, 469. v. Wilson, 1 Dill. 555 ; Polk v. Wendal, 2 Dupasseur v. Rochereau, 21 Wall. 9 Or. 87 ; Thatcher v. Powell, 6 Wheat. 130. 119; Shelby v. Guy, 11 Wheat. 367; 32 CONCURRENT JURISDICTION. an inhabitant, or in which he shall be found at the time of serving the writ." 1 In all cases on contract the suit may be brought in the circuit court of the district wherein the defendant is found. If sued out of the district in which he lives, he may object, but this is a privilege which he may waive. 3 When the jurisdiction of the person will enable the court to give effect to its judgment or decree, it may be exercised; but if the subject matter is local, and is situated beyond the limits of the district, the circuit court sitting in such district has rio jurisdiction thereof. Actions for real property, or ejectment for possession thereof, or trespass quare clausum fregit, or trespass upon real property, in any manner, will not lie in any other jurisdiction than where the real property, sued for or injured, is situated. 8 YI. JURISDICTION IN NATURALIZATION PROCEEDINGS. The jurisdiction of national and State courts in cases of nat- uralization is concurrent, although the proceedings are under the laws of the former. The jurisdiction was originally conferred upon the supreme, superior, district or circuit courts of the several States, and of territorial districts of the United States, and upon the circuit and district courts of the United States, concur- rently. 4 But doubts having arisen as to the meaning of the term district courts of the States, it was subsequently enacted that every court of record in any individual State, having common law jurisdiction and a seal and clerk or prothonotary, shall be considered as a district court within the meaning of said original enactment. 5 Thus it is that all State courts of record, having a o seal and clerk or prothonotary, have, with the United States ter- ritorial courts, and United States district and circuit courts, jur- isdiction, under the acts of Congress, of naturalization cases. The authority to provide by law for naturalization of foreign- ers, or others, is exclusive in the Congress of the United States. 6 By adoption of the United States Constitution, the naturalization laws of the several States ceased to exist. 7 1 McMicken v. Webb, 11 Pet. 25. 4 2 U. S. Stat. at Large, 153, 1. 2 North. Ind. R. R. Co v. Michigan 5 2 U. S. Stat. at Large, 153, 3. Cent. R. R Co., 15 How. 233. Chirac v. Chirac, 2 Wheat. 260. Ibid. ' U. S. t>. Villato, 2 Dall. 370. COMMON AND CIVIL LAW AS STATE LAWS. 33 CHAPTEE VI. COMMON LAW, CIVIL LAW, ANT) LAW OF STATE AND NATIONAL COUKTS. I. THE COMMON LAW AND CIVIL LAW AS STATE LAWS. II. UNITED STATES COUKTS ADMINISTER STATE LAWS. III. BUT NOT AS TO FORMS OF PROCESS, UNLESS ADOPTED. IV. PROCESSES OP STATE COURTS MAY BE ADOPTED. V. RULINGS OF THE COURTS. WHEN FOLLOWED. VI. NATIONAL POWERS AND COURTS NOT AFFECTED BY STATE LAWS. I. THE COMMON LAW AND CIVIL LAW AS STATE LAWS, Though the common law is presumed to exist in most of the States, as to general principles, if nothing be shown to the contrary; 1 yet it is not presumed to exist without statutory changes and modifications. 2 The extent to which the common law prevails, and the modifi- cations thereof in each particular State, depend upon the local constitution and laws thereof. 3 But as to those States now existing where their were estab- lished civil governments and codes, or systems of domestic law, in which the civil law prevailed, as for instance, Louisiana, Texas and .Florida, prior to their becoming Territories or States of the Union, the common law is not presumed to prevail therein. 4 If, on the trial of a cause elsewhere, the question arises as to the law of one of these States in which the common law is not presumed to prevail, the presumption in such case is, if nothing 1 Crouch v. Hall, 15 111. 263 ; Ellis v. 111. 669 ; Sedgwick on Construction White, 25 Ala. 540 ; Norris v. Harris, of Statutes, 12 and note. 15 Cal. 226; Coburn v. Harvey, 18 2 Blystone v. Burgett, 10 Ind. 28 ; Co- Wis. 147 ; Hamilton t>. Kneeland, 1 burn v. Harvey, 18 Wis. 147. Nev. 40; State v. Cumraings, 33 Conn. 8 Lorman v. Benson, 8 Mich. 18; 260 ; White v. Knapp, 47 Barb. 549 ; Morgan v. King, 30 Barb. 9 ; Wagner McDongald v. Carey, 38 Ala. 320; v. Bissell, 3 Iowa, 396. Miles v. Collins, 1 Met. (Ky.) 308; 4 Norris v. Harris, 15 Cal. 226; Sedg- Reese v. Mutual Benefit Ins. Co., 23 wick on Construction of Statutes, 12 N. Y. 516, 522 ; Plumleigh v. Cook, 13 and note. 3 34 COMMON AND CIVIL LAW, STATE AND NATIONAL. to the contrary is shown, that the law is the same as in the State where the trial is proceeding. 1 If the contrary is insisted upon by either party, those who as- sert the existence of the law must plead and prove it. 3 II. UNITED STATES CIRCUIT COURTS ADMINISTER THE STATE LAWS. We have no national common law, or common law of the United States in their united capacity as a nation. 3 The Federal courts administer the laws of the several States, and of the national Congress; the common law, therefore, when administered in the national courts, is administered as it exists in a more or less modilied form in the State, when pertinent to the controversy. 4 The circuit courts of the United States are bound to take no- tice of the general laws of the several States. They are created by Congress to administer the laws of all the States of the Union in cases to which these laws respectively apply. Their jurisdic- tion extends to many cases arising under State laws. This State jurisprudence is not a foreign one, to be proven in court in the ordinary manner of proving the laws of foreign countries in courts of justice, but is to be judicially taken notice of in the same manner by the United States courts as the laws of the United States are by them taken notice of. 5 But this rule of law applies only in law cases, and not to proceedings in chancery. 6 1 Norris v. Harris, 15 Cal. 226 ; Mon- roe . Douglass, 5 N. Y. 447. But no such presumption arises in regard to the statute laws of another State. Mc- Culloch v. Norwood, 58 N.Y. 562, 567. 8 Monroe v. Douglass, 5 N. Y. 447 ; Story's Conf. of Laws, 638; Green- leaf on Evidence, 486, et seq. It would seein that the same rule which governs the proof of laws of foreign countries in our State courts would also govern the proof of laws of sis- ter States. As to how foreign laws are proved see Hall v. Costello, 48 N. II. 176 ; Barrows v. Downs, 9 R. 1. 446 ; Greenleaf on Evidence, 488 ; Sedg- wick on Construct, of Statutes, 93 et seq.; Wharton's Conf. of Laws, 771 et seq. ; Smith's Statutory Law, Chap. 21. 3 Wheaton v. Peters, 8 Pet. 591 : Lor- man v. Clarke, 2 McLean, 568 ; Van Ness v. Pacard, 2 Pet. 137; People v. Folsom, 5 Cal. 374 ; see ante, Chap. 5, I. p 29. 4 Wheaton v. Peters, 8 Pet. 591 ; Lor- man v. Clarke, 2 McLean, 568; Peo- ple v. Folsom, 5 Cal. 874 ; Van Ness v. Pacard, 2 Pet 137 ; see ante, Chap. 5, I. p. 29. 'Owings v. Hull, 9 Pet. 607; Car- penter . Dexter, 8 Wall. 513, 518; Cheever v. Wilson, 9 Wall. 108; Pen- niugton v. Gibson, 16 How. 65, 80; Clark v. Smith, 13 Pet. 195, 203, 203 ; Piqua Branch Bank v. Knoop, 16 How. 369; Beauregard v. New Or- leans, 18 How. 497. 6 Neves v. Scott, 13 How. 268; U. S. v. Howland, 4 Wheat. 108, 115 ; Boyle e.Zacharie, 6 Pet 648, 658; Robinson FORMS AND PROCEEDINGS. 35 And where the statute law of a State renders an unsworn plea of non est factum inadmissible in a State court, the courts of the United States, sitting in such State, will follow the State statute upon that subject. 1 But in cases involving general commercial law, the Federal courts construe the law for themselves, and do not defer to the State court decisions. 2 III. BUT NOT AS TO FORMS AND PLEADINGS, UNLESS ADOPTED BY THEM. Statutes of the States in proprio vigore are of no force so far as regards the forms of suits, modes of proceedings, or pleadings, in courts of the United States. Congress has exclu- sive authority over these subjects. So far as by act of Congress State laws have been adopted, or under authority of acts of Con- gress have been adopted by these courts, they are obligatory, and no further. No court, however, of the United States may adopt such as are in conflict with the acts of Congress upon the subject of jurisdiction, forms, practice or proceedings in the courts of the United States. 3 A broad distinction exists in this respect as re- spects statutes which are rules of right and property, and such as go to the remedial forms, proceedings and practices of the courts. The former are the law of the forum of the United States court, in any State, when not in conflict with the national laws or Constitution, and will not only be administered, but will be taken notice of by the courts. 4 Thus, State statutes which require suits on bills or notes, in the county where the drawers live, or where the first endorser lives, and similar requirements will be disregarded as utterly incompatible and repugnant to the organization and jurisdiction of the United States courts; and so of State laws requiring the joinder of both drawers and endorsers of bills of exchange in one and the same action, for the law of v. Campbell, 3 Wheat. 212, 222 ; Liv- Browning v. Andrews, 3 McLean, 576. ingston v. Story, 9 Pet. 654; Russell v, s Keary v. Farmers & Merchants' Southard, 12 How. 139. Bank of Memphis, 16 Pet. 89. 1 Bell v. Mayor, etc., of Vicksburg, * Brine v. Insurance Co., 6 Otto, 627, 23 How. 443. and approved in Orvis v. Powell (Oct. 2 Williams W.Suffolk Ins. Co., 3 Sum. Term Sup. Ct. of U.S.,1878);2 f Chicago 270 ; S. C., 13 Pet. 415 ; Austen v. Mill- Law Journal, 190. er, 5 McLean, 135 ; S. 0., 13 How. 218 ; 36 COMMON AND CIVIL LAW, STATE AND NATIONAL. jurisdiction as to citizens of different States excepts suits for the contents of promissory notes or other choses in action in favor of an assignee, unless the suit might have been brought in such court if no assignment or endorsement had been made except as to foreign bills of exchange. For in such cases it may often occur that the residence and citizenship of these parties are not such as to render suit against them all, in the same action, prac- ticable in the United States court. 1 IY. PROCESSES OF STATE COURTS MAT BE ADOPTED. The processes and practice of the highest State courts of orig- inal jurisdiction in proceedings at law are likewise conformed to by the United States circuit courts Bitting in the several States, so far as the same are or shall be adopted by the said circuit courts. 2 But the power to adopt the same is not vested in a dis- trict judge sitting alone, as judge of a circuit court, except in those States where there may be no full circuit court, wherein the district judge and court exercises the functions and jurisdiction as well of the circuit court as of the district court. 3 Y. RULINGS OF THE COURT. WHEN FOLLOWED. The construction put upon the constitutions and State laws of the several States, by their own courts, will be mutually respected and followed in the courts of each other, whenever those con- structions and laws come under their judicial consideration in matters involving the same points thus adjudicated. 4 So, too, as between the national courts and State courts. The former, as a general rule, follow the local decisions of the high- est State courts of the State wherein they are sitting, when such decisions are settled and uniform and have become a rule of property, especially so, as to lands, in regard to the constructions of State constitutions, statutes, and unwritten laws, if the same do not conflict with the Constitution, treaties or laws of the 1 Brine 0. Insurance Co., 6 Otto, 627, * Brown v. Phillipps, 16 Iowa, 210 ; and approved in Orvist?. Powell (Oct. Franklin T>. Twogood, 25 Iowa, 520 ; Term Sup. Ct. of U. S., 1878); 2 Chic. Thompson v. Alger, 12 Met. 428; Law Journal, 190. Sedgwick on Const, of Statutes, 362, * Amis t>. Smith, 16 Pet. 303. 363. Ibid. NATIONAL POWERS AND JURISDICTION. 37 United States. 1 But the national courts will not change, as a general principle, with local changes. 3 On the contrary, will, in questions affecting constitutional rights, or remedies of creditors, although involving State constitutions or statutes, judge for themselves, regardless of all such State court constructions as may amount to a denial of remedy; and so, too in matters of contract involving such statutory or constitutional construction. 3 So, also, State court decisions and constructions of instruments on common law principles, are not binding on the Federal courts as rules of decision. 4 Nor when made in reference to the gen- eral commercial law, if in contravention thereof. 5 YI. NATIONAL POWEKS AND JURISDICTION NOT AFFECTED BY STATE LAWS. The jurisdiction of the Federal courts cannot be restricted or enlarged by State legislation. 6 This is the case, too, whether viewed in relation to actions and suits originally brought therein or in reference to such as are first brought in a State court, and are removed to the United States Circuit Court under some of the acts of Congress allow- ing such removal. 7 National Powers not Affected by State Laws. State laws can- not control the rightful powers of the national government, or 'Thatcher v. Powell, 6 Wheat. 119, 2 Piqua Branch Bank v. Knoop, 16 127; Green v. Neal, 6 Pet. 291,298; How. 369. Shelly v. Guy, 11 Wheat. 361, 367; 3 Butz v. City of Muscatine, 8 Wall. Taylor v. Brown, 5 Cr. 234, 255 ; Me- 575, 584 Changes will be made, how- Keen i}. Delancy, 5 Cr. 22 ; Massie . ever, if the local decisions have been Watts, 6 Cr. 148, 167; Elmendorf v. misconceived. Green v. Neal, 6 Pet. Taylor, 10 Wheat. 152; McCutchen v. 291. Marshall, 8 Pet. 220 ; Nesmith v. Shel- 4 Foxcroft v. Mallett, 4 How. 353. don. 7 How. 812; Piqua Branch Bank 6 Swift v. Tyson, 16 Pet. 1 ; Polk v. . Knoop, 16 How. 369 ; Parker . Wendal, 9 Cr. 87. Kane, 22 How. 1 ; Middleton v. Me- Phelps v. O'Brien Co., 2 Dill. 518, Grew, 23 How. 45 ; Bank of Hamilton and cases in note following. v. Dudley, 2 Pet. 492; U. S. v. Morri- ' Phelps v. O'Brien Co., 2 Dill. 512; son, 4 Pet. 124; Henderson v. Griffin, Insurance Co. . Morse, 20 Wall. 445; 5 Pet. 151 ; Thompson v. Phillips, Hobbs v. Manhattan Ins. Co., 56 Me. Baldwin, 246 ; Brine v. Ins. Co., 6 417 ; Hatch v. Chi. R. I. & P. R. R. Otto, 627 ; Orvis v. Powell (Sup. Ct. Co., 6 Blatch. 105. of U. S., Oct. Term, 1878); 2 Chicago Law Journal, 190. 38 COMMON AND CIVIL LAW, STATE AND NATIONAL. the proper discharge of the official functions of Federal officers or courts; they have no operation of their own mere force upon the process or proceedings of the courts of the United States, as to remedies or practice, and are only obligatory so far as adopted by Congress, or, under the process acts of 1792 and subsequent acts upon the same subjects, by these courts themselves; and these same courts have power to alter and amend the rules of process, as well as the manner of proceedings in court. 1 So, also, as to jurisdiction between citizens of different States, it is a well settled principle that the jurisdiction of the United States courts over controversies between citizens of different States can- not be impaired by the laws of the States prescribing the modes of redress in their courts, or regulating the distribution of State judicial powers. 8 'Beers v. Haughton, 9 Pet. 329; Bank n. Jolly, 18 How. 503; Suydam "VVayman . Southard, 10 Wheat. 1; v. Broadnax, 14 Pet. 67; Payne . Bank of U. S. v. Halstead, 10 Wheat Hook, 7 Wall. 425, 430; Beers v. 51; Clark v. Smith, 13 Pet. 195; Haughton, 9 Pet. 329; Watson tn Brewster v. Wakefield, 22 How. 118. Tarpley, 18 How. 517. 8 Hyde . Stone, 20 How. 170; Union INTER-STATE EQUITY JURISDICTION. 39 CHAPTEK VII. INTER- STATE EQUITY JURISDICTON AND PRACTICE. I. CONCURRENT STATE AND NATIONAL EQUITY JURISDICTION. II. EQUITY PRACTICE AND RULES IN UNITED STATES COURTS. III. JURISDICTION IN UNITED STATES COURTS OF EXECUTORS AND ADMINIS- TRATORS. IV. ENJOINING OF JUDGMENT OF UNITED STATES COURT IN SAME COURT. V. STATE COURT MAY ACT BY INSTRUCTION UPON THE PERSON OF DEFEND- ANT, TO PREVENT SUIT IN ANOTHER STATE. I. CONCURRENT STATE AND NATIONAL EQUITY JURISDICTION. The circuit courts of the United States have a general equity jurisdiction within the rightful sphere of their authority as Federal courts in all cases where a plain, adequate and complete remedy cannot be had at law; 1 and this jurisdiction is concurrent with that of the State courts in all suits in equity between citizens of different States, where the sum or value in controversy is over five hundred dollars, exclusive of costs. 3 Election of Forums. Thus, in equity suits, by citizens of one State against citizens of another State, the complainants have their election to proceed in the State court of the State wherein the defendants reside, or in the United States Circuit Court, when the sum or value of the matter in controversy amounts to over five hundred dollars, exclusive of costs. 3 When Subject to Removal. And when such a suit is brought in a State court, by a citizen of the State where it is brought, against a citizen of another State, the defendant may remove the same, for trial into the United States Circuit Court of the district. 4 1 Story's Eq. Jurisprudence, 57; 2 1 Stat. at Large, 78, 11. Story on the Const., 1645, 1646; 3 Robinson t>. Campbell, 3 Wheat. Robinson v. Campbell, 3 Wheat. 212; 221; Parsons v. Bedford, 3 Pet. 433; TJ. S. v. Rowland, 4 Wheat. 108, 115; U. S. v. Rowland, 4 Wheat. 115. Parsons v. Bedford, 3 Pet. 433; 4 1 Stat. at Large, 79, 12. Boyce's Exrs. v. Grundy, 3 Pet. 110; Bean v. Smith, 2 Mas. 252. 40 IXTER-STATE EQUITY JURISDICTION. II. EQUITY PRACTICE AND RULES IN UNITED STATES COURTS. The proceedings, forms and practice in equity in the United States Circuit Court conform to those of the English chancery, and not to the practice of the State courts wherein the circuit court sits, as in suits at law. 1 This, too, irrespective of whether such State has a system of equity jurisprudence of its own, or not. In other words, the system of equity practice of the United States courts does not vary in the different districts with that of the re- spective States, but is uniform and alike in all places throughout the nation. The enactments of Congress in reference to adopting the form of proceedings and practice of the State courts apply only to suits at law, and have no influence upon the equity proceedings in the Federal courts, for the equity jurisdiction conferred upon the Federal courts is uniform in all parts of the United States. It is the same as that of the High Court of Chancery in England, and it can neither be modified cr restrained by legis- lation of the States. 2 The action of these national courts is in their own sphere, according to their own rules of proceeding; and, within their sphere, is independent of the State legislation and courts, except in so far as such legislation may give rise to, or become rules of right, or may be adopted by such national courts. 3 And when the citizenship of the parties and the amount in controversy are such as to confer jurisdiction on these courts, of any equitable character, they may exercise the same and dis- pose of the case, irrespective of any local or State regulation in- dicating the manner or the tribunal for disposition, adjudication or settlement of such matters. 4 The absence of a complete and 1 Robinson v. Campbell, 3 Wheat. Relf, 15 Pet. 9 ; Poultney v. Lafayette, 212; Livingston v. Story, 9 Pet. 632, 12 Pet. 473; Exparte Whitney, 13 Pet. 655; S. C., 13 Pet. 359, and 12 Pet. 404; Livingston v. Story, 9 Pet. 655; 339; Gaines v. Relf, 15 Pet 9; Ex Bein v. Heath, 12 How. 168; Pennsyl- parte Whitney, 13 Pet. 404 ; Gaines v, vania ^.Wheeling Bridge Co., 13 How. Chew, 2 How. 609 ; Poultney v. Lafay- 518. ette, 12 Pet. 473, 479. 8 Hyde v. Stone, 20 How. 170 ; Union 8 Payne x. Hook, 7 Wall. 425, 430; Bank v. Jolly, 18 How. 503; Suydani Green v. Creighton, 23 How. 90 ; U. S. v. Broadnax, 14 Pet. 67 ; Payne v. v. Howland, 4 Wheat. 108; Pratt v. Hook, 7 Wall. 425, 430; Beers v. Northam, 5 Mas. 95; Robinson n. Haughton, 9 Pet. 329. Campbell, 3 Wheat. 212; Boyle v. 4 Payne v. Hook, 7 Wall. 425,429, Zacharie, 6 Pet. 348, 635; Gaines v. 430. CIRCUIT COURT JURISDICTION. 41 adequate remedy at law is the test of equitable jurisdiction. This test is to be applied to each particular cause, as the nature thereof is disclosed by the pleadings. 1 III. CIRCUIT COUET JURISDICTION OF EXECUTORS AND ADMINIS- TRATORS. The jurisdiction being such, it results that a citizen of one State may maintain a suit in chancery against an administrator who is a citizen of another State, in the circuit court of the dis- trict of the latter State wherein such administrator resides, not- withstanding the laws of such latter State, wherein the administration is granted, require the affairs of the administra- tion to be settled in a particular or specified court, and give exclu- sive jurisdiction thereof to such State court. 3 And when such suit, against the administrator, is for fraud, and to obtain an ac- counting and satisfaction of rights of a complainant, the sureties of the administrator, resident in the State wherein the suit is brought, are properly made defendants, inasmuch as equity, by its rules and practice, disposes of the whole subject matter when jurisdiction has attached, and does not turn a party over to the ]aw side of the courts to consummate or obtain possession of the fruits of the suit, and therefore, in such proceeding, if the admin- istrator is decreed to account and pay over, will include his bondsmen in the decree, if in court; whereas, if not permitted to be sued with the principal, the result would be a subsequent action or suit against them, if the administrator should not be able to satisfy the decree, or the same be not otherwise realized. 3 Though State laws may operate as a rule of right in the courts of the United States, in the several States respectively, yet these laws cannot conter jurisdiction on a United States court, or en- large, diminish, restrict, or take it away. 4 Thus the circuit courts of the United States, with their full equity powers, have jurisdiction over executors and adminis- trators, if the parties are of the proper citizenship as to different Payne v. Hook, 7 Wall. 425; 8 Payne v. Hook,7 Wall. 425, 432,433. Boyce's Exrs. v. Gruucly, 3 Pet. 210. 4 Steamboat Orleans v. Phoebus, 11 2 Hyde v. Stone, 20 How. 170 ; Union Pet. 175 ; Roach v. Chapman, 22 How. Bank v. Jolly, 18 How. 503; Suydarn 129; Suydam v. Broadnax, 14 Pet. 67; . Broadnax, 14 Pet. 67. Insurance Co. v. Morse, 20 Wall. 445. 4:2 ixn II--TATE EQUITY JURISDICTION. States, and in the exercise of such jurisdiction will enforce the same rules in adjusting claims against them that are enforced in the State courts as between their own citizens. 1 If, in such a proceeding in the United States court, objection be made that it was commenced too soon after perfecting the grant of adminis- tration, as for instance, within one year, when by the State stat- ute suits may not be commenced against executors or admin- istrators within that time, then the objection, to be available, must be made at the earliest practicable stage of the suit, and will not be allowed if made, for the first time, at the trial. 8 IV. ENJOINING OF JUDGMENTS IN UNITED STATES COURT IN SAME COURT. A proceeding in equity by the defendant, to enjoin the en- forcement of a judgment rendered against him in a United States circuit court, is but an incident to the original suit in which the judgment is rendered, and is not to be regarded as an original bill or distinct proceeding. Therefore the fact that the defendant therein, who is the representative of the plaintiff in the judgment, being a citizen of the same State as the com- plainant, and in which the judgment is rendered, does not mil- itate against the jurisdiction of the court to entertain the bill. 3 Judgment of State Court. Bankruptcy. But a United States court may not enjoin a proceeding of a State court, except in cases within the jurisdiction in bankruptcy. 4 V. INJUNCTION IN STATE COURT, ACTING ON THE PERSON OP DEFENDANT. The authority of courts of one State to restrain by injunc- tion persons within its jurisdiction from prosecuting suits either in the courts of such State or in the courts of other States, against persons, or the property there situate of persons, resident in the State wherein the injunction is asked, is fully asserted. Not by way of interference with the course of proceedings or jurisdic- 1 Walker v. Walker, 9 Wall. 743, 1 U. S. Stat. at Large, 334; Dial r. 755 ; Green v. Creighton, 23 How. 90 ; Reynolds, 6 Otto, 340 ; Diggs v. Wol- Harvey v. Richards, 1 Mas. 381. cott, 4 Cr. 178 ; Watson v. Jones, IS 3 Walker r>. Walker, 9 Wall. 743. Wall. 679,719; Peck v. Jenness, 7 * Dunn r. Clark, 8 Pet. 1. How. 625. INJUNCTION IN STATE COURT. 43 tion of courts of other States; for, to this end, a court has no power; but upon the principle that courts of equity have full power over persons within their jurisdiction and amenable to their process, to restrain them from proceeding, either within or without the State, to do acts which are wrongful towards other residents, and therefore contrary to equity and good conscience. 1 The State courts cannot, however, enjoin proceeding in the courts of the United States; 2 and, as has been seen, the latter cannot in the former. In the exercise of this equitable power a court will restrain by injunction a citizen or resident within its jurisdiction from pros- ecuting an attachment suit in a court of another State against the personal property therein situate of an insolvent debtor, resident in the State in which the injunction is applied for, and who has made a general assignment therein valid in law, for the equal benefit of all his creditors, when the result of such attachment would be to give to the plaintiff therein a priority as to such property, and prevent the exercise of the equitable right of the assignee over the same for the equal benefit of the creditors. 3 To Prevent an Attachment as Against an Assignee. The equita- ble right of the assignee in such case is paramount, unless some valid claim or lien exists, under the laws of the State where the property attached is situated, which under the laws of that State would override the equity of the assignment, if the attachment was abandoned. 4 .Nor does it matter, as between the equities of the assignee and the attaching plaintiff, who is a resident of the same State. as the assignee, that the attachment proceedings be set on foot prior to the making of the assignment, if commenced with in- tent to obtain a preference over an expected assignment. 5 "By interposing to prevent it," says BIGELOW, J., " we do not inter- fere with the jurisdiction in other States, or control the opera- tion of foreign laws. We only assert and enforce our own authority over persons within our jurisdiction, to prevent them 1 Dehon v. Foster, 4 Allen, 545; Bryan v. Hickson, 40 Geo. 405; Ken- Massie v. Watts, 6 Cr. 148, 158 ; Briggs dall v. Windsor, 6 R. I. 453 ; Hines v. v. French, 1 Sum. 504; Engel v. Ranson, 40 Geo. 356. Scheuerman, 40 Geo. 206 ; Story's Eq. 3 Dehon v. Foster, 4 Allen, 545 ; Jur. 899-901; Billiard on Injunc- Same v. Same, 7 Allen, 57. tions, 266-272. 4 Dehon v. Foster, 7 Allen, 57. 2 TJ. S. v. Keokuk, 6 Wall. 514; 5 Dehon v. Foster, 4 Allen, 545. 44 INTER-STATE EQUITY JURISDICTION. from making use of means by which they seek to countervail and escape the operation of our own laws, in derogation of the rights, and to the wrong and injury of our own citizens." 1 This case was simply a controversy between the domestic creditors of the insolvent assignor, and did not involve the rights of citizens of the State, or residents thereof, wherein the attachment proceed- ings were pending. The assignment being valid where made, is valid, within the rules of comity, elsewhere, when not in deroga- tion of the policy or law of the other State, and does not derogate from the rights of creditors resident therein; and, as personal property is without a locality, and its disposition is controlled by the laws of the owner's domicile* and not by those of the local- ity where it happens to be, such being the general principle, it follows that the transfer by assignment, when valid where made, is valid everywhere else, subject to the limitation that it is not to have an effect contrary to the laws and policy of other States, as to the injury of the citizens or residents of the States whose laws are invoked to carry it out. 3 By the rule laid down in Massachusetts, if the attaching creditor be resident in or a citi- zen of the State wherein is pending the attachment proceeding, then, in the courts of that State, the attachment overrides the foreign assignment, for the law of comity does not require the courts of a State to enforce its own laws in favor of contracts made in other States, to the detriment of the rights of its own citizens or inhabitants. 3 1 Dehon t?. Foster, 4 Allen, 545. s Ingraham v. Geyer, 13 Mass. 146; 5 Dehon v. Foster, 4 Allen, 545, 553 ; Boyd v. Rockport Steam Mills, 7 Gray, Wales v. Alden, 22 Pick. 245 ; Cragin 406; Zipcey v. Thompson, 1 Gray, v. Lamkin, 7 Allen, 395 ; Swearingen 243 ; Cragin v. Lamkin, 7 Allen, 395. . Morris, 14 Ohio St. 434; Martin t>. Potter, 11 Gray, 37. INTER-STATE LAW OF CONTRACTS. 45 CHAPTEK VIII. INTER-STATE LAW OF CONTRACTS. I. THE LAW OF THE CONTRACT. II. THE LAW OF PERFORMANCE. III. THE LAW OF THE REMEDY. IV. STATUTORY BONDS MADE IN STATE PROCEEDINGS. V. STATUTORY BONDS TAKEN IN NATIONAL PROCEEDINGS. VI. RULE OF DAMAGES. VII. CONTRACTS MADE WITH A VIEW TO VIOLATE LAWS OF ANOTHER STATE. VIII. STATUTE OF FRAUDS. IX. COMMERCIAL PAPER AND ENDORSEMENT THEREOF. X. MORTGAGE LIEN. XI. LABORER'S LIEN. XII. CONTRACTS OF AFFREIGHTMENT. XIII. WAREHOUSE RECEIPTS. XIV. STOPPAGE IN TRANSITU. XV. INVIOLABILITY OF CONTRACTS. XVI. USURY. I. THE LAW OF THE CONTRACT. It is a general principle that the validity, force and mean- ing of contracts which are expressed to be performable where made, or which do not purport to be performable at any par- ticular place whatever, are governed by the law of the place where the contract is entered into, as the same existed at the date of the contract. Thus, when a contract is made in a particular State, and is performable in the same State, or is not expressly or impliedly performable in any particular State, or place, then the sufficiency of its execution, and its validity and meaning, are all determinable by* the laws of the State wherein it was made. If valid there, it is valid wherever and in whatever other State it is sought to be judicially enforced, if not in its character repugnant to the laws and policy of such latter State. Therefore, in the enforcement of a contract performable at no particular place, in a suit thereon in the court of a different 46 INTER-STATE LAW OF CONTRACTS. State than the one in which the contract was made, the court, as a general rule, will look to and enforce the law of the State where the contract was entered into, in reference to all matters involv- ing its execution, validity and meaning. In these respects, the. lex loci contractus, or law of the contract, prevails. 1 In the language of the Supreme Court of the United States, in the re- cent case of Scudder v. The Union National Bank? HUNT,.*!.: "Matters bearing upon the execution, interpretation, and the validity of a contract, are determined by the law of the place where the contract is made." Accordingly, where a contract is repugnant to the law of the State wherein it is made, and is part performable there, it is void, although it contemplates perform- ance, in part, somewhere else, the contract being of a nature entire and indivisible; thus, a contract was made in the State of Iowa, for transportation of live stock, partly in said State and partly in the State of Illinois, to the city of Chicago, the con- tract containing a clause limiting the common law liability of the carriers, while at that time a statute was in force in Iowa de- claring that " no contract, receipt, rule, or regulation, shall ex- empt " a " railroad or other company, person or firm, from the 1 Scudder c. Union National Bank, 1 Otto, 406, 412, 413 ; Dacostac. Davis, 4 Zab. 319; Miller v. Tiffany, 1 Wall. 298, 810; Depeau v. Humphry, 20 How. 1 ; Chapman . Robertson, 6 Paige, 627, 634; Andrews v. Pond, 13 Pet. 65; Shafer v. Bolander, 4 G. Greene, 201 ; Savary t. Savary, 3 Iowa, '271 ; Davis . Bronson, 6 Iowa, 410 ; Cox 0. TJ. S., 6 Pet. 172; Mathuson c. Crawford, 4 McL. 540 ; Camfranque v. Burnell, 1 Wash. C. C.340; Caldwell .. Carrington, 9 Pet. 86 ; Pope v. Nick- erson, 3 Story, 465, 474; Duncan v. U. .8., 7 Pet. 435 ; Courtois v. Carpenter, 1 Wash. C. C. 376 ; Bank of Augusta v. Earle, 13 Pet. 520; Willings v. Conse- qua, Pet. C. C. 302; Bank of U. S. t>. Donnelly, 8 Pet. 361 ; Wilcox v. Hunt, 13 Pet. 378; Smith v. Godfrey, 28 N. H. 379; French v. Hall, 9 N. H. 137; Whiston v. Stodder, 8 Martin, 95; Smith v. Mead, 3 Conn. 253; Hough- ton p. Page, 2 N. H. 42 ; Greenwood v. Curtis, 6 Mass. 358, 376 ; Blanchard B.Russell, 13 Mass. 1, 4; Arnold ?. Potter, 22 Iowa, 194; Boyd v. Ellis, 11 Iowa, 98; Franklin v. Twogood, 25 Iowa, 520 ; Carnagie v. Morrison, 2 Met. 397; Dater v. Earle, 3 Gray, 482; Warder v. Arell, 2 Wash. (Va.) 282, 298; Seymour v. Butler, 8 Iowa, 304; De Wolf v. Johnson, 10 Wheat. 367 ; Fisher v. Otis, 3 Chand. 83; Anstedt v. Sutter, 30 111. 164; Short v. Trabue. 4 Met. (Ky.) 299 ; Jamespn v. Gregory, ibid. 363; Mclntire v. Parks, 3 Met. (Ky.) 207; Barry v. Equitable Life Asso., 59 N. Y. 587, 594; Evans v. An- derson, 78 111. 558; Downer v. Chese- brough, 36 Conn. 39 ; Klinck v. Price, 4 West Va. 4; Levy v. Levy, 78 Penn. St. 507 ; Story's Conf. of Laws, 242 et seq.; Wharton's Conf. of Laws, 401%; Foote's Priv. International Law, 287 et seq. * 1 Otto, 406. LAW OF THE CONTRACT. 47 full liabilities of a common carrier, which, in the absence of any contract, receipt, rule, or regulation, would exist," in respect to the property or persons undertaken to be carried; the Supreme Court of Iowa held the contract void, as in violation of said statute, notwithstanding the objection urged to such ruling that the contract was in part performable in Illinois, where, in law, such limitation of liability was permissible. 1 So, if, according to the law of the place where a contract is executed or made, it be inoperative or void; or, being valid when made, thereafter is satisfied or discharged, it will then be so trealed and regarded in law in all other States in which its validity or enforcement is ju- dicially drawn in question. 2 Change of place cannot change the rights or liabilities of parties. Thus, if by law of the State wherein a promissory note is made, such note may not be trans- ferable by endorsement, or being transferable by endorsement, yet if an endorsement thereof in such State is, for any reason, invalid by the local law, then such transfer will, in either case, be held invalid in all other States wherein the same may be ju- dicially sought to be enforced. 3 And where a contract thus entitled to be governed as to its validity by the law of the State wherein it is made, is secured by mortgage on real estate situated in a different State, without any provision for or indication that payment thereof is to be performed in the latter State, then the mere fact of taking local security in such other State will not affect the validity of the contract, although there be that in the contract itself which would invalidate the same, if made in, or to be performed in, such latter State. 4 1 McDaniel e. Chicago & N. W. R. 30 111. 164; Bliss v. Brainard, 41 K R. Co., 24 Iowa, 412. H. 256; Duncomb v. Bunker, 2 Met. 2 Webster v. Massey, 2 Wash. C. 0. 8 ; Palmer v. Yarrington, 1 Ohio St. 157; Green v. Sarmiento, 3 Wash. C. 253; Shelton v. Marshall, 16 Tex. 344; C. 17 ; S. C. Pet. C. C. 74 ; Warder . Thompson v. Ketcham, 8 John. 190 ; Arell, a Wash. (Va.) 282. But it does Ford . Buckeye State Ins. Co., C not follow that a release of one part- Bush, 133; Titus v. Scantling, 4 ner, in writing, avowedly designed to Blackf. 89 ; Moore v. Clopton, 22 Ark. release but the one, will be treated as 125. See, also, references made ante, a release of others, though made p. 40, note 1. where the obligation was contracted, 3 McClintick v. Cummins, 3 Mc- but may be treated as an undertaking Lean, 158 ; Roosa v. Crist, 17 111. 450 ; not to sue the party purporting to be Carlisle v. Chamber, 4 Bush, 268; released. Seymour v. Butler, 8 Iowa, Bishop on Contracts, 730. 304. McDaniel v. Chi & N. W. R R. 4 De Wolf v. Johnson, 10 Wheat. Co., 24 Iowa, 412 ; Anstedt v. Sutler, 368 ; Bethell v. Bethell, 54 Incl. 428. 48 INTER-STATE LAW OF CONTRACTS. Thus, where, as in the case just cited, a contract and loan of money was made in Rhode Island, embodying a usurious- transaction by the laws of Rhode Island, as also by the laws of Kentucky, and real estate security was taken in the State of Kentucky, it was held that the laws of Rhode Island gov- erned as to the effect of the usury on the validity of the con- tract, and that, therefore, while by the law of Kentucky such a contract, if there made, or payable there, would be void, but by the laws of Rhode Island would only subject the party to a pen- alty, the latter was held to be the law of the contract, and it was enforceable by the law of Kentucky. 1 The case of Anstedt v. Suiter, above referred to, was an action in a court, of Illinois, for an indebtedness accruing in Missouri, for the price of wine sold to defendant in Missouri, on a credit, in violation of a statute of that State, declaring all contracts for sale of liquors, on a credit, void. The courts of Illinois held, in accordance with the general doctrine, that, the contract being void where made, was void everywhere else. The contract was a general one, as to time and place of payment, and therefore necessarily rested on the law of Missouri for its validity. 3 Transactions bearing Relation to Several States. A note mad& in one State, at a rate of interest lawful in that State, and se- cured by a mortgage lien on lands situated in such State, and which instruments were for money loaned by a citizen of a dif- ferent State, and were delivered to him in such other State where the contract of loan was agreed to, M-as held to be legal and en- forceable in the courts of the State where the land was situate, and where the debtor resided at the time of making the contract, as also of enforcing the same, although such instruments called for a greater interest than allowed by law in the State where the contract was agreed on and the instruments were delivered, and although in such latter State a forfeiture of the debt is incurred for usury. The ruling was that the whole transaction had refer- ence to the laws of the State where the land was situate, the debtor resided, and the instruments were made, although the 1 De Wolf v. Johnson, 10 Wheat. also. Hill . Spear, 50 N. H. 253; Teg. 368; Levy v. Levy, 78 Penn. St. 507; ler v. Shipman,33Iowa,194; Boothby Phila. Loan Co. T. Towner, 13 Conn. u. Plaisted, 51 N. H. 436; Webber v.. 249. Howe, 36 Mich. 150. * Anstedt v. Sutter, 30 111. 164. See, TRANSACTIONS BEARING RELATION TO STATES. 49' latter were delivered elsewhere, as above stated, and notwith- standing, also, that the notes were made payable in a still differ- ent State than that wherein they were made or delivered, or wherein either party resided. 1 Thus, a note, and mortgage made in Michigan to secure the same, on real property therein situated, calling for interest at ten per centum per annum, a rate of interest legal in Michigan, is binding and valid, although the note be payable in New York, where such interest is usurious. Such a contract is a Michigan and not a New York contract, and is therefore governed by the laws of Michigan as to its validity. 2 And so, a note made payable, with lawful interest, in the State where made, wherein also both maker and endorser reside, being valid in the State where made, does not become usurious by being discounted in another State at a discount greater than tho rate of interest there allowed by law. 3 And a contract of insur- ance, made with an insurance company of one State, and dated and executed by the president and secretary in that State, but not to become obligatory until countersigned and delivered by the agent of the company, in another State, is deemed to have been made when so countersigned and delivered in the latter State, and is governed by the laws thereof. 4 Contracts made in one State, and performable in another, as a subterfuge or shift, rest for their validity on the lex loci, or law of the place where made. 5 Contracts which are valid in the State where made, but which are to be performed in a State where they are invalid, will be held in the former State as gov- erned by the law of the latter State, and therefore invalid. 6 But contracts invalid by the law of the State where made, yet valid by the law of the State where they are to be performed, will be held valid in the former. 7 The personal executory contracts of an Indian, made within the territorial jurisdiction of a State, is governed as to its valid- 1 Arnold v. Potter, 22 Iowa, 194. 5 Andrews v. Pond, 13 Pet. 65. 8 Fitch v. Remer, 1 Biss. 337; Phil- 8 Ibid.; Story on Conf. of Laws, aclelphia Loan Co. v. Towner, 13 Conn. 304 a. 249 ; Levy v. Levy, 78 Penn. St. 507. 'Arnold v. Potter, 22 Iowa, 194; 3 Ilackettstown Bank v. Rea, 6 Lans. Junction Railroad v. Ashland Bank, 455. 12 Wall. 226; Kennedy v. Knight, 21 4 Daniels v. Hudson R. Ins. Co., 12 Wis. 340 ; Bishop on Contracts, 726. Cush. 416. 4 50 INTER-STATE LAW OF CO.\TKA<;TS. ity by the laws of that State, if there is no law of Congress pro- hibiting the making of such contract, or if it is not contrary to I the policy of the national government; 1 and though a general contract, sued on in another State than where made, bo such that if made where sued it would not be valid in law, yet if valid in the State where made, and not contrary to good morals, and it was not in the making thereof contemplated to violate the laws of policy of the State where sued, it will be therein enforced, by the principles of comity. 8 But if vicious in principle, or con- trary to good morals, or if it is calculated to contravene the policy or laws of the State where sought to be enforced, then the courts thereof will not enforce the same. 3 When the validity of a contract involves the laws of two or more States, and it is not expressly apparent which the parties had in view, then that law which is most favorable to validity will be regarded as the law of the contract. 4 II. THE LAW OF PERFORMANCE. The Law of the Place of Performance is the Law of Performance. The law of the place where performance is to occur governs in respect to the validity and performance of contracts, made in one State, but to be performed in another. As, for instance, in com- mercial contracts, the time, manner, and circumstances of pre- sentation or demand, for acceptance, payment, or protest; the rate of interest if none be designated, and whatever else relates to the fulfillment of contract or obligation. 6 To quote again from our highest national court: " Matters connected with * * * O performance are regulated by the law prevailing at the place of 'Taylor v. Drew, 21 Ark. 485. Windsor . Jacob, 2 Tyler, (Vt.) 192. 8 Greenwood . Curtis, 6 Mass. 358, 4 De Wolf v. Johnson, 10 Wheat. 378; Adams t>. Gay, 19 Vt.358; Crosby 367; Arnold v. Potter, 22 Iowa, 194; T. Berger, 3 Edw. Ch. 538 ; Blanchard Talbott v. Merchants' Disp. & Trans. D. Russell, 13 Mass. 1 ; Bliss v. Brain- Co., 41 Iowa, 247, 251. ard, 41 N. H. 256 ; Phinney v. Bald- Young t>. Harris, 14 B. Mon. 447; \vin, 16 111. 108 ; Story's Conf. of Laws, Pomeroy v. Ainsworth, 22 Barb. 118; g 242 et seq. Scudder v. Union National Bank, 1 z Pearsall v. Dwight, 2 Mass. 84; Otto, 406, 413; Hayden . Davis, 3 Davis v. Bronson, 6 Iowa, 410; Arm- McL. 276 ; Arnold v. Potter, 22 Iowa, strong v. Toler, 11 Wheat. 258; Com- 194; Boyd v. Ellis, 11 Iowa, 98; Cook mon wealth v. Aves, 18 Pick. 193 ; v. Moffat, 5 How. 295 ; Butler v. Myer, Phinney v. Baldwin, 16 111. 108; 17 Ind. 77 ; Thayer v. Elliott, 16 N. H. Greenwood t>. Curtis, 6 Mass. 358; 102 ; Andrews t>. Pond, 13 Pet. 77. LAW OF PERFORMANCE. 51 performance." 1 Thus notes drawn in one State and delivered and payable in another, for purchases made there, are governed by the law of the latter State, and are considered there made; 2 for by delivery only, the act of making is fully consummated. If, in such case, nothing be said in the notes as to interest, then interest is allowable according to the law where the same are payable. 3 The parties, however, may expressly stipulate in the instruments themselves, for such interest as is allowable in either State 4 (but, senible, not for interest in conformity to the law of a still different or third State). Performance in Two Different States. The principle of the law, however, that performance is to be in accordance with the law of the place at which performance is provided for by the contract, does not apply to contracts performable in parts, and which are performable partly in one State and partly in another. It is said that, in such cases, the law of the place where the con- tract is made prevails. 5 But if a contract be entire, and indivisible, and is to be partly performed in the State where it is made, and partly in another, then the lex loci contractus, or law of the State where it is made, governs as to its validity; and, if invalid there, it is invalid everywhere else. 6 The case of McDaniel v. The Chicago <& Northwestern Railroad Company grew out of a contract for transportation of cattle, from Clinton, Iowa, to Chicago, in Illinois. The contract was made in Iowa, and the property there 1 Scudder v. Union National Bank, payment of the principal and legal 1 Otto, 406, 413. interest. 2 Cook v. Moffat, 5 How. 295 ; Lee 4 Arnold v. Potter, 22 Iowa, 194, v. Selleck, 33 N. Y. 615. 198; Butters v. Olds, 11 Iowa, 1 ; Peck 3 Arnold v. Potter, 22 Iowa, 194; v. Mayo, 14 Vt. 33 ; Smith v. Smith, 2 Butters v. Olds, 11 Iowa, 1 ; Peck v. John. 236 ; Thompson v. Ketcham, 4 Mayo, 14 Vt. 33; Parson's Mercantile John. 285; Cox v. U. S., 6 Pet. 172; Law, 321. But though a note be so Andrews v. Pond, 13 Pet. 65. affected with usury, by the law where * Morgan . New Orleans R. R. Co., it is made, as would there incur a 2 Woods, 244. So, also, where prac- forfeiture on account thereof, yet such tical, the laws of the respective States forfeiture cannot be enforced afflrma- will be applied to such part of the tively in another State, in a suit on contract as is to be performed in each, such note. The court there will Pomeroy v. Ainsworth, 22 Barb. 118 ; neither enforce the forfeiture nor the Glenn . Thistle, 23 Miss. 42. usury. Wright v. Bartlette, 43 N. H. 6 McDaniel v. The Chicago & N.W. 648. They will simply enforce the R. R. Co., 24 Iowa, 412. 52 INTER-STATE LAW OP CONTRACTS. received by the railroad. The contract contained a clause re- stricting the liability of the railroad company for loss in carriage, which, in effect, violated a law of Iowa, inhibiting such restric- tions and declaring them void. On a trial in Iowa, growing out of a loss in carriage, the question arose as to the law of the con- tract, and it was held that the Iowa law was the law of the con- tract; that the restriction was inoperative, and that the rule of the common law was to apply to the case. The court, COLE. J.> say: "The contract being entire and indivisible, made in Iowa, arid to be partly performed here, it must, as to its validity, na- ture, obligation and interpretation, be governed by our law. And by our law, so far as it seeks to change the common law, it is wholly nugatory and inoperative. The rights of the parties, then, are to be determined under the common law, the same as if no such contract had been made." 1 III. THE LAW OF THE REMEDY. LEX FORI. The law of the forum, or place where suit is brought, governs as regards the remedy in the enforcement of contracts. Tljus, con- tracts made in one State, and enforced by suit in another, whether made in expectation of performance in such latter State, or made without any designated place of performance, as for instance, a general promise to pay a sum of money, are governed, in their legal enforcement, by the laws of the place where the suit is brought, as to all things pertaining to the remedy. 3 In the lan- guage of the United States Supreme Court: "Matters respect- ing the remedy, such as the bringing of suits, admissibility of evidence, statutes of limitation, depend upon the law of the place where the suit is brought." 8 Pleadings and evidence are matters strictly appertaining to the remedy, and, in respect to their sufficiency and admissibility, 1 24 Iowa, 417, 418. hart, 3 Gill & J. 234 ; Andrews . Her. 9 Scudder v. Union National Bank, riot, 4 Cow. 508; Scoville v. Canflcld, 1 Otto, 406, 413; Williams 0. Raines, 14 John. 338; Broadhead v. Noyes, 9 27 Iowa, 251 ; Sturges v. Crownin- Mo. 56 ; Wharton's Conf. of Laws, shield, 4 Wheat. 122; Ogden v. Saun- 741 et seq.; Foote's Private Interna- ders, 12 Wheat. 213; Douglas v. Old- tional Law, 413; Story's Conf. of ham, 6 N. H. 150; Bank of U. S. v. Laws, 556, 557. Donnally, 8 Pet. 301; Warren v. * Scudder t>. Union National Bank, Lynch, 5 John. 239 ; Thrasher v. Ever- 1 Otto, 406, 413. LAW OF THE REMEDY. 53 come within the rule of being governed by the law of the forum, or place where the trial is had. The case here cited very fully illustrates the application of this principle. It was an action in a court of Iowa, upon a sealed instrument for the payment of money, executed in the State of Maryland; an instrument of such a character as is usually termed a writing obligatory. The com- mon law rule was shown to have prevailed in Maryland, by the pleadings, at the date of the instrument, and that thereby the consideration for which the instrument was given could not be brought in question by a plea of want of consideration. But the court held to the contrary, and the Supreme Court of Iowa affirmed the decision, upon the principle that the question was one as to the remedy merely, and was governed by the law of the forum, which had abolished the common law distinction and permitted the consideration of sealed as well as unsealed instru- ments to be enquired into by pleadings and evidence. 1 In this case, the Supreme Court of Iowa, DILLON, J., say: "The plain- tiff must take such remedy as our laws afford him. * * * Respecting what shall be good defenses to actions in this State, its courts must administer its own laws, and not those of other States." * * * And, "our act of the legislature, allowing the ' O * O defense of want of consideration to be pleaded to all actions on subsequent sealed contracts, is a matter relating to the remedy, and does not impair the obligation of the contract within the meaning of the authoritative adjudications of the Supreme Court of the United States." "Whenever a remedy by suit is sought, the plaintiff takes such remedy as the law of the forum, or place of suit, affords, whether suit be in a State court or in a United States court. This is so, not only as to the law of trial, but also as to the enforcement of any judgment that may be obtained. Hence, as exemption laws pertain to the remedy, exemption from execution sale depends upon the law of the forum, and not upon the lex loci contractus* 1 Williams v. Haines, 27 Iowa, 251. vate International Law, 424 and 431. See, also, U.S. v. Donnally, 8 Pet. 361; s Newell v. Hayden, 8 Iowa, 140; Le Hoy v. Beard, 8 How. 451 ; Warren Helfenstein v. Cave, 3 Iowa, 287. . Lynch, 5 John. 239; Foote's Pri- INTER-STATE LAW OF CONTRACTS. IV. STATUTORY BONDS IN STATE PROCEEDINGS. What Statutory Obligations are Local. As a general principle, all statutory bonds, obligations and recognizances entered- into in the course of judicial proceedings, and in accordance with the statute law of the forum, where taken, made or executed, and in reference to such proceedings, as, also, official bonds for the faithful performance of statutory duties, the manner of enforce- ment of which are defined by statute, are local in their nature, and the enforcement thereof is confined to the courts of the sov- ereignty or State where made or entered into. The taking and enforcement thereof is a part of the internal policy of the State, and the means by which the State regulates its own internal con- cerns and conducts its official business, and, inasmuch as they are thus local, they cannot be enforced by suit in the courts of an- other State, either by proprio vigore of such statute laws, or upon the principles of comity. 1 Xo State interferes with the internal affairs of another, nor will enforce obligations entered into with a view thereto, and intended to operate only in aid thereof. 3 Such securities are unlike those personal obligations which occur between men in their ordinary transactions of life, and which are made by private persons, as evidences of private right, and which rest for validity upon the general principles of the common law, and are made without regard to any local regula- tions for their validity or enforcement, and are, therefore, of equal legal and moral force, wherever the parties may thereafter be, and which, following the person, will be enforced in all countries where the rights and liabilities of contracts are by general law recognized and enforced. 3 O What Statutory Obligations are Enforceable in Other States. Such contracts and obligations as these latter, that are dependent on the general law as to validity, and on the law of the forum, for their enforcement, will be enforced, however, in the courts of another State, although they originate in the administration of the laws of a State, and are of a public nature, and under statu- tory provisions, where the obligation is plain and direct, and is 1 Pickering v. Fisk, 6 Vt. 102; In- t>. Pownal, 9 Vt. 411 ; Story's Conf. of diana v. John, 5 Ham. (Ohio) 218. Laws, 625 a. Pickering v. Fisk, 6 Vt 102 ; Hunt Ibid. STATUTORY BONDS IN STATE PROCEEDINGS. OO left for its operation, enforcement, and effect, to rest upon the rules of the common law. 1 But when they are to have effect only in a particular way, and are enforceable only in a particular manner pointed out by the statute under which they are made, their enforcement is exclusively in the courts of the State in which they originate. 2 The case of Pickering v. Fish, above cited, was an action, in the court of Vermont, upon a bond exe- cuted by the sheriff of Grafton county, in the State of New Hampshire, and his sureties. The bond was payable to the State treasurer and his successors in office, conditioned for the faithful discharge of the duties of the office of sheriff. The suit was against one of the sureties, not in the name of the State treasurer of New Hampshire, but in the name of a private person, as per- mitted by the statute of New Hampshire, for neglect of duty in not serving and returning a writ of execution, and loss of plain- tiff, incurred by such neglect. The Supreme Court of Yermont held that no action would lie on such bond in the courts of that State, at the suit of a person, as the New Hampshire statute tol- erating such proceeding had no force within the State of Yer- mont, and could not be administered by the courts of the latter State. Remedies are administered only in accordance with the law of the forum. The very learned Justice REDFIELD, in discussing a kindred question in Dimick, v. Brooks f expressed grave doubts whether courts of one State can give effect to judgments of another State by the enforcement of collateral remedies which the prevailing party is entitled to in the forum where the judgments are ren- dered, as for instance, scire facias, or debt upon recognizances, of bail on mesne process, and suits against receiptors of property, upon replevin bonds, or against sheriffs for neglect of duty, be- lieving them all to be confined to local jurisdiction ; as, also, prison bonds, and warrants of attorney to confess judgment; and as- sumes it to be very clearly the law that remedy by scire facias to enforce any such collateral remedy, must be confined to the forum of the record. Statutory Obligations. Official Bonds, Continued. Official or statutory bonds, taken in one State under and by virtue of a stat- 1 Pickering v. Fisk, 6 Vt. 102 ; Hunt z Ibid. v. Pownal, 9 Vt. 411 ; Story's Conf. of * 21 Vt. 5(59, 579, 580. Laws, 625 a. DO i.vn:u->TATK L.\\\- OF OONTBAOT8. u tc r statutes thereof, and enforceable accord ing to such statute or statutes, are not enforceable in the courts of other States, in the peculiar manner and for the purposes prescribed by statute. 1 And nut being given except for these peculiar purposes, and being en- forceable only in the manner prescribed under the statute, it fol- lows therefrom that, in other States, they are not enforceable at all; for the proceeding to enforce them, though judicial in char- acter, is also administrative, as part of the machinery of State for carrying out the purposes of government in the various de- partments, and is essentially local to the tribunals of the State wherein they originate, as no State undertakes to administer the affairs, or enforce the laws of other States for purposes purely administrative. 8 Exceptions to the Bule. But, if the obligation be plain, cer- tain and direct, and in accordance with the principles of general law prevailing among civilized communities, and are merely de- pendent for enforcement on the law of the forum, then, although the purpose be administrative, they will be enforced in another State, though of a public nature and resting upon statute. 3 V. STATUTORY BONDS IN FEDERAL PKOCEEDINGS. Where Payable. Official bonds of officers of the United States, executed to the United States, conditioned for faithful perform- ance of official duties, and delivered to the proper department of the government at Washington, are, in contemplation of law, made at that place, although executed, except as to delivery, in one of the States. In case of accountability, under such bonds, payment is to be made at the treasury. The bonds are entered into in reference to that place, under the laws of the United States, and those laws and the rule of the common law govern as the law of the contract. 4 "Where a collector's bond was signed by himself and sureties, in Florida, and mailed to the proper department at Washington for approval and acceptance, and one of the sureties died while the bond was in transit between Florida and Washington, and Indiana B.John, 5 Ham. 218; Pickering c. Fisk, 6 Vt 102. Pickering v. Fisk, 6 Vt. 102. 4 Cox . U. S., 6 Pet. 172, 204; Dun- * Pickering t. Fisk, 6 Vt. 102; Me- can t;.U. S., 7 Pet. 435; U. S. v. Ste- Fee v. South Car. Ins. Co., 2 McCord, phenson, 1 McLean, 4G2. 503. STATUTORY BONDS IN FEDERAL PROCEEDINGS. *H before its approval and acceptance^ it was held that the bond was valid, and that the sureties were bound thereby. 1 Taking Effect by Relation. That though delivered for accept- ance and approval, or placed in course of transit for that purpose, and though the contract be not complete till approved and ac- cepted, yet when these acts are performed by the proper govern- ment functionary they then relate back to the date of the bond, and make it a valid bond as of that date, and therefore the surety who had died in the interval was bound thereby, and recovery was allowed and sustained against his administrator, on the bond. 3 Rule of Relation as to Bonds of Postmasters. But the rule of law is different as to the time of taking effect of a bond executed by a deputy postmaster to the postmaster-general. The latter takes effect when it is received by the postmaster-general and is by him accepted. Until then it is merely an offer. 3 There is a difference in this respect between bonds of a postmaster and col- lectors' bonds. Collectors are authorized to discharge the duties of their office for three months without giving bond; in other words, they have three months in which to give bond; but post- masters must give bonds, with approved security, on their ap- pointment. The appointment and giving bond are concurrent acts, and the appointment, without bond and security approved, does not in itself confer power to act. Hence, the date and taking effect of a postmaster's bond bear relation to the date of his appointment; whereas, a collector's bond, when accepted by official approval, relates back to its date, so as to cover the inter- val of time in which he had acted officially prior to its approval. 4 In the case of Le Baron, the Supreme Court of the United States say: "It is like the case of Bruce v. The State of Maryland,* where it was held that the bond of a sheriff took effect only when approved by the county court; because it was only on such approval that the sheriff was authorized to act." 6 Attachment Bonds. On an attachment bond executed to the marshal of the United States, in a proceeding by attachment in the United States Circuit Court, a suit lies, in the same court, 1 Broome . U. S. ( 15 How. 143. 4 Ibid. 2 Ibid. * 11 Gill & J. 382. 3 U. S. v. Le Baron, 19 How. 73, 77. 19 How. 77. 58 INTER-STATE LAW OF CONTRACTS. in behalf of the marshal as plaintiff, if averred to be for the benefit of persons citizens of a different State than that of the defendant, although the marshal's office has expired, and he has ceased to act as such officer. The real plaintiffs are those for whose use the suit is brought. 1 VI. KULE OF DAMAGES ON INTEK-STATE OBLIGATIONS. The measure and rule of damages to be awarded for the breach or non-performance of contracts made in one State, and expressed to be performable or payable in another State, it has been held, are the law of the State wherein the contract is made. The lex loci contractus governs in that respect, for the matter is matter of right, appertaining to the obligation of the contract, and not of remedy in reference to the manner, merely, of enforcing it. 2 But in cases of promissory notes made payable in a State other than where made, the rule of damages in case of a breach, it would seem, would be that of the place of performance. 3 In cases of tort, the rule of damages is always enforced under the measure of the lex fori, as will be seen hereafter. VII. CONTRACTS MADE WITH A VIEW TO VIOLATION OF LAW OF ANOTHER STATE. Void Contracts. Contracts entered into in one State, with a view to, or in contemplation of, the violation of the laws of an- other State, or with intent to enable a party to violate the same, are not enforceable in the courts of the latter, although legal in the State, or by the laws thereof, where made. 4 Knowledge Alone not Sufficient. There Must be Illegal Intent. A mere knowledge, of a party to a contract, that the otljier party thereto intends to use an article contracted for by selling the same in another State, in violation of the laws thereof, will not in itself avoid the contract, or prevent a recovery thereon in such 1 Huff v. Hutchinson, 14 How. 586. 214; Scofield v. Day, 20 John. 102; 3 Jaffray v. Dennis, 2 Wash. C. C. Archer v. Dunn, 2 W. & S. 327. 253 ; Consequa v. Will ings, Pet. C. C. 4 Davis v Bronson, 6 Iowa, 410, 433 ; -.2:25: Willingsc. Consequa, Ibid. 302. Armstrong v. Toler, 11 Wheat. 258; 8 Story's Conf. of L-iws, 304 6, Bliss c. Brainard, 41 N. H. 250; Phin- 307 a.; Foote's Private International ney v. Baldwin, 16 111. 108; Common- Law, 351 et seg.; Field on Damages, wealth v. Aves, 18 Pick. 193. CONTRACTS VIOLATING LAW OF ANOTHER STATE. 59 other State; there must be some sort of mutuality in the evil or wrong intent, or some purpose of aiding therein. 1 Purchase Made in One State by Order from Another State. A purchase made by order from one State, of a person in an- other State, there sending or forwarding the article bought, to the buyer, is regarded in law as a transaction in the State where the vendor resided, or from wherein he forwards the article, and depends for validity upon the law thereof. 3 Contracts of Common Carrier?. The contracts of a common carrier to carry property from a point in one State to a point in another, over a route lying partly in each of said States, is gov- erned as to its validity and interpretation by the law of the place where the contract is made and the property to be carried is re- ceived. 3 Thus, where a railroad company undertook to carry property from Clinton, in Iowa, to Chicago, in Illinois, over its road between those places, and stipulated for a restriction from the ordinary liability of common carrier, in contravention of a statute law of Iowa inhibiting such restriction, it was held that the contract, being partly performable in each State, was to be gov- erned as to validity by the laws of Iowa, and that, by reason of such illegal restriction, it was void; and that, therefore, the or- dinary liability attached to the carrier. 4 So, as in Talbott v. The Merchants' 1 Dispatch Transportation Company ', above cited, where a contract of transportation was made in Connecticut, for the carriage of property there received to Des Moines, Iowa, in which contract there was a stipulation in favor of the carrier, against loss by fire, and under which contract the property was received and transported as far as Chicago, in Illinois, and was there destroyed by fire, without fault of the carrier, and the laws both of Connecticut and Illinois tolerated such exemption in carriers' contracts, it was held that the carrier was exempt from liability, although the laws of Iowa, where the action was tried, 1 Johnson v. Gregory's Exrs., 4 Met. man, 33 Iowa, 194; Bootliby v. Plais- (Ky.) 363 ; Mclntyre v. Parks, 3 Met. ted, 51 N. H. 436. (Mass.) 207; Boothby v. Plaisted, 51 3 McDaniel v. Chicago & N. W. R. N. H. 436; Tegler . Shipman, 33 R. Co., 24 Iowa, 412; Talbott 0. Mer- lowa, 194; Hill . Spear, 50 N. H. chants' Dispatch Trans. Co., 41 Iowa, 253. 247. 2 Holman v. Johnson, Cowper, 341 ; 4 McDaniel v. Chi. & N. W. R. R. Sortwell v. Hughes, 1 Curtis, 244 ; Hill Co., 24 Iowa, 412. v. Spear, 50 N. H. 253 ; Tegler v. Ship- CO INTER-STATE LATV OF CONTRACTS. and the property was to have been delivered by the carrier, pro- hibits such contracts and renders the same invalid; such prohibi- tion and invalidity under the Iowa law has no extra-territorial force to invalidate a contract made elsewhere, in case of loss sus- tained in a State where such exemption was allowed by law. 1 VIII. STATUTE OF FRAUDS. The Statute of Frauds is of the lex loci contractus, and there- fore, if a contract made in one State be sued on or brought in question in the courts of another State, a party relying on the Statute of Frauds must rely upon the statute of the State where the contract was made, 2 and must plead and prove the same, with averments and proof also, if not otherwise admitted by the plead- ings, of the place of the alleged making of the contract. 3 And when proven, the statute is not enforced, strictly speaking, as a law, but as entering into, and forming a part of, the contract. If the contract is not subject to the Statute of Frauds where made, but by the statute of the State where performable, the contract is void, yet it will be held valid, and will be construed by the lex loci contractual IX. COMMERCIAL PAPER AND ENDORSEMENTS. Law of Place of Payments Governs. Notes and other commer- cial paper, for payment of money, made in one State and payable in another, are payable, and carry a liability to payment, accord- ing to the law of the place where payable. 5 Law oi Place of Endorsement Governs ; Fixes the Liability of the Endorser. But an endorsement thereof is governed by the 'Talbott v. Merchants' Dispatch 338; Carrigan v. Brent, 1 McLean, Trans. Co., 41 Iowa, 247. 167. 4 Denny v. Williams. 5 Allen, 1; * Hunt v. Standart, 15 Ind. 33; An- Forward v. Harris, 30 Barb. 338 ; Low drews v. Pond, 13 Pet. 65 ; Freese v. v. Andrews, 1 Story, 38; Allshouse v. Brownell, 35 N. J. 285; Edwards on Ramsay, 6 Whart. 331; Scudder v. Bills, 178; Daniels on Neg. Instru- Vnion Nat. Bank, 1 Otto, 406 ; Robb ments, 879 et seg. So the number >. Halsey, 11 Sm. & M. 140. of days of grace allowed is governed 3 Forward v. Harris, 30 Barb. 333. by the law of the place where the 4 Scudder v. Union Nat. Bank, 1 note is payable. Story's Conf. of Otto, 406 ; Forward v. Harris, 30 Barb. Laws, 361. COMMERCIAL PAPER AND ENDORSEMENTS. 61 law where the endorsement is made; 1 for it is not an under- taking to pay at -any particular place. 3 Contracts of Maker and Endorser Distinct. The endorser will not be held to have accepted the place where the note is payable. He makes a new contract; and that contract is governed by the lex loci contractus. The liability of an endorser, of a bill or note drawn in one State and payable in another, rests upon the law of the State wherein the endorsement is made. The contract of endorsement is distinct in itself, and is an assumption to pay upon such con- ditions as attend such an act, by the law of the State where the act is done. The construction thereof, and of the diligence to be used by a plaintiff to entitle him to recover against the endorser, must therefore be governed by the laws of the State where the contract of endorsement is made, for it is a contract to pay, if liable at all, where the endorsement is made. 3 It may therefore be regarded as settled that a contract of en- dorsement of negotiable paper is subject to the law of the place where the endorsement is made and completed, without regard to the place of payment or place of making of the note itself; for the contracts of maker and of endorser are separate and distinct. The endorser's liability is conditional, and, as to time or place of payment, is general; therefore a note may be payable at a par- ticular time and place, but an ordinary endorsement thereof is not an undertaking to pay at such time or such place, tyut is an undertaking to pay generally wherever called on, if the note be not paid by the maker, and he, the endorser, be duly notified thereof. 4 The endorsement is a distinct contract from that of making 1 Shaw v. "Wood, 8 Incl. 518; Rosew. 357; National Bank of* Michigan v. Thames Bank, 15 Incl. 292; Hutchens Green, 33 Iowa, 140; Trabue v. Short, v. Hanna, 8 Ind. 533 ; Trabue v. Short, 18 La. Ann. 257 ; Hunt v. Standart, 15 5 Cold. 293 ; Dow v. Rowell, 12 N. H. Ind. 35 ; Holbrook v. Vibbard, 2 Scam. 49; Dundas v. Bowler, 3 McL. 400; 465; Musson v. Lake, 4 How. 262. National Bank of Michigan v. Green, 4 Short v. Trabue, 4 Met. (Ky ) 209 ; 33 Iowa, 140 ; Daniels on Neg. Instru- Holbrook v. Vibbard, 2 Scam. 465 ; rnents, 899. Hunt v. Standart, 15 Ind. 33 ; Lowrey 2 Rose . Thames Bank, 15 Ind. 292. v. Western Bank of Georgia, 7 Ala. See, also, cases cited in the preceding 120 ; Hatcher v, McMorine, 4 Dev. note. 122; Shaw . Wood, 8 Ind. 518; 8 Chatham Bank v. Allison, 15 Iowa, Hutchens v. Hanna, 8 Ind. 533. <52 INTER-STATE LAW OF CONTRACTS. the paper itself, aud is governed, as to its validity, legal effect, and liability of the endorser, by the law of the -place where the endorsement is made, and not where the instrument itself was made or is payable. 1 Delivery. But the contract of endorsement is not, in law, always made at the place where the endorsement is written upon the bill or note. The true rule is, that the contract is completed only by the delivery of the instrument. So that the endorsement must not only be written, but must be delivered, in order to bind the endorser; hence, as was held in the case above cited, of TJie Cfiatham Bank v. Allison, where an endorsement is made in one State and then the bill, and endorsement on it, is sent by the en- dorser to a bank in a different State, to be collected or negotiated, and, after acceptance by the payee, the bank discounts the bill, the contract of endorsement only became complete as between the endorser and the bank, when the latter discounted the same, and thereby became the holder of it as for the benefit of the bank. In such a case the contract of endorsement is not to be under- stood as made where the bill is drawn and the name of the en- dorser written thereon, unless there delivered to the endorsee, but rather where the endorsement is accepted by a consenting en- dorsee, who takes the same on faith of such endorsement. 3 The Place of Making not the Place of Delivery. But, although the liability of an endorser of commercial paper is governed by the lex loci contractits, or law of the place where the endorse- ment is made, yet the endorsement is not complete until delivery thereof, and also of the note or paper itself to those to whom it is intended to become obligatory. Therefore, the place of making the endorsement is that at which the delivery of the note and endorsement occurs, so that if a note be written in one State, and an endorsement be there written thereon, and it remains in the hands of the maker, and delivery to the payee afterward takes place in another State, the latter State is the place where the instruments are made, as the contracts of maker and endorser are only completed by delivery. In such case, the lex loci of 1 Chatham Bank v. Allison, 15 Iowa, 357 ; Freese t. Brownell, 35 N. J. Law, 357; National Bank of Michigan v. 286; Campbell v. Nichols, 33 N. J. Green, 33 Iowa, 140 ; Thorp v. Craig, Law, 81; Daniels on Neg. Iiistru- 10 Iowa, 461. meuts, 868. * Chatham Bank v. Allison, 15 Iowa, COMMERCIAL PAPER AND ENDORSEMENTS. 63 the place of delivery becomes the law of the contract, as well in regard to the principal instrument as to the endorsement, and the validity and obligation of both are governed thereby. 1 Such being the law, it follows that, if by the law of the place of de- livery an endorser becomes a joint promiser, he is liable as such without demand or notice. 3 A draft drawn on a person of another State than where drawn, and by the drawee accepted, and then returned to the drawer to be there negotiated for his benefit, as an accommodation accept- ance, with an understanding as between the drawer and acceptor that the drawer should pay the same, is, until negotiated, not a binding contract. The draw r er is substantially the agent of the acceptor, to put the same upon the market and realize for his, the drawer's, benefit, the proceeds thereof. "When it falls into the hands of a ~bona fide holder at the place where drawn, it be- comes a perfected contract, and not until then. It is therefore to be considered, both as to the drawing and acceptance thereof, as a contract made in the State wherein it is drawn, and is to be gov- erned, as to its validity and meaning, by the laws of such State, notwithstanding the acceptance is written in a different place and State. 3 If, by the laws of the State where the draft is thus drawn and negotiated, the transaction is valid, an innocent holder may recover thereon. 4 And though such draft be made payable in a different State merely to give it currency as between drawer and acceptor, but in reality intended to be paid where made, and though it calls for a greater rate of interest than is allowable at such designated place of payment, yet if such rate be allowable by the law of the place of the contract, it may there be enforced. 5 Acceptor. The same law which governs the maker of a note governs the acceptor. By acceptance he becomes, in fact, a prom- isor, and the draft thus accepted, his promissory note. If, there- fore, the draft be payable at a particular place, by his acceptance he subjects himself to the law of the place of performance. 6 Notice of Dishonor. Thus, the law of the place where the endorsements are made, being the law of the contract of endorse- 1 Lawrence v. Bassett, 5 Allen, 140. 8 Ibid. * Ibid. 6 Freese v. Brownell, 85 K J. Law, 8 Tilden v. Blair, 21 Wall. 241. 286 ; Everett . Yendryes, 19 K Y. 436 ; 4 ibid. Daniel on Neg. Instruments, 896. ''4 INTEK-STATE LAW OF CONTRACTS. ments, therefore, if nothing appear to the contrary, such law governs as to the liability of the endorsers, 1 it follows, that where a party endorses in one State commercial paper which is payable in another State, notice of dishonor must be in accordance with the law of the State where the paper was endorsed. 8 Protest. The law governing protest is regulated by the law of the place of the performance or acceptance. If, therefore, the drawee refuses acceptance, the law of the place where such refusal is made governs. 3 Notice. Change of Residence of Maker. No notice or pre- sentation for payment is necessary to charge the endorser of ne- gotiable paper generally, if before maturity the maker changes his residence to another State, and there resides when the paper becomes due. Presentation and demand in such case at the maker's late residence would be unavailing, and are therefore not required. 4 Rate of Interest. In an action on a promissory note, or other contract for the payment of money, the action being in the court of a different State than that wherein the contract was made, and the contract being payable generally, without specifying a place of payment or rate of interest, then interest is to be allowed according to the law where the contract was made, if the place of payment be apparent from the instrument, or pleadings and evidence, and is in a different State than the State in which suit and recovery occurs. 6 If, on the other hand, the instrument sued on is payable in the State where the suit is pending, or in some other State than that wherein it was made, and is silent as to the rate of interest, then interest is to be allowed in accordance with the law 1 Huse^ Hamblin; Same v. Me- 8 Story's Conf. of Laws, 360, Daniel; Same u. Flint, 29 Iowa, 501; 631. Thorp v. Craig, 10 Iowa, 461. * Foster t>. Julien, 24 N. Y. 28 ; An- "Huse T. Hamblin, 29 Iowa, 501, derson c. Drake, 14 John. 114; Mc- 504; Williams v. Wade, 1 Met. 82; Gruder v. Bank of Washington, & Dow v. Rowell, 12 N. H. 49 ; Allen v. Wheat. 598 ; Gist v. Ly brand, 3 Ohio, Merchants' Bank, 22 Wend. 218; Yeat- 307; Duncan v. McCullough, 4 S. & man v. Cullen, 5 Blackf. 240; Dunn v. R, 480; Reid v. Morrison, 2 W. & S. Adams,! Ala. 527; Russell v. Buck, 401; Gillespie v. Hannahan, 4 Mc- 14 Vt. 147; Aymar e. Sheldon, 12 Cord, 503. Wend. 444; Daniels on Neg. Instru- & Smith v. Smith, 2 John. 235. ments, 910. COMMERCIAL PAPER AND ENDORSEMENTS. 65 of the State wherein it purports to be payable; and this, too, if made in the place or State where suit is brought, but is payable in some other State; for, as a general rule, be the suit and recovery wherever it may, the rate of interest is to be computed in accord- ance with the legal rate where it is payable, if made in one State and payable in another. 1 But the parties may agree at pleasure by stipulating in the contract, for the rate of interest in the place where it is made, or where performable. 3 Usurious Contract. If both by the law of the State where the instrument is made and the law of the State wherein payment is to be made, the contract be usurious, then the effect of such usu- riousness is to be decided by the law of the place of the making thereof. 3 If a contract is usurious where made, but valid where performable, the latter law governs. 4 So, also, if the contract is good where made it will be enforced by the courts of another State, even though the contract would have been usurious had it been there entered into. 5 If the effect be a forfeiture by the statute, yet the forfeiture is enforceable in the forum where suit is brought, notwithstanding the doctrine that courts will not enforce penal statutes of a different or foreign State; for such provision of forfeiture is not a provision for a penalty, but merely resists so much of the validity of the contracts, and acts only as a restriction of the amount recoverable, and in that respect is rightly referable to the law of the place where the con- tract is made. 6 In actions in the United States circuit courts, sitting in any 1 Butters v. Olds, 11 Iowa, 1 ; De v. Camp, 13 Wis. 198, 221 ; Daniels on Wolf v. Johnson, 10 Wheat. 367 ; Neg. Instruments, 922. Campbell v. Nichols, 33 N. J. Law, 3 Arnold v. Potter, 22 Iowa, 194. 81. But if the interest is adjudged 4 Junction Railroad Co. . Ashland by the court merely as damages, and Bank, 12 Wall. -226; Duncan v. Helm, not as interest under the contract, the 22 La. Ann. 418 ; Miller . State, the laws of such State regulating interest on judgments are in that respect the law of the United States courts, if no par- ticular interest be contracted for. 1 Defenses. To an action on a note which is both made and pay- able in one and the same State, the same defense (provided it is not statutory) is allowable, when sued in another State, that ini^lit have been made to it if sued in a court of the State where made. 1 Thus, where a note is made and is payable in a State where by law defenses of payments, want of consideration, discounts, and sets-off accruing prior to notice of endorsement, and all of which affect the substance of the contract, are allowed, then the same tie tenses may be relied on under similar circumstances in a suit in the court of a different State, 3 but matters of defense which are merely local, which go to the form of the contract and are not a part of it, procedure, parties and time, being legal as well as equitable, defenses are governed by the lex fori.* Foreign Bills of Exchange Subject to Jurisdiction of United States Courts. The provision of the act of Congress of 1789, which declares that no district or circuit court shall have "cog- nizance of any suit for the recovery of the contents of any prom- issory note or other chose in action in favor of an assignee, unless a suit might have been prosecuted in such court to recover said contents, if no assignment had been made, except in case of for- eign bills of exchange," 5 does not in its restrictive or inhibitory features apply to the endorsees or assignees of bills of exchange drawn in one State upon a person in another, and made payable in such latter State. Such bills of exchange partake of the char- acter of foreign bills, and are to be so treated; 6 for although the States and citizens thereof are one, as for all national purposes embraced in the Federal Constitution, and are united under the same sovereign authority, and are governed by the same laws, yet in all other respects the States are foreign to and independent of each other. 7 Upon the principle, then, that such instruments 1 Sneed v. Wister, 8 Wheat. GOO. Jones v. Jones, 18 Ala. 248; Ruggles s Brabston v. Gibson, 9 How. 2C3; . Keeler, 3 John. 261. Story's Coiif. of Laws, 330 et seq. 6 Sheldon . Sill, 8 How. 441. Ibid. 6 Buckner . Finley, 2 Pet. 586. 4 Daniels on Neg. Instruments, 'Warder v. Arell, 2 Wash. (Va.) 890; Davis t. Morton, 5 Bush, 160; 298; Buckner t>. Finley, 2 Pet. 586. COMMERCIAL PAPER AND ENDORSEMENTS. 67 are foreign bills, it results that although a bill be drawn in favor of a citizen of the same State with the drawer, but on a citizen of another State, so that suit would not lie in favor of the payee in the United States circuit court, yet the endorsee or assignee thereof, who is a citizen of a different State than that of the drawer, may sue the drawer thereon in the Federal courts. 1 But if at the time of making the note or other negotiable instrument for payment of money, (except foreign bills of ex- change,) the maker and payee were both citizens of the same State, so that a suit would not lie thereon in the United States court, then no action will lie on such instrument in said court in favor of an assignee or endorsee thereof, 3 unless at the time of making the assignment or endorsement by the payee, he had become, and then was in good faith a resident and citizen of a different State than the one of which the parties were citizens at the time of the making of the contract. But if the payee, be- fore parting with the instrument has become qualified to sue in the Federal court, then his assignee, if qualified in point of citi- zenship, may sue, for the assignee of negotiable paper may main- tain suit thereon in the United States circuit court, against a citizen of another State than that whereof such assignee is a cit- izen, notwithstanding that at the time of making the note the parties thereto were both citizens of the same State, if the payee and assignee thereof was a citizen of a different State from that of the maker at the time of assigning the note, so that an action in said court might at that time have been maintained by him- self against the maker. For if such payee becomes in good faith a citizen of another State after the making of the note and be- fore parting with the same, then the capacity to sue in the United States district court inures to him, by virtue of such citizen- ship, and by an assignment of the note to a citizen of a different State from that of the debtor, the same right of action passes to the assignee. Such a case is not within the exception in the act of Congress in regard to jurisdiction of suits by assignees of promissorv notes. 3 1 Buckner v. Finley, 2 Pet. 586. 8 Kirkman v. Hamilton, 6 Pet. 20. * Gibson v. Chew, 16 Pet. 315. 68 INTER-STATE LAW OF CONTRACTS. X. MORTGAGE LIEN. Follows the property in other States. A chattel mortgage of property duly executed and recorded in one State, so as to confer right of possession of the property in the mortgagee, is equally good and binding in every other State in which the property may come. The lex loci contractus governs the validity, nature and force of such a contract, and the right of possession or lien con- ferred thereby upon the mortgagee follows the property not only everywhere within, but also everywhere without the particular sovereignty or State wherein the contract is made and the prop- erty is at the time; and these rights will be enforced, in the judi- cial forum, in such other jurisdictions or States, to the same ex- tent and obligation as in the State where the transaction arises, and that a purchase may have intervened from one seemingly the owner does not alter the case. 1 Right of possession enforced. When, by the terms of such mortgage, the right has accrued to the mortgagee of actual pos- sion of the property, that right may be enforced by an action of replevin or other proper action for obtaining possession, in what- ever State the mortgaged property may then be; and it is no answer thereto that no evidence or notice existed of record, or was otherwise given, to charge a purchaser therein with notice of the mortgage. 2 But the court say, in the case above cited, in answer to such an objection, and the liability of buyers to be im- posed upon, that " this may be so, but the same argument would be just as true and forcible if the instrument were of record in some distant county of this State." 3 A mortgage of a vessel regularly made and recorded under the laws of the United States, in the office of the proper collector, although possession be not given to the mortgagee, is not affected as to its validity by any State law in reference to the filing or re- cordjng mortgages of personal property made or taken under the ' Smith v. McLean, 24 Iowa, 322 ; Blystone t>. Burgett, 10 Ind. 28 ; Bar- Arnold v. Potter, 22 Iowa, 198; Sava- ker v. Stacy, 25 Miss. 477; Ryan v. ryt>. Savary,3^owa,272;BankofU.S. Clanton, 8 Strob. 412, 471; Herman T?. Donnally, 8 Pet. 361 ; Davis v. Bron- on Chattel Mortgages, 79, 80. s^)n, 6 Iowa, 410, 424; Jones v. Taylor, J Smith v. McLean, 24 Iowa, 822, 30 Vt 42; Offutt v. Flagg, 10 N. H. 330, 331. 50 ; Ferguson v. Clifford, 87 N. H. 87 ; * Ibid. MORTGAGE LIEN. 69 laws of the State. The congressional acts on the subject of record- ing and effect thereof are no exclusion of State legislation on the same subject. 1 Mortgage in one State; property in another State. But the lien of a mortgage made in one State by a person resident and citizen thereof, on personal property situated at the time in an- other State, in which latter State the law requires the recording of such instruments, or else that possession be given before levy of attachments or executions thereon as essential to priority, is overcome by the priority of an attachment levy of the same prop- erty in a proceeding in rem against it made before the recording of such mortgage, before delivery of possession of the prop- erty in pursuance thereof. 8 Though it is true that the validity of a contract is governed, as a general principle, by the lav/ where made, yet it is not so if such conclusion conflict with the rights of others, where the property is situated, or with the laws of the State of its actual situs. 3 Therefore, a mortgage made in New York on personal property situated at the time in Illinois, is post- poned in favor of an attachment levy of the same property in a proceeding in rem, and by a subsequent condemnation thereof in sale in such proceeding. The title of the purchaser relates back to the date of the attachment levy, and takes precedence of trans- fers or liens unrecorded at that time, and without change of pos- session of the property in the debtor. 4 Though, for some pur- poses, a fiction of law prevails that personal property attends the owner, and that transfers of it by him, valid at his domicile, and there made, are valid in such other State as the property may at the time be situated in. But this is only as against the vendor, or volunteers, and not as against intervening bona fide claims aris- ing under the law of the actual situs. To these, tlrisfatio ogives place or yields. It is only by comity that such contracts made in one State, when valid there, are enforcible at all in another State; therefore, when their enforcement conflicts with rights acquired 1 Aldrich v. ^Etna Company, 8 Wall. 100 ; Green v. Van Buskirk, 5 Wall. 491. 307; Guillander v. Howell, 35 N. Y. 2 Green v. Van Buskirk, 7 Wall. 139 ; 057. Milne v. Morton, 6 Binn. 361 ; Taylor 3 Green v. Van Buskirk, 7 Wall. 139 ; . Boardman, 25 Vt. 581 ; Emerson v. Guillander v. Howell, 35 N. Y. 657. Patridge, 27 Vt. 8 ; Ward v. Morrison, 4 Green v. Van Buskirk, 7 Wall. 139 ; 25 Vt. 593 ; Norris v. Mumford, 4 Mar- Golden v. Cockrill, 1 Kansas, 259. tin, 20; Lanfear v. Sumner, 17 Mass. 70 INTER-STATE LAW OF CONTRACTS. under the latter's own law that comity ceases to exist in the particular case. 1 Foreign mortgage of land to prefer creditors. Assignments. A mortgage to secure a bona fide debt, duly executed and re- corded in Iowa, upon lands in that State, and made by anon-resi- dent debtor, in view of insolvency, is not affected by the fact of the same debtor making, on or about the same day, in another State wherein he resides, a general assignment of all his property in the latter State for benefit of his creditors. 3 By the laws of Iowa, a failing debtor may make a mortgage to secure a particu- lar creditor, and the same will not be held invalid by reason of his failing condition; 3 and such is none the less the rule if the debtor be a citizen or a resident of another State. 4 The effect of the assignment in the ' State where that is made, under the laws of that State, as to validity or invalidity thereof, will have no influence or bearing upon the validity of the mortgage in, Iowa. 5 It may be stated, as a general rule, that where a for- eign assignment conflicts with the local law, the latter will pre- vail. So that land attached where situated subsequent to a foreign assignment will prevail. 6 Railroad mortgage. A mortgage of a railroad is valid, though executed by the president in a different State than that where the railroad corporation exists, if its execution be otherwise sufficient and is authorized by the directory, although the vote of authority be silent as to the place where it shall be executed. 7 And such mortgage, if shown on its face to be so intended, may legally call for the rate of interest allowable where the road is situated, although it is a higher rate than that allowed where the mortgage is executed. XI. LABORERS' LIEN ON INTER-STATE RAFTS. Rafts of lumber floated out of one State into another, in which latter State a lien on rafts of lumber is given by law to- laborers assisting to run such rafts, become liable to the laborers' 1 Green t>. Van Buskirk, 7 Wall. 139, * Lyon v. Mcllvaine, 24 Iowa, 9. 150,151. Burrill on Assignments, 304; 3 Lyon v. Mcllvaine, 24 Iowa, 9. Story's Conf. of Laws. 327, 423 a. 3 Lampson v. Arnold, 19 Iowa, 479 ; : Cheever c. Rutland & Bur. R. R. Lyon v. Mcllvaine, 24 Iowa, 9. Co., 39 Vt. G53. 4 Lyon v. Mcllvaine, 24 Iowa, 9. CONTRACTS OF AFFREIGHTMENT. 71 lien on arriving in such latter State for whatever sum of money may be due them, and the same will there be enforced, if applied for, on arrival of such rafts at the destined port in such State for which they started. 1 lSTor will it alter the case as to the right of the lien, that the owner of the raft contracts with another person to make the run at his own expense to the destined point; the laborers are none the less entitled thereto, if there is no agree- ment with them to the contrary. 3 XII. CONTRACTS OF AFFREIGHTMENT. Contracts for inter-St&te affreightment, valid in the State where made, are valid elsewhere if not in contravention of the law of such other place or places, 3 and when made by a consignor ot goods delivered for carriage, are binding on the consignee of another State the same as if made by himself. 4 Existing rights of shippers, attached to freight consigned for inter-StatQ carriage, are not prejudiced by the property being carried into another State. 5 A bill of lading and contract of shipment made in one State for the shipment and transportation of property to a point in another State, and on the faith of which advances are made in the State where the transaction occurs, is a contract governed by the laws of the State where made, if between citizens of such State. 6 The person thus making the advances on the bill of lading becomes the legal owner of the property not absolutely but as security for the reimbursement of his advances. 7 The obligation to reimburse the advances is in legal effect, and in the ' Hanson . Hiles, 34 Iowa, 350. ' First Nat. Bank of Toledo v. Shaw, 2 Ibid. 61 N. Y. 283 ; First Nat. Bank of Cin- 3 Robinson . Merchants' Dispatch, cinnati v. Kelly, 57 N. Y. 34; Bank 45 Iowa, 470; Marine Bank of Chi- of Rochester v. Jones, 4 N. Y. 497; cago v. AVright, 48 N. Y. 1. Bailey v. Hudson R. R. Co., 49 N. Y. 4 Robinson v. Merchants' Dispatch, 70; Dows v. Greene, 24 N. Y. 6:38; 45 Iowa, 470; Marine Bank of Chi- Lickbarron v. Mason, 2 T. R. 63, and cago v. Wright, 48 N. Y. 1. Hare & Wallace's Notes to Smith's 5 Story's Conf. of Laws, g 401, 402, Leading Cases, vol. 1, 7th ed. pp. 1147, 402 a; Marine Bank of Chicago v. 1227 ; Marine Bank of Chicago v. Wright, 48 N. Y. 1. Wright, 48 N. Y. 1 ; Cayuga County 6 First Nat. Bank of Toledo v. Shaw, Nat. Bank v. Daniels, 47 N. Y. 631. 61 N. Y. 283; First Nat. Bank of Cin- cinnati v. Kelly, 57 N. Y. 34 Tli INTER-STATE LAW OF CONTRACTS. ali i-iicc of any other understanding, an obligation to make such reimbursement at the same place where the advancement is made. Bills Drawn on Consignee. This, too, although bills are drawn on the consignee in favor of the person making the advances, and for the purpose of reimbursing the same. The effect intended is repayment there by means of such bills, and the law of the place governs the transaction. 1 When the reimbursement is completed, the ownership then is in the person thus secured, no longer for his own security, but in trust for the consignee or real owner of the property. 8 Affreightment Contracts by Foreign Corporations. Contracts of affreightment or carriage made in one State by a railroad cor- poration of another State, and to be performed in the latter State, are governed, as to performance, by the laws of the latter State, 3 and the fact that a part of the carriage is across an intermediate State boundary river, over which both States possess the right of navigation and used by their respective inhabitants, does not alter the case in law. 4 XIII. WAREHOUSE RECEIPTS. The transfer, by delivery and endorsement of warehouse re- ceipts, in one State, for goods stored in a warehouse of a different State in the ordinary course of commerce, is a transfer of the goods, as actual delivery is impracticable, and will, where the transaction is a bona fide one, hold over process of attachment against the person making the transfer, although such change of ownership and transfer be unknown to both the warehouseman and the plaintiff in attachment. The force thereof is like the transfer of a ship at sea delivery is impracticable. Such trans- actions are a necessity of internal trade and result from the usages thereof. 6 1 First Nat. Bank of Toledo v. Shaw, iams, 12 Pick. 297 ; City Bank v. Rome, Gl N. Y. 283, 292 ; Boyle p. Zacharie, 6 TV. & 0. R. R. Co., 44 N. Y. 136. Pet. 635,644; Lanussee v. Barker, 3 * Brown v. Camdcn & Atlantic R. R. Wheat. 101 ; Grant v. Healey, 3 Sunin. Co., 83 Penn. St. 316. 523. 4 Ibid. 3 First Nat. Bank of Toledo t. Shaw, B Gibson v. Stevens, 8 How. 881 61 N. Y. 283, 292, 294; Allen v. Will- STOPPAGE IN TRANSITU. 73 XIY. STOPPAGE IN TEANSITU. Inter-State Consignments. In cases involving the riglit of stoppage in transitu of inter-State consignments of property to be carried by common carriers out of one State into or through another, or into or through still another State or States, the per- sonal right of the consignor to thus stop and reclaim the prop- erty is not prejudicsd by its passing out of one State, into or through another State or States, but follows the property wherever it goes until delivery to the consignee, and may be enforced in every such other State into which the goods are carried. 1 This right will override the claim of intervening purchases made of the consignee, as also levies against him during the transit, to the same extent as it would in the State wherein the consignment is made. 2 But the prevailing idea that the carrier is bound to deliver up the goods on mere claim of the consignor to have the same, and at any and every place at which the goods may arrive, or which they may in their transit pass, or else subject himself, on refusal, to an action for conversion of the same, is altogether erroneous. While there is no want of authority to show that the consignor is entitled, under proper circumstances, to reclaim the goods, and to have possession thereof, yet we have been unable to find any decision imposing upon the carrier the duty of person- ally knowing the consignor, so as to be truly advised of his identity, or charging the carrier with knowledge of the facts on which the right of stoppage in transitu rests in each particular case, or compelling the carrier to become judge, jury and admin- istrator of the law in each particular case, and as a sequence thereto to deliver up the property to whoever shall assume to have such rights and shall give notice thereof and demand the property, on peril of the carrier being deemed to have converted the goods to his own use in case of refusal, or, of what is still worse, of being chargeable in damages worth the value thereof to the consignee, in case of such delivery to a wrong claimant, or even to the right person, but when no real cause for stoppage in transitu exists. 1 Story's Conf. of Laws, 401, 402, Desty's Shipping and Admiralty, 402 a ; Inglis v. CJsherwood, 1 East. 515 ; 228, 229. Tiedfleld on Carriers, 238 et seq.; Story's Conf. of Laws, 402. 74 INTER-STATE LAW OF CONTRACTS. On the contrary, this right is to be enforced as other rights are enforced ; that is, through the courts and officers of the law. The currier is but a stakeholder between the consignor and consignee, and is not bound to know the consignor personally / is not bound to know whether the goods were consigned or not on a purchase and sale thereof, or if so, whether or not the purchase money was paid or an indebtedness was incurred therefor; or, if the latter was the case, is not bound to know whether the debtor was then or since has proved insolvent, or whether the goods were obtained by fraud, or the facts as to any cause which in law is ground for stoppage in transitu. Remedy by Replevin. The remedy of the consignor, if he lias rights in such respect, is by process of replevin against the carrier to obtain possession of the goods, and the only effect of notice to the can'ier is to prevent the latter from delivery of the same to the consignee until reasonable time is elapsed for the consignor to assert his rights. 1 And we hold further, that in such case, although the carrier be made defend- ant, yet if he act in good faith, and do no more than to avoid committing himself, he will not even be liable for costs. In such actions, however, the carrier should notify the consignee thereof, if not already made a party, and disclaiming other interest than as carrier, move to substitute the consignee as defendant in his stead, that, as the real parties in interest they ma\ T interplead. 8 Bill of Interpleader. But the safer way for. the carrier, in cases of doubtful right of the respective claimants to have delivery of the goods, and which must often if not always be the result of inter-State shipment over long lines of carriage, whenever conflicting claims arise as growing out of the right of stoppage in transitu, is to place the goods in the hands of a re- liable bailee, and file against the claimants and parties in interest a bill of interpleader, to settle the rights of the parties in that respect, and thereby protect the carrier from the hardship of de- ciding to whom the right of delivery belongs. 3 Chancellor K KNT, in recognition of the injustice of a rule that would impose upon 1 Houston on Stoppage in Transitu, 'Abbott on Shipping, 511 et seq. 51; Abbott on Shipping, 511 et seq. 8 3 Kent, *215, *216; Jordan . The notice places the goods quasi in James, 5 Ham. 88, 107. eiutoilia legis, Abbott on Shipping, 528. INVIOLABILITY OF CONTRACTS. 75 the carrier, in disputed cases of stoppage in transitu, the neces- sity of deciding, at his own risk, to whom the right of delivery belongs, says that the carrier ought not to be put to such peril, or to the uncertainty of indemnity, 1 but "should know to whom of right he can deliver the goods," and that it " is safer for the master to deposit the goods with some bailee until the rights of the claimants are settled, as they can always be, upon a bill of in- terpleader in chancery, to be tiled by the master." 2 XY. INVIOLABILITY OF CONTRACTS. No State can pass a law impairing the obligation of contracts. All such State laws are simply void. 3 But what amounts to im- pairing the obligation of a contract, within the meaning and intent of the constitutional provision above referred to, has been the subject of much discussion, and the earnest consideration of our national courts, in whom alone, under the Constitution, the decision rests. The decisions are uniform, however, that the in- validity of a State law does not depend upon the degree or extent to which it modifies or changes the rights and obligations of the parties to a contract, or impairs, in any manner, a contract; but a State law is void that does it at all. Such, too, is the case, whether it be by mere statutory enact- ment, or by a provision or clause of a State constitution; for it is not merely the legislatures of the States, but the States them- selves, that are thus inhibited by the national Constitution. 4 1 3 Kent, * 215, * 216. Binghamton Bridge, 3 Wall. 51;. 2 Ibid. Green v. Biddle, 8 Wheat. 1 ; Society 3 Article 1, 10, Const, of U. S. ; for Propagation of the Gospel v. New Fletcher v. Peck, 6 Cr. 87 ; Pawlet v. Haven, 8 Wheat. 464 ; Cooley on Const. Clark, 9 Cr. 272; Terrett v. Taylor, 9 Limitations, 4th ed. 333 ct seq.; Pom- Cr. 43; McGee v. Mathis, 4 Wall. 143; eroy on the Constitution, 3d ed. 349- Thompson v. Holton, 6 McL. 386 ; New 413; Story on the Constitution, g Jersey . Wilson, 7 Cr. 164; Dart- 1374-1400; Sedwick on the Construe- mouth College. Woodward, 4 Wheat. tion of the Constitution, 603 et seq.; 518; Dodge v. Woolsey, 18 How. 331; Smith on Statutory Construction, 382 State Bank of Ohio v. Knoop, 16 How. et seq. 369; Providence Bank v. Billings, 4 4 Green v. Biddle, 8 Wheat. 1; New Pet. 514; Jefferson Branch Bank v. Jersey v. Wilson, 7 Cr. 164; Dart- Skelly, 1 Black, 436; Hawthorne v. mouth Colleger. Woodward, 4 Wheat. Calef, 2 Wai). 10; Corning v. Me- 518 ; Briscoe v. Bank of Kentucky, 1 1 Cullough, 1 K Y. (47, 49; Conant Pet. 257; Terrett . Taylor, 9 Cr. 43; v. Van Schaick, 24 Barb. 87; The Sturges v. Crowuinshield, 4 Wheat. 76 IXTER-STATE LAW OF CONTRACTS. There May be Change of Remedy. The legislature may in good faith, regulate the remedy by general laws, but not to such an ex- tent as to affect or impair the obligation of the contract. 1 Rebellious States are within the prohibition. This inhibition extends not only to States confessedly acting within the national union as professed members thereof, but also to the enactments of States that have nominally seceded therefrom, and are profes- sedly acting as integral parts and members of an unlawful and rebel -political organization ; so that, although the merely domestic action of such erratic States may be enforcible for the protection and good order of society, when free from constitutional objec- tions, yet statutes thereof which are incompatible with the na- tional constitution will be held void by reason thereof, when brought in question after the suppression of such hostile organi- zations, upon the same principle and to the same extent as if enacted by loyal States ; and this, too, as well in relation to laws impairing the obligations of contracts as to other unconstitutional enactments. 3 In like manner all enactments of such principal rebel government itself will be recorded as illegal and void, and so of judicial order and decisions made in virtue thereof. 3 Cases in illustration. Personal liability for corporate debts. Release of by law. A provision in the charter of a private cor- poration rendering stockholders liable- to the amount of their stock for all debts of the corporation contracted prior to the trans- fer of their stock, is a contract between such stockholders and the creditors of the corporation, which is impaired by a law subse- quently passed repealing such individual liability clause of the charter. 4 Bank bills receivable, by law, for taxes. So, where a bank charter made the bills of the bank receivable by the State in pay- 122; Mason . Haile, 12 Wheat. 370; on the Constitution, 3d eel. 349-413; Charles River Bridge v. Warren Story on the Constitution, 1374- Bridge, 11 Pet. 420; Hawkins v. Bar- 1400. ney's Lessee, 5 Pet. 456 ; Farmers' and J Bronson e. Kinzie, 1 How. 311 ; Mechanics' Bank t>. Smith, 6 Wheat. Hawthorne v. Calef, 2 Wall. 23; 131; Satterlee v. Matthewson, 2 Pet. Ogdeu v. Saunders. 12 Wheat. 270; 880; Wilkinson r>. Leland, 2 Pet. 627; Beers 0. Haughtou, 9 Pet. 329; Cool- Hawthorne v. Calef, 2 Wall. 10; Me- ey's Const. Limitations, 4th ed. 351. Gee v. Mathis, 4 Wall. 143; Fletcher Williams c. Bruffy, 6 Otto, 176. v. Peck, 6 Cr. 88 ; Dodge v. Woolsey, Dewing r. Perdicaries, 6 Otto, 193. 18 How. 331 ; Cooley on Const. Liin- Hawthorne v. Calef, 2 Wall. 10, itations, 4th ed. 333 et seq.; Pomeroy 23. INVIOLABILITY OF OONTEACTS. 77 ment of taxes, this was held to amount to a contract with the holders of the bills; and it was further held that an act of assem- bly repealing such provision was void, as impairing the obliga- tion of the contract. 1 An exclusive privilege is a contract. So, a provision in a State statute chartering a company to build a toll bridge, that no bridge over the same stream should be built within a given dis- tance from the one thus authorized to be built, is a contract be- tween the corporators and the State, which is impaired by the building of another bridge over the same stream within the inhib- ited distance, and by act of the legislature permitting the erection of such latter bridge, and such subsequent statute is void as repug- nant to the Constitution of the United States, which declares that no State shall make any law impairing the obligation of contracts. 3 Purchases under State exemption from taxation. Likewise the sale of lands by a State, or scrip receivable for lands under a stat- ute providing as an inducement to the purchase that the lands should not be taxed for a given number of years, or until reclaimed from their condition as swamp lands, amounts to a valid contract between the State and the purchaser or holder of the scrip or lands, which is irrepealable by the State; and the enactment sub- sequently of a law repealing such exemption clause and provid- ing for taxing such lands, before the expiration of the time spe- cified, or reclaimation of the land from their swamp land condition,, impairs the contract within the meaning of the Constitution, and is therefore unconstitutional and void. 3 Curative laws. But curative laws, making contracts valid, do not impair the obligation of contracts. 4 Bank charter exemption from taxation for bonus paid. But a State law which, in consideration of a bonus, embodies in a bank charter a provision exempting the bank from taxation, is a con- tract inhibition against taxation of the stockholders of such bank, upon their stock therein; and a law creating such tax is void for impairing the contract. Yet such inhibition does not extend or exist longer than the term of the charter, and if thereafter the 1 Woodruffs. Trapnall, 10 How. 190. 3 3IcGee v. Mathis, 4 Wall. 143. 2 The Binghamton Bridge, 3 Wall. 4 Satterlee v. Matthewson, 2 Pet. 51. 380. 78 IXTKK-STATE LAW OF CONTRACTS. charter be renewed without such provision, there is no longer such restriction as to taxation as to the bank or its stocks. 1 Laws affirming invalid and doubtful contracts. But State laws making valid irregular and doubtful, or even void, contracts, not thereby affecting injuriously contract rights of third persons, are not laws impairing the obligations of contract within the mean- ing of the United States Constitution. 8 Legal dissolution of private corporations. Nor does the dis- solution of a private corporation by authority of an existing State law or laws providing therefor, and for closing up its concerns, operate as against the corporation creditors as an impairment of their contract of indebtedness. The obligation of those contracts continues, and are enforcible against the assets of the defunct corporation, and they could reach nothing else if the corporation had not dissolved. 3 Every creditor is supposed to know the nature of such corporations, and their liability to dissolution, vol- untary or forced, and to contract with it in reference thereto. Creditors, in such case, must look to the corporate assets, which will be liable so far as not transferred into the hands of lonajide purchasers. The case is no harder than that of creditors of a natural person who dies. They, too, must look to the assets for satisfaction of their demands. If there are no assets in either case, yet the contract obligation still remains, and is in no wise impaired. 4 Existing Laws Enter into Contracts. The laws of a State ex- isting at the time of making a contract enter into it as a part thereof, so far as regards its force and obligation; and its judicial enforcement by judgment or decree, and process of the courts; hence, subsequent laws requiring property levied on and offered for sale, or offered for sale under decree of the courts, to be ap- praised, and requiring bids of two-thirds the appraised value as a. condition prerequisite to a sale, superadds a condition unknown to the contract, and obstructs and impairs the obligation of the same, and is therefore void. The Supreme Court of the United States have held that the obligation of a contract is to perform the promises and undertakings contained therein; the right of 1 Gordon v. The Appeal Tax Court, 2 Watson v. Mercer, 8 Pet. 88; Sat- 3 How. 133; Ches r. The Appeal Tax terlee . Matthewsnn, 2 Pet. 380. Court, 8 How. 133 ; Dodge . Woolsey, Mutnina t>. Potomac Co., 8 Pet. 281. 18 How. 331. Ibid. INVIOLABILITY OF CONTRACTS. 79 the obligee to bring suit, obtain judgment, and take out final process thereon, and enforce it until satisfied, pursuant to the substantial features of the existing law, and that if such law -allows a sale of property for what it will bring, that a subsequent law prohibiting a sale unless for a named proportion of its value, is, as stated, void, for impairing the obligation of the contract. 1 So, where the charter of a bank declared it " capable and able, in law, to have, possess, receive, retain, and enjoy, to themselves .and their successors, lands, rents, tenements, hereditaments, goods, chattels, and eifects, of what kind soever, nature, and quality, * * * and the same to grant, demise, alien, or dispose of for the good of" such bank; and "to receive money on de- posit, and pay away the same free of expense, discount bills of exchange and notes," a subsequent law prohibiting the bank from transferring, by endorsement or otherwise, any note, bill re- ceivable, or other evidence of debt, was held, inasmuch as the charter privileges so granted amounted to a contract between the State and the bank, an enactment which violated the obligation of the contract, and was therefore unconstitutional and void. 3 Abolition of Imprisonment for Debt. A State may pass a law discharging persons imprisoned for debt, and such a law does not impair the obligation of the contract. It merely modifies the remedy, but does not take the remedy away. Imprisonment is no part of a contract of indebtedness, and therefore releasing a prisoner who is held for a debt does not, in any manner, impair the contract creating the debt. The power of a State to impose imprisonment as part of the remedy, also enables it to abolish that part of the remedy generally; and, if it be allowable by a .general law, it is also allowable in special cases. 3 In Sturyes v. Crowninshield, here cited, the Supreme Court of the United States say: " Imprisonment of the debtor may be a punishment for not performing his contract, or may be allowed as a measure for inducing him to perform it. But a State may refuse to inflict this punishment, or may withhold it altogether, and leave the contract in full force. Imprisonment is no part of the contract, 1 Bronson v. Kinzie, 1 How. 311 ; 6 How. 301 ; State Bank of Ohio v. McCracken v. Hay ward, 6 How. 608 ; Knoop, 16 How. 369. Howard v. Bugbee, 24 How. 461. 3 Mason v. Haile, 12 Wheat. 370 ; s Planters' Bank of Miss. v. Sharp, Sturges v. Crowninshield, 4 Wheat. 200; Beers u. Haughton, 9 Pet. 329. 80 INTER-STATE LAW OF CONTRACTS. and simply to release the prisoner does not impair its obliga- tion." Such being the power of a State legislature, it results therefrom that the enactment of a law discharging a prisoner held for debt, on bonds, in the prison bounds, and the going at large of such prisoner beyond said bounds, as the result of such discharge, neither violates the obligation of any contract nor amounts to a breach of condition of the bonds, conditioned that the prisoner shall " continue to be a true prisoner, in the custody, guard and safe-keeping, * * * until he shall be lawfully dis- charged;" for such a release, by operation of law, is a lawful dis- charge. 1 State Insolvent Laws. And so it is held that State insolvent laws do not impair the obligations thereafter entered into be- tween the citizens of the States by which they are enacted. 8 Taxing a City's Own Indebtedness. An ordinance of a city taxing its own indebtedness, as the property of its non-resident creditor, is illegal, and so is a provision thereof requiring the amount of the tax to be deducted and withheld from the creditor out of the accruing interest on such debt. Such ordinances are void as violating and impairing the obligation of the contract. 3 In the language of STRONG, J. : " States and cities, when they borrow money, and contract to pay it with interest, are not acting as sovereignties. They come down to the level of ordinary individuals." 4 XVI. USURY. This subject has been incidentally treated of in Sec. IX. of this chapter, under the head of " Commercial Paper." As connected with our general subject, it can present itself in either one of three phases: 1st. "Where the contract is made in one State, and is pertorraable in another, and the interest contracted for is usuri- ous according to the lex loci contractus, but is allowable and valid by the lex solutionis, or the law of the place where the contract is to be performed. 2d. Where the interest contracted for is valid by the lex loci contractus^ but is invalid and usurious by 'Mason v. Haile, 12 Wheat. 370; 'Murray D. City of Charleston, 6 Beers v. Haughton, 9 Pet. 329. Otto, 432. Ogden v. Saunders, 12 Wheat. 213 ; Ibid. 445. Cooler's Const Limitations, 4th ed. 360 tt seq. USURY. 81 the lex solutionis. 3d. "Where the rate of interest contracted for is allowable by the lex loci contractus, and the contract does not specify any place for the performance of the contract, but the interest so contracted for happens to be usurious by the lex fori, or the law of the place where the contract happens to be sued upon. And let us now consider the first division. It may be asserted, as a general and now well established doctrine that if the interest is valid by the lex solutionis, or the law of the place of performance, notwithstanding it be usurious by the lex loci contractus, such contract and interest will be upheld in both States, in the absence of fraud or any intent to evade the law. 1 When parties contract with reference to the laws of a particular State, it is proper that those laws should govern their contract in whatever forum the contract is construed or litigated upon. Those laws form an integral part of their contract, and, as a gen- eral rule, to hold otherwise, would be a breach of State comity, and the precursor of much confusion. 2d. It should follow, as a necessary sequence of our first classification, that if the lex solutionis governs, a contract which provides for interest allowed by the lex loci contractus, but which interest is usurious accord- ing to the lex solutionis, or the place where the contract is to be performed, will be governed by the law of the latter place and the interest will accordingly be construed as usurious. 2 This doctrine has not, however, received the unanimous concurrence of courts and authors. It having been asserted by some that even though the interest is usurious by the lex solutionis, or the law of the place where the contract is to be performed, yet, if the interest is allowed by the lex loci contractus, the same would be allowed, because, as is said, " the parties may stipulate the rate of interest of either country, and thus, by their own express con- tract, determine, with reference to the law of which country that 1 Andrews v. Pond, 13 Pet. C5, 77, of Laws, 503; Burges' Com., vol. 3, 78; Boyer v. Edwards, 4 Pet. Ill; p. 774; Foote's Private International Balme v. Wombaugh, 38 Barb. 352; Law, 370; Westlake's Private Inter- Pratt v. Adams, 7 Paige, 615 ; Arnold national Law, 206. y. Potter, 22 Iowa, 194 ; Junction Rail- 4 See cases cited in the preceding, road v. Ashland Bank, 12 Wall. 226 ; and also Wharton's Conf. of Laws, Parham v. Pulliam, 5 Cold. 497 ; Dun- 504; Andrews v. Pond, 13 Pet. 65; can v. Helm, 22 La. Ann. 418; Tyler Story's Conf. of Laws, 290, 304 b; on Uusury, 81 et seq.; Story's Conf. Tyler on Usury ; Burges' Com. on Co- of Laws, 291 et seq.; Wharton's Conf. lonial Laws, vol. 3, p. 774, 6 82 INTER-STATE LAW OF CONTi: M I . incident of the contract shall be decided." 1 "We do not, however, regard it as consistent with the doctrine which has been above state*] under our first division. Neither do we think that it is consistent with reason that the courts of a State should enforce a contract made to be performed within that State, and which con- tract, in terms, overrides an express law of that very State. 2 If, however, the contract was brought before the courts of the State where made, it might be reasonable to suppose that the local court would enforce the interest, inasmuch as the same would be valid by their laws. We think that the doctrine which we have stated is the most consistent and conformable to the general rule. It is true that there are cases which hold that the interest being allow- able where the contract is made, will be enforced in the State where payable, even though usurious there, on the ground that the validity of purely personal contracts depends upon the law of their place were made. But we are at a loss to see how this reasoning will apply, when the parties contemplate, as they are presumed to do, by making the contract performable in another State, to contract with reference to those laws. It does not seem for them proper to say that, as to the interest, the lex loci shall govern, but as to everything else, time for demand, days of grace, etc., the law of the place of performance shall govern. 3 3d. "Where the contract is made performable in any place it will be presumed to be made performable in the place where made. The usury laws, therefore of the loci contractus will govern the con- tract, and wherever the same is construed or litigated upon, the law of the place where the contract was made will govern the 1 Story's Conf. of Laws, 304 6. ance. Kanaga . Taylor, 7 Ohio St. This part of the text, however, it 134; Lewis v. Headley, 36 111. 433; seems, is the work of some one of its Adams u. Robertson, 37 111. 45 ; Daven- numerous editors. Peck . Mayo, 14 port v. Karnes, 70 111. 465 ; Evans t. .Vt. 33; Depau v. Humphreys, 8 Mar- Anderson, 78 111. 558; Maguire*. Pin- tin, (N. s.) 1 ; Chapman v. Robertson, 6 gree, 30 Maine, 508. Paige, 629. 3 For cases which hold different 2 Wharton's Conf. of Laws, 504- from the text, the reader is referred to 510; Story's Conf of Laws, 291,298; Bowen v. Bradley, 9 Abbott, (N. 8.) 2 Parsons on Contract, *584 and note. 395; Clayes v. Hooker, 4 Hun. 231; Thus, it is said, as to an ordinary con- Depau t\ Humphreys, 8 Martin, (N. s.) tract which is to be performed in a 1 ; Peck v. Maj'o, 14 Vt. 33 ; Pope v. State other than where made, that to Nickerson, 3 Story, 466; Kilgore v. be enforced, it must be valid, as tested Dempsey, 25 Ohio St. 413; Bowman by the laws of the place of perform- t>. Miller, 25 Gratt 331. USUEY. 83 interest. 1 The interest reserved on the contract being good in the State where made, will be enforced by the courts of another State, even though, if it had there been entered into, it would have been forfeited or declared void by reason of its own usury laws. 3 Forfeitures for usury. Statutory forfeitures for usury in regard to loans or contracts for payment of money bear relation to the remedy. 3 Therefore, when such contracts are sued in another State, then, inasmuch as in such other State the remedy is gov- erned by the law of the/brim, it results,.from these conclusions, that in the courts of such other State the forfeiture cannot be enforced ; it may only be enforced when suit is pending in the State where the statute exists. 4 1 Lee v. Selleck, 33 N. Y. 615 ; Phil- * Cases cited above, adelphia Loan Co. v. Towner, 13 Conn. 8 Sherman v. Gassett, 9 111. 521 : 124; DeWolf v. Johnson, 10 Wheat. Lindsay v. Hill, 66 Maine, 212. 367 ; Davis s.Garr, 6 N. Y. 124; Robb * Ibid. ; Barnes v. Whitaker, 22 111. v. Halsey, 11 Sm. & M. 140. 606. 84 EULES OF PROPERTY AND RIGHT. CHAPTER IX. EULES OP PROPERTY AND BIGHT THE SAME IN STATE AND NATIONAL COURTS. I. WHEN THE LOCAL RULES OP LAW ARE FOLLOWED BY UNITED STATES COURTS. II. BLIND CONFORMITY TO STATE RULINGS NOT REQUIRED OF UNITED STATES COURTS. I. WHEN THE LOCAL RULES OF LAW ARE FOLLOWED BY UNITED STATES COURTS. Except when they conflict with the Constitution and treaties of the United States and acts of Congress, the laws of the sev- eral States and well settled rules of property and rights of a local nature of the State courts are recognized, and are ordinarily fol- lowed by the United States courts in causes at law, in the respect- ive States where these courts are held, whether the same be the result of statutory enactments, common law usages, or the deci- sions of highest State courts. 1 Therefore, where, by a State statute, judgments in ejectment, except of non-suit, are a bar to a subsequent action for the same property between the same par- ties and those claiming under them, it is held that such enact- ment is alike binding on national and State courts in such State.* The State court constructions of State laws, it was decided in an early and leading case, would be followed in the United States 1 Miles v. Caldwell, 2 Wall. 35, 43, Sheldon, 7 How. 812; Suydam t>. Wil- 44; Christy v. Pridgeon, 4 Wall. 196, liamson, 24 How. 427, 433; 1 United 203; Shelby v. Guy, 11 Wheat. 361; States Stat. at Large, 92; Original Sneed v. Wister. 8 Wheat. 690 ; El- Judiciary Act, 34. mendorf v. Taylor, 10 Wheat, 152; J Miles v. Caldwell, 2 Wall. 35, 43, McClunyt). Silliman, 3 Pet. 270; Hen- 44; Brine v. Insurance Co., 6 Otto, derson v. Griffin, 5 Pet. 151 ; Green v. 627 ; Orvis v. Powell, 2 Chicago Law Neal's Lessee, 6 Pet. 291, 298; Steam- Journal, 190, (Oct. Term U. 8. Sup. boat Orleans t>. Phoebus, 11 Pet. 175; Ct. 1878.) Ross v. Duval, 13 Pet. 45 ; Nesmith t>. LOCAL RULES OF LAW. 85 courts. 1 The same has often been decided as to State court con- structions of their own constitutions. 2 So, where the decisions of the State courts have been long acquiesced in, and form an established rule of property, they will be followed by the federal courts. 3 On questions, however, which do not involve the con- struction of local laws, but which relate to the construction of instruments, such as deeds and wills, the federal courts do not feel bound by the State decisions. 4 So, it has been decided that in the construction of State statutes of limitations, the State de- cisions would be followed, 5 as well as on the construction of rules of evidence based on State laws. 6 If the decisions of the State court have been conflicting and changeable, the last decision is generally followed, unless a previous decision of the State court should already have been adopted by the federal courts. 7 In Shelby v. Guy, Justice JOHNSON says : " That the statute laws of the States must furnish the rule of decision of this court as far as they comport with the Constitution of the United States, in all cases arising within the respective States, is a position that no one doubts. Nor is it questionable that a fixed and received construction of their respective statute laws, in their own courts, makes, in fact, a part of the statute law of the country, however we may doubt the propriety of that construction. It is obvious that that admission may at times involve us in seeming incon- sistencies, as where States have adopted the same statutes, but their courts differ in their construction. Yet that course is necessarily indicated by the duty imposed on us, to administer, as between certain individuals, the laws of the respective States, according to the best lights we possess, of what those lights are." 1 Luther v. Borclen, 7 How. 1. U. S., 18 Wall. 71 ; Pine Grove v. Tal- 2 Secombe v. Railroad Co., 23 Wall, cott, 19 Wall. 660. 108; Gut v. The State, 9 Wall. 35; 5 Leffingwell v. Warren, 2 Black, Randall tj.Brigham, 7 Wall. 523; Web- 599; Tioga R. R. Co. v. Blossburg & ster v. Cooper, 14 How. 488. Corning R. R. Co., 20 Wall. 137. 3 Chicago v. Robbins, 2 Black, 418; Ryan v. Bindley, 1 Wall. 66. Williams v. Kirtland, 13 Wall. 306; ' Leffingwell v. Warren, 2 Black, Nichols v. Levy, 5 Wall. 433 ; Jack- 599. See, also, Gelpcke v. Dubuque, son v. Chew, 12 Wheat. 153. 1 Wall. 175. 4 Lane v. Vick, 3 How. 464; Fox- "Shelby v. Guy, 11 Wheat. 367; croft v. Mallett, 4 How. 353 ; Chicago Bank of Hamilton v. Dudley, 2 Pet. v. Robbins, 2 Black, 418; Venice v. 492. Murdock, 2 Otto, 494 ; Supervisors v. 86 RULES OF PROPERTY AND RIGHT. II. BLIND CONFORMITY TO STATE RULINGS NOT REQUIRED OF UNITED STATES COURTS. But the courts of the United States are not absolutely bound to follow or defer to the State court construction of State Con- stitution and laws by a blind conformity thereto, although many dicta are to be found to that effect. 1 On the contrary, the fed- eral reports show many cases of exception to the rule. Where there is a settled construction of the laws of a State by its high- est court, and such construction has become an established pre- cedent, it is the practice of the national courts to accept and adopt it; but where the United States court has first decided the question, it will not feel bound to retrace its course and surrender its judicial conviction by reason of a subsequent contrary State court decision. 8 When State court decisions are erratic or inconsistent, the fed- eral court is not disposed to follow the last, if contrary to its own convictions. 3 In the case of Pease v. Peck, the United States Supreme Court, SQUIER, J., say: "And much more is this the case where, after a long course of consistent decisions, some new light suddenly springs up, or an excited public opinion has elicited new doctrines subversive of former safe precedent. Cases may exist, also, when a cause is got in a State court for the very purpose of anticipating our decision of a question known to be pending in this court. Nor do we feel bound, in any case in which a point is first raised in the courts of the United States, and has been decided in a Circuit Court, to reverse that decision, contrary to our own convictions, in order to con- form to a State decision made in the meantime. Such decisions have not the character of established precedent declarative of the settled law of a State." 4 1 Pease v. Peck, 18 How. 595. 8 Morgan v. Curtenius, 20 How. 1. ' Pease v. Peck, 18 How. 595; Lef- * 18 How. 598, 599. See, also, Mor- flngwell v. Warren, 2 Black, 599 ; gan . Curtenius, 20 How. 1. Gelpcke t>. Dubuque, 1 Wall. 175; Chicago . Robbins, 2 Black, 418. ACTIONS AND SUITS ON JUDGMENTS. 87 CHAPTER X. ACTIONS AND SUITS ON JUDGMENTS AND DECREES. I. ACTIONS ON JUDGMENTS OP OTHER STATES. II. ACTIONS ON DECREES OP OTHER STATES. III. ACTION IN STATE COURT AND UNITED STATES COURT, ON JUDGMENTS OP EITHER. IV. ACTION ON CONDITIONAL JUDGMENTS. V. ACTION ON JOINT JUDGMENT. VI. ACTION ON JUDGMENT ON PENAL BOND. VII. COMPETENCY OP THE RECORD AS EVIDENCE. VIII. CHANGE OP STATE SOVEREIGNTY. IX. JUDGMENTS AND DECREES IN PROCEEDINGS IN HEM. X. DEFENSES TO SUITS ON JUDGMENTS. I. ACTIONS AND SUITS ON JUDGMENTS OF OTHER STATES. State Court. Actions and suits will lie in the courts of a State upon personal judgments and decrees of the courts of another State for a fixed sum in money, where the court rendering the same had obtained jurisdiction of the defendant in such judg- ment; 1 and so as to Territories of the United States. 3 Courts Take Notice of New States. And where a new State is created by division of an old one, the courts take notice thereof 3 and recognize such judgments and decrees, when certified and authenticated by the authorities of the new State having the cus- tody of the record thereof. 4 Judgments for money being debts of record of the highest grade, actions at law will lie thereon whether they be judgments of the same State, or of a different State, or of a court of the United 'Penningtonfl. Gibson, 16 How. 65; v. Finch, 28 Conn. 112; Freeman on Nation v. Johnson, 24 How. 195 ; Dar- Judgments, 432. rah v. Watson, 36 Iowa, 116 ; Danforth 2 Ibid. . Thompson, 34 Iowa, 243; Wood- 3 Darrah v. Watson, 36 Iowa, 116, ward v. Willard, 33 Iowa, 542; Den- 118; Gilbert v. Moline Water Power nison v. Williams, 4 Conn. 402; Ives & Manf. Co., 19 Iowa, 319. 4 Darrah v. Watson, 36 Iowa, 116. 88 ACTIONS AND SUITS ON JUDGMENTS. States; and this, too, notwithstanding the plaintiff might have a remedy by execution, or otherwise, in the court where rendered. 1 Thus, an action will lie in a State court upon a judgment of a United States Court for the same district in which the State is situated. 8 Judgment Against Non-Resident. And although the defend- ant in a judgment sued on was not an inhabitant of the State when and where the suit was brought, and in which judgment was rendered against him, yet whether an inhabitant or not, if personally served with the original process in such suit, and within the territorial jurisdiction of the co^rt, or if he volunta- rily appears to the same, he thereby becomes personally subject to the jurisdiction and such judgment is a valid cause of action in another State, unless impeached in some manner allowed by law. 3 Thus, if there be service without appearance, or appear- ance without service, jurisdiction of the person attaches, and a judgment in personam is valid if by a court of general jurisdic- tion, and such judgment will be treated in the courts of others of the States as entitled to full faith and credit under the United States Constitution and laws, when so authenticated as to bring it within their provisions. 4 And though the service be insuffi- cient in manner, yet if received and acted on as service by the court, it is mere matter of error and not of invalidity, and is binding until reversed or set aside. 5 The authorities here cited 1 Pennington v. Gibson, 16 How. 65 ; is pending, or to be brought. Bates Houghton v. Raymond, 1 Sandf. 682; v. The Chicago & N. W. R. R. Co., 19 McGuire v. Gallagher, 2 Sandf. 402; Iowa, 260; Darrauce v. Preston, 18 Church v. Cole, 1 Hill, 645 ; Burton v. Iowa, 396 ; Lawrence v. Jarvis, 32 111. Stewart, 11 Ind. 238 ; Ames v. Hoy, 12 30 ; Freeman on Judgments, 564, Cal. 11 ; Canfield v. Miller, 13 Gray, 566. 274; White River Bank v. Downer, 4 Woodward v. Willard, 33 Iowa, 29 Vt. 332 ; Chandler v. Warren, 30 Vt. 542, 549 ; Mayhew .Thatcher,6 Wheat. 510; Freeman on Judgments, 432. 129; Lafayette Ins. Co. v. French, 18 J Davidson v. Nebaker, 21 Ind. 334. How. 404 ; Freeman on Judgments, 8 Darrah v. Watson, 36 Iowa, 116; 566. Bissell v. Briggs, 9 Mass. 462; Dan- 5 Woodward v. Willard, 33 Iowa, forth v. Thompson, 34 Iowa, 243; 542, 549; Milne v. Van Buskirk, 9 Woodward v. Willard, 33 Iowa, 542. Iowa, 558; Bonsall v. Isett, 14 Iowa, But jurisdiction of defendant's per- 309; Johnson v. Butler, 2 Iowa, 535; sou, so as to justify the rendering of Moore v. Parker, 25 Iowa, 3-55; Holt a personal judgment, cannot be had v. Alloway, 2 Blackf. 108; Cooper v. by service of a process >n him in a Reynolds, 10 Wall. 308; Aldrich v. different State than where the action Kinney, 4 Conn. 308; Smith v. Smith, ACTIONS ON JUDGMENTS OF OTHER STATES. SO arc none the less in point, from the fact that the decisions, in many of the cases, were made in the courts of the same State wherein the judgments brought in question were rendered; for under the constitution and laws of the United States, as we have hereinbefore seen, judgments are entitled to the same force and effect in other States as they attain where rendered. Judgment Satisfied or Reversed. "Where a judgment is ob- tained in a court of a State on a judgment of another State, and is paid by the defendant, and the judgment of the other State is afterwards reversed or set aside, in such case a light accrues to the judgment debtor in the judgment so paid to have refunded the amount so paid, and an action will lie therefor. 1 If the payment be by a third party who is obligated to save the defendant harmless against the same, then the same right accrues to such third party. 3 In such cases, of suit for the same, the right of action will be held, on a plea of the statute of limitations, to have accrued at the time of the reversal or vacation of the original judgment, and not at the date of payment of the judgment rendered thereon. 3 Judgment Still Pending When a Bar to an Action on the Orig- inal Demand. When a valid judgment has been obtained in one State which is unsatisfied, and which the judgment debtor has not attempted to avoid, a suit on the original demand in another State it has been held would be barred if the defendant pleaded the judgment. 4 Action on Informal Judgment. In actions on judgments of another State wherein technical forms of action are abolished, and where the records of the judgments sued on come duly authenticated according to the acts of Congress, the courts will regard such judgments as of the same force as accorded to them in the State where rendered, regardless of any want of conformity to the uses and forms of the common law. 5 Conclusiveness of Judgments. Judgments of other States are 17 111. 482; White v. Merritt, 7 N. Y. 3 Mann v. JStna Ins. Co., 38 Wis. 352. 114; S. 0., 40 Wis. 549. 1 ^Etna Ins. Co. v. Aldricb, 38 Wis. 4 Henderson v. Staniford, 105 Mass. 107. 504. 2 ^Etna Ins. Co. v. Alclrich, 38 Wis. * Griffin v. Eaton, 27 111. 379. 107. Bee, also, Mann v. ^Etna Ins. Co., 40 Wis. 549. 90 ACTIONS AND SUITS ON JUDGMENTS. conclusive of the matter therein adjudicated as well when on default, if there was service, as in other cases; 1 and pleas merely questioning the right of the original recovery are of no validity to an action on the judgment of another State nor pleas setting up fraudulent recovery, as affecting the adjudication of the court in rendering the judgment, as that the judgment was obtained by fraud. Such defenses cannot be collaterally sustained, if there was service, so as to fix jurisdiction of the court as to the per- son of the defendant. 2 Effect of Appeals. State Construction Conformed to. In a suit upon a judgment of another State, the court wherein the suit is proceeding will give the same effect to an appeal or writ of error from the judgment sued on, taken therefrom in the State where rendered, as is given by the laws of such State. When such effect is ascertained it is the duty of the court where the judgment is sued on to allow the same result there; 3 and the con- struction put upon the statute or laws of a State by its own courts will be conformed to in construing these laws in the courts of other States, and accordingly enforced when brought in question therein; unless the effect would be to violate the rights of its own citizens, or the settled policy of the State. 4 Dormant Judgment. Revival of Scire Facias. Though an action will not lie in the courts of one State on a judgment of a court of another State which is dormant, yet if the dormant judgment be revived by scire facias it is then so reinstated that suit thereon may be maintained, and therefore may be main- tained in another State. 5 If in the State where rendered the time limited for revival by 1 Kinnier v. Kinnier, 45 N. Y. 535; * Norwood c. Cobb. 20 Tex. 588. Norwood v. Cobb, 20 Tex. 588 ; Cherry 8 Cherry t>. Speight, 28 Tex. 503, 518 ; v. Speight, 28 Tex. 503; Freeman on Shelton v. Marshall, 16 Tex. 344. See, Judgments, 560, et seq. But the rec- however, where the contrary rule is ord of such judgment may be con- held. Banka. Wheeler, 28 Conn. 433; tradicted as to facts necessary to give Taylor . Shew, 39 Cal. 536 ; Faber v. the court jurisdiction, and if it be Hovey, 117 Mass. 107; Merchants' shown that such facts did not exist, Ins. Co. v. De Wolf, 9 Casey, 45 ; Free- the record will be a nullity notwith- man on Judgments, 576. standing it may recite that they did * Powell v. De Blane, 23 Tex. 66. exist. See Marx v. Fore, 51 Mo. 569 ; 5 Morton t>. Valentine, 15 La. Ann. Hoffman . Hoffman, 46 N. Y.. 30; 150. People v. Dawell, 2o Mich. 247. ACTIONS ON JUDGMENTS OF OTHER STATES. 91 scire facias expire, and proceedings for revival be thereafter insti- tuted and limitation be not pleaded, then judgment of revivor avoids the statute of limitation, and the statute begins to rim against the new or revived judgment only from the date thereof. 1 Therefore, it is held that if suit be brought in a different State on the revived judgment, then for defendant to avail himself of the plea of limitation as resting on the statute of the forum, the length of time required as a bar by that statute must have run between the day of the rendition of the judgment of revival and the day of the commencement of the suit. 3 If, on the other hand, the law of the State where suit is brought allows the plead- ing of the statute of the State where the judgment was rendered as a bar to the action when the time limited therein has fully run,, then, although that time may have run as to the original judg- ment, yet when the judgment sued on has been so revived, then as to the revived judgment the statute of the State where rendered only runs from the revival thereof, and to avail defend- ant of that statute the full time required in that State must have run between the time of judgment of revival and commencement of the suit thereon. 3 Action on Bastardy. Judgment of another State. It is held, in Indiana, that an action of debt will lie on the judgment of an Ohio court in a case of bastardy, adjudging the defendant therein to pay a sum certain in installments, and in default of payment giving execution for the support of the defendant's illegitimate child. The ruling thus is predicated on the fact of the Ohio and Indiana statutes on the subject being alike, this being shown by pleading and proving the statute of Ohio. 4 This ruling was on demurrer. In the same case the action was defeated, however, on the ground of a failure to show in the declaration any right of the plaintiif to receive the money sued for as guardian or otherwise. 5 Jurisdiction, Inquiry into. But although inquiry may be made into the jurisdiction of the court rendering the judgment sued on in an action on a judgment of a court of another State, 1 Morton v. Valentine, 15 La. Ann. 3 Morton v. Valentine, 15 La. Ann. 150. 150. 2 Morton v. Valentine, 15 La. Ann. 4 Stanfield v. Fetters, 7 Blackf. 558. 150; Orman v. Neville, 14 La. Ann. B Ibid. 393. 92 ACTIONS AND SUITS ON JUDGMENTS. where nothing appears either way in the record as to service on or jurisdiction of the person of the defendant, yet this cannot be done in such action on a judgment of a court of general juris- diction, the record of which, duly authenticated, shows service upon the defendant. 1 Judgments of Justices of the Peace. In some of the United States sucli judgments have all the force and effect of judgments of courts of record. They are not open to collateral attack and are considered as absolute verity. 8 Suits upon them, in those States, are, therefore, governed by the same rule as applies to foreign judgments of courts of record. As a general thing, how- ever, justice judgments are not so considered. Being rendered by courts of only local and very limited and prescribed jurisdic- tion, having no clerk nor seal, they are not governed by the act of Congress which provides for the authentication of judicial records and proceedings. Their effect, therefore, in other States, would seem to be the same as that accorded judgments rendered by foreign countries. They must be shown to have been rendered by courts having jurisdiction over the parties and subject matter, to have been authorized by the laws of the State where rendered. The judgment itself must be proved as a fact like a foreign judg- ment. 3 II. ACTIONS ON DECREES OF OTHER STATES. Same as on Judgments at Law. Decrees of courts of chancery for the payment of money made with full jurisdiction of the parties are of the same dignity and binding force as judgments at law; and actions and suits thereon may be maintained accord- ingly. Hence an action at law lies in the United States circuit court on a decree for money made by a State court, where the 1 Wescott v. Brown, 13 Ind. 83 ; Hall Farr v. Lacld, 37 Vt. 158 ; Billings c.Williams, 6 Pick. 232; Shumway t>. Russell, 23 Penn. St. 191; Fox v. v. Stillman, 6 "Wend. 447; Welch v. Hoyt, 12 Conn. 497 ; Turner r. Ireland, Sykes, 3 Gilm. 197; Lincoln v. Tower, 11 Humph. 447; Stevens v. Mangurn, 2~McL. 473; Roberts v. Caldwell, 5 27 Miss. 481. Dana, 512 ; Newcomb v. Peck, 17 Vt. * Carpenter v. Pike, 30 Vt. 81 ; Kean 302; Westervelt v. Lewis, 2 McL. 511 ; v. Rice, 12 S. & R. 203; Danforth t. Mills v. Duryee, 7 Cranch, 481 ; Free- Thompson, 34 Iowa, 243 ; Greenleaf man on Judgments, 560 et seq., where on Evidence, 513. this subject will be found discussed and many cases thereon cited. ACTIONS ON DECREES OF OTHER STATES. 93 amount in controversy and the citizenship of the parties thereto are such as to ordinarily confer jurisdiction on the United States circuit court. It follows, as a legal conclusion therefrom, that wherever a judgment at law is conclusive as a record as a cause of action, a decree in chancery is of equal validity for that pur- pose, 1 and, therefore, actions are maintainable in one State on decrees in chancery of another State, authenticated as by the act of Congress is required. 2 Whatever doubts may have formerly existed upon this subject the modern rulings of the courts, both State and National, have set at rest, and in so doing have but conformed to prevailing English doctrines on the subject. 3 In the case here cited the Supreme Court of the United States, DANIEL, J., say: "We lay it down, therefore, as the general rule, that in every instance in which an action of debt can be maintained, upon a judgment at law, for a sum of money awarded by such judgment, the like action can be maintained upon a decree in equity which is for an ascertained and specific amount, and nothing more; and that the record of the proceedings in the one case must be ranked with and responded to as of the same dignity and binding obligation with the record in the other." 4 So, that a bill in equity will lie to enforce a decree for money, of the same court or different court, has ever been recognized as a correct principle in courts of equity. 5 Therefore, not only an action at law will lie in one State, as we have seen, upon a money decree of a court of another State, but it follows that a bill in equity will lie in the court of a State or United States upon a decree of a court, either Federal or State, rendered in another State, provided the citizenship of the parties to the bill (if in the Federal court) be such and the amount in controversy be such as in these respects to confer jurisdiction upon the court. 6 The case here cited originated in the District court of the United States for the northern district of Iowa, upon a decree of the Circuit court of Grayson county, in the State of Ken- tucky, by certain of the heirs and distributees of John G-olds- 1 Pennington v. Gibson, 16 How. 65 ; s Pennington v. Gibson, 16 How. 65. Nations . Johnson, 24 How. 195, 208 ; 4 Ibid. Evans v. Tatem, 9 S. & R. 252; War- 8 Shields v, Thomas, 18 How. 253, ren v. McCarthy, 25 111. 95. 262. 8 Cases above cited. Ibid. 94 ACTIONS AND SUITS ON JUDGMENTS. bury, deceased, for an accounting for the proceeds of said Goldsbury's estate. A decree was made in favor of the com- plainants in a court of Kentucky, and upon that decree the suit was brought in the United States District court (then exercising circuit court jurisdiction) for the district of Iowa. The court decreed in favor of complainants and the case went thence to the Supreme Court of the United States, which affirmed the decree. It being objected, in said cause, that a bill in equity would lie upon a decree, the court said, DANIEL, J.: "Among the original and undoubted powers of a court of equity is that of entertain- ing a bill filed for enforcing and carrying into effect a decree of the same or of a different court, as the exigencies of the case or the interests of the parties may require." 1 Decrees, as well as judgments of a final character, of courts of the United States and of courts of the several States, where jurisdiction has fully attached, are binding and conclusive upon parties and privies until satisfied, superseded, set aside or reversed, in all other courts, State and Federal, wherein they come in ques- tion in a legitimate course of inquiry, properly verified or authenticated. 8 III. ACTIONS IN STATE AND UNITED STATES COURTS ON JUDGMENT OF EITHER. An action will lie in a State court upon a judgment of a United States court; and so, in a United States court, on a judgment of a State court, the parties being of the proper qualification as to jurisdiction, and the matter in controversy being of the required amount to authorize jurisdiction; 3 and in such actions nothing adjudicated in the rendition of the judgment can be readjudi- cated. If jurisdiction of the person of defendant is attached, the correctness of the recovery is not open to question when the judg- ment is sued on, for these State and United States courts are not foreign to each other, although their localities or forums be in different States. 4 1 18 How. 262. Barney v. Patterson, 6 Harr. & J. 182 ; s Kittredge v. Emerson, 15 N. H. Reed v. Ross, 1 Bald. 38 ; St. Albans t. 227. Bush, 4 Vt. -58. Thomson v. Lee Co., 22 Iowa, 4 Thomson v. Lee Co., 22 Iowa, 206. 200; Niblet v. Scott, 4 La. Ann. 245; CONDITIONAL AND INTEELOCUTORT JUDGMENTS. 95 IY. ACTION ON CONDITIONAL AND INTERLOCUTORY JUDGMENTS. On Conditional Judgment. An interlocutory or conditional judgment will not sustain an action in another State, as where its validity for enforcement by execution depend upon something subsequently to be done; as where a judgment is rendered against a surety in an appeal, under a statute providing therefor, and which statute required that to render such surety liable for the judgment, execution must go against the principal within thirty days, or within a given time, then such statutory regulation not being enforcible in another State, no regard can therein -be had to the same, so as to carry out its provisions; and to render a judgment as at common law would be to give to the judgment greater force than it is entitled to where originally rendered ; there- fore, no judgment can be entered thereon in another State, either statutory or at common law. 1 Judgment on Penal Bonds Continued. A judgment upon a penal bond for the amount of the penalty, with leave to have 'execution for a sum named as then due, and the principal judg- ment to stand as security for other installments of the same debt, as they severally, from time to time, became due, so as then to resume the proceedings and take order of execution therefor, will not maintain or support an action of debt in another State, when from the record it appears that the first and only installment as- certained and adjudicated as due, by the court rendering the judg- ment, has been paid. The main judgment is but a security ; the action is not terminated as to the subsequently occurring liabili- ties or installments, and the court of a diiferent State cannot take up the proceeding where left off by scire facias or otherwise. The real judgment in such a proceeding is for the amount then found to be due, and for nothing more; and that being satisfied, the bond in all other forums, except of the State where such judgment is rendered, is not merged in the proceeding, but remains as it was before. 3 In delivering the opinion in this case, and after reviewing the whole subject with great ability, and in 1 Kellam v. Toms, 38 Wis. 592. This very irregular and imperfect, leave case was decided on demurrer of de- was given plaintiff to amend, fendant, and the proceedings being 3 Dirnick v. Brooks, 21 Vt. 569 ; Pierce v. Reed, 2 N. H. 359. 96 ACTIONS AND SUITS OX JUDGMENTS. all its aspects, Justice REDFIELD said: " It is in vain to treat this as in any sense a judgment importing an obligation upon which to found an action of debt. It is, at most, an inchoate proceed- ing the mere pendency of an action. It is in no sense a more perfect judgment than a default, or judgment upon demurrer, where no damages have been assessed, and where they rest in . and depend upon proof to be adduced in court. In such case, which is certainly stronger for the plaintiff than the present, it would seem absurd to claim that a court in another State, or, indeed, any other court, could perfect the judgment. We might as \vell expect that if a defendant leaves one State and goes into another, after the service of process upon him, the court of the latter State will take up the proceedings at that very stage and perfect the judgment." 1 In this same connection the court ex- pressed great doubt if any of the collateral undertakings or obli- gations growing out of judicial proceedings in one State can be enforced in the courts of another State, the same being in their nature local to the forum where created or taken, and, as we may here add, subject in a measure to the subsequent rulings of the same forum as to their ultimate enforcement, if not as to their final binding effect. As, for instance, as enumerated in the opinion above referred to, proceedings by scire facias, or in debt upon recognizances of bail upon mesne process; suits against re- ceiptors of property, and on replevin bonds and against sheriffs for neglect of duty, and upon prison bonds; and the enforcement of warrants of attorney to confess judgment; and declares it to be clearly the law, that proceedings to enforce any of such collateral liabilities or remedies by scire facias must be confined to the court wherein they arose; that the remedies on all such are local. 3 And so of interlocutory judgments. They are not final, and no action can be maintained upon them. To support an action, the judgment must be conclusive. 3 V. ACTION ON JOINT JUDGMENT. A joint judgment, against two or more defendants, rendered without service on or jurisdiction of both, is incapable of being 1 Dimick c. Brooks, 21 Vt. 580. * Thorner t>. Batory, 41 Md. 593 ; Di- 8 Dimick . Brooks, 21 Vt. 569, 579, mick v. Brooks, 21 VI. 569 ; Hanover 580. See, also, Pickering r. Fisk, 6 Fire Ins. Co. o. Tomlinson, 6 Thomp. Vt. 102. & C. (N. Y.) 127 ; S. G., 3 Hun. 630 ON A JUDGMENT ON A PENAL BOND. 97 enforced by an action in another State. 1 At least so, if there be no showing that the law of the State where the judgment was rendered tolerated the rendering of such a judgment. 2 So, on the other hand, a joint judgment of another State against several defendants, when the record states that service was had on each, will not sustain an action against one alone of the defendants therein, there being nothing stated in the petition or declaration as a reason for proceeding against but one; 3 but where joint judgment debtors are resident in different States, an action on such judgment may be maintained against each of them sepa- rately by averring and showing such residence. 4 YI. ACTIONS ON A JUDGMENT RENDERED ON A PENAL BOND. The case of Battey v. Holbrook was an action brought in a court of Massachusetts on a judgment of the circuit court of the United States for the district of Rhode Island. The judgment in Rhode island was rendered upon a penal bond, conditioned for the payment of an annual sum for support of a wife, where the parties had separated, which was payable to a trustee as obligee of the bond. Upon breaches to a part of the payments suit was brought, and judgment obtained for the penalty of the bond, as se- curity for both the future and past breaches, with judgment of exe- cution for the amount found due and therein specified for past breaches ; the formal judgment for the penalty to stand good for future breaches, and the cause to remain in court, with the right in plaintiff to take orders of execution for the amounts of future breaches which might occur, upon scire facias against the defend- ant, to show cause against the same. The defendant having re- moved from the jurisdiction of Rhode Island into Massachusetts, was there sued in the State court upon the judgment. The courts of Massachusetts held that judgment could in that State be recov- ered only upon the effective part of the judgment sued on only on so much thereof as execution had been awarded for in the United States circuit court where the judgment was rendered; and that the remedy for future breaches was by scire facias in the United States court, where the cause was still pending. That 1 Frothingham v. Barnes, 9 R. I. * Knapp v. Abell, 10 Allen, 485. 474 ; Mervin v. Kumbel, 23 Wend. 293 ; 8 Dart v. Goss, 24 Mich. 2G6. Oakley v. Aspinwall, 4 N. Y. 514. 4 Brown v. Birdsall, 29 Barb. 549. 7 98 ACTIONS AND SUITS ON JUDO M KM . to allow judgment for the penalty would be be to oust the court in Rhode Island of its still pending jurisdiction, and also would give to the plaintiff on such new judgment what he could not get by the old a judgment, without showing a breach, as the whole case could not be transferred into the courts of Massachu- setts under any circumstances. 1 Where the liability imposed by a bond is in the nature of a penalty, and such bond is a statutory one, an action for the breach thereof is to recover a penalty, and can only be enforced in the State enacting the statute. 1 VII. COMPETENCY OF THE RECORD AS EVIDENCE. Appellate Judgments. In an action on a judgment of a court of another State, it is no objection to the record thereof as evi- dence, when duly authenticated, that such record embodies in it the record of a judgment of a justice's court, in the same case, rendering a judgment, from which an appeal was had to the court from whence the record of the judgment comes, and in which appellate court the judgment thus received and sued on \vas rendered. 3 Presumption of Regularity. And where the validity of such judgment, as to form, is dependant on proof of the manner of practice and custom of entering judgments and making up re- cords thereof in the State from which it comes, and nothing ap- pears in an appellate court as to whether there was or was not proof thereof in the court below, the presumption is that such proof was made, and therefore a judgment therein will be sus- tained when the showing of such proof would have authorized the rendering of the judgment in the court below. 4 Jurisdiction. In actions on judgments of courts of other States the presumption is, when the record is authenticated as provided by the act of Congress, that the court rendering the judgment in such other State was a court of competent powers, 1 Battey *. Holbrook, 1 Gray, 212; 33 Md. 487; Bird v. Hayden, 1 Rob- Dimick c. Brooks, 21 Vt. 569. ert 391. * Hill v. Frazicr, 22 Penn. St. 320; "Clemmer t. Cooper, 24 Iowa, 185. Halsey t>. McLean, 12 Allen, 438; * Clemmer v. Cooper, 24 Iowa, 185 ; Erickson v. Nesmith, 4 Allen, 233; Taylor v. Runyan, 3 Iowa, 474; S. (7., Derrickson c. Smith, 8 Dutch. 166 ; 9 Iowa, 522 ; Freeman on Judgments, Erickson v. Nesmith, 46 N. H. 371 ; 565. First Nat. Bank of Plymouth v. Price, COMPETENCY OF THE RECORD AS EVIDENCE. 99 In point of jurisdiction, to the subject matter thereof, to render the same. 1 In Buffum v. Stimpson the court say: "There is no validity in the objection, that the court in Wisconsin had not jurisdiction. The record being properly authenticated the presumption is in favor of the jurisdiction." Admissibility of the Record. Must be Pertinent. To enable a record of another State to be used in evidence in a judicial proceeding it must be authenticated as required by the act of Congress, or else as required by the laws of the State wherein it is sought to be used; and conformity to the latter will do, if not inconsistent with the act of Congress. It cannot require more than is required by the Congressional act. 3 But however conformable to either the authentication may be, yet to be allowable in evidence, the record offered must be perti- nent to the issue. 3 Temporary Judge. In an action on a judgment of another State, in the rendition of which a member of the bar presided as judge under appointment of the regular judge, and during his inability from sickness to act as judge, a statute law of such State allowing such appointment, may be introduced in evidence to prove the authority of the pro tempore judge for acting as such. 4 Assignee as Plaintiff. And when the action on the judgment is in favor of an assignee thereof as plaintiff, and by the law of the forum of the pending trial assignees of judgments are allowed to sue thereon in their own name, then an assignment of judgment to plaintiff purporting to have been made of record, and by the clerk certified as part of the record, will be allowed to go in evidence as prima facie evidence of plaintiff's right as assignee. 5 Form of Judgment Not Questionable. Sufficiency as to form of foreign judgment, when sued on in the courts of another State, is not questionable in the court where suit is brought. Every court has its own form and is the judge of the sufficiency. fl. Wheelock, 11 Cush. 277; 2 Ordway v. Conroe, 4 Wis. 59; Buffum v. Stimpson, 15 Allen, 591 ; Hacket v. Bonnell, 16 Wis. 471. Nunn v. Sturges, 22 Ark. 389 ; Halli- 3 Ordway v. Conroe, 4 Wis. 59. burton . Fletcher, 22 Ark. 453 ; War- * Walker v. Leight, 30 Iowa, 310. ren v. McCarthy, 25 111. 95 ; 1 Arneri- 5 Ibid. can Leading Cases, 5th ed. 647. 100 ACTIONS AND SUITS ON JUDGMENTS. If sufficient where rendered, it is entitled to like faith in other States. 1 Amount Recoverable. But where by the record it appears that part of the judgment sued on has been realized by execu- tion, or otherwise, the recovery thereon can be had for the unsat- isfied balance only.* Execution Levy on Land is No Defense. But the mere levy of execution on land not being in any sense a satisfaction of the writ, it therefore does not effect the judgment which is the found- ation of the writ. It results, from these principles, that such levy, or even levy and advertisement of lands for sale, is no de- fense to an action on a judgment of another State. 8 VIII. CHANGE OP STATE SOVEREIGNTY EFFECT OF ON DECREES. A decree for a specific performance of a contract to convey real property situated in the State where the decree is made, will be enforced, notwithstanding that the locus in quo be, during the pendency of the suit, transferred to, or is annexed to, another State. The court of such other State will execute the same, upon a record of the proceedings being filed therein, duly certified and authenticated. 4 Organization of New State. So a decree of a court of chan- cery of the State of Virginia of specific performances, as to lands situated at the time in Kentucky, then a part of Virginia, was held to be enforcible after the separation and organization of Kentucky into a State, in a suit upon such decree, in the circuit court of the United States for the district of Kentucky. 8 IX. JUDGMENTS AND DECREES IN PROCEEDINGS IN EEM. No Action Sustainable Thereon. Judgments and decrees merely in rem of courts of one State will not sustain an action or suit against the defendant therein in the courts of another State. 6 They bind only the thing or property acted on bv them, 'Groverc.Grover^OMo^OOjMiles Melhop v. Doane, 81 Iowa, 397; t>. Collins, 1 Met (Ky.) 808. Price v. Hickok, 39 Vt. 292; Jones t>. 9 Arnold v. Roraback, 8 Allen, 429. Spencer, 15 Wis. 583 ; D'Arcy v. 'Field v. Sanderson, 34 Mo. 542. Ketchura, 11 How. 165; Pennoyer v. 4 Brown v. Desmond, 100 Mass. 267. Neff, 5 Otto, 714. Caldwell v. Carrington, 9 Pet. 86. IN PROCEEDINGS IN &E3I. 101 "but so far as their effect concerns that property or thing, as for instance as evidence of right thereto, they are entitled to that full faith and credit everywhere in courts of the other States which are accorded to them in the courts of the State where rendered. If jurisdiction in rem properly attach, they are valid, however, as judgments in rem and as evidence of what has been effected under them. 1 The levy binds the res, and so does the judgment in rem that follows, if one be rendered against the res, but personal judg- ment without appearance or service is invalid. 3 Are Evidence of Bight to Personal Property. Judgments and sales of personal property in proceedings in rem against the property sold, obtained and made in one State, and brought in question judicially in another, though of. no validity as personal judgments against the defendant therein, and incapable of being the bases of an action or recovery in a different State, when rendered without jurisdiction of the person of the defendant, 3 yet condemnation arid sales in rem of personal property seized on and sold in such proceedings, if valid within the State wherein they occur, are valid within all other States wherein their validity may be brought in question, and are entitled to the same faith and credit when brought in question in such other States as in the State where rendered. 4 And by a general principle of law, if jurisdiction attached by proper seizure and publication of such notice as may in law be there required where such seizures and sales are made, then the proceedings are there valid until reversed although tinctured with irregularities or errors. 5 1 Melhop v. Doane, 31 Iowa, 397; Monroe, 30 Mo. 462 ; Rape v. Heaton, Williams v. Armroyd, 7 Or. 423 ; Rose 9 Wis. 328 ; Pennoyer v. Neff, 5 Otto, . Kimly, 4 Cr. 240, 269 ; Crondson v. 714. And service must be made within Leonard, 4 Cr. 433 ; Grant v. McLach- the State, and must be personal, or lin, 4 John. 34; King . Vance, 46 else a personal judgment, if there be Ind. 246; Pennoyer u. Neff, 5 Otto, no appearance, is void. Ibid. 714; Green v. Van Buskirk, 7 Wall. 3 Jones v. Spencer, 15 Wis. 583; 139; Molyneux v. Seymour, 30 Geo. D'Arcy v. Ketchum, 11 How. 165. 440; Melhop . Doane, 31 Iowa, 397. 4 Melhop . Doane, 31 Iowa, 197; 3 Melhop v. Doane, 31 Iowa, 397; Croudson v. Leonard, 4 Cr. 433 ; Will- Arndt v. Arudt, 15 Ohio, 33 ; Sevier v. iams v. Armroyd, 7 Cr. 423 ; Grant v. Rocldie, 51 Mo. 580; Thompson v. McLachlin, 4 John. 34. Emmert, 4 McLean, 96; Johnson v. 5 Edmonds v. Montgomery, 1 Iowa, Holley, 27 Mo. 594; McLauriue v. 143. 102 ACTIONS AND SUITS ON JUDGMENTS. X. DEFENSES TO SUITS ON JUDGMENTS AND DECREES. Want of Service. Want of service, if there be no appearance of defendant, renders a personal judgment void for want of juris- diction of the person, and is a good defense to an action founded on it. Acknowledgment of Service Invalid. And even if service be acknowledged by defendant, or by him accepted, in writing, in a different State, yet a personal judgment without other means of jurisdiction of the person will be invalid if the written acknowl- edgment or acceptance be made and delivered in a different State than that in which the judgment is rendered. 2 The defendant cannot place himself in court by an act done in another State and completed there. Such a proceeding, at most, amounts to no more than an undertaking or consent to appear. It is not like an actual appearance by formal plea to an action which puts the party in court per se. And in either case, if the judgment be invalid for want of jurisdiction of the person of the defendant, no action will lie thereon, in personam, against the defendant therein if there has been no appearance. For want of jurisdic- tion of the person of the defendant is a good defense to an action upon a judgment. 3 Fraudulent Appearance. So if there be an appearance for the defendant, there being no service, and the appearance be unau- thorized and fraudulent, the judgment rendered on such an appearance will not sustain an action. 4 Officer's Return of Service Contested. If service appears by the officer's return, yet the truth thereof may be contradicted by parol proof. 5 Insufficient Service Shown by the Record. When, in an action 1 Scott v. Noble, 72 Penn. St 115 ; mott . Clary, 107 Mass. 501 ; Wood v. Miller v. Dungan, 36 N. J. (L.) 21; "Watkinson, 17 Conn. 500; Davidson McVicker v. Beedy, 31 Me. 314; Pen- . Sharpe, 6 Ired. 14; Arndt v. Arndt, noyer v. Neff, 5 Otto, 714, 730 ; Thomp- 15 Ohio, 33; Davis t>. Smith, 5 Geo. son v. Whitman, 18 Wall. 457; La- 274; Warren v. McCarthy, 25 111. 95. fayette Ins. Co. t>. French, 18 How. 4 Marx v. Fore, 51 3Io. 69. 404. s Carleton v. Bickford, 13 Gray, 591 ; * Scott v. Noble, 72 Penn. St. 115, Rankin v. Goddard, 54 Me. 28; 8. (7. 117; Pennoyer v. Neff, 5 Otto, 714. 55 Me. 389. Marx v. Fore, 51 Mo. 69 ; McDer- DEFENSES. 103 on a judgment, the record itself relied on as evidence of such judgment shows the service in the action in which the judgment was rendered to have been insufficient to put the defendant in court or subject personally to its jurisdiction, and it is not ap- parent that the defendant in any manner appeared to the action, then the state of the record, without further proof, will sustain a plea that defendant was not served in and did not appear to the action, and that jurisdiction was, therefore, wanting in the court that rendered the judgment. 1 Proof of other State Law. If the question as to what the general law of another State is, arises in the progress of a trial, it devolves upon the party alleging it and claiming the benefit thereof to make proof of it, and in the absence of such proof the court will, so far as regards the general law, presume it to be the same as the general law of the forum where the cause is being tried. 3 If proof thereof be made as provided by the act of Congress under the constitution, it is all that can be required. Otherwise, that is if not so proven, then proof must be made as required by the law of the forum or as between foreign States. 3 But although a defendant in a suit on a judgment rendered in a different State may show a want of service or jurisdiction of the defendant's person, 4 and that he did not appear in the cause in the court where the judgment was rendered, yet to make such showing effectual a foundation therefor must be laid in the pleadings by a special plea, if under common law practice, and if in those States where that system is dispensed with, then by such answer or pleading as by the local rules of practice and pleadings will enable him to introduce the proper evidence to establish such defense. If by the record an appearance by attor- ney is shown, then such appearance will be deemed to be truth- fully shown until the contrary be established by proof, and to make such proof a foundation therefor must be laid as above stated. 5 Service on a Director. Service upon a mere director in one State wherein the director is found, in a suit against a corpora- tion of another State, does not give jurisdiction of the corpora- 1 Rape v. Heaton, 9 Wis. 801. 19 Wall. 58; Thompson v. "Whitman, 2 Ibid. IS Wall. 457; Hill v. Menclenhall, 21 8 Ibid. Wall. 453, 454. 4 Knowlcs v. Gaslight & Coke Co., 5 Hill v. Menclenhall, 21 Wall. 453. 104 ACTIONS AND SUITS ON JUDGMENTS. tiou entity or person, and, therefore, if judgment be rendered :i t ^:iinst such corporation, in such a proceeding, without appear- ance or other personal jurisdiction thereof, it is invalid and an action will not lie thereon in a different State from that in which it is rendered. 1 Plea of Recovery on False Testimony no Defense. It is no de- fense to an action on judgment of another State that it was recov- ered by means of false testimony. This plea goes only to the right of recovery in the original cause, wherein the judgment was rendered, which cannot be reconsidered collaterally in this way. The defendant at the trial where the judgment was obtained should have overcome the false testimony by other evidence, or else, if taken by surprise or otherwise prevented therefrom with- out his own fault or laches, should have applied for a new trial. The showing cannot be made in defense when sued in another State on the judgment where jurisdiction. of his person existed in the court rendering the judgment. 2 Personal Judgment Without Service or Appearance. If a personal judgment be obtained without appearance or service, then the effect as to its invalidity is the same, whether the de- fendant be a resident or non-resident of the State wherein the judgment is rendered. 3 Service on Non- Resident. And so if there be personal ser- vice made upon the defendant within the State and proper juris- diction for service, where the court is held, then it is immaterial whether the defendant be a resident of such State, or is a resi- dent of a different State, and is temporarily present at the time of service in that where served, if the action be such as is main- tainable in a different State than that wherein defendant resides'; for in actions not in their nature local as growing out of the realty, or as predicated upon local statute of a State, the citizens of the respective States are personally suable therein wherever they may be found. 4 Error in Rendering the Judgment is No Defense. In suits on judgments of other States, errors of the court rendering the judgment sued on, if the court had jurisdiction, cannot be in- quired into or set up against enforcement of the judgment by 1 Latimore v. Union Pacific R R. * Rape . Heaton, 9 Wis. 301. Co., 43 Mo. 105. 4 Rape v. Heaton, 9 Wis. 301 ; Bar- * Cottle v. Cole, 20 Iowa, 481. ney v. Burnstenbinder, 64 Barb. 212. DEFENSES. 105 suit. Such matters are receivable only in an appellate court of the State where the judgment was rendered. 1 Jurisdiction Need Not be Averred. ]S~or need jurisdiction be averred by plaintiff to have been obtained by the court render- ing the judgment. If a court of general jurisdiction, that will be presumed, in the absence of any showing to the contrary. 2 But if suit is on a justice's judgment jurisdiction must be averred. 3 When Not Controvertible for Fraud. The ruling in the supreme court of the United States is, that a judgment of the. court of one State rendered with full jurisdiction, is not contro- vertible for fraud when sued on in another State, the defendant in such judgment having appeared to the action in which the judgment was rendered; that a plea that the judgment was ob- tained by fraud is not a good one. 4 Such, too, is the ruling in Louisiana, when it appears to have been made matter of defense to the action. 5 The better ruling, o/ as a general principle, is, that the trial on the merits in the cause wherein the judgment is rendered, is conclusive in the courts of other States, if there was jurisdiction in the court rendering the judgment. The courts of other States cannot go behind such judgments and try matters of defense that might have been, or were brought in question in the cause wherein the judgment was rendered; 6 and if by fraud at the trial the judgment be obtained, proceedings should there be set on foot to vacate it. There are respectable rulings, however, to the contrary. 7 Only Such Defense as Subject to Where Judgment was Kendered. In a suit in the courts of a State upon a judgment of another State, only such defenses going to the validity of the judgment may be made thereto as would be available against the judgment in a court of the State where the judgment was rendered; for such records and judgment of another State has the same force, and is entitled to the same faith and credit, as in the State 1 Rogers v. Bogers, 15 B. Mon. 292 ; 6 Duvall v. Fearson, 18 Md. 502 ; Milne v. Van Buskirk, 9 Iowa, 558. Rankin v. Gocldarcl, 54 Maine, 28; 2 Reid v. Boyd, 13 Tex. 241. Roberts v. Hodges, 1 C. E. Green, (N. 3 Grant v. Bledsoe, 20 Tex. 456. J.) 299. 4 Christmass v. Russell, 5 Wall. 290. ' Rogers v. Gwyn, 21 Iowa, 58 ; Da- 6 Hockaday v. Skeggs, 18 La. Ann. vis v. Headley, 22 K J. Eq. 115; Ward 681. v. Quinlivin, 57 Mo. 425. 10G ACTIONS AND SUITS OX JUDGMENTS. wherein it is rendered. 1 But where the practice is to plead either legal or equitable defenses to actions at law, or both, then the defendant in an action on a judgment of another State, in a court of the State where such equitable defense is permitted to- be made, is not bound to take the remedy of filing and prosecut- ing a bill in chancery to get rid of liability thereon, but may set it up in the action at law and thus avail himself thereof. 3 The defense made and thus allowed in the case of Rogers v. Gwyn was, that plaintiff promised to dismiss the action, by reason whereof defendant did not appear and defend, and that the plain- tiff thereafter took judgment in violation of such promise without the knowledge of defendant. It not appearing from the record that defendant had appeared to the action wherein the judgment was rendered, this defense was allowed. So, too, in an action on a judgment of another State the defendant may show in defense that the attorney who entered his appearance for him had no authority so to do, and if such prove to be the fact, there can be no recovery on the judgment. 3 So the defendant may plead a release or payment, or statute of limitations. 4 Or, any other plea that shows a discharge or sat- isfaction of the judgment; 5 but the plea of nul tiel record is the only plea on which to test the validity of the record and its au- thentication. 8 A plea to an action on a judgment that defend- ant was not served, and that he had no agent or attorney in the 1 Mills v. Duryee, 7 Cr. 481 ; Harap- way v. Stillman, 6 Wend. 447; 8. C., tonr. McCounel, 3 Wheat. 234; Tay- 4 Cow. 292; Welch v. Sykes, 8 111. lor v. Carpenter, 2 Wooclb. & M. 1; 198; Alrich v. Kinney, 4 Conn. 380. Westerwelt v. Lewis, 2 McL. 511; In Harshey v. Blackmarr, supra, the Warren Manuf. Co. v. ^Etua Ins. Co., supreme court of Iowa, DILLON, J., 2 Paine, 502; Green v. Sarmiento, Pet. say that it is "now settled both in C. C. 74; S. C., 3 Wash. C. C. 17 ; Arm- the Federal and State courts " that strong v. Carson, 2 Dal. 302; Field v. "a judgment debtor, in an action Gibbs, Pet. C. C. 155; Bryants. Hun- against him on the judgment of an- ters, 3 Wash. C. C. 48 ; Rogers v. Gwyn, other State, may successfully defend 21 Iowa, 58. by showing that the attorney who J Rogers V. Gwyn, 21 Iowa, 58 ; Har- entered an appearance for him had no shey v. Blackmarr, 20 Iowa, 161, 173; authority to do so." Thompson t>. Emmert, 15 111. 415. * Jacquette v. Hugunou, 2 McL. 8 Harshey v. Blackmarr, 20 Iowa, 129; Sohn v. Waterson, 1 Dillon, 358. 161, 172; Hindman v. Mackall, 3 G. 5 Jacquette v. Hugunon, 2 McL. 129. Greene, 170; Shelton v. Liffln, 6 How. Westerwelt v. Lewis, 2 McL. 511 ; 164; Baltzell v. Nosier, 1 Iowa, 588; Thompson v. Emraert, 4 McL. 96. Hall v. Williams, 6 Pick. 232 ; Shum- DEFENSES. 107 State wherein the judgment was rendered authorized to appear or acknowledge service for him, is not sufficient, if true, to bar a recovery upon a judgment. For aught that is alleged in it the defendant may have voluntarily and in person submitted himself to the jurisdiction of the court. But if the plea had also denied . that defendant submitted himself in any manner to the juris- diction of the court, it would have been good. 1 May Show Want of Jurisdiction. It seems to be a well settled principle of law, that in defense to an action on a judgment of another State, the defendant may show a want of jurisdiction of the subject matter, or of the person of the defendant, in the court rendering the judgment, as also, that there was neither ser- vice or appearance in the cause; and this, too, against recitals to the contrary in the transcript of the record sued on. 2 But the plea of fraud is not admissible, as a general principle, to an action at law upon a judgment of another State; such is the settled ruling of the supreme court of the United States. 3 Statute of Limitations. A plea of the statute of limitations of a State to an action in the courts thereof, brought upon a judgment rendered in another State, that the defendant at the time of commencing the action in which the judgment was ren- dered was a resident of the State wherein suit on the judgment is pending, and that the cause of action on which such judgment was rendered, would have been barred by the laws of the latter State, if the suit had been brought therein, is bad, since such statute of limitations is void for unconstitutionality. Strictly speaking, such statute is not one of limitation merely intended to limit the time in which the remedy is available, but is, if it were valid, a bar to, or denial of, all remedy at any time. Full faith and credit are not only to be given to such record of judg- ment in the State where sued on, but it is there entitled to have the same effect and force that it had in the State where rendered, so that a statute of limitation of any State depriving it of that effect is unconstitutional and void. 4 1 Struble v. Malone, 3 Iowa, 586. dieting the recitals or adjudications 8 Pollard . Baldwin, 22 Iowa, 328; set out in the record." Lowe v. Lowe, Thompson v. Whitman, 18 Wall. 457. 40 Iowa, 223 ; Galpin v. Page, 18 Wall. " It is now the prevailing rule that in 350; Aruott t. Webb, 1 Dillon, 362. actions upon judgments of a sister 3 Christmass v. Russell, 5 Wall. 304; State, want of jurisdiction may be Maxwell v. Stewart, 22 Wall. 77. shown in the court by proof contra- 4 Mills . Duryee, 7 Cr. 483 ; Christ- 108 ACTIONS AND SUITS ON JUDGMENTS. Personal jurisdiction. Judgment conclusive. "\Yhen juris- diction of the person of the defendant attached, in the court wherein the judgment is rendered, the judgment is conclusive, and is not open to any defense or inquiry upon the merits. 1 But in Iowa and some other of the States the plea of fraud is allowed as a defense to an action at law on a judgment of another State. 9 Personal jurisdiction obtained by fraud. If jurisdiction be obtained in the courts of one State, by fraud, over the person of a defendant who resides in a different State, that fact may be shown to defeat the action where jurisdiction is thus obtained, and is a good defense thereto; or the defendant therein may dis- regard the action to which he is thus made a party, and if judg- ment be rendered against him therein, and he be sued in another State on such judgment, then a showing of such fraudulent man- ner of obtaining jurisdiction of defendant's person in the original action may be made, and will be a full defense to the action on the judgment in such other State. 3 The defendant in the case cited below, of Dunlap v. Cody, was a resident of Iowa, and was fraudulently enticed into Illinois for the purpose of there su- ing him, by falsely pretending that he was wanted there, he being a carpenter, in reference to the building of a pretended elevator of great cost; whereas, in fact, he was only wanted there to obtain jurisdiction of his person in an action, with the advantage thereby of evading the operation of the Iowa statute of limitations, which was an obstacle in the way of recovery in the Iowa courts. The defendant being sued in Iowa, on the Illinois judgment obtained under such circumstances, the Supreme Court held that no re- covery could be had thereon. DAY, J., delivering the opinion of the court, characterizes the transaction in the following terms: " An enlightened and just administration of the law, no less than Bound public morals, condemns such practices." 4 Suit against executor or administrator. In a suit against an executor or administrator in a State where he is acting as such, by virtue merely of ancillary letters, and suit is brought by a mass v. Russell, 5 Wall. 290, 302; 9 Whetstone v. Whetstone, 31 Iowa, Story on the Const. 1313. 276. i Bank of U. S. v. Merchants' Bank * Dunlap v. Cody. 31 Iowa, 260; Ils- of Baltimore, 7 Gill, 430; Bissell v. ley v. Nichols, 12 Pick. 270. Briggs, 9 Mass. 462 ; Christinasa c. * Dunlap v. Cody, 31 Iowa, 261, 262. Russell, 5 Wall. 290, 302. DEFENSES. 109 distributee or legatee of the deceased, a plea that the domicile of the deceased was, at the time of his death, in a different State, and that the defendant is executor or administrator, as the case may be, at such place, is a good defense to the action, for distri- bution is to be made and legacies are to be paid under the administration of the domicile. l 1 Probate Court v. Matthews, 6 Vt. 2 Mass. 384 ; Hapgood v. Jennison, 2 269 ; Selectmen of Boston v. Boylston, Vt. 294. 110 INTER-STATE PROOF OF RECORDS. CHAPTER XI. INTER-STATE PROOF OF RECORDS, JUDICIAL PROCEEDINGS AND LAWS. I. NATIONAL PROVISIONS OF LAW ON THE SUBJECT. II. PROOF OF RECORDS, AND JUDICIAL PROCEEDINGS IN PURSUANCE THEREOF. III. PROOF OF STATUTE LAWS OF STATES UNDER THE ACT OF CONGRESS. IV. PROOF OF STATE LAWS AS AT COMMON LAW AND UNDER THE STATUTES OF THE STATES. V. PROOF OF PROCEEDINGS OF JUSTICES OF THE PEACE. VI. PROOF OF RECORDS OF OFFICE BOOKS. I. NATIONAL PROVISIONS OF LAW ON THE SUBJECT. Faith and credit to records. By Section 1 of Article 4 of the Constitution of the United States, it is provided and declared that full faith and credit shall be given in each State to the public acts, records and judicial proceedings of every other State; and that Congress may, by general law, prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof. In pursuance of this provision of the Constitution, Congress, on the 26th of May, 1790, passed an act in substance, that the acts of the legislatures of the several States shall be au- thenticated by having the seal of their respective States affixed thereto, and that the records and judicial proceedings of the courts of any State shall be proved or admitted in any other court within the United States, by the attestation of the clerk and the seal of the court annexed, if there be a seal, together with a cer- tificate of the judge, chief justice or presiding magistrate, as the case may be, that the said attestation is in due form. And that the said records and judicial proceedings, authenticated as afore- said, shall have such faith and credit given to them in every court within the United States as they have by law or usage in the courts of the State from whence the said records are or shall be taken. 1 And by a subsequent act of Congress, of the 27th of 1 United States Statutes at Large, Vol. 1, 122 ; R. S. of U. S., 2d Ed. 905, 906. NATIONAL PROVISIONS OF LAW. Ill March, 1804, it is declared that all records and exemplifications of office books which are or may be kept in any public office of any State not appertaining to a court, shall be proved or admit- ted in any other court or office in any other State by the attesta- tion of the keeper of the said records or books, and the seal of liis office thereto annexed, if there be a seal, together with a cer- tificate of the presiding justice of the court of the county or dis- trict, as the case may be, in which such office is or may be kept, or of the governor, secretary of State, the chancellor or the keeper of the great seal of the State, that the said attestation is in due form, and by the proper officer; and the said certificate, if given by the presiding justice of a court, shall be further authenticated by the clerk or prothonotary of the said court, who shall cer- tify, under his hand or the seal of his office, that said presiding justice is duly commissioned and qualified; or, if the said certi- ficate be given by the governor, the secretary of State, the chan- cellor, or keeper of the great seal, it shall be under the great seal of the State in which the said certificate is made. And that the said records and exemplifications, authenticated as aforesaid, shall have such faith and credit given to them in every court and office within the United States as they have by law or usage in the courts or offices in the States from whence the same are or shall be taken. 1 And by the last named act, it is also provided that the provisions of both acts shall apply as well to the public acts records, office books, judicial proceedings, courts and offices of the respective Territories of the United States, and countries sub- ject to the jurisdiction of the United States, as to the public acts, records, office books, judicial proceedings, courts and offices of the several States. 2 Applicable only to State courts. The foregoing constitutional and statutory provisions of the United States apply only to the courts of the States and Territories of the United States. They have no reference whatever to the courts, records, documents or acts of the United States, as evidence in the State courts, or to those of the State courts, as evidence in the national courts; in these cases the ordinary certificate of the clerk, and seal of the court, in such manner or form as renders them admissible in 1 United States Statutes at Large, a United States Statutes at Large, Vol. 2, 298; R. S. of U. S., 3d Ed. Vol. 2, 298; B. S. of U. S., 2d Ed. 906. 906. 112 INTER-STATE PROOF OF RECORDS. the courts of the same State, or in the Federal courts, as the case may be, renders these documents, records and acts mutually ad- missible as between the State and Federal courts, when otherwise proper evidence. 1 But notwithstanding those national provis- ions are not intended to apply to the United States courts, yet the records of those courts are admissible in other courts, though certified in accordance with said act of Congress. 2 The fact that such authentication more than fulfills the requirement of the law as to admissibility will not be ground of exclusion. 3 State and national courts not foreign to each other. The State and national courts, though emanations of different sovereign- ties, 4 are in nowise foreign tribunals to each other, nor are the national courts of one circuit or district such in reference to those of other circuits or districts, but are domestic tribunals, whose seals are recognized as matter of course. 8 But such courts, both national and State, are courts of different sovereignties, and the national courts are only required to give to judgments of State courts such authority as they are entitled to in the courts of the State wherein they are rendered. 6 Illustration. Void Judgments. A personal judgment rendered without service on or appearance of defendant therein is void, and will be so regarded when brought in question as a judgment of a State court in the courts of the United States, 7 notwith- standing the act of Congress of May 26, 1790, and amendatory 1 Mason v. Lawrason, 1 Cr. C. C. Rawle, 386 ; Hunt v. Lyle, 8 Yerg. 142. 190 ; Bennett v. Bennett, Deacly, 299 ; 8 Buford v. Hickman, Hempst. 233. Mewster v. Spalding, 6 McL. 24 ; Mur. 4 Pennoyer v. Neff, 5 Otto, 714. ry v. Marsh, 2 Hay w. (N. C.) 290 ; Bu- 5 Tumbull v. Payson, 5 Otto, 418, ford t. Hickman, Hempst. 232; United 433, 424; WomackV Dearman, 7 Port. States t. Wood, 2 Wheeler's Criminal (Ala.) 513; Commonwealths. Phillips, Cases, 326; Turnbull v. Payson, 5 11 Pick. 28; Chamberlin v. Ball, 15 Otto, 418, 422 ; Adams e.Way, 33 Conn. Gray, 352 ; Pennoyer v. Neff, 5 Otto, 419; Pepoon v. Jenkins, 2 John. 714. Cases, 119; Williams v. Wilkes, 14 Pennoyer t>. Neff, 5 Otto, 714. Peiin. St. 22S; Jenkins v. Kinsley, 3 ' Pennoyer v. Neff, 5 Otto, 714, 733, John. Cases, 474; Adams v. Lisher, 3 734; Smith v. McCutcheon, 38 Mo. Blackf. 241. 415; Darrance v. Preston, 18 Iowa, 5 Craig v. Brown, Pet. C. C. 352; 396; Mitchell v. Gray, 18 Ind. 123; Scott v. Blanchard, 8 Martin, (N. s.) Hakes t. Shupe, 27 Iowa, 465 ; Bor- 303; Johnson v. Rannalls, 6 Martin, den v. Fitch, 15 John. 121; Harris v. (N. 8.) 621 ; Balfour v Chew, 5 Mar- Hardeman, 14 How. 334 ; Thompson tin, (N. 8.) 517; Barbour v. Watts, 2 A. v. Whitman, 18 Wall. 457; Lafayette K. Marsh. 290; Ripple t>. Ripple, 1 Ins. Co. t. French, 18 How. 404. JUDICIAL PROCEEDINGS. 113 acts, prescribing the manner of proving records and judicial pro- ceedings of the several States in the tribunals of another of them; these acts do not apply to such judgments as are rendered with- out jurisdiction of the defendant's person, obtained by service of process within the State, or else by appearance to the action. Such judgments are void. 1 II. PROOF OF RECORDS AND JUDICIAL PROCEEDINGS IN PURSUANCE THEREOF. Attestation and Seal. Under the act of Congress of May 26, 1790, the records and proceedings of the courts of any State are provable and admissible in any other court within the United States, by the attestation of the clerk and the seal of the court, if there be a seal, thereto annexed, together with the certificate of the judge, chief justice, or presiding magistrate, as the case may be, that the attestation is in due form. 2 If the records to be certified be those of a court having no seal, then the clerk's certificate must show that fact, or else it must be shown by the certificate of the judge. 3 Faith and Credit of Records. Records and judicial proceed- ings thus authenticated are entitled to such faith and credit in every court in the United States as they have by law or usage in the courts of the State from whence they are taken. 4 Extended to Territories. By act of Congress of March 27, 1804, the provision aforesaid in reference to authentication and admissibility in evidence of judicial proceedings and records of the courts of the States, and the effect thereof, are extended to courts of all the Territories of the United States. 8 Though there must have been personal jurisdiction of the defendant to entitle the proceedings to such faith and credit, and though the proceeding be commenced by attachment without service on defendant, yet if he appear and defend, and there then be per- sonal judgment against him, the case comes within the act of 1 D'Arcy t>. Ketchum, 11 How. 165. 4 1 Stat. at Large, 122, 1 ; 1 Bright- 2 1 Stat. at Large, 122, 1 ; 1 Bright- ley's Dig. 265, 9 ; 1 Greenl. Ev. ley's Dig. of Laws, 265, 9; R. 8. of 504. U. S., 2d Ed. 905; 1 Greenl. Ev. $ * 2 Stat. at Large, 298, 2; R. S. of 504; 1 Kobinson's Pr. 272-276. U. S., 2d Ed. 906; 1 Greenl. Ev. 3 Craig v. Brown, Pet. C. 0. 352. 504. 114 INTER-STATE PROOF OF RECORDS. Congress, and the proceedings are entitled to full faith and credit in other States, properly certified. 1 Judge's Certificate. These certificates, when in due form, are proof in themselves. The questions of regularity of the clerk's certificate, and of his being clerk, or if certifying as deputy, then also the questions as to his being deputy, and of the deputy's power to do the act, are all settled in the affirmative by the judge's certificate, if it be in conformity to the act of Congress. 8 And though the certificate of the judge be not dated, yet if it immediately follows the certificate of the clerk, and the latter be dated, that is sufficient. 3 So, letters of guardianship, certified by a probate judge as his own clerk, and by him certified to as judge as being in due form, and stating that he is also clerk, are sufficiently attested under the law. 4 Proof of Statutes. And so the certificate and seal of State ot the genuineness of statute laws need no other proof of their authenticity, or of the official character of the person certifying as secretary of state, and if there be interlineations they are pre- sumed to have been made rightfully; 5 and so it is settled that State laws need not be proved in the courts of the United States. 6 Informal Judgment Entries. And where by the State prac- tice no formal entry of judgments of record in extenso is made, but mere docket entries are used, as in Pennsylvania and in the District of Columbia, in the State and local courts, then such docket entries and proceedings in the cause, duly certified and authenticated under said acts of Congress, are evidence in the courts of other States and Territories, if a foundation be laid in the pleadings for showing and making proof of such practice and the reason of the non-production of a more formal record. 7 Personal Jurisdiction Necessary. Though the authentication 1 Mayhew v. Thatcher, 6 Wheat. Owings c. Hull, 9 Pet. 607 ; U. 8. 129. v. The Aiuedy, 11 Wheat. 392 ; Leland 8 Young v. Thayer, 1 G. Greene, v. Wilkinson, 6 Pet. 317; Hinde v. 196 ; Lewis v. Sutliff, 2 G. Greene, 186 ; Vattier, 5 Pet. 398. Ferguson u. Harwood, 7 Cranch, 408. 7 Washington, A. & G. St. Packet 8 Lewis v. Sutliff, 2 G. Greene, 186. Co. v. Sickles, 24 How. 333; Ferguson 4 Roup v. Clark, 4 G. Greene, 294. v. Harwood, 7 Cr. 408; Philadelphia, U. 8. v. The Amedy, 11 Wheat. Wil. & Bait. R. R. Co. v. Howard, 13 392; 1 Greenl. on Ev. 480 ; % 1 Rob- How. 307; Hade o. Brotherton, 3 Cr. inson's Pr. 252. C. C. 594. JUDICIAL PROCEEDINGS. 115 and formalities be strictly in compliance with the acts of Con- gress, yet if neither personal sendee of the original process nor the appearance of the defendant be shown, so as to give the court jurisdiction of the person of the defendant, such record is of no value in another State in evidence against him as the formation for a personal recovery; 1 for to render a record evi- dence under the acts of Congress in the courts of a different State, it must not only show that the court had personal juris- diction of the defendant or party against whom it is to be intro- duced, 2 but must be authenticated strictly in accordance with said acts of Congress. It must be authenticated according to the form used in the court from whence it comes 3 by the judge, chief justice or presiding magistrate of the court, as well as by the clerk, under seal of the court, if there be a seal. A certificate of a person styling himself "one of the judges" is insufficient. 4 And if there be no seal, then that fact should be shown in the certificate of the judge. 8 If the proceedings be from a surro- gate's court, of which the surrogate is both clerk and judge, then the authentication should show that fact, and the surrogate should first certify to his proceedings as clerk and then add thereto his certificate as judge, so as to authenticate the attesta- tion of the clerk as to his being such and as to its being in due form of law so as to bring it within the acts of Congress; 6 and the proper way is, to use the very language of the act. If there be a seal of the court, then the seal must be affixed to the cer- tificate of the clerk, and it will not be sufficient if only to the certificate of the judge. His certificate needs no seal under the act of Congress. 7 And if the judge's certificate does not state that the clerk's is in due form, the record is inadmissible. 8 So, the judge's certificate that the person certifying as such is clerk, and that his signature is genuine, is insufficient; it does not meet the requirements of the act of Congress. 9 The Acts of Congress Apply only to Courts of Record. This 1 Buford v. Hickman, Hentpst. 332. 6 Catlin v. Underbill, 4 McLean, 8 Ibid. 199. 3 Craig v. Brown, Pet. C. C. 352. 7 Turner v. Waddington, 3 Wash. C. 4 Gardner v. Lindo, 1 Cr. C. C. 78, C. 126. 94 ; Stewart v. Gray, Heinpst. 94. 8 Trigg v. Conway, Hempst. 538 ; 6 Morgan v. Curtenius, 4 McLean, Craig v. Brown, Pet. C. C. 352. 306 ; Talcott v. Delaware Ins. Co., 2 Craig v. Brown, Pet. C. C. 352. Wash. C. C. 449. 116 IXTER-5TATE PROOF OF RECORDS. method of proving inter-State records, as provided by the act of Congress, has been construed to apply only to the proceedings of courts of record, and is, therefore, inapplicable, in general, to the courts of justices of the peace. 1 But where, as in some of the States, justice's courts are courts of record, it is decided in reference to their records, that they come within the provisions of the act, and may be certified or authenticated in accordance therewith.* Records of Appellate Court Including Justice's Proceedings. And, notwithstanding the proceedings of justices' courts are not ordinarily held to be within the meaning of the act of Congress, and may not be authenticated under the same with the same claim to faith and credit, as the proceedings of courts of record and general jurisdiction, it is, nevertheless, decided that when by appeal, or other legal process, the written proceedings of justices' courts have gotten into the courts of record and general jurisdiction, and therein are matured into judgment, the proceedings of the latter court including those from the justice's court, are together as an entirety within the provisions of the statute, and may be au- thenticated as therein provided, and thereupon be entitled to the same faith and credit in the courts of other States as is given to the original proceedings of the ordinary State courts, when so authenticated. 3 Courts of Chancery and Probate Courts. Courts of chancery, however, and of probate, are as strictly within the meaning and intention of the act of Congress as are the ordinary courts of common law. 4 Authentication Conclusive. If the State or Territorial record or document be duly authenticated, as between the State courts, or State and Territorial courts, in accordance with said acts of Congress, then no evidence is admissible to show that the attes- tation is not in due form of law, or to invalidate the legal authenticity thereof. 5 1 Snyder v. Wise, 10 Perm. St. 157; Bissell v. Edwards, 5 Day, 363; Blod- Robinson v. Prescott, 4 N. H. 450; gel v. Jordan, 6 Vt. 580; Scott v. Warren v. Flag, 2 Pick. 448 ; Silver Cleveland, 3 T. B. Mon. 62. Lake Bank v. Harding, 5 Ham. 545 ; 3 Hade v. Brotherton, 3 Cr. C. C. Mahuriu v. Bickford, 6 N. H. 507; 594; Clemmer t>. Cooper, 24 Iowa, Thomas v. Robinson, 3 Wend. 207 ; 1 182. Greenl. Ev. 505, 513. * Qreenleaf on Evidence, 511. * Starkweather v. Loomis, 2 Vt. 573 ; Ferguson t. Harwood, 7 Cr. 408 ; PROOF OF STATUTE LAWS. 117 Records Where New State is Formed Out of Old One. "Where a new State is formed out of a part of an old one, and suit is brought in still another State on the transcript of a judgment rendered before such new State was formed, in a county subse- quently included in such new State, it is held that a certificate of the clerk of the circuit court of the county certifying that the State was divided and a new State formed of a portion thereof including the county wherein the judgment was rendered; that the court that rendered the judgment was abolished or discon- tinued, and its records and proceedings transferred to said circuit court of the new State, and that he, as clerk of said circuit court, is the proper and lawful custodian of said records and proceed- ings of the court wherein the judgment was rendered, such cer- tificate being under the signature of the clerk and seal of said court; and the same being further authenticated by the certifi- cate of the sole judge of said circuit court, stating that the attestation of the clerk is in due form, and the person certifying as clerk is the clerk of said court, the record and authentication thereof were held sufficient to maintain the action. 1 III. PROOF OF STATUTE LAWS OF STATES UNDER THE ACT OF CONGRESS. Proof of State Statutes. Under the act of Congress of May 26, 1790, the statute laws of the several States are provable and admissible in evidence in the courts of the States respectively, by having the seal of the State annexed thereto. 3 When thus authenticated by the seal of State, the presumption is that they were so sealed by the proper keeper of the seal, and therefore no other proof or authentication of the genuineness of such laws is required. 3 Statutes Pleaded. Whichever party to a judicial proceeding raig v. Brown, Pet. C. C. 354; Young Mills v. Duryee, 7 Cr. 481 ; Mayhew 0. Thayer, 1 G. Greene, 196. And v. Thatcher, 6 Wheat. 129. though the clerk certifies as deputy, ' Darrah v. Watson, 36 Iowa, 116. no evidence is required to show that 2 1 Stat. at Large 122, 9; R. S. of a deputy is authorized to do the act, U. S. 2d ed. 905, 906. if the judge's certificate follows and s United States-??. Johns, 4 Dal. 412; is in conformity to the act of Con- S. C., 1 Wash. C. C. 363 ; United States gress. The latter sufficiently proves v. The Amedy, 11 Wheat. 392; Leland the legality of the former. Ibid. n. Wilkinson, 6 Pet. 317; 1 Greenl. Hampton v. McConnell, 3 Wheat. 234: Ev. 480 ; 1 Eobinson's Practice, 252. 118 INTER-STATE PROOF OF RECORDS. relies on a statute law of another State to effect a recovery or a defense, or to establish any facts, must set out and plead such statute as in pleading any fact, and must make proof thereof. A mere averment of the statute and a right claimed under it is not enough; the statute itself must be substantially set out, so that the court, if it is proven, may judge of and decide the effect thereof. 1 State Courts do Not Take Judicial Notice of Other States 1 Stat- utes. For the courts of a State cannot take judicial notice of the statute laws of other States. The party claiming the benefit thereof must make proof of them as matters of fact; 2 and to- enable that to be done, they must be pleaded. They must be set out at length and pleaded, so far as relied on, and then proven in the manner prescribed by the act of Congress, or else in such other manner, if any, as is permissible by the laws of the State where such proof is to be made. It will not do, in pleading them, to refer to them merely by their title and date of enact- ment or approval ; they must be set out so as to enable the court to see and know what they are, and to judge for itself of their legal effect. 3 The ruling in Ohio is, that their existence is matter of fact for decision of the jury, 4 but when shown to exist and placed in evidence, their construction is for the court. But, query. If proven by documentary evidence, as by certificate and seal of the Secretary of State, under the act of Congress, in case of statute laws, if their existence is not then a question for the court? Nor Notice of Local Officers. And as State courts of one State do not take judicial notice of the laws of another State, 5 so they do not of local officers; as, for instance, that there are county 1 Taylor v. Runyan, 9 Iowa, 522 ; 8 Mass. 99 ; Hunt v. Hunt, 44 N. Y. Bean v. Briggs, 4 Iowa, 4G4 ; Pearsall 27 ; 1 Robinson's Practice, 249. v. Dwight, 2 Mass. 84; Holmes v. 3 Carey v. Cin. & Chi. R. R. Co., 5 Broughtoii, 10 Wend. 75; 1 Chitty on Iowa, 357; Bean v. Briggs, 4 Iowa, Plead. 247 etseq.; Carey v. Cin. & Chi. 464; Pearsall r. Dwight, 2 Mass. 34; R. R. Co , 5 Iowa, 357. Holmes . Broughton, 10 Wend. 75 ; "Carey v. Cin. & Chi. R. R Co., 5 Walker r. Maxwell, 1 Mass. 103; Col. Iowa, 357 ; Bean v. Briggs, 4 Iowa, lett v. Keith, 2 East. 260 ; Legg t>. Legg, 464; Pearsall v. Dwight, 2 Mass. 84; 8 Mass. 99. Holmes t>. Broughton, 10 Wend. 75; 4 Ingraham v. Hart, 11 Ohio, 25o. Walker v. Maxwell, 1 Mass. 104; Col- 5 Fellows v. Pres. & Trust, of Men- lett v. Keith , 2 East, 260 ; Legg t>. Legg, asha, 1 1 Wis. 558. UNDER THE COMMON AND STATE LAWS. 119 judges, or that they have lawful authority to administer oaths, or exercise particular functions, except as to notaries public, whose acts and seals are everywhere recognized. 1 Ordinarily there must be some evidence of the existence of such officers, and of the official functions and powers of those who hold them. Their authority to act must be authenticated. 2 Therefore, where verification of pleadings is required by law, an affidavit, or what purports to be one, without more, to a plead- ing purporting to have been made in another State before a county judge, with no authentication of his signature or other evidence of his official existence or of its genuineness, such pleading will be treated as an unsworn pleading, and may be so regarded in responding to the same by the adverse party. 3 Common Law. And although, in regard to foreign laws, it is a principle, if nothing to the contrary is shown, that the com- mon law of another State is presumed to be the same as the com- mon law of the forum where brought in question, yet this pre- sumption as to the laws of a State does not exist in regard to its statute laws. There are some cases tending towards such a con- clusion, but in the language of RAPALLO, J., in McCulloch v. Norwood, " there is no authoritative decision to that eifect." 4 If there were any reason to doubt upon the subject, we may regard this decision, which is so recent as in 1874, and by authority so high and learned, as putting such doubt at rest, and as settling the doctine against such presumption as regards statute laws. This unwritten or common law of a State may also be proven by the books of reports of cases adjudged in its courts. 5 IY. PROOF OF STATE LAWS AS AT COMMON LAW AND UNDER STATE STATUTES. The method of making proof of the laws of the States in the courts of others, prescribed by the act of Congress of 25th of May, 1790, is merely cumulative, and is not inhibitory of such 1 Walsh v. Dart, 12 Wis. 635. decision in the same case made in the 2 Fellows . Pres. & Trust, of Men- court below and reported in 4 Jones asha, 11 Wis. 558. & Spencer, 180. See, also, Hull v. 3 Fellows v. Pres. & Trust, of Men- Augustine, 23 Wis. 383; 1 Robinson's asha, 11 Wis. 558. Practice, 25. 4 58 N. Y. 562, 507, modifying the 5 Cragin v. Lamkin, 7 Allen, 395. 120 INTER-STATE PROOF OF RECORDS. other proof within the rules of law, or as may be tolerated as m<>re convenient by any of the States. 1 The proof is to the court. The sufficiency of proof of foreign laws, as also their pertinency to the issue, and their legal inter- pretation and effect, are all matters for the decision of the court, and not the jury. 8 But although the proof is to be made to the court, that it may judge of the legal sufficiency of the proof, and of the pertinency and admissibility of the laws so relied upon, yet such laws of other States are to be proven as facts. 3 The States may relax, but not increase the requirements of the Act of Congress. Thus where, as in Iowa, a statute exists allow- ing such proof of statute laws of another State to be made by production of printed copies thereof, purporting to be made and published under authority of such other State, it is held that such proof is admissible as presumptive evidence of the law. 4 And proof of the unwritten laws of another State may be made by the testimony of persons familiar with such laws. 8 And so it may be proved, as in Iowa, by persons familiar with courts and their practice of other States, that books of statute law produced, are regarded and acted on by the courts of another State as stat- ute laws thereof. 8 And so may the practice and uses of such courts be proven in like manner by testimony of persons well acquainted therewith. 7 1 Laterett v. Cook, 1 Iowa, 1 ; Rayn- . Wash, Breese, 16. But though ham . Canton, 3 Pick. 293 ; Elinore provable as facts, their construction r. Mills, 1 Hayw. (N. C.) 359; Keana. is for the court, as also the fact of Rice, 12 S. & R. 203 ; Biddis c. James, their being such, or sufficiency of 6 Binn. 321 ; Ohio v. Hinchman, 27 their proof. De Sobry v. De Laistre Penn. St. 479; Pepoon v. Jenkins, 2 2 Harr. & J. 15)1; Moore v. Gwyun, John. Cases, 119 ; Hackett v. Bonnell, 5 Ired. 187 ; Tyler r. Trabue, 8 B. Mon. 16 Wis. 496; 1 Greenl. Ev. 505. 306; Pickard v. Bailey, 26 X. H. 152; '" Moore v. Gwynn, 5 Ired. 187 ; De Monroe v. Douglass, 5 N. Y. 447. Sobry v. De Laistre, 2 Harr. & J. 181 ; 4 Webster v. Russ, 23 Iowa, 269. Tyler v. Trabue, 8 B. Mon. 206 ; Pick- See, also, to the same effect, Commer- ard v. Bailey, 26 N. H. 152 ; Monroe cial & Farmer's Bank v. Patterson, 2 v. Douglass, 5 N. Y. 447 ; 1 Robinson's Cr. C. C. 346; Rockville & Washing- Practice, 257. ton Turnpike Road Co. v. Andrews, 2 s Stephcnson v. Bannister, 3 Bibb, Cr. C. C. 451. 363; Davis v. Curry, 2 Bibb, 238; * Webster v. Russ, 23 Iowa, 269. Ripple v. Ripple, 1 Rawle, 386; Con- 6 Greason v. Davis, 9 Iowa, 219. sequa v. Willings, Pet. C. C. 225; 7 Webster v. Russ, 23 Iowa, 269; Frith t. Sprague, 14 Mass. 435 ; Cook Crafts v. Clark, 38 Iowa, 237. t>. Wilson, Litt. Sel. Cases, 437 ; Mason UNDER THE COMMON AND STATE LAWS. The States may not require other proof than that provided by Congress. But no State may make a law requiring a different method of authentication of such inter-State acts, records, and documents than those provided and contemplated by the provi- sions of the Constitution above referred to, and the acts of Con- gress made in pursuance thereof. Unwritten law provable by books of reports. The unwritten or common law of another State may be proven by the books of reports of cases adjudged in its courts. 1 Private Laws. Private laws of a State are matters of fact, and when offered in evidence in the courts of another State or in a court of the United States, are to be proven as such in the ordi- nary manner. Official certificates thereof are not available. 8 Public Laws. The public Jaws of a State may be read in evi- dence in other States by being brought within the requisites of the act of Congress in that respect, and will be taken notice of without such requisites in the Federal courts; but private laws and special proceedings are to be proven as facts. 3 Foreign Laws. In the proof of foreign laws, the evidence is to the court and not to the jury, and they must be proved as facts. 4 Printed volumes. Printed volumes of the statutes purporting to be such are receivable as prima facie evidence of the statute laws of another State. 5 Such volumes, certified to by the .secre- tary of State, under seal of State, as correct copies of the statutes of a State, copied from the original rolls, are admissible as suffi- cient evidence of genuineness under the act of Congress. 6 Clerk's Certificate. The form of the clerk's certificate and man- ner of certifying of a record of a court of one State for use in the courts of another State, is to be in conformity to the Jaws of the State where the judgment is rendered and where the certifi- cate is made, and the certificate of the judge, chief justice or pre- siding magistrate, as the case may be, that the same is in due form of law, is conclusive on that subject. 7 Therefore, it is not 1 Cragin v. Lamkin, 7 Allen, 895. 5 Emery v. Berry, 28 N. H. 473 ; "Leland v. Wilkinson, 6 Pet. 317; Dixon v. Thatcher, 14 Ark. 141; 1 I'Greenl. Ev. 480, 481. Robinson's Practice, 253. "Ibid. 6 Wilson v. Lazier, 11 Gratt. 477; 4 Pickard v. Bailey, 26 N. H. 152; Sisko. Woodruff, 15 111. 15. Story's Conf. of Laws, G38, 688; 'Simons . Cook, 29 Iowa, 324; 1 Greenl. Ev. 486. Brown v. Adair, 1 Stew. & Port. 49. \'2'2 INTER-STATE PROOF OF RECORDS. a fatal objection that the clerk's certificate is without a seal, if the judge certifies that it is in due form of law. 1 The act of Congress merely requires the seal, if there be a seal. By the local law of Iowa, the certificate of a judge is sufficient. It need not be that of the judge chief justice or presiding officer. 8 Presumption as to Laws of other States. In the trial of a cause which involves the common law of another State, the court will, in the absence of proof of what such law is, presume it to be the same as the law of the forum where the cause is being tried. 3 But this presumption does not extend generally to statute laws, or laws of a penal nature, or embodying strict pro- visions or forfeitures against usury. 4 The only presumption affirmatively entertained by courts against the limits of jurisdiction of courts of another State is, that the same is to be restrained within the limits of natural justice. 5 Y. PROOF OF PROCEEDINGS OF JUSTICE OF THE PEACE. As a general principle it may be taken that the method of evi- dencing the proceedings of justices' courts among the several States is not within the act of Congress, but was intended to be left as at common law and the statutory regulations of the States themselves; therefore, such evidence should be conformed to the law of the State wherein the proceedings are to be used, when offered in evidence in the court of a different State than that wherein the proceedings were had. 6 Iowa Statute. In Iowa a State statute admits such proceed- ings in evidence from another State, when authenticated by the official certificate of the justice of the peace of such other State, certifying the records and proceedings, and supported by the ofii- 1 Simons v. Cook, 29 Iowa, 324. State has adopted all of our statutes. * Revision of Iowa of I860, 4058; and, therefore, we must have proof Code of Iowa of 1873, 3713; Later- before we can know that they have ett v. Cook, 1 Iowa, 1. passed any statute." See, also, Ker- 3 Birdsey v. Butterfield, 34 Wis. 52 ; mott v. Ayer, 11 Mich. 181 ; People v. Ellis . Maxson, 19 Mich. 186; 1 Rob- Lambert, 5 Mich. 349; Whitford . inson's Pr. 250, 251. Panama R. R. Co., 23 N. Y. 465. 4 Hull v. Augustine, 23 Wis. 383. 5 Mackay v. Gordon, 34 N. J. 289. In Ellis v. Maxson, 19 Mich. 186, the 6 Gny t. Lloyd, 1 G. Greene, 78; court say : " We certainly cannot pre- Railroad Bank n. Evans, 32 Iowa, 202 ; sume that the Legislature of another 1 Greeiil. Ev. g 505, 513. PROOF OF RECORDS OF OFFICE BOOKS. 123 cial certificate of the clerk of a court of records of the county of the justice's residence, stating that the justice is an acting justice of the peace of that county and that the signature to his certificate is genuine. 1 Such certificate is also held to be suffi- cient if made by the successor of the justice who rendered the judgment. 3 The statement as to the official character of the justice should have reference to the date of his proceedings thus authenticated. VI. PROOF OF EECORDS OF OFFICE BOOKS. The records and exemplifications thereof of office books of public offices of the States and Territories, which do not pertain to any court, are provable and admissible in evidence in the sev- eral States, in virtue of the act of Congress of March 27, 1804, by attestation of the keeper of such records or books, with seal of his office annexed thereto, if a seal there be, together with a certificate of the presiding justice of the county or district in which the office is kept, or certificate of the governor, or secretary of State, or chancellor, or keeper of the seal of State, that the attestation is in due form and is by the proper officer. But if the certificate be that of a presiding justice, it must also be authenticated by certificate of the clerk or prothonotary of the court, under seal of his office, that such presiding judge is duly commissioned and qualified. And if the certificate is by the governor, secretary of State, chancellor, or keeper of the great seal of State, in such case it must be sealed with said seal. 3 1 Iowa Code of 1873, 3714; Revis- 2 Railroad Bank v. Evans, 32 Iowa, ion of 1860, 4059 ; Railroad Bank v. 203. Evans, 32 Iowa, 202. 3 2 U. S. Stat. at Large, 298, 1, 2; R. S. of U. S. 2d Ed. 906. 124 FOREIGN ATTACHMENT AND GARNISHMENT. CHAPTER XII. PBOCEEDINGS BY FOREIGN ATTACHMENT AND GARNISHMENT. I. THE ATTACHMENT. II. PROCESS OF GARNISHMENT. I. THE ATTACHMENT. Proceedings In Hem. Proceedings by writ of attachment against the property of non-resident and absent persons are authorized by law in most, if not all, of the States. Such pro- ceedings being in rem are a means of subjecting the property, rights and credits of non-residents and absent debtors, or other non-resident or absent persons, against whom a right of action exists, to the plaintiff's demand. The proceeding is against the property, rights and credits, and not the person, of the defendant debtor, and, therefore, no personal judgment can, ordinarily, be rendered against him. 1 Appearance of Defendant. If, however, the defendant appears in court to the action or proceeding, or is personally served with process within the territorial jurisdiction of the court, then the proceeding becomes also personal, and personal judgment may be rendered against him as in other cases, if a right to judgment be made out; 3 but this does not prevent judgment of condemna- tion against the property attached, if proper cause is shown therefor. 3 If no property is found and no personal service or appearance, the suit is at an end. 4 'Thompson v. Einmert, 4 McLean, * Toland v. Sprague, 12 Pet 300; 9G; Lincoln v. Tower, 2 McLean, 473; Irvine v. Lowry, 14 Pet. 293; Pollard AVarren Manf. Co. v. JStna Ins. Co., 2 v. Dwight, 4 Cr. 421 ; Hendrick e. Paiue, 502; Heudrick t. Brandon, 9 Brandon, 9 Iowa, 319. Iowa, 319: Courtney v. Carr, C Iowa, s Toland v. Sprague, 12 Pet. 300; 238; Banta v. "Wood, 32 Iowa, 4G9; Cooper v. Smith, 25 Iowa, 269. Pennoyer v. Neft', 5 Otto, 714; Drake 4 Courtney v. Carr, 6 Iowa, 238. on Attachment, 5. THE ATTACHMENT. 1*25 Attachment Levy. If goods and chattels, rights or credits, be levied on by virtue of the writ of attachment, they are thereby placed within the custody of the law to abide the event of the suit or attachment proceeding, and a lien thereon is created by the levy in favor of the plaintiif for the amount he may recover in the suit. 1 If the levy be on real property, a like lien attaches to the title thereof, and although the right to possession thereof does not, by virtue of the levy, vest in the officer, as in levies on personalty, yet the title to such real estate is thereby placed in legal custody to abide the proceedings in the cause. Condemnation and Sale. And if condemnation thereof and order of sale be made, the same relates back in effect to the date of the levy, and title passes in case of sale as from the date of levy. 2 Only the Property Levied On is Bound, if In Bern. Although in point of practice such proceedings vary in different jurisdic- tions according to the statutes of the several States, the particu- lars of which it is not our purpose in this treatise to give, yet one great principle is common to them all, that so far as the pro- ceeding is in rein it binds only that property of defendant, which by levy of the process of the court, is placed within the custody of the law and is by subsequent judgment of condemnation and sale ordered by the court to be sold. 3 The Sale, if Begular Carries Title. But judgment of con- demnation, and sale made thereunder by order of the court, of the property thus placed within its jurisdiction and the custody of the law, carries, if valid, the title and right of property, divesting it out of the defendant and vesting it in the purchaser, by operation of law, and is evidence of ownership and title wherever brought in question, whether within or without the territorial limits of the State; 4 for, although the proceeding can- not reach the person of the defendant, who has had no day in 1 Stiles . Davis, 1 Black, 101 ; Lincoln v. Tower, 2 McL. 473 ; Warren, Hacker v. Stevens, 4 McL. 535; Ken- Manf. Co. v. ^Etna Ins. Co., 2 Paine, nedy v. Brent, 6 Cr. 187 ; Drake on 502 ; Miller v. Dungan, 36 K J. Law, Attachment, 224. 21; Clymore v. Williams, 77 111. 618; 2 Laird v. Dickerson, 40 Iowa, 665. Fitzsimmons v. Marks, 66 Barb. 333 ; 8 Livingston v. Smith, 5 Pet. '89 ; Drake on Attachments, 5. Boyd v. Urquhart, 1 Sprague, 423 ; 4 Moore v. Chicago, R. I. & P. R. R. Westervelt v. Lewis, 2 McL. 511 ; Ric- Co., 43 Iowa, 385. ketts v. Henderson, 2 Cr. C. C. 157; 1:20 FOREIGN ATTACHMENT AND GARNISHMENT. court, it acts upon his title to the property, which, as an attribute thereof, is present in the jurisdiction where is found the prop- erty itself, and is in like manner, as is the property, subject to the local law and jurisdiction of the court. Thus, when proceedings are merely in rem, and the property proceeded against is within the State and jurisdiction of the <;ourt, and is so levied on or seized by the proper officer as to place the same in custody of the court and the law authorizing such procedure, and in accordance with such law, condemnation and sale is made of the property to satisfy ascertained liability or liabilities, then title thereto passes as against non-resident de- fendants as owners, although not made parties defendant by any personal service of process served within the State, and although no appearance be made in the cause, if such publication or other constructive service of notice be made or given within the State- as the laws thereof in such cases require and recognize as suffi- cient. J The Judgment in rem, will Not Sustain an Action Thereon. Although a judgment in such proceeding is not fully satisfied by a sale of the property attached, yet if it is exclusively in rem no action can be maintained or judgment in any suit be had thereon for what remains unpaid; 2 but if brought in question as evidence, although in a different State, it is conclusive to prove what it purports to be, and has the same force and effect as in the State where rendered, if authenticated as the act of Congress in that respect directs. Personal Judgment Void. No personal judgment will be ot any validity in such cases against a defendant to charge him per- sonally within the same State, or elsewhere, or as a basis for pro- cess on which other property may be levied and sold. 3 Nor will personal service or publication made on the defendant in a dif- ferent State be of any validity as a basis for such personal judg- ment, provided defendant does not appear; for State laws have no extra territorial force, and no such service or publication made in another State is of any validity whatever, but is simply void. 4 'Pennoyer v. Neff, 5 Otto, 714; McL. 262; Cooper c. Reynolds, 10 Drake on Attachment, 5. Wall. 308; Drake on Attachment, 5. 'Warren Manuf. Co. v. ^Etua Ins. 'Pennoyer t. Neff, 5 Otto, 714; Co., 2 Paine, 502 ; Lincoln v. Tower, King v. Vance, 46 Ind. 246 ; Drake on 2 McL. 473 ; Thompson v. Ernmert, 4 Attachment, 5. ilcL. 96; Boswell v. Dickerson, 4 4 Ibid. PROCESS OF GARNISHMENT. 127 Thus, in a proceeding by foreign attachment in the courts of a State against the property therein of a citizen of another State, the proceeding being in rein, with publication of notice, the levy on the writ of attachment of personal property, though to the amount in value of the claim, or subsequently recovered judgment, does not work a satisfaction thereof. And if the defendant therein personally appears and makes defense, and per- sonal judgment is thereupon rendered against him, such levy is no defense to an action at law on the judgment brought in another State, although it may not appear what disposition was made of the property which was levied on by the attachment in the original action. 1 II. PROCESS OF GARNISHMENT. Creature of the Statute. Proceedings by garnishment, or trustee process, are proceedings in rem in the nature of an attachment, and are most usually resorted to in aid of the more ordinary attachment process. Like the attachment proceeding itself, they are the creature of the statute, only existing where provided for by statutory enactment, and then only to the extent and in the manner there by law allowed. They are designed to discover and subject the moneys, debts, and property of a debtor which may be in the hands of a third party, or may be owed by him to the debtor, to the process of attachment, in cases where the property may be unknown to the attaching officer as belonging to the debtor, and also, to divest the payment of moneys owing the defendant debtor and apply the same to the payment of the debt or liability due the attach- ing creditor by a means not within the reach of the usual process of attachment. 3 These proceedings come within the scope of our inquiry only so far as regards the proceedings by foreign attachment. That is, First, where the plaintiff seeks to levy and sell by judicial authority in one State the property therein situated of a citizen or resident of another State, or to seize upon and so apply the rights and credits of such foreign resident or citizen found in the 'Maxwell v. Stewart, 22 Wall. 77; 2 Drake on Attachment, 451 et S. C., 21 Wall. 71 ; Drake on Attach- seq. ment, 222. 128 FOREIGN ATTACHMENT AND GARNISHMENT. possession or control, or owing from a citizen or resident of the State wherein the proceeding is prosecuted. Second, when by such proceeding it is sought to subject property, credits or lia- bilities due to such debtor from a non-resident of the State where the proceeding is pending, who is temporarily found within such State and there served with the garnishee or trustee process. How far this garnishee, or trustee process, may be maintained in the courts of one State against a citizen or resident of another State, found and served with the garnishee process within the State where the proceeding is being prosecuted, is a question upon which the rulings are not uniform; but the better doctrine seems to be that the procedure being in rem, and against the property itself, or thing to be subjected, it follows therefrom that such subject matter, and the person garnished as well, must be within the jurisdiction of the court, or else it cannot be reached; hence, an inhabitant of another State is not subject to liability on garnishee process in the courts of a different State than that of his residence, on account of property or interests in his posses- sion in such other State, none of which is within the State where he is garnished; nor for debts or liabilities payable in such other State. For, unless the property is within the jurisdiction of the court, the garnishee cannot be made liable, for he is only liable to the court as he is to his creditor, or to the owner of the prop- erty, and if not bound to deliver or to pay to the one, he is not liable to respond to the other by so delivering or paying in a different State than where his duty to his creditor, or the owner of the property, requires him to pay or deliver; his contract and liability cannot be enlarged or changed by the court; and if he discovers by his answer property which is in his control in a dif- ferent jurisdiction, the court is powerless to reach it on the one hand, and he is not bound to bring it within the jurisdiction on the other, and cannot be compelled so to do; nor can he be rendered liable to a money judgment instead, for he owes no money, and his liability cannot be changed. 1 The principle 'Baxters Vincent, 6 Vt. 614; Kid- combe, 21 Pick. 263; Sawyer t. der v. Packard, 13 Mass. 81 ; Ray v. Thompson, 24 N. H. 510 ; Tingley v. Underwood, 3 Pick. 302; 111. Cent. R. Bateman, 10 Mass. 343; Bates t>. New R. R. Co.e. Cobb, 48 111. 402; Jones Orleans, Jack. & G. W. R. R. Co., 4 p. Winchester, 6 N. H. 497; Hart v. Abbott, Pr. 72; Gold v. Housatonic Anthony, 15 Pick. 445; Nye v. Lis- R. R. Co., 1 Gray, 424; Danforth t>. PROCESS OF GARNISHMENT. 129 applies alike to natural persons and corporate bodies non-resident of the State wherein they are garnished. 1 Nor is the rule altered by the fact that the personal residence of the foreign corporation is within the jurisdiction; 3 or that the books of the corporation are kept therein. 3 Or that the corporation garnished is in pos- session of and is operating a railroad as lessee within the juris- diction; it is nevertheless a foreign corporation, and cannot be compelled to bring its means, or property held by it, within the jurisdiction, or to pay there if the liability to pay is to pay at a place in another State. 4 If, however, the corporation be chartered by two or more States, then it is domestic in each, and may be garnished in either. And where in such proceeding of foreign attachment the pro- cess of garnishment is resorted to by the plaintiff, by which a debtor of the defendant is garnished and is subjected to a judg- ment in favor of the plaintiff for the debt, jurisdiction in rem of the subject matter thereof having legally attached in the court, then the judgment in rem condemning the debt and ordering its payment to the plaintiff is conclusive and cannot be collater- ally attacked in the same or in a different State, and is a good defense to an action brought thereafter by the original creditor upon the original debt or cause of action. 6 In some States the statutes provide for personal service, at the option of plaintiff, upon the defendant in another State in lieu of the customary publication in cases of foreign attachment, and others where the proceeding is in rem. It is not claimed that by virtue thereof any personal jurisdiction is obtained over the defendant, but it is held that such personal service in another Penny, 8 Met. 564; Bait. & Ohio R. 564; Bait. & Ohio R. R Co. v. Galla- R. Co. -y. Gallahue, 12 Gratt, 655 ; Mil- hue, 12 Gratt. 655. ler v. Hooe, 2 Cr. C. C. &22; Drake on s Gold v. Housatonic R. R. Co., 1 Attachment, 474. Gray, 424 ; Danforth v. Penny, 3 Met. 1 Danforth v. Penny, 3 Met. 564; 564; Bait. & Ohio R. R. Co. v. Galla- Gold v. Housatonic R. R. Co., 1 Gray, hue, 12 Gratt. 655 ; Smith v. Boston, 424 ; Bait. & O. R. R. Co. v. Gallahue, C. & M. R. R. Co., 33 N. H. 337. 12 Gratt. 655 ; Smith v. Boston, C. & 4 Bait. & Ohio R. R. Co. . Galla- M. R. R. Co., 33 N. H. 337 ; Larkin v. hue, 12 Gratt. 655 ; Smith v. Boston, Wilson, 106 Mass. 120 ; Drake on At- C. & M. R, R. Co., 33 K H. 337. tachment, 478. 6 Moore v. C., R, I. & P. R. R. Co., 2 Gold v. Housatonic R. R. Co., 1 43 Iowa, 385 ; Bait. & Ohio R. R. Co. Gray, 224; Danforth v. Penny, 3 Met. v. May, 25 Ohio, St. 347. 9 130 FOREIGN ATTACHMENT AND GA KM>1I Mi: XT. State obviates the necessity of publication, and substantially "effects the same purpose. 1 Now, however ample the power of the legislature may be to reach through the courts, the control of property situated within the State, and to give validity to the acts done in view thereof, as, for instance, notice of publication, published within the State, yet it may be a matter of serious doubt as to their power to give effect to acts, as service, for in- stance, on a defendant, done and performed outside the State and within the limits of another sovereignty. If such service in another State is void, then the proceedings resting thereon are void on the same principle that they are void when resting on a void order of publication; and it is held that the making of an order of publication against a non-resident defendant is a judicial act, and cannot be done by a commissioner or other officer who is interested in the case as the attorney of the defendant; that the officer granting such order must deliberate, decide, adjudge as to the propriety of it, and that therefore an attorney in the cause is utterly disqualified from performing these judicial func- tions in any manner pertaining to such suit; 2 so that when an order or decree is made in a cause against a defendant who has not appeared therein, and without any other service than an order of publication made under such circumstances, it stands or falls with the order of publication, and these being a nullity, as they are when thus made, the decree is void. 3 Such excep- tionable proceedings should be removed from the records or files of the cause. 4 Nor will garnishee proceedings lie against an in- habitant of a State, where instituted to reach means in his hands, which he holds as assignee of an insolvent debtor of another State; the effect would be to defeat the assignment pro tanto if allowed, and to give the plaintiff an undue priority in the assets. 5 * In a proceeding in rein by foreign attachment and garnishee, jurisdiction in rent attaches by service of tlte garnishee process. The supposed indebtedness of the garnishee, or interest of the debtor in his hands, is thereby placed in the custody of the law, and jurisdiction over the subject matter thereof is vested in the 1 Miller v. Davison, 31 Iowa, 435; * Crouch v. Crouch, 30 Wis. 667. Bates v. The C. & N. W. R. R Co., 19 Ibid. Iowa, 260. See, also, as bearing on *Ibid.; Kurd v. Jarvis, 1 Pinney, this principle, Grant v. King, 31 Mo. 475. 312 ; McComber v. Jaffray, 4 Gray, 82. Wales v. Alden, 22 Pick. 245. PKOCESS OF GARNISHMENT. 131 court, to inquire into the liability or indebtedness of the garnishee; and the liability of the real defendant to the plaintiff "on the alleged cause of action may be adjudicated before judgment as to the garnishee, and if judgment goes in favor of the plaintiff, the amount realized or reached by the garnishee process is applied thereon, or so much of it as will satisfy the principal liability and costs; 1 but if nothing be found against the garnishee, or in his hands, jurisdiction is at an end, and the whole proceeding terminates. 1 Keep v. Sanderson, 12 Wis. 353 132 INTER-STATE INSOLVENT DISCHARGE. CHAPTEE XIII. INTER STATE INSOLVENT DISCHARGE BY STATE COURT. I. THE COURT MUST HAVE JURISDICTION OP THE CREDITOR'S PERSON. II. DISTRIBUTION OF INSOLVENT ASSETS. I. THE COURT MUST HAVE JURISDICTION OF THE CREDITOR'S PERSON. In proceedings of a debtor to obtain a discharge under a State insolvent law, it is the citizenship of the parties that governs and enables the court to have jurisdiction, and not the place where the contract is payable, or where it is to be performed; therefore, a discharge in such a proceeding has no force against a creditor who is a citizen and resident of a different State at the time the proceeding is had, and who has not appeared therein, or in some manner made himself a party thereto, or consented to the discharge. Such is now the settled doctrine of the courts. 1 Jurisdiction of the person of the creditor is necessary, by actual 1 Hawley v. Hunt, 27 Iowa, 303, 307, 308; Baldwin v. Hale, 1 Wall. 223; Ogclen v. Saunders, 12 Wheat. 213; Boyle v. Zacharie, 6 Pet:348 ; Suydam v. Broadnax, 14 Pet. 75 ; Cook v. Mof- fat, 5 How. 295, 310 ; Donnelly v. Cor- bett, 7 N. Y. 500; Felch v. Bugbee,48 Maine, 9; Poe v. Duck, 5 Md. 1; Beers t>. Rhea, 5 Tex. 349 ; Anderson v. Wheeler, 25 Conn. 603; Pugh v. Bussel, 2 Blackf. 394; Crowe. Coons, 27 Mo. 512 ; Beer v. Hooper. 32 Miss. 246 ; Wooclhull v. Wagner, Bald. C. C. 296, 300 ; Springer v. Foster, 2 Story C. C. 382; Kelley v. Drury, 9 Allen, 27. Anything to the contrary hereof, going to make an exception as to cases where the contract is perform- able in the same State of the insolv- ency tribunal, as held in Scribner v. Fisher, 2 Gray, 43, is to be disregard- ed, as that case was overruled in this respect by the United States Supreme Court in Baldwin e. Hale, supra; and so, again, by the Supreme Court of Massachusetts, in Kelley v. Drury, su- pra; Collins v. Rodolph, 3 G. Greene, 299; McKim v. Willis, 1 Allen, 512; Gilman v. Lockwood, 4 Wall. 409; Riley v. Lamar, 2 Cr. 344; McMillan v. McNeill, 4 Wheat. 209; Wood- bridge v. Allen, 12 Met. 470; Proctor v. Moore, 1 Mass. 198 ; Smith v. Smith, 2 John. 235; Watson v. Bourne, 10 Mass. 337; Soule . Chase, 39 N. Y. 342. See, also, note to Baldwin v. Hale, 3 Am. Law Reg. (N. s.) 462 ; Bishop on Insolvent Debtors, 64, THE COURT MUST HAVE JURISDICTION. 133 notice or service, as in personal actions, and can no more be given in one than in the other of those proceedings, where the party to be affected resides out of, and is not found within the State, and does not in some manner submit himself to the jurisdiction. 1 In Ogden v. Saunders, the Supreme Court of the United States, JOHNSON, Justice, say: "That, as between citizens of the same State, a discharge of a bankrupt by the laws of that State is valid, as it aifects posterior contracts; as against citizens of other States it is invalid as to all contracts"* And in Cook v. Moffatf the same court say: "A certificate of discharge under an insolvent law will not bar an action brought by a citizen of another State on a contract made with him;" and that State in- solvent laws " can have no eifect on contracts made before their enactment, or beyond their jurisdiction." Nor can such laws and proceedings act upon the debts in the nature of proceeding in re?)i, by reason of the debtor being within the jurisdiction ; for it is a settled principle of the law, that a debt attends the person of the creditor, and not of the debtor, no matter where the debtor may be, or in what State the debt originated, or is made payable. 4 So that if the debt attends the creditor, and the creditor is a non-resident of the State, it cannot at the same time be within the jurisdiction of the court where the proceedings are had, so as to be acted on in rem. The same doctrine is as- serted in Felch v. Bugbee, infra. It is the citizenship, and not the locality or jurisdiction, which is designated as the place of payment, that the legal rights of the parties rest on, as to a dis- charge under the insolvent laws. In the case here cited, the notes were made in Boston, Massachusetts, payable to the maker's own order, and were assigned by him to citizens of Massachusetts, who, at Boston, negotiated and sold them to the plaintiff before maturity, and before the proceedings in insolvency were insti- tuted. One of the notes was payable in Boston. The other did not name any place of payment. The court held, or reasserted 1 Hawley v. Hunt, 27 Iowa, 303, 307, trine of the case of Ogden v. Saun- 308; D'Arcy v. Ketchum, 11 How. ders is no longer open to controversy. 165, and cases cited above. Boyle v. Zacharie, 6 Pet. 348, and 2 12 Wheat. 233. And although Same . Same, 6 Pet. 635. there was a divided court in this case, s 5 How. 309. yet by subsequent concurrence of all 4 Hawley v. Hunt, 27 Iowa, 303, 307. the judges in a parallel case, the doc-i 134 INTER-STATE INSOLVENT DISCHARGE. the principle of law, that as between its own citizens, a State had power to grant a full discharge; 1 and that a subsequent change of domicile or citizenship into another State, made after entering into the contract or creating the liability, did not in law affect the validity of a discharge obtained before such change or removal. 8 But that where the liability is a negotiable one, payable generally, and is between citizens of the State granting the discharge, and endorsed to a citizen of another State before maturity, and before the inception of proceedings in insolvency, the endorsement is a new contract, and the discharge will not bar an action thereon. 3 And such is the rule of law in both the State and United States courts. 4 And so of a note made payable in one State wherein it is executed and the maker resides, but if it is made payable to a citizen or resident of another State, after a full review of the rulings on the subject it can be received, as well settled, that an insolvent discharge, under the law of the State wherein the debtor resides and the note is payable, will not bar an action on the note in favor of such non-resident payee, who has not subjected himself to the jurisdiction of the court grant- ing the discharge -in insolvency. 5 In the case of Baldwin v. Hale, 9 the action was on a promis- sory note, made at Boston, in the State of Massachusetts, and endorsed by the maker, in whose own favor it was made, to the plaintiff in the action, who was then, and until the time of suit upon the note, a citizen and resident of the State of Vermont. The note was payable at Boston six months after its date. Soon after making and thus endorsing the note to Hale, Baldwin ap- plied for and obtained the benefit of the insolvent law of Massa- chusetts, in a court of that State, and received his discharge in 1 Felch v. Bugbee, 48 Maine, 9, 11 ; 4 Cook v. Moffal, 5 How. 309. Stone v. Tibbetts, 26 Maine, 110; Og- 5 Felch v. Bugbee, 48 Maine, 9, 13, den v. Saunders, 12 Wheat. 213. 15 ; Cook v. Mofiat, 5 How. 309 ; Og- 2 Felch v. Bugbee, 48 Maine, 9, 11 ; den v. Saunders, 12 Wheat. 213; Don- Stevens v. Norris, 30 N. H.466; Brig, nelly v. Corbett, 7 N. Y. 500; Ander- ham v. Henderson. 1 Cush. 430. son . Wheeler, 25 Conn. 603 ; Wood- 3 Felch v. Bugbee, 48 Maine, 9, 12; hull v. Davis, Bald. C. C. 300; Towne Banchor v. Fisk, 33 Maine, 816; v. Smith, 1 Wood & M. 115, 137. Houghton v. Maynard, 5 Gray, 552; 1 Wall. 223. Savoye v. Marsh, 10 Met. 595 ; Ander- son . Wheeler, 25 Conn. 603. THE COURT MUST HAVE JURISDICTION. 135 terms purporting to be from all contracts payable or to be performed in that State. Hale neither became a party to the proceedings nor made any appearance thereto, he being at the time in Vermont; neither did he prove up his claim upon the note. Hale then sued Baldwin on the note in the Circuit Court of the United States for the District of Massachusetts, and the defense principally relied on was that the note was payable in Massachusetts, and therefore came within the terms of the discharge, but the court held that the discharge did not extend to a debt held, as that was, by one who, at the time of the proceedings, was resident in another State, and was in no manner a party thereto, and that such was the law irrespective of the fact that payment was to be made within the State of Massachusetts, where the insolvent proceedings were had. The case having gone to the Supreme Court of the United States upon a writ of error, that court affirmed the decision of the circuit court. 1 In delivering the opinion, CLIFFORD, J., said: " Insolvent laws of one State cannot discharge the contracts of citizens of other States, because they have no extra-territorial operation, and consequently the tribunal sitting under them, unless in cases where a citizen of such other State voluntarily becomes a party to the proceedings, has no jurisdiction in the case." 2 In Louisiana there must be personal notice, to the creditor, of the proceeding in insolvency, or else their claims will not be barred by the supposed discharge. If the creditors are resident, actual notice must be served on them. If they are non-resident, then notice must be mailed to them by a notary. Also, public notice thereof by publication. Without these the debtor is not discharged by proceedings under the laws of insolvency. 3 But, query? As to the jurisdiction of the State to effect a discharge as against a non-resident creditor, who does not make himself a party to the proceedings, or is not made so by actual personal service, effected within the State, even if these prelim- inary requirements of the Louisiana law be complied with, as to 1 Baldwin v. Hale, 1 Wall. 223; to 300; Felch v. Bugbee, 48 Maine, 9; same effect see Anderson v. Wheeler, Towne v. Smith, 1 Wood. & M. 115. 25 Conn. 605 ; Donnelly v. Corbett, 7 2 1 Wall. 234. N. Y. 500; Poe v. Duck, 5 Md. 1; Breedlove v. Nicolet, 7 Pet. 413 Woodhull v. Wagner, Bald. C. C. I.\T:-:I:->TATK I.N>. Bugbee, 48 Maine, 9, 19; t>. Remsen, 20 John. 229; Osborn v. Blake v. Williams, 6 Pick. 286; The Adams. 18 Pick. 245. Watchman, 1 Ware, 232; Towite . 2 Gardner v. Lewis, 7 Gill ,377. Smith, 1 Woodb. & 31. 137 ; Whar- 8 Ibid. ton's Conf. of Laws, 392 ; Story's 4 2 Kent. *407 ; Green v. Van Bus- Conf. of Laws, 410 et seq.; 2 Kent, kirk, 5 Wall. 307; Burrill on Assign- *405; Harrisons. Sterry, 5 Cr. 289; Og- ments, 306 et seq.; Bishop on Aa- den r. Saunclers, 12 Wheat 213; Pies- signments, 261. toro v. Abraham, 1 Paige, 236 ; Holmes DISTBIBUTION OF INSOLVENT ASSETS. 139 situated, and the rights of resident creditors do not intervene, the foreign assignment will be respected out of considerations of comity. 1 Where the rights of creditors resident in the 'State have intervened, as by attachment, they will be entitled to prior- ity as against the foreign assignee. 3 Real estate situated in another State can only be covered by a foreign assignment when it conforms to the lex loci rei sitce. 3 The remedies, and methods of enforcing them under foreign in- solvent assignments, are governed by the lex fori.* 1 2 Kent. *407; Green v. Van Bus- 3 Osborn v. Adams, 18 Pick. 245; kirk, 5 Wall. 307 ; Burrill on Assign- Dundas v. Bowler, 3 McLean, 399 ; ments, 306 et seq.; Bishop on As- Houston v. Nowland, 7 Gill & J. 480. signments, 261. 4 Speed ?. May, 17 Penn. St. 95; 2 See the subject of foreign assign- Jones v. Taylor, 30 Yt 48. ments discussed supra. 140 TEANSITORY ACTIONS. CHAPTER XIY. ACTIONS FOR TORTS AND TRANSITORY ACTIONS. I. ACTIONS OF TRESPASS vi ET ARMIS. II. ACTIONS OF TRESPASS ON THE CASE FOR TORTS AND TRANSITORY ACTIONS. III. ABATEMENT AND BAR OF ACTIONS. I. ACTIONS OF TRESPASS vi ET ARMIS. Trespass Quare Clausum Fregit is Local. Prominent among actions of trespass vi et armis, in England, is the action of tres- pass quare clausum fregit, or action of trespass for breaking and entering plaintiff's close. This is a common law action, and being for injury to the realty and to the possession of the owner thereof, it is a local action, and does not lie outside of the State or sovereignty wherein the premises are situated and the trespass occurs. 1 The injury being thus local, inter-State actions will not lie therefor. That is to say, an action will not lie for such cause in a different State, or different district of the United States, than the one wherein the injury is committed. That, if the wrong-doer retires to a different State before suit against him, he cannot be sued therein for the injury. Where the wrongful act is committed in one State, by which real property situated in another State is injured, the question arises whether there is not a cause of action in either State. It has been held in one case that suit could be brought in either. 8 1 McKenna v. Fiske, 1 How. 241, Wall. 275. See, also, Worster t. Win- 248, 249; Livingston v. Jefferson, 1 nipiseogee Lake Co., 25 N. H. 525, Brock. 203 ; Gorman v. Marsteller, 2 where most of the authorities are col- Cr. C. C. 311 ; Smith v. Bull, 17 Wend, lected, and the court holds that the 323 ; Watts v. Kinney, 23 Wend. 484 ; action is local and can be brought Champion v. Doughty, 18 N. J. Law, only where the land is situated. See 3 ; Doulson v. Matthews, 4 T. R. 503 ; further, Barden v. Crocker, 10 Pick. Ham v. Rogers, 6 Blackf. 559. 383, and Angell on Water Courses, 2 Rundle v. Del. & Rar. Canal, 1 420, 7th ed. FOE TOKTS EX CONTRACT!!. 141 II. ACTIONS OF TRESPASS ON THE CASE FOE TORTS AND TRANSITORY ACTIONS. Transitory Actions will Lie in Other States. But actions of trespass vi et armis for personal injuries, and trespass de bonis asportatis, and other personal torts, are, in this respect, very different. In these cases the actions are personal and transitory: The right of action follows the person of the wrong-doer, and he may be sued therefor wherever he is found and can be served with process. 1 These are not only personal, but are torts at com- mon law. 2 The courts of England have always, in times of peace, entertained actions of trespass of a personal nature, for injuries inflicted in other countries, not only in behalf of English subjects, but between foreigners, where service could be had, and this, too, not only for causes of action arising within the realm, but out of the realm, and within or without the king's foreign dominions; so that, if a person commits a tort upon the person, or personal property, of another, in a foreign kingdom, an action may be maintained in England therefor, if the wrong-doer be found there and service be had upon him, and the formal venue may be laid in England. 3 This being, then, the well-settled law in England as between subjects of States entirely foreign to each other, the rule is necessarily no less liberal between States, though independent of each other, yet so interwoven in nationality and domestic relationship as are the several United States. Actions Ex contractu. As to such being the law in cases ex contractu there has never been any doubt. In the case of McKenna v. Fiskef the Supreme Court of the United States, WAYNE, J., delivering the opinion, it is said: "If A. becomes indebted to B., or commits a tort upon his person, or personal property, in Paris, an action in either case may be maintained against A. in England, if he is found." And so Lord MANS- 1 Gorman v. Marsteller, 2 Cr. C. C. Rafael v. Verelst, 2 Wm. Black. 1055; 311; Livingston v. Jefferson, 1 Brock. Neale v. De Garay, 7 T. R. 243; The 203 ; Northern Ind. R. R. Co. v. Mich. King . Johnson, 6 East. 583, 598 ; Cent. R. R. Co., 5 McL. 444 ; 8. C., 15 Mostyn v. Fabrigas, Cowp. 161 ; Scott How. 233. n. Seymour, 1 Hurl. & C. 219. See 2 McKenna v. Fiske, 1 How. 241, infra, of this chapter, where the sub- 248,249; Mitchell v. Harmony, 13 ject is treated more at large. How. 115. 1 How. 241. 3 McKenna 0. Fiske, 1 How. 241; TRANSITORY ACTIONS. FIELD, in Mostyn v. Falrigas, 1 says that there is not a color of doubt but that any action which is transitory may be laid in any county in England, though the matter arises beyond the seas. In such actions the liability follows the person of the aggressor, and may be enforced in any State where he is found, and where the comity of States, as to the right of action by non-residents, prevails. 8 Actions for Common Law Personal Torts, Committed in One State, Lie in Others. We take it, then, to be a well-settled principle of the law that actions at common law, for personal torts, that is, for injuries to the person, the personal property, or reputation of another, deemed such at common law, and not orig- inated by statute, may be maintained against the aggressor, in the courts of the American States, of general jurisdiction, where ever, and in whatever of these States, the defendant may be found, without regard to the place where the cause of action originates; 3 and also in the circuit courts of the United States, when the citizenship of the parties and the amount involved are euch as to confer jurisdiction on these courts. 4 The case of Curtis v. Bradford, garnishee, was a proceeding in rem, by garnishee process, in a State court of Wisconsin. The claim was of damages for an injury sustained by plaintiff, a pas- senger injured in Michigan, while getting on to the Milwaukee & Detroit railroad car, and Bradford, the person garnished, was local ticket-agent of that company in Wisconsin. The railroad company was a corporation of the State of Michigan, and had no local agent in Wisconsin, as alleged by plaintiff, on whom it was competent to make service, so as to obtain actual jurisdiction 1 Cowp. 161. Mitchell v. Harmony, 13 How. 115, s Gardner v. Thomas, 14 John. 135; 137; Gardners Thomas, 14 John. 135; Johnson v. Dalton, 1 Cow. 543. But Phila., Wil. & Bait R. R Co. v. Quig- where the tort is committed on board ley, 21 How. 202. The case of Mitch- a foreign vessel, the courts of another ell v. Harmony was for a tort commit- country, into which the parties come, ted to personal property in the Repub- and where suit is brought, will de- lie of Mexico, and jurisdiction was cline the jurisdiction and remit the maintained in the American courts, parties to the courts of their own Curtis v. Bradford, 33 Wis. 190; country for redress. Gardner v. Thorn- Cooley on Torts, 470. as, supra. See, as to this point, also, * Phila., Wil. & Bait. R. R. Co. v. Wilson 0. McKeuzie, 7 Hill, 219. Quigley, 21 How. 202; Mitchell v. 3 McKenna v. Fiske, 1 How. 241, Harmony, 13 How. 115, 137. 248, 249; Glen . Hodges, 9 John. 67; ACTIONS OF TRESPASS FOR TORTS. 143 of the railroad corporation; but Bradford, the garnishee, had money in his possession belonging to the company, as admitted by his answer. What the character of the injury was is not shown. Nor is it shown whether the action was statutory, or as at common law. 'No defense was made for the railroad com- pany, and judgment was sustained against the garnishee for the amount found in his hands. Taken altogether, the case shows no more than an ordinary common law tort, so that it was well held that the right of action was a transitory one, on which an action lies in the courts of one State for a personal injury sus- tained in another State. 1 But it is not to be confounded with statutory actions for personal injuries, or statutory actions for injuries causing the death of a person; for nothing of either character is indicated by the case. From the character of the cases cited by the court, to the point that the action was transitory, it would seem that the injury complained of was one proceeding from an ordinary common law tort, or act of negligence. Action of Trespass on the Case Lies in any State. The common law action on the case, or such action in form as by State legisla- tion is substantially substituted therefor, as a remedy for injury to person or reputation, or other personal injuries of an indirect or consequential effect, will lie in the courts of the several States at the suit of citizens or residents of other States, whether the injury sued for be committed in one State or the other, or in an entirely foreign state or kingdom, if the defendant be found and served with process in the State where sued. 3 Transitory Actions in United States Circuit Court. And so, too, in the United States Circuit Court for any district, if the citizen- ship of the parties and sum or value in controversy be such as in these respects to confer jurisdiction. 3 Thus it is settled that the common law action on the case, for a libel, lies in the United States Circuit Court, at the suit of a citizen of a State against a private corporation of -another State and district wherein 'the court is held. 4 1 Curtis v. Bradford, 33 Wis. 190. Cowp. 161 ; Scott v. Seymour, 1 H. fc 2 McKenna v. Fiske, 1 How. 241, C. 219; The King v. Johnson, 6 East. 248, 249 ; Mitchell v. Harmony, 13 583 ; Neale t>. De Garay, 7 T. R. 243. How. 115; Glen v. Hodges, 9 John. 3 Phila., Wil. & Bait. R. R. Co. v. 67 ; Gardner v. Thomas, 14 John. 135 ; Quigley, 21 How. 202. Phila., Wil. & Bait. R. R. Co. v. Quig- 4 Phila., Wil. & Bait. R. R. Co. c. ley, 21 How. 202 ; Mostyn v. Fabrigas, Quigley, 21 How. 202. 144 TRANSITORY ACTIONS. Action of Slander. An action of slander lies in the State wherein the words are spoken, charging a person with larceny committed in another State, for although the alleged crime be not punishable in the State where the words are spoken, and is only cognizable in the State where committed, yet a party thus charged is liable to be demanded by the authorities of such other State, and so be delivered over to be tried therein: Moreover, it is not alone the liability to be subjected to punishment that is of the essence of the right of action, but the injury to character and necessity of vindicating the same; and notwithstanding the public prosecution may be barred by the statute of limitations. 1 Action for Malicious Prosecution. So an action for malicious prosecution lies in a court of one of the United States for op- pressive legal proceedings and arrest instituted and enforced against one in a court of Canada; and the right of recovery is neither modified nor barred by any statute of Canada tending to limit the same. 8 It is like an action at common law for personal injury incurred in one State, which will lie in the courts of another State, at the suit of the injured person. 3 Personal Common Law Injuries Suable wherever the Wrong- doer is Found. It follows from the foregoing conclusions and authorities that in all such purely personal actions of a transi- tory nature for torts at common law, a citizen of a State may sue a citizen of another State, in the courts of such other State, or of any State wherein he may reside, or may be found and served with process, and without regard to the place or State in which the injury may have been perpetrated. So, also, in the circuit-court of the United States for any dis- trict, if the defendant be an inhabitant of the district, and the plaintiff be a citizen of a different State than the one in which 1 Tan Ankin v. "Westfall, 14 John. act is not of itself a crime in the 233; Owen v. McKean, 14 111. 459; place where the slander is uttered, Teagle B. Deboy, 4 Blackf. 134; but is a crime in the State where the Townsencl on Slander and Libel, act charged is said to have been com- 110, 268. The same rule governs as mitted, is governed by the law of the to a libel. Ib. In the very late case latter State, and is therefore slander- of Dufresne v. "Weise (1879), 1 Wis. ous per se. Leg. News, 209, it was held that slan- * Brown v. Mclntire, 43 Barb. 344. der, accusing another with having 3 Ackerson v. Erie R. R. Co., 2 done an act in another State, which Vroom, 309. ABATEMENT, AND BAR OF ACTIONS. 145 the suit is brought, and the sum or value involved in controversy be over five hundred dollars, exclusive of costs. The right of action in these cases rests upon general principles, alike binding everywhere, and may therefore be everywhere enforced, and in this respect is unlike a right of action created by local statute, as matter of local policy, and which is enforceable only where the right is given and the statute exists. The latter is local, not as savoring of the realty, however, but as existing only by the local law or statute, which can have no extra-territorial force. Actions which are Given by Statute are Local. Where certain acts are made wrongs, by statute, which were not such thereto- fore, or additional remedies are provided by statute to those which existed by the common law, in either case advantage can be taken of the same only within the territory or locality wherein the law has force. These are new rights, so to speak, and depend for their enforcement always upon the statutes by which they are created. And such statutes will be enforced only by the courts of the State wherein they are enacted. 1 III. ABATEMENT, AND BAB OF ACTIONS. Other Action Pending in Different Jurisdiction. It is no cause for the abatement of an action or suit, in a State court, that the plaintiff has pending against the same defendant another action or suit, in a court of another State, for the same cause of action. 2 1 Woodward v. Michigan, etc., R. R. Ind. 299 ; Lyman v. Brown, 2 Curtis, Co., 10 Ohio St. 121 ; Richardson v. N. 559. In this case, CUKTIS, J., says : Y. Central R. R. Co., 98 Mass. 85 ; " It seems to me that the grounds Whitford v. Panama R. R. Co., 23 N. upon which the plea of a prior suit Y. 465. See next chapter, infra, pending has been held to be sufficient III. to abate the second suit, is not appli- 2 Hogg v. Charlton, 25 Penn. St. cable where the second suit is pencl- 200; Williams v. Ayrault, 31 Barb. ing in a foreign country, or even in 364; De Armond v. Bonn, 12 Ind. another State of this Union. The 607 ; Rogers v. Oclell, 39 N. H. 417 ; ground I understand to be that the Eaton & Hamilton R. R. Co. v. Hunt, defendant shall not be twice vexed 20 Ind. 457 ; Bradley v. Bank of In- for the same cause of action, where diana, 20 Ind. 528 ; Yelverton v. Co- the court can see that in each the nant, 18 N. H. 123; Humphries o. remedy is substantially the same." 2 Dawson, 38 Ala. 199 ; Seevers v. Curtis, 559, 560. The learned justice Clement, 28 Mel. 426 ; Davis v. Mor- puts the case upon the reasonable ton, 4 Bush, 442; Loydfl. Reynolds, 29 principle that the court wherein the 10 14C TKANMTORY ACTIn.N-. A party having a right of action may proceed thereon against one and the same defendant, or defendants, in the courts of two or more' States, at one and the same time, if the cause of action be a transitory one, but there can be but one satisfaction. 1 It seems, however, that the pendency of a suit in a Federal court will be good cause for abating a suit between the same par- ties, and involving the same subject matter, commenced in an- other Federal court. 3 It has also been held that the pendency of a suit in the State court may be pleaded in abatement to a suit subsequently brought by the same parties, and for the same cause, in the circuit court of the United States. 3 But this is not so clearly established, as will be seen from the cases cited in the note. Where concurrent jurisdiction is entertained by different courts, the better reason seems to be that the one first obtaining cognizance of the case should be a bar to the other. Comity de- mands it, and the additional fact that otherwise the judgments of the two courts might conflict. But this might be avoided, provided, as soon as judgment is obtained in one court, there would be a stop put to the case pending in the other. And this would give rise to a race of diligence in the courts. Judgment in Another State a Bar or Cause for Abatement. But. although an action pending in another State is no bar to a suit or action, for the same cause of action, in a State court, or cause for abating the same, yet the general ruling is that recov- ery of a judgment in another State for the identical cause of action is a bar to an action in the court of a State, or United States, for by such recovery the cause of action is extinguished, or merged in the judgment, and no longer exists as a ground of recovery. 4 plea of Its pendena is pleaded, ought v. Raymond, 4 Id. 233; Hacker t>. Ste- to be able to see, by inspection of the vens, 4 Id. 535. proceedings relied on in the other ac- 3 Earl . Raymond, 4 McL. 233; U. tion, that the character thereof is S. v. Wells, 11 Ain. L. Reg. (N. 8.) such as to subject the defendant to a 494. Contra, White e. Whitman, 1 double recovery for the same cause Curt. 494; Whitaker v. Brainson, 2 of action, before allowing the same Paine, 209. See, also, Walsh v. Dur- as a cause of abatement. See, also, kin, 12 John. 99 ; Mitchell t>. Bunch, McJilton v. Love, 13 111.487; Brown 2 Paige, GOO; Burrows v. Miller, 5 v. Joy, 9 John. 221. How. Pr. 51; Strong. Stevens, 4 Duer, 1 Hogg 0. Charlton, 25 Penn. St. 668. 200, and cases cited above. 4 North Bank . Brown, 50 Maine, 3 Ex parte Balch, 3 McL. 221 ; Earl 214; Bank of North America . ABATEMENT, AND BAK OF ACTIONS. 147 But to be a bar the adjudication must be of the principal mat- ter in controversy, and must be final, upon the merits; it is not sufficient if merely of some collateral or interlocutory motion or proceeding, to bar another action or suit for the principal cause of action involved, or to bar a like motion for a collateral or in- terlocutory order or proceeding, though the principal subject matter of the two suits be the same, if of such principal subject matter there be not also a former adjudication pleaded and proven. 1 Wheeler, 28 Conn. 433; Cin., etc., R. R v. Wynne, 14 Ind. 385 ; Child . Eureka Powder Works, 45 N. H. 547 ; Barnes v. Gibbs, 2 Vroom, 317 ; Mc- Gilvrey v. Avery, 30 Vt. 538 ; Rogers . Odell, 39 N. H. 452. And the ap- plication of this rule will not yield to the fact that an appeal has been taken from the judgment. Bank of North America v. Wheeler, supra. Neither will the rule yield to the fact that there is no property of the defendant in the State where the judgment was obtained, but that there is property where the second suit is attempted to be brought. Child v. Eureka Powder Works, 45 N. H. 547. 1 Brinkley v. Brinkley, 50 N. Y. 184, 202 ; Lazier v. Wescott, 26 N. Y. 146 ; Walsh v. Durkin, 12 John. 99. 148 PENAL AND STATUTORY 'ACTIONS. CHAPTEK XY. PENAL AND STATUTORY ACTIONS NOT ENFORCEABLE IN OTHER STATES. I. ONE STATE CANNOT ENFOKCE THE STATUTES AND PENAL LAWS OF ANOTHER. II. A STATE CANNOT, IN VIRTUE OF ITS OWN PENAL LAWS, PUNISH ACTS COMMITTED AGAINST THE LAWS OF ANOTHER. III. STATUTORY ACTIONS FOR DEATH OF A PERSON. IV. STATUTORY REMEDY, BY INDICTMENT, FOR DEATH OF A PERSON. V. STATUTORY ACTION FOR PENALTY FOR USURY. I. ONE STATE CANNOT ENFORCE THE PENAL LAWS OF ANOTHER. Statutory Penalties. Statutory penalties can only be enforced in the courts of the State by the laws of which they are imposed; they cannot be enforced elsewhere either by force of the statute creating them, nor upon the principles of comity. 1 Thus, where the capital stock of a banking corporation was limited in amount by law, and a penalty provided for excess of increase thereof, as a forfeiture of the excess, it was held that there could be no extra-territorial enforcement of the forfeiture. 8 And so, where a note was made in one State, and payable therein, with usurious provisions, subjecting the parties to a penalty to be paid to the State in behalf of the school fund, under a statute which re- quired judgment in favor of the State to be rendered for such penalty, in case of suit upon the note, and an action to enforce payment of the note was prosecuted in another State, it was held that the courts of such other Slate could not render judgment 1 First Nat. Bank of Plymouth v. Van Reimsdick c. Kane, 1 Gall. 371 ; Price, 33 Md.487 ; Derrickson tJ.Smith, Arnold v. Potter, 22 Iowa, 194, 204; 3 Dutch. 116; Halsey v. McLean, 12 Richardson v. Burlington, 33 N. J. Allen, 439; Graham . Monsergh, 22 190; Tanner t>. Allen, Litt. Sel. Cases, Vt. 543; Slack v. Gibbs, 14 Vt. 357; 25; Barnes v. Whitaker, 22 111.606; Indiana c. Helmer, 21 Iowa, 370 ; Sco- Sherman v. Gassett, 9 111. 521. ville . Canfleld, 14 John. 338, 340; * First National Bank of Plymouth De Wolf c. Johnson, 10 Wheat 867 ; D. Price, 83 Md. 487. Van Shaik v. Edwards, 2 John. 355 ; DO NOT EXTEND BEYOND THE STATE. 149 for the penalty, and judgment was rendered for merely the sum justly due. 1 In disposing of this case, the Supreme Court of Illinois, CATON, J., said: "With the penalties imposed by the law upon the usurers, for their violation of it, we have nothing to do. That is a matter between the State of Iowa and her citi- zens. "We cannot punish her citizens for violating the laws to which they owe obedience. We cannot render judgment in favor of that State for the benefit of her school funds for the penalty or forfeiture of ten per cent, per annum, which this law imposes. We have no jurisdiction to vindicate the violated majesty of her laws, as was held in Sherman v. Gassett. 3 That task must be left to her own tribunals." 3 II. A STATE CANNOT, IN VIRTUE OF ITS OWN PENAL LAWS, PUNISH ACTS COMMITTED AGAINST THE LAWS OF ANOTHER STATE. Penal Statutes and Punishments are Local. Acts rendered penal by law are penal only because the law makes them so; and they are, therefore, only penal if committed where the law is in force that makes them penal. It follows from this that although the laws of a State render certain acts penal, yet they are only so when the acts are committed in that State. If committed else- where, they are not penal, except as they may be against the law of the place where committed. If the penal laws of two States be the same, it does not follow that an act committed in one of the States, violating the penal law -of that State, also violates the penal law of the other State; but, on the contrary, it only violates the law of the State wherein it is committed. It does not violate the law of the other State, for the reason that the law of such other State had no force where the act was committed ; and where there is no law there is no legal wrong. Hence it is, that the penal or criminal laws of one State cannot be invoked by such State to enforce penalties incurred, or to punish acts done in a different State. And it does not matter whether the supposed penalties be to the public or to persons: the rule and the reason thereof are the same: penal laws of one State are never enforced against acts committed or penalties incurredsjn other States. 4 1 Barnes v. Whitaker, 22 111. 609. 8 22 111. 609. 8 9 111. 521. * Graham v. Monsergh, 22 Vt. 543. 150 PENAL AND STATUTORY ACTIONS. In this case, Graham v. Munseryh, the question involved was one of bastardy, which occurred in another State. That is, all the circumstances, including the birth of the child, transpired outside the territorial limits of Vermont, and the parties were, at the time of the occurrences, non-residents. The child was born in the State of New York. The proceeding was had under the statute of Vermont. Objection thereto, and a motion to dismiss, was made on the ground that the statute could " not extend to children begotten and born in a foreign country." At the time of the arrest the mother was temporarily within the State of Vermont, and the child was in the keeping of a family residing therein. The reputed father was arrested in that State. The motion to dismiss being overruled, defendant excepted. The case was then tried on plea of not guilty; a verdict for complain- ant and order of affiliation was entered against him under the statute. The case was taken to the Supreme Court, and the whole court agreed that such a proceeding was, in its nature, confined to causes of action arising within the State. The learned Justice REDFIELD, delivering the opinion, says: " And if we allow a case which accrued in a neighboring State or province to be brought into our courts, we could not exclude such a case coming from Japan, or Farther India, or Kamschatka; or if we admit such cases to come into our courts from countries where similar laws exist, we must, equally, from countries where no such laws exist, and, for aught we can perceive, from those countries where polygamy is allowed to the fullest extent. We should thus be liable to become engaged in a species of knight-errantry, in a ludicrous attempt to redress the wrongs and regulate the police of other countries, in matters which very little concern us. The truth is, the proceeding is altogether a matter of internal police, and, in its very nature, as exclusively local as is the administra- tion of criminal justice. It is not necessary here to consider how far the case of a woman, bo?ia fide, coming into this State to reside, before the birth of the child, might merit a different consideration. It is supposable, too, that, should the birth of such a child occur during the temporary absence of the mother from the State, with the continuance of the animus revertendi, she might, on her return to the State, be entitled to proceed against the father under the statutes." The proceeding was or- DO NOT EXTEND BEYOND THE STATE. 151 dered to be dismissed. 1 The case cited, Indiana v. Helmer, involved a question arising out of a bastardy proceeding in Indiana, under the statute of that State, which proceeding was matured into a judgment against the defendant in Indiana, and the suit in Iowa was against the same defendant, on the judg- ment. The judgment, though regularly authenticated, was, with the proceedings of the cause in Indiana, of so irregular a char- acter that, an attempt was made to avoid its force by showing it to have been obtained under the penal statutes of Indiana, and on the assumption that those statutes would not be enforced in another State. But the Iowa court, admitting that such would be the law if the proceeding was based on the Indiana statute, decided that the irregularities of the judgment did not void its validity while unreversed, and that as there was jurisdiction of the defendant in Indiana, the judgment itself would sustain the action and shut out all enquiry as to the subject matter on which it was rendered. In this case the court, COLE, J., say, however, as to the extra-territorial force of such statutes: " If the mother of the bastard child, begotten and born in the State of Indiana, had come to Iowa, and sought by legal proceedings to compel the defendant, its father, to support it, and to give bond therefor, and otherwise comply with the requirements of the statutes of Indiana, the answer of the defendant that the subject matter of such action was one of merely local police regulation of Indiana, and not enforceable in this State, would have been conclusive, and amount to a complete defense." The court then add that such action could no more be maintained beyond the limits of the sovereignty within which it arose than can an action for any other penalty provided by statute of such sovereignty for the wrongful act of a defendant therein ; and that both are alike matters of local and internal police, and enforceable alone by the sovereignty making the regulation and providing the penalty. 3 The case of Richardson v. Burlington was also a bastardy proceeding. The mother became enciente in the State of JSTew Jersey, being a ser- vant there, but not having gained a residence in any particular town; before the birth of the child she left the State and became an inhabitant of the State of Pennsylvania, in which latter State 1 22 Vt. 545, 546. 2 Indiana v. Helmer, 21 Iowa, 370, 372. 152 PENAL AND STATUTORY ACTIONS. the child was born. Still remaining a resident of Pennsylvania, she returned to New Jersey and instituted the prosecution against the alleged father; an order was made against him under the stat- ute, which, on certiorari to the Supreme Court, was set aside on the ground that the case was not within the statute. The court say the statute " was not intended for the relief of other States or their townships;" nor was it intended " to maintain the bas- tards of such lewd women as may come into a township and stay just long enough to become impregnated, and then depart, and afterwards, in some foreign jurisdiction, give birth to their ille- gitimate conceptions." 1 In the Yerrnont case above cited, Gra- ham v. Monsergh, the difficulty occurred in Canada; the child was born in New York, and the proceedings were set on foot in Vermont, where the alleged father was found. In the case cited from New Jersey, Richardson \. Burlington, the trouble orig- inated in that State where the woman was temporarily in service; she afterwards became an inhabitant of Pennsylvania, and in that State the child was born. The mother then went tempora- rily into New Jersey, found the father of the child, and there commenced proceedings against him under the statute. It is seen that these bastardy statutes are regarded as penal statutes and police regulations, and that, having no extra-territorial force, they do not apply to cases occurring in other States; and that, on the other hand, the statutes of the other States, where the cases, by the births, occurred, had no force inside of the territorial limits of the States where the proceedings were invoked: that is, were not the law of the forum. In other terms, that all such penal and police statutes, on whatever subject, are local. In "Wisconsin there is a contrary ruling, but it is put upon this principle, as alleged, the obligation to support the child arising from paternity, saying nothing about the statute or obligation of the statute. The case was this: Conception occurred in "Wis- consin, but the birth occurred in Illinois; after a time the mother returned to Wisconsin and instituted proceedings under the stat- ute against the alleged father. The court sustained the jurisdic- tion without making any reference to the statutory liability, but upon the general principle of an obligation of the parent, which, though recognized as to legitimate children, is not, as we con- 1 33 N. J. 192. DO IS T OT EXTEND BEYOND THE STATE. 153 ceive, except by statute, as to such as are illegitimate. In the Wisconsin case, the court having been referred to the case above cited, of Graham v. Monsergh, avoid the force thereof by rest- ing their decision on the obligation of paternity alone. The court say, COLE, J. : " The obligation of the father to support a bastard child grows out of the paternal relations existing between him and such child, and we therefore deem it quite immaterial, so far as his obligation and duty are concerned, whether the child is born out of the State or not.'' 1 We do not regard this Wis- consin case as an authority in a legal point of view, however strong the moral obligation. But, irrespective of its soundness, it does not militate against the principle assumed as law by us in the matter here under discussion, as to the extra-territorial enforcement of penal statutes. The case of Slack v. Gibbs is another one strongly illustrative of the principle here asserted. By the statute of Vermont, a conveyance of property made to defraud creditors, is made a penal offense as against the parties to such conveyance. A debtor citizen of that State, being on his way, with horses for market, to Boston, made, as alleged, a fraudulent conveyance of them in New Hampshire, while passing through that State, and with intent to defraud his Vermont creditors. In an action for the penalty, instituted in a court of Vermont, the court held that such action would not lie, under the statute of Vermont, for a fraudulent conveyance made in another State; and, though the Supreme Court, on another point, reversed the judgment, they ruled, however, with the court below, that the action would not lie in a case where the act prohibited was committed in another State. 3 In the same case, the Supreme Court of Vermont, WIL- LIAMS, J., say: " A conveyance of property, however fraudulent!}' intended or conceived, made in another State, cannot be a breach of our penal laws, or subject the party to a penalty therefor. Our laws are of no efficacy out of the territorial limits of the State, and however immoral a transaction may be, committed in an- other jurisdiction, it cannot be punished here as a violation of the laws of this State." 3 v To the effect that the statutory actions of one State cannot be 1 Duffles v. The State, 7 Wis. 672. tions in Vermont are civil actions. 2 Slack v. Gibbs, 14 Vt. 857. And Waters v. Day, 10 Vt. 487. though it was a qui tarn, yet such ac- 8 Slack v. Gibbs, 14 Vt. 364. 154 PENAL AND STATUTORY ACTIONS. enforced in another State, nor actions arising on statutory liabil- ities, it is ruled in Vermont that the bond of a guardian taken in another State, in the probate court of such State, under a law prescribing the conditions and terras of liability thereon, cannot be enforced in a different State. In the case referred to, the court, PIERPONT, C. J., say: "The bond is purely a creature of the statute law of New Hampshire, taken according to its re- quirements, and for a purpose specified and declared by such law. * * * The whole proceeding was understood and intended to be local in its operation, to be consummated in that State, and under its laws." 1 There is a late ruling in Illinois that the expectant mother of an illegitimate child may follow the putative father into, and prosecute him in, that State, for bastardy, under the statute of Illinois, although she be a resident of another State, in which the trouble occurred, and of which both parties were citizens at the time the act was committed by which she became pregnant, and although the child be not yet born. The objection was raised, on the trial, that the complainant was not, and never had been, a citizen or resident of Illinois, but it was overruled by the lower court, and the judgment was affirmed in the Supreme Court. The Supreme Court say: " The case is certainly within the letter of the law. The majority of the court do not feel at liberty to hold that the operation of the statute is limited in this respect by implication.'' 2 No authorities are cited. It will not do to liken the inter-State right of suit, in statu- tory actions, though they be in their nature transitory in the State where they accrue, to the right to sue in transitory cases in different counties suits in the same State where the actions ac- crue. In the latter case, the sovereignty is still the same, and the statute is in force in all the counties throughout the territo- rial boundaries of that sovereignty; whereas, in the former, the statute giving the right of action is of no force, in proprio vigore, outside of the State by which it is enacted. Difference between Common Law and Statutory Transitory Actions. There is this difference, in that respect, as to the pros- ecution of common law rights of transitory actions in one State 1 Judge of Probate v. Hibbard, 44 court regarded the statute as intended Vt. 597 ; Pickering v. Fisk, 6 Vt. 102. mainly for the personal benefit of the 8 Koble v. People, 85 111. 336. The woman. STATUTORY ACTIONS FOR DEATH. 155 or country, which have accrued in another, and are of a personal and transitory character, and are based on contract rights or per- sonal injuries recognized as such by the principles of universal law. These are maintainable in all countries, wherever there are tribunals that take cognizance of and vindicate such rights and injuries; not, however, because of the local law of such coun- tries, but because of the universal law, which gives and vests such right of action, and which exists everywhere, whether locally enacted or not. 1 In such case, although the remedy is given by the law of the forum, yet the right of action is given by, and bears relation to, a universal law of civilization; thus, if a man be assaulted or beaten on a previously unknown island, where there is no law, and on which the parties are casually thrown, yet a right of action therefor exists, and may be en- forced, in any state or country where there are courts that adju- dicate personal rights, if the aggressor is there found and served with the local process. So, if in such place hitherto unknown a contract, not immoral or wrong in itself, be made by parties, and for a valuable consideration, the right thereon, if of a transitory nature, by the common or civil law, may elsewhere be sued and enforced, in the courts of all countries where there are tribunals for the enforcement of personal rights, and this, too, upon the principle of universal law. The only question, in either case, is the question of comity, as to the right of an alien or citizen of another State to sue, if the plaintiff be such; but if the plaintiff be a citizen or subject of the State or country where the suit is brought, then no question whatever as to his right to legal re- dress can arise, except the necessity of making out a cause of recovery. III. STATUTORY ACTIONS FOR DEATH OF A PERSON. There is a species of actions, of modern origin, which are alike unknown to the common law and to the ordinary body of the qui tarn and other statutory actions. Though local they are not real actions: though personal, they are not transitory. They are given by statute, are of a police nature, and can only be brought and enforced in the State where the statute that gives them, and 1 Gardner v. Thomas, 14 John. 135 ; Johnson . Dalton, 1 Cow. 543 ; McKenna o. Fiske, 1 How. 241. 156 PENAL AND STATUTORY ACTIONS. under which they occur, is in force. 1 They are not strictly qui tarn actions, but yet they are of a penal and police nature, their object being as well for security of the public against accidents and wrongs as to afford personal compensation to those who suffer from the acts and omissions which, by these statutes, are made actionable. 8 Of this class of actions are those given by statute for the death of a person, when caused by a wrong act, or negligence; actions given by statute to the wife, for inducing drunkenness of the husband by selling to him intoxicating liquor; actions against railroad corporations for injuries to live stock, upon their roads, where they have omitted to fence their roads; penalties for taking excessive rates; penalties for usury; actions given by statute against the employer, for a personal injury to a servant, caused by the negligence of a co-servant; and other statutory actions of like character. To illustrate more fully the impracticability of enforcing these actions in the courts of a different State than that wherein they accrue, and by statute are given, we will briefly advert to the nature and remedy of some of them separately. Unknown to the Common Law. The actions are of recent origin, both in England and in America. They exist only by statute. No such actions lay at common law. These statutes not only confer right of action, some of them allowing suit by 1 Wliitford T. Panama R. R. Co., 23 * Blair v. Mil. & Prairie du Chien N. Y. 465; Pickering v. Fisk, 6 Vt. R. R. Co., 20 Wis. 254, 258; Corwin t!. 102; Judge of Probate v. Hibbard, 44 New York & Erie R. R. Co., 13 N. Y. Vt. 597; Woodward v. Mich. So. & 42; Mayberry v. Concord R. R. Co., 47 Indiana R. R. Co., 10 Ohio St. 121 ; N. H. 391 ; Gorman . Pacific R. R. Richardson v. New York Cent. R. R. Co., 26 Mo. 441 ; Trice v. Hannibal & Co., 98 Mass. 85 ; First Nat. Bank of St. Jo. R. R. Co., 49 Mo. 438 ; Penn. R. Plymouth*. Price, 33 Md. 487; Der- R. Co. v. Riblet, 66 Penn. St. 164; rickson r. Smith, 3 Dutch. 116; Hal- Flint & Pere Marquette R. R. Co. v. sey v. McLean, 12 Allen, 439; Selma, Lull, 28 Mich. 510; Bulkley . New Rome & Dalton R. R. Co. v. Lacey, 43 York & New Hav. R. R. Co., 27 Conn. Geo. 461 ; Nashville & Chat. R. R. Co. 479 ; New Albany & Salem R. R. Co. .Eakin,6Cold. 582; Holland v. Pack, v. Tilton, 12 Ind. 3; Ohio & Miss. R. Peck, 151 ; Cherry r. Slade, 3 Murphy, R. Co. v. McClelland, 25 111. 140 ; 111. 82 ; Southwest. R. R. Co. v. Paulk, 24 Cent. R. R. Co. v. Carraher, 47 111. 333 ; Geo. 356 ; Hover v. Fenn. R. R. Co.. 25 Fisher v. N. Y. Cent. R. R. Co., 46 N. Ohio St. 667; Western & Atl. R. R. Y. 644; Indiana v. Heliner, 21 Iowa, Co. v. Strong, 52 Geo. 461 ; McCarthy v. 370. Chi., R. I. & P. Ry. Co., 18 Kansas, 46. STATUTORY ACTIONS FOR DEATH. 157 certain of next of kin, and some by the administrator or exec- utor of deceased, but also designate the beneficiaries of the recov- ery, and direct to whom the same shall be paid. Others, in default of there being such beneficiaries, direct the money recov- ered to go as assets of the general fund of the decedent's estate. Some of them fix a maximum sum, beyond which there is to be no recovery; others leave the amount to the jury; others again lay down an arbitrary sum, which is to be recovered in all cases of conviction. In New York the action belongs to the personal representatives of the deceased, and proof of actual damages is not necessary to a recovery. 1 But the husband is not entitled as for the death of his wife; it is only to the personal represen- tatives, and if the injury had she lived would have sustained an action by herself and husband. 2 In Illinois, the action is to the personal representatives. 3 So, in Wisconsin, the action is to the personal representatives; and when the recovery is for the widow the measure of damages is the pecuniary loss in not having the support of the deceased, to herself and children, and the ad- ditions he would have made to his property by his earnings. 4 In New York, the husband is not treated as next of kin in distribution of proceeds of recovery for death of his wife. 5 In California, exemplary damages may be given. 6 In Iowa, the action for the death of an infant is limited in recovery to the probable earnings after attaining to his majority, and suit is to be in the name of the administrator; for loss of service during minority, the father is to sue, or if no father, or by the father abandoned, then proceed- ings are at the suit of the mother. 7 In Illinois, only pecuniary compensation is recoverable: nothing for grief, or suffering, or loss of society. 8 In Colorado, the existence of any kindred named in the statute, gives the action. 9 In Illinois, the injury must be such that the deceased could have maintained an action therefor if he had lived, and there must be left a widow or next 1 Keller v. New York Cent. R. R. 5 Drake v. Gilmore, 52 N. Y. 389. Co., 2 Abb. Dec. 480 ; Dickens v. New 6 Myers v. San Francisco, 42 Cal. Y. Cent. R. R. Co., 1 Abb. Dec. 504. 215. 3 Green v. Hudson River R. R. Co., ' Walters v. Chicago, R. I. & Pac. 2 Keyes, 294. R. R. Co., 41 Iowa, 71. 3 Barren v. 111. Cent. R. R. Co , 1 8 Brady v. Chicago, 4 Biss. 448. Biss. 412, 453 ; Hagen v. Kean, 3 Dill. 9 Kansas P. R. R. Co. v. Miller, 3 124. Col. 442. 4 Castello v. Landwehr, 28 Wis. 522. 158 PENAL AND STATUTORY ACTIONS. of kin: if these requirements are shown a case is made for nom- inal damages. 1 In Georgia, a parent cannot recover for death of an infant child, unless special showing of pecuniary damages. 2 But by the code, the suit is to the widow and children only. 3 In Massachusetts, under a statute giving an action for loss of life of railroad passenger, the damages are limited to not over five thousand, nor under five hundred, dollars, recoverable by indict- ment for the benefit of the widow, if there be one, and of the decedent's heirs. 4 In Maine, likewise, the recovery is limited to five thousand, and not less than five hundred, dollars, and is for benefit of the widow and children, if such there be, and if no widow, then to the children, and in case of no children, then to the widow, if there be one. 6 And, although recoverable by in- dictment, the proceeding is regarded as a civil one, and the same rules and principles of law are applied as in an ordinary civil action would 'be, for the same cause. "We have given these illustrations to show the diversity of pro- visions on the subject, in the different statutes of the several States. The Bemedy is Local. "When we consider that such statutes have no force in other States than where enacted, and that they not only give the right, but, in many cases, prescribe the remedy, and also direct to whose benefit recovery is to in are, we perceive at once the impossibility of enforcing them in other States, even by comity, inasmuch as the courts of each State are governed by the local laws in respect to remedies. Take a case arising in Mas- sachusetts, where the right to recover is restricted to indictment, would an indictment lie in an adjoining or neighboring State for such a case? Surely not; and, if not, would an action at law? Of course not; for not even in Massachusetts, where the injury occurred, could such an action be maintained. But it is, in such a case, not merely a difficulty as to remedy, but no Tight of recovery exists, outside oi Massachusetts, inasmuch as the statute which gives the right is not in force anywhere else than in said State. 1 QuincyCoalCo.c. Hood, 77 111. 68. * Carey t>. Berkshire R. R Co., 1 9 Allen v. Atlanta Street-Railroad Cush. 475. Co., 54 Geo. 503. * State D. Grand Trunk Ry. Co., 58 3 Miller v. Southwestern R. R. Co., Maine, 176. 55 Geo. 143. STATUTORY ACTIONS FOR DEATH. 159 If, on the other hand, we take a case arising in New York, it Is only by force of the ]STew York statute that it is actionable, and that statute being local, or having no force in Massachusetts, no right of action exists on such a case in Massachusetts, and no recovery can therein be had. Such proceedings are partly of a police nature, and no State can enforce the police or administra- tive policy or powers of another. In the case of Selma, Home <& Dalton Railroad Co. v. Lacey, above cited, the action was brought in Georgia for the death of a person killed in the State of Alabama. Defendant demurred to plaintiff 's declaration, among other causes, substantially on the ground that the action would not lie in the courts of Georgia, for an injury committed in another State, under the statute of such other State giving an action therefor. The demurrer was overruled, and defendant took an appeal from the judgment on the demurrer. The supreme court of Georgia reversed the judg- ment below, holding that the action would not lie. 1 Were the statutes of each State the same, yet the enforcement of such a right by comity, as suggested by the learned judge in the Georgia . Cohen, 13 Pet. 312; Carson c. Hun- - McCluny v. Silliman, 3 Pet. 270, ter, 46 Mo. 467; Baker v. Brown, 18 276, 278; McElinoyle v. Cohen, 13 111. 91 ; Van Alstine v. Lemons, 19 111. Pet. 312; Flowers v. Foreman, 23 394; Allison p. Nash, 16 Tex. 560. See How. 132; Lefflngwell . Warren, 2 Richards v. Polgreen, 13 8. & R. 393; Black. 599. Angell on Limitations, g 84, 85. 3 McCluny -o. Silliman, 3 Pet. 270, 8 Harrison v. Edwards. 12 Vt. 648; 276, 277 ; Flowers t. Foreman, 23 How. Le Roy v. Crowinshield, 2 Mas. 151 ; 132. McElmoyle v. Cohen, 13 Pet. 312; 4 Sohn t. "\Vaterson, 1 Dill. 358 ; Jac- Bank of U. S. v. Donnally, 8 Pet. 361 ; quette v. Hugunon, 2 McL. 129 ; Pease Ruggles v. Keeler, 3 John. 261 ; Jones t>. Howard, 14 John. 470 ; McElmoyle v. Jones, 18 Ala. 248. JUDGMENTS OF OTHER STATES. 173 there resided the length of time required by statute to bar an action, the statute of limitations of Minnesota was held a good defense to an action in that State on such debt. 1 So likewise as to right of property. 3 II. STATE POWER TO LIMIT ACTIONS ON JUDGMENTS OF OTHER STATES. The limitation of the statute to suits on judgments of another State, must be in reference to the date of the judgment sued on and not the date of the cause of action on which it was rendered. The Legislature of the State of Mississippi enacted a statute of limitations in words as follows: "No action shall be maintained on any judgment or decree rendered by any court without this State against any person who, at the time of the commencement of the action in which judgment or decree was or shall be ren- dered, was or shall be a resident of this State, in any case where the cause of such action would have been barred by any act of limitation of this State, if such suit had been brought therein." In an action in said State, on a judgment rendered in the State of Kansas, a plea of this statute was interposed by the defendant and of the facts requisite to bring the defense within its terms as a supposed statute of limitations. The case was taken to the United States Supreme Court, which tribunal held the statute to be in violation of that clause of the United States Constitution which provides that " full faith and credit shall be given in each State to the public acts, records and judicial proceedings of every other State; and that Congress may, by general laws, prescribe the manner in which such records shall be proved, and the effect thereof." Under this clause of the United States Constitution it is held that such judgments have the same effect in another State when sued on as in the State where rendered, arid that although a State may pass statutes of limitations reasonably prescribing a limit of time in which remedies by suit are available, and although such statutes apply as the law of the remedy and the forum, when reasonable, in suits on judgments of another State, yet that statutes amounting as this one does to a total denial of remedy, are void. 3 1 Fletcher v. Spaulding, 9 Minn. 64 8 Christmas v. Russell, 5 Wall. 290. 2 Waters v. Barton, 1 Cold. 450. See supra, Actions on Foreign Judg- 174 STATUTE OF LIMITATIONS. III. STATUTES of LIMITATION DO NOT APPLY TO Suns BY STATE ote NATIONAL GOVERNMENTS. Statutes of limitation of a State do not apply to the State it- self, unless so expressed to be intended, or it clearly so appears to have been intended by the particular subject matter of limita- tion. 1 Nor do they apply to the United States, 2 for the legisla- tion of a State can only apply to persons and things over which the State has jurisdiction. IV. STATUTES LIMITING SUITS ON JUDGMENTS OF OTHER STATES OPERATE PROSPECTIVELY. Statutes of a State limiting the time within which actions in her courts may be brought upon judgments of the courts of other States do not apply in their operation to judgments rendered be- fore such statutes were enacted, unless they so express. 3 And in calculating the time of limitation when applicable, it is to be reckoned in reference to the time of commencement of suit upon the judgment, and not in reference to the time of trial. 4 V. IN SOME STATES A PREVIOUS BAR IN ANOTHER is A GOOD PLEA. In some of the States a statutory provision exists in reference to limitations of actions, that where, by the statute of a diifer- ent State, wherein the defendant previously resided, the cause of action sued on was fully barred, and the contractor cause of action rnents, and infra, % 4. The States may Mich. 24. But a State divests itself prescribe the time within which ac- of this privilege when it engages in tions may be brought, but as to exist- private business with an individual ing causes they must allow a reasona- or corporation, and thus assumes the ble time. See Hart v. Bostwick, 14 , characteristics of a private person. Fla. 162; Davidson v. Lawrence, 49 Governor t. Woodworth, 63 111. 2o4. Geo. 335 ; Auld v. Butcher, 2 Kan. Gibson v. Chouteau, 13 Wall. 92, 135; Pereless v. Watertown, 6 Biss, 99; United States v. Hoar, 2 Mas. 311 ; 79; Kimbro v. Bank of Fulton, 49 Peoples. Gilbert, 18 John. 228; Swear- Geo. 419. ingen v. U. 8. 11 Gill & J. 373. 1 Gibson v. Chouteau, 13 Wall. 92. 3 Murray v. Gibson, 15 How. 421; 99; Lindsey v. Miller, 6 Pet. 666. Boyd v. Barrenger,23 Mis*. 270; Gar- Nullum tempus occurrit reyi. Augell rett v. Beaumont, 24 Miss. 377. on Limitations, 34 ; Broom's Legal 4 Murray v. Gibson, 15 How. 421 ; Maxims, * 66 ; Alton v. Illinois Trans. Moore v. Lobbin, 26 Miss. 304. Co., 12 111. 33; Crane v. Reeder, 21 ABILITY TO PLEAD THE STATUTE. 175 had not arisen in the State where the suit is pending, that then the bar of the action in the other State is a good bar to the same in such suit. 1 Where the debt is not only barred, but actually extinguished by the law of the place which governs the performance of the contract, then to a suit in another State upon such contract the foreign statute may be successfully interposed; for it is here not a law governing only the remedy, but it destroys the right, and that being destroyed, the contract is no longer enforcible in any forum if the plea is interposed ; 3 and particularly is this so where the property is in the possession of another, and the remedy has been cut off by lapse of time. 3 Requisites of the Plea. To enable a defendant to obtain the benefit of this provision, his pleading must substantially show that the plaintiff's entire right of action had been fully barred by the statute of the other State while defendant there resided, and that the cause of action did not arise in the State where the suit is pending. 4 But when the pleadings and evidence for the defense show, and the fact is satisfactorily established, that the cause of action has been fully barred by the laws of any country where the defendant has previously resided, then such bar amounts to the same defense in the court where the suit is pend- ing as though it had arisen under the statute of the forum* VI. ABILITY OF THE CORPORATION OF ANOTHER STATE TO PLEAD THE STATUTE. The ruling in New York is, that a foreign corporation, that is, a private corporation created in a different State, cannot success- fully plead the statute of limitations of New York in defense of an action against it in the New York courts, although such for- eign corporation be the lessee of a railroad in New York, and be operating the same therein, and have property and a managing 1 Gillett v. Hall, 32 Iowa, 220 ; Lloyd 11 Wheat. 361 ; Foote's Private Inter- v. Perry, 32 Iowa, 144; Sloan fl.Wangh, national Law, 420 et seq. 18 Iowa, 224 ; Petchell v. Hopkins, 19 3 Ibid. Iowa, 531. 4 Gillett . Hall, 32 Iowa, 220. 8 Lincoln V. Battelle, 6 Wend. 475; 5 Lloyd v. Perry, 32 Iowa, 144; Pet- Brown . Parker, 28 Wis. 21 ; Brent cliell v. Hopkins, 19 Iowa, 535 ; Sloan v. Chapman, 5 Cr. 358 ; Shelby v. Guy, . Waugh, 18 Iowa, 226 ; Webster v. Rees, 23 Iowa, 269. 176 STATUTE OF LIMITATIONS. agent residing and keeping an office within the State subject to process of the courts. 1 Of these rulings in New York, the Supreme Court of the United States, BRADLEY, J., say: "These decisions upon the con- struction of the statute are binding upon us, whatever we may think of their soundness, on general principles." 8 The ground upon which this ruling in the courts of New York is placed seem& to be that a corporation is a resident of the State where created, and cannot emigrate or remove to another State, while the New York statute expressly excepts from the benefits of the limita- tions persons who are "out of the State when the cause of action shall accrue," and that the time of absence " shall not be taken as any part of the time limited for commencement " of the ac- tion; and that there is a legal impossibility for a corporation of another State to come within the State of New York. HUNT, Justice, in the case cited, says: "Statutes of limitations are in their character arbitrary. They rest upon no other founda- tion than the judgment of a State as to what will promote the interests of its citizens." 3 Justice MILLER, in the same case, dis- senting, says: "The liability to suit, where process can at all times be served, must, in the nature of things, be the test of the meaning of the statute. A different rule applied to an individual, because he is a citizen or resident of another State, is a violation at once of equal justice and of the rights conferred by the second section of the fourth Article of the Federal Constitution, that the citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States." 4 In Illinois a different rule has been asserted by the Appellate Court. The doctrine here laid down is, that the statute runs where there is ability to obtain service, and that where a foreign corporation does business in the State having an office and agents therein, it may plead the statute. 6 1 Thompson v. Tioga R. R. Co., 36 Corning R. R. Co., 20 Wall. 137, 149. Barb. 79; Olcutt v. Tioga R. R. Co., 8 20 Wall. p. 150. 20 N. Y. 210; Rathbun t>. Northern 'Tioga R. R. Co. v. Blossburg & Cent. R. R. Co., 50 X. Y. 656 ; Bur- Corning R. R. Co., 20 Wall. 152. roughs*). Bloomer, 5 Denio, 532; Me- 5 Pennsylvania Company v. Sloan, Corel v. Wooclhull, 27 How. Pr. 54; Chicago Legal News, Vol. X., p. 381. Tioga R R. Co. e.Blossburg & Corn- And also reported in 1 Bradwell's Ap- ing R. R. Co., 20 Wall. 137. pel. Ct. Rep. 364. See, also, infra, 3 Tioga R. R. Co. t>. Blossburg & Chap. 26. MAERIAGE AND DIVOECE. 177 CHAPTEK XVIII. MARRIAGE AND DIVORCE INTER-STATE VALIDITY THEREOF. I. INSTITUTION OF MARRIAGE. INTER-STATE VALIDITY OF MARRIAGES. II. DIVORCE. JURISDICTION TO GRANT THE SAME. III. INTER-STATE VALIDITY OF DIVORCES. IV. INTER-STATE CUSTODY OF CHILDREN. ENFORCEMENT OF ALIMONY. V. INTER-STATE EFFECT ^OF FORMER ADJUDICATION. I. INSTITUTION OF MARRIAGE. INTER-STATE VALIDITY OF MARRIAGES. Nature of the Marriage Contract. Marriage is a legal institu- tion provided for by law for the good of the public and State, and the happiness and prosperity of individuals. It is not a mere contract, to be entered into and dissolved at the will of the parties, but depends in both respects upon the approbation and concurrence of the government and the law as declared and ad- ministered by the officially authorized authorities thereof. 1 The obligation of the marriage relation is recognized among all Christian people, and a marriage valid and binding in the State or country where celebrated according to the law thereof, is, as a general principle, valid and binding everywhere else, whether in the same or in a foreign State or country. Such is the universal law, 3 subject, however to these exceptions, that it be not incestuous, polygamous, or repugnant to good morals, and the ordinary policy and sense in which it is regarded by civil- ized nations. But no State or people are bound to countenance or sustain in their midst, or to protect by law, practices or con- nections under the color of marriage which are inimical to the 1 Cabell v. Cabell, 1 Met. (Ky.) 319, ham, 16 Mass. 157 ; Stevenson c. Gray, 327, 328 ; Roche v. Washington, 19 17 B. Mon. 193 ; 1 Bishop on Marri- Ind. 53. age and Divorce, 355, 370, and 2 2 Kent, *92 ; Medway v. Need- cases cited. 12 173 MAIIKIAiiK AND DIVORCE. public or private morals of the people, or contrary to the pro- visions of domestic hiws, however valid they may have "been where entered into in countries authorizing the same. 1 The ruling in most, if not all of the American States is, that the marriage relation may be dissolved by legislative enactments in some and by judicial decree or judgment in other of the States, at the will of the sovereign power, 'expressed in the constitution and laws, with or without the concurring consent of the parties. The right to do so does not come within the inhibition of the O constitution as to the impairing the obligation of contracts. It is regarded as an institution of State, and not a mere contract. Contracting to marry does not of itself create a marriage, but it only becomes such by the formal act of the law. 3 Hence it is, that the marriage capacity of persons is different, in a legal point of view, in different States, for, being a creature of the law, each sovereignty regulates it to suit its own views of the public good, declaring who are competent to enter into the marriage relation, and the manner of celebrating the same, and rendering it bind- ing in law. But subject always to the one great leading prin- ciple of law, of a general nature, that if legal and valid in the State wherein it is entered into, the marriage is legal and valid in all others into which the parties come, if in its nature it be not opposed to the natural law, or good morals, or to the positive law and policy of such other States as hereinbefore stated. So, likewise, if an alleged marriage be invalid in law where entered into, it is invalid everywhere else, 3 not only upon the principle of general law as to the marriage status, but that in fact an invalid one is no marriage at all, either where entered into or elsewhere. By invalidity, however, is not to be under- derstood mere informality or irregularity as to the method of entering into the same, but such a state of relation as the law of the place where entered into does not and will not recognize as creating the marriage state between the parties thereto. 'State v. Kennedy, 76 N. C. 251; Wheat. 518; 2 Kent *108; Gaines . Kiniiey v. Commonwealth, 6 The Re- Games, 9 B. Mon. 295, 308; Maguire porter, 733, (Va. Sept. 1378.) But, see v. Maguire, 7 Dana, 181 ; Berthelerny Moilway v. Neeclham, 10 Mass. 157; v. Johnson, 3 B. Mon. 90. Putnam v. Putnam, 8 Pick, 433 ; Ste- Greenwood v. Curtis, Mass, 358 ; venson v. Gray, 17 B. Mon. 193. Bishop on Marriage and Divorce, vol. 4 Cabell v. Cabcll, 1 Met. (Ky.) 319; 1, 390; Cheever v. Wilson, P Wall. Dartmouth College v. Woodward, 4 108. JURISDICTION TO GRAJN'T DIVORCE. II. DIVORCE. JURISDICTION TO GRANT THE SAME. In Ecclesiastical Courts. In the mother country jurisdiction in matters of divorce was vested exclusively in the ecclesiastical courts; the courts of common law had no authority upon the subject. 1 By Statute in Common Law and Chancery Courts. It fol- lowed from this, that there being no ecclesiastical courts in the American colonies, or subsequently in the States, there was no jurisdiction whatever here to grant divorces, except as conferred by statute upon the common law, or chancery courts, of the coun- try. 2 Until so conferred upon the judiciary the power was in the legislative departments of the local governments alone; 3 but when conferred upon the courts they took it, so far as consistent with the nature of our institutions, to be exercised in accordance with the rules and principles of the ecclesiastical courts of the mother country in similar cases. 4 Lex Loci Contractus. The lex loci contractus is ordinarily the legal test of validity of marriage, legitimacy and divorce, when brought in question in other States, but the courts of such other States will not recognize or be governed in their decisions by such laws, if in their nature they encourage immorality, or are in violation of the general moral tone or policy of civilized States, or outrage the policy or conscience of the community thus called on to enforce them. 5 Residence in Cases of Divorce. Residence of the applicant, in good faith, within the State where the application is made, is necessary, to enable a court to take jurisdiction of an application for a divorce, and to dispose of the same by granting the appli- cant a divorce, if cause is found therefor. 6 And where the hus- 1 Le Barren v. Le Barren, 35 Vt. 4 Le Barren v. Le Barren, 35 Vt. 365 ; Brinkley v. Brinkley, 50 N. Y. 365 ; Brinkley v. Brinkley, 50 K Y. 184, 190 ; Burtis v. Burtis, Hopk. Ch. 184, 190 ; Griffin v. Griffin, 47 N. Y. 557. 134. 2 Le Barren v. Le Barren, 35 Vt. 8 Eubanks v. Banks, 34 Gee. 407. 365; Brinkley . Brinkley, 50 N. Y. 6 Wright v. Wright, 24 Mich. 180; 184, 190. Manley v. Manley, 3 Finn. 390 ; Shafer 3 Le Barren v. Le Barren, 35 Vt. v. Buslmell, 24 Wis. 37.2 ; Hubbell v. 365; Starr v. Pease, 8 Conn. 541; Hubbell, 3 Wis. 662; Gleason v. Glea- Cooley's Const. Lim. *110 et seq. sou, 4 Wis. 64; Hanover v. Turner, 14 ISO MAKT.IAGE AND DIVOKCE. band is a resident of one State, and the wife is resident in an- other, the courts of each State have jurisdiction to grant a divorce, at the instance of the party so residing therein; and if a divorce be granted in one of these States to the party so residing therein by proceedings in rem, that does not preclude the courts of the other State from granting a divorce to the party residing in such other State; and the rule is the same, whether the decree was regularly or irregularly obtained in the case of the one first ob- taining it. 1 In such cases the courts of both States have power to dissolve the marriage relations of the parties, so far as regards the parties residing in their respective territorial limits, and upon such terms in respect to such resident party as are permitted by the laws thereof; and this, too, notwithstanding the fact that a divorce has been decreed to the other party, and upon different terms, in the State where such other party resides, or resided at the time thereof. 3 This power of the courts, where the appli- cant resides, is not dependent upon the residence of the defend- ant in the same State or jurisdiction, but exists though the defendant never resided in the State. The court acts upon the contract, and dissolves that, so far at least as regards the party making the application, over whom and the contract, as personal to such party, the court has actual jurisdiction; nor is it neces- sary, under the Wisconsin statute, that the cause relied upon for divorce shall have accrued within that State. 3 Void Decree of Divorce. But a decree of divorce in a court of a State in which' neither party is domiciled, and in a suit in Mass. 227; Chase v. Chase, 6 Gray, also, State 0. Armington, 17 Alb. Law 157 ; Vischer t>. Vischer, 12 Barb. 640; Jour. 451 ; Cooley Const. Lim. 400. McQiffert v. McGiffert, 31 Barb. 69; '"Wright v. Wright, 24 Mich. 180; Wilcox v. Wilcox, 10 Ind. 436 ; Dit- Manley t>. Manley, 3 Finn. 390. son . Ditson, 4 R. I. 87. This case Wright t>. Wright, 24 Mich. 180; is a leading one on this subject. The Holmes v. Holmes, 4 Lans. 388 ; Batch- point is very exhaustively discussed, eldor . Batcheldor, 14 N. H. 380 ; and the conclusion arrived at is, that Ditson v. Ditsou, 4 R I. 87 ; Forrest the jurisdiction of a court in divorce v. Forrest, 6 Duer, 102; Bishop t>. depends not upon the place of the Bishop, 30 Penn. St. 412; Hanberry marriage, or of the breach of its du- t>. Hanberry, 29 Ala. 719 ; Kruse v. ties ; but manage, being a relation in- Ivruse, 25 Mo. 68 ; Kashaw v. Kashaw, volving the status of a party to it, can 3 Cal. 312. be dissolved by the court having ju- 8 Gleason v. Gleason, 4 Wis. 64; risdiction of the petitioning party Manley v. Manley, 3 Finn. 390 ; Hub- alone, as a citizen of the State. See, bell u. Hubbell, 3 Wis. 662. INTER-STATE VALIDITY OF DIVORCE. 181 which there was no service on the defendant, is simply void for want of jurisdiction. 1 Rule of Wife's Domicile when Living Separate from her Hus- band. The rule that the domicile of the wife is construed to be the same as that of her husband is not recognized in divorce cases as law, when the parties, for cause, are living separate and in different States. 2 In such case, it has been held that a wife residing in a different State than that in which is the residence of the husband, cannot sustain a proceeding for divorce in the courts of the State wherein the husband resides. 3 But, so far as relates to capacity, dependant upon residence, in proceedings for divorce, a wife may acquire a different residence and domicile than that of her hus- band, and may there maintain proceedings for divorce. 4 III. INTER-STATE VALIDITY OF DIVORCE. Valid where Rendered, Valid Elsewhere. A decree of divorce, valid and effectual, according to the laws of the State in whose courts it is rendered, if jurisdiction attached, is valid and effectual in every other State where it comes in question, properly evi- denced under the laws and Constitution of the United States. It is then entitled to the same effect and has the same force which pertains to it in the State where it is rendered. 5 Divorce without Residence of either Party is Void. A decree of divorce by the court of a State wherein neither of the parties to the decree permanently resided at the time of making the same, or resided at the inception of the cause for which there is a commencement of proceedings, is absolutely void for want of jurisdiction, notwithstanding it be stated in the record that the 1 Hoffman v. Hoffman, 46 N. Y. 30; 418; Cheever v. Wilson, 9. Wall. 108; Elder v. Reel, 62 Penn. St. 308; Peo- Hanberry . Haubeny, 29 Ala. 719; pie v. Darrell, 25 Mich. 247. Tolen v. Tolen, 2 Blackf. 407. 2 Dutcher v. Butcher, 39 Wis. 651; 3 Butcher v. Butcher, 39 Wis. 651; Bitson v. Bitson, 4 R. I. 87; Harteau This was owing to the statute of Wis- 0. Harteau, 14 Pick. 181, Harding v. consin, which provides that the plaiu- Alden, 9 Greenl. 140; Hopkins v. tiff in a divorce suit must have his Hopkins, 35 N. H. 474; Payson v. domicile there. Payson, 34 N. H. 518 ; Yates v. Yates, 4 Craven v. Craven, 27 Wis. 418, and 13 N. J. Eq. 280 ; Schonwald v. Schon- cases cited in note 1 supra. wald, 2 Jones Eq. 367 ; Jenuess v. Jen- * Cheever v. Wilson, 9 Wall. 108, 123; ness, 24 Ind. 355; Phillips v. Phil- Slade v. Slade, 58 Maine, 157 ; 2 Bish- lips, 22 Wis. 256; Shafer v. Bushnell, op on Marriage and Bivorce, 754 24 Wis. 372 ; Craven v. Craven, 27 Wis. et neq. 182 MAURI AGE AND DIVORCE. plaintiff or complainant had resided in the State for a year next preceding the commencement of the suit. 1 Want of Residence and Fraud open to Inter- State Inquiry. The law requiring full faith and credit to be given in the courts of each State to the records and judicial proceedings of the courts of other States does not prevent an inquiry into the jurisdiction of a court rendering a judgment or decree, when such judgment or decree emanates from the court of another State. Nor is an investigation precluded thereby as to such judgments or decrees having been obtained by fraud. But when suit is brought on either in a different State than where rendered, both the one and the other may be collaterally inquired into, and if it turn out that jurisdiction was wanting, or that the judgment or decree was obtained by fraud, they will be treated as a nullity. 3 In Massa- chusetts, it is not only held that marriages celebrated in other States, which are there valid in law, are also valid in Massachu- setts, but prior to the passage of the provision of the Revised Statutes, Chapter 75, Sec. 6, on the subject, it was held that such manages were valid in Massachusetts, although the parties went into another State and were there married, on purpose to evade the law of Massachusetts. 3 Such marriages, however, are, by the statute, declared void, in case a party had previously been di- vorced for being guilty of adultery. 4 And so in said State it is held that a person may lawfully marry in that State who has been divorced from a former marriage in another State for a cause not recognized as sufficient in Massachusetts, and whose companion by the former marriage is still living, if the divorce in the other State be valid where it was obtained. 5 That such divorce, being valid were obtained, must be regarded as valid everywhere, if decreed upon proper jurisdiction of the case; and that the stat- 1 Kerr v. Kerr, 41 N. Y. (2 Hand.) Andrews V. Montgomery, 19 John. 272; Hoffman v. Hoffman, 46 K Y. 162; Whitcomb v. Whitcomb, 4G- 30; 2 Bishop on Marriage and Di- Iowa, 437; Rush v. Rush, 46 Iowa, 648; vorce, 144 et seq. See, also, the very 2 Bishop on Marriage and Divorce, late case of State v. Armington, 17 753 et seq. Alb. Law Jour. 451 ; Ditson v. Ditson, 3 West Cambridge r. Lexington, 1 4 R. I. 93; Hanover r. Turner, 14 Pick. 506; Putnam v. Putnam, 8 Pick. Mass. 227; Cooley's Const. Lim. *400. 433; Sutton t. Warren, 10 Met. 451. 2 Kerr v. Kerr, 41 N. Y. (2 Hand.) 4 Commonwealth v. Hunt, 4 Cuslu 272; Berdan v. Fitch, 15 John. 121; 49. Shumway v. Stillman, 4 Cow. 292; 6 Clark v. Clark, 8 Cush. 385. HSTTER-STATE CUSTODY OF CHILDREN. 183 ute of Massachusetts disabling a party under certain circum- stances not necessary to be here referred to, does not apply to such a case. 1 IY. INTER-STATE CUSTODY OF CHILDREN. ENFORCEMENT OF ALIMONY. Decree for Custody of Children. A decree of divorce of a State court of general jurisdiction granting to the party who obtains the same the exclusive custody and control of an infant or minor child of the parties, and over which child the court had actual jurisdiction by its person then being within the juris- diction and power of the court, will, while it remains in full force, be respected and regarded as binding on the parties, and as conclusive in the courts of all other of the States wherein its validity is brought in question, unless impeached in some way recognized by the law, and this, too, although obtained in a pro- ceeding in rem. 2 Action at Law will not lie on Decree for Alimony. Although, as we have seen, an action at law will lie ordinarily on a decree in chancery, for a sum of money certain, of a court of another State, yet it must be a final decree, such as leaves nothing more to be done or liable to be done to alter the status thereof, and, therefore, an action at law cannot be sustained on a decree for alimony made in a case of divorce, for such a decree is in its nature temporary and may be increased as necessity may require and the ability of the husband permit, or it may be diminished or dissolved. It cannot be regarded as a decree final and abso- lute for a sum certain, and cannot have the force or effect of a judgment at Taw, but is enforcible in chancery only. 3 If Defendant Removes to Another State a Bill of Equity Lies against him on Decree of Alimony. But when the defendant husband in such a decree removes to another State so as to place 1 Clark v. Clark, 8 Cush. 385. not a final decree which would be 8 Wakefield v. Ives, 35 Iowa, 238. binding in Massachusetts. See, also, But see Thorndice Rice, 24 Am. 2 Bishop on Marriage and Divorce, Law Reporter, 19, 20, where a Massa- 204. chusetts judge decided on a question 3 Barber v. Barber, 2 Finn. 297, 299, of habeas corpus, that the decree of a 300; Elliott v, Ray, 2 Blackf. 31. See court of another State awarding the Harrison v. Harrison, 20 Ala. 629; custody of the child to its father was Barber v. Barber, 21 How. 582. 184 MARRIAGE AND DIVORCE. himself beyond the jurisdiction of the court where the decree is made, and thereby render its enforcement impracticable, a bill in equity lies in the State of the husband's residence upon ordinary principles of equity to enforce the same. When it Lies in United States Court. And in such case, the parties having thus become citizens of different States, such bill for equitable relief, if the sum claimed brings the case within the jurisdiction of the court, will be sustained in the circuit court of the United States upon general principles of affording relief in equity where there is right and yet no remedy at law; but such United States court takes the jurisdiction upon such general principles only and not as a matter of jurisdiction in cases of divorce, which latter the United States courts do not entertain. 1 For although courts of the United States have no jurisdiction upon the subject of divorce or for allowance of alimony, either as an original chancery proceeding or as incident thereto, yet when a divorce has been decreed by a State court ot competent jurisdiction, with alimony to the wife, then if such alimony be not paid, and the amount thereof and citizenship of the parties determinable by their respective domiciles be such as in these respects to confer jurisdiction in the circuit court of the United States, and the party liable for the same has placed him- self beyond the jurisdiction of the court which decreed the alimony and divorce, so as to render it impracticable for that court to cause its process to act upon his person to enforce pay- ment under the decree, and has no property within the jurisdic- tion whereof it may be made, then as between the parties, the circuit court has jurisdiction in equity to enforce the decree at the suit of the divorced wife in whatever district the defendant may be found, if at the time they be citizens of different States. 2 And where such divorce was a divorce a vinculo, and the hus- band thus departing into a different State and residing there, applied for and got a divorce from the same wife a mensa et thoro, such subsequent divorce does not in any manner discharge him from liability to enforcement of the decree of alimony rendered against him in the first suit for divorce, and it is no defense to a suit on such decree in the State of his subsequent residence or elsewhere when sued thereon. Such judgment or 1 Barber v. Barber, 21 How. 582. Ibid. EFFECT OF FORMER ADJUDICATION. 185 decree rendered in a State court, with jurisdiction, has the same binding force in courts of any other State of the United States that it has in the State where originally rendered. As to the domicile of the wife after such divorce, the American rule is that when parties are already living under a judicial separation, her domicile no longer follows his. So that a wife so divorced may thereafter establish a domicile of her own. 1 Prosecution for Bigamy. To sustain a prosecution for bigamy in one State for cohabitation therein with the alleged second wife of the party, where both the marriages are shown to have taken place in another State, it must be alleged in the indictment that the second marriage was unlawful in such other State at the time it was entered into, for if lawful and valid where it occurred it will not sustain a prosecution for bigamy. 3 V. INTER-STATE EFFECT OF FORMER ADJUDICATION. Former adjudication. A former adjudication in another State must, in order to be a bar, be an adjudication of the very point or subject matter involved in the suit wherein it is pleaded, and must be of the principal question and final upon the merits : a merely interlocutory judgment, order or decree, in reference thereto, will not operate as a bar to a subsequent action or suit, having for its object the principal or main purpose of that in which such interlocutory proceeding occurred. 3 The mere denial of such interlocutory order, judgment or decree, in a similar action or suit in another State, as, for instance, the granting or denial of alimony, will not be a bar to the granting thereof in another suit or action in another State, if to such latter suit or action, the principal proceedings in such prior case, and the decision therein be not such as to bar and preclude the plaintiff in the subsequent suit or action, and the right to maintain the same. 4 1 Barber v. Barber, 21 How. 582. * Brinkley v. Briiikley, 50 N. Y. 1 State v. Palmer, 18 Vt. 570. 184, 202. 8 Brinkley v. Brinkley, 56 N. Y. 184. 186 INTER-STATS LEGAL STATUS OF PERSONS. CHAPTEli XIX. INTER-STATE LEGAL STATUS OF PERSONS. I. RESIDENCE AND DOMICILE DEFINED AND DISTINGUISHED. II. DOMICILE OF INFANTS, MINORS, AND ADULTS. III. CITIZENSHIP RIGHTS OF. IV. LEGAL CAPACITY TO ACT . I. KESIDENCE AND DOMICILE DEFINED AND DISTINGUISHED. Residence. A mere residence is a place at which a person resides for a fixed or limited time, without intention of perma- nency of location. The limitation of time may be fixed by a definite period or term, or by expected future occurrences or cir- cumstances, but nevertheless, accompanied by, as well as begun with, a fixed expectation of removal in the future, and not with the intention of remaining indefinitely. 1 A person cannot have a residence in two different States or countries at the same time. 2 But a person may have his domi- cile in one State, and at the same time a residence in another; the one in his permanent dwelling place, and the other his place of temporary abiding. 3 The difference depends upon his inten- tion, 4 and that intention may be shown by his open declarations and acts, or in the absence of such, then by satisfactory circum- stances, if such exist. 5 If one so resort to two such places, under circumstances, and for times so indefinite as to render it otherwise not apparent which of the two is his domicile, then he 1 Brent v. Armfield, 4 Cr. C. C. 579; C. 101; Case v. Clarke, 5 Mas. 70; 2 Kent's Com. *430, note/. Hylton v. Brown, 1 Wash. C. C. 298. 3 Ibid. s Tobin t>. Walklnshaw, 1 McAllis- 8 Haggart v. Morgan, 5 N. Y. 422, ter, 186 ; Burnham v. Rangeley, 1 423; In re Thompson, 1 Wend. 45; Wood. & M. 7; Butler . Farnsworih, Frost r>. Brisbin, 19 Wend. 11; Love 4 Wash. C. C. 101; State v. Groome, r>. Cherry, 24 Iowa, 204, 209. 10 Iowa, 308 ; Love v. Cherry, 24 Iowa, 4 Prentiss v. Barton, 1 Brock. C. C. 204. 389 ; Butler p. Farnsworth, 4 Wash. C. EESIDENCE AND DOMICILE DEFINED. 187 lias his own right of election in law to determine which of the two is his domicile. 1 In some of the States the ruling is, that the term residence, and permanent residence* or domicile, virtually are intended as the same thing, in reference to the necessity of a residence in judicial proceedings for a divorce, and in regard to the right to vote, as said terms are used in the laws of -the States. That it must be such a residence as does not contemplate a removal, or as in the mind of the person is permanent, and not resorted to- temporarily for a particular purpose. That is, that as used in the statute, it does not mean a mere abiding in the State to- enable a party to bring himself within the m,ere letter of me term, or more circumscribed meaning thereof, as contradistin- guished from domicile, but that in connection with proceedings for divorce, and right of suffrage, it means an abiding without intention to again depart from the State to reside elsewhere. And in this sense it is no doubt meant in proceedings of this description. 2 Domicile. By the term domicile is meant the place whereat a person makes his residence with intent to indefinitely there reside, without any expectation of removing in the future therefrom. Every domicile is necessarily a residence; but a residence is not necessarily a domicile. If in the mind of the person there abid- ing it is merely a temporary abiding place, for a given purpose and definite time, with expectation to then remove therefrom,, then, although while there the party in the more broad accepta- tion of the term, may be said to there reside, yet not being by him regarded as his settled or permanent home, it is not in the general sense thereof or legal meaning of the term, his domicile. 3 The latter may be somewhere else; this very principle was acted upon by the Supreme Court of Iowa, in Love v. Cherry, wherein a party was held to have had a domicile in Iowa, during several years' residence in Texas. 4 In Louisiana, the true principle as to the character of the resi- dence essential to constitute a domicile of an adult, is laid down by Justice YOOEHIES as follows: "The act of residence does not 1 Burnham v. Rangeley, 1 "Wood. & 3 Love . Cherry. 24 Iowa, 204, 209 ; M. 7. 2 Kent's Com. *430, note/. 2 Hinds v. Hinds, 1 Iowa, 36 ; State 4 24 Iowa, 204, 209. 0. Minnick, 15 Iowa, 123. 188 INTER-STATE LEGAL STATUS OF PERSONS. alone constitute the domicile of the party, but it is the fact of residence coupled with the intention of remaining, which consti- tutes it." * Domicile Not Acquired by Coercion. Domicile is not ac- quired by constraint. If a person is forced from the country of his domicile and compelled to remain involuntarily in another, such constrained ami enforced residence, no matter how long, will not make a change in his national domicile; on the contrary, his original citizenship and domicile remain to him with the rights thereof. 8 To amount to an abandonment of domicile and country there must be the concwrence of act and will. 9 The original domicile, remains until a new one is attained to. 4 II. DOMICILES OF INFANTS, MINORS AND ADULTS. Infants and Minors. The domicile of an infant of tender years, or during nurture, is that place which is the domicile of its mother, 5 if the latter have charge of it. The domicile of the mother is that which is the domicile of the husband, if she has a husband and they are not permanently separated. 6 If perma- nently separated, then she may acquire a domicile, if without one, for herself. 7 The domicile of the minor children is that which is the domicile of the parents. 8 If the latter be changed theirs is changed accordingly. The domicile of the parents is that place where they intentionally fix their residence with the expectation and purpose of there permanently dwelling. 9 A domicile once fixed remains such until another domicile be obtained, unless parted with and abandoned. 10 If the husband and wife have acquired a domicile and the husband die, then the domicile still continues to be that of the wife, and of the minor children, if any, until a different one is legally acquired. 11 Marital Right. The marital rights of husband and wife who 1 McKowen v. McGuire, 15 La. Ann. ' Jenness t. Jenness, 24 lud. 355. 637. 8 Doe v. Litherberry, 4 McL. 442; 4 Hardy t>. De Leon, 5 Tex. 211. Wheeler v. Burrow, 18 Ind. 14; Whar- 3 Ibid. ton's Conf. of Laws, 41; Story's "Ibid. 236; 2 Kent, *430, (note), Conf. of Laws, 45.46; Schouler's Story's Conf. of Laws, 44, 47. Domestic Relations, *312, *412. 6 Doe v. Litherberry, 4 McL. 442 ; Supra, Domicile. Wheeler v. Burrow, 18 Ind. 14. lo Ibid. 6 Davis v. Davis, 30 111. 180; Burn- " Pennsylvania c. Ravenel, 21 How. Lam c. Rangeley, 1 Wood. & M. 7. 103. CITIZENSHIP. 189 marry in a State in which neither of them resides are regulated by the laws of the place of the husband's domicile,. 1 Infants Born Abroad. The domicile of an infant born abroad is that which is at the time thereof the domicile of the parents, and so continues until their domicile is changed. 2 And though by the rule laid down in Graham v. Monsergh^ a bastard born in another State of a mother who has no domicile in Vermont at the time, cannot be affilliated therein under the statute concern- ing bastardy, yet if at the time of the birth of a bastard the mother be bona fide a resident of the State so as to have a domicile therein, but be temporarily absent in another State and the child there be born, then the remedy is under the statute of Term out, and will lie in the courts of Vermont. 4 And if the evidence of domicile is doubtful, yet tends to show a residence in the State where the proceedings are had, then the same is to go to the jury "for their decision as a question of fact. 5 Domicile as Giving Benefit of Common Schools. The domi- cile of minor children being that which is their parents', it results that minor children of parents resident and fully dom- iciled in one State have no right to the benefits of the common schools of other States, and that parents cannot gain for them such a domicile as will entitle them to the privileges of such schools by merely sending them to reside with friends in such other State or States for the purpose of admission to the com- mon schools thereof. 6 III. CITIZENSHIP. " All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside." 7 Such, in the language of the constitution itself, is given as the true definition of actual citizenship. " The citizens of each State are entitled to all the privileges and immunities of citizens in the several States." 8 There is recognized in the courts a constructive citi- . 1 Land v. Land, 14 Sm. & M. 99. 5 Ibid. 9 Warren v. Hofer, 13 Ind. 167 ; Kei- 6 Wheeler . Burrow, 18 Ind. 14. stand v. Kuns, 8 Blackf. 345 ; Wheeler * Art. 14, 1, of Amendments to the v. Burrow, 18 Ind. 14. Const. United States. 8 22 Vt. 543. 8 Art. 4, 2, Const. "United States. 4 Eggleston v. Battles, 26 Vt. 548. INTER-STATE LEGAL STATUS OF PERSONS. zenship which is satisfied by proof of actual permanent residence in a State in proceedings to remove suits from State to National courts, to the effect that the term citizen, as used in the act of Congress of September 24, 1789, in relation to the jurisdiction of the United States Circuit Court, and extending the same to a suit between a citizen of the State wherein the suit is brought and a citizen of another State, is construed to mean no more in that connection than that the parties shall be permanently resi- dent, or domiciled, in their respective States. It is not neces- sary to jurisdiction in such cases that they be citizens in a polit- ical sense; actual residence is all that is required. 1 It is also held that the designation includes private corporations as well as natural persons. 2 IV. LEGAL CAPACITY TO ACT. In Personal Matters. It is a principle of universal law, or of what is sometimes regarded as the jus gentium, that the legal capacity of persons to act and to make contracts for themselves depends upon the law of the State or country where the trans- action takes place, as to all personal matters, whether the subject matter contracted about or involved be within the State or with- out the Stal:e wherein the transaction occurs. 3 As to Real Property. But in reference to contracts about the sale and conveyance of land such capacity depends upon the laws of the State wherein the land is situated. 4 This is the general ruling in America as to the law upon these subjects in whatso- ever court the question may arise, domestic or foreign. This 1 Den v. Sharp, 4 Wash. C. C. 609; 363-373; Partee v. Silliman, 44 Miss. Evans v. Davenport, 4 McL. 574; 72; 2 Kent's Coin. * 429. Prentiss c. Barton, 1 Brock. 389 ; Read * Huey's Appeal, supra; Kling v. v. Bertrancl, 4 Wash. C. C. 514; Shel- Sejour, 4 La. Anu. 128; Clopton v. ton V. Tiffin, 6 How. 163. Booker, 27 Ark. 482 ; Barnum v. Bar- 1 Louisville, Cin. & Charl. R. R. Co. num, 42 Md. 251 ; White v. Howard, . Letson. 2 How. 497; Ohio & Miss. 46 N. Y. 144; Pell c. Miller, 11 Ohio R. R. Co. D. Wheeler, 1 Black, 286; St. 331; McCormick v. Sullivan, 10 Marshall v. Bait & Ohio R. R. Co., 16 Wheat. 102; Kerr v. Moon, 9 Wheat. How. 314; French v. Lafayette Ins. 565; Hughes v. Hughes, 14 La. Ann. Co., 5 McL. 461; New York & Erie 85; 2 Kent's Com. * 429 and 4 Ibid. R. R. Co. v. Shepard, 5 McL. 455. * 441 ; Story's Conflict of Laws, 424 3 Huey's Appeal, 1 Grant's Cases, et scq. 51; Story's Conflict of Laws, 51, LEGAL CAPACITY TO ACT. 191 rule applies to questions of infancy, coverture, majority and of legal capacity generally. 1 Thus persons having attained to their majority or being of contracting age by the laws of the State wherein they contract, may do so in reference to personal inter- ests and matters wherever such interests and property may be, whether in one State or any other. But if the transaction be for the selling or conveyance of lands, then the capacity to sell or convey must be such as is required by the law of the State wherein the lands lie, and this too whether the contract be made or executed in the State of the vendor's domicile or in the State where the lands are situated, or in an entirely different State from either. In other words, the law of the State where the lands lie governs as to the age of contracting and other capacity of persons selling or conveying the same; but the law of the place of contracting, as above stated, governs as to capacity to contract in selling or conveying personal property, and in all contracts of a personal nature. 3 The mere question of majority and freedom from parental control is regulated by the law of the domicile. At common law it was as to both sexes at the age of twentv-one. / By the civil law, as in force in Louisiana at the time of its ces- sion to the United States, persons attained their majority at the age of twenty-five. But by the act of the Legislature of Orleans Territory of the 20th of May, 1806, the law in this respect was changed, to take effect in two years next from that date. By this change the age of twenty-one, as at common law, was fixed as the time of attaining to majority. 3 By the same act it was provided that persons then in said Territory who had come therein from any other country and per- sons thereafter coming therein from another country, of twenty- one years of age, and who had attained to their majority in the country from whence they came, according to the law thereof, should continue to enjoy the rights of majority in the Terri- tory. 4 Capacity to Marry. Capacity of persons to marry depends, as a general principle, upon the law of the country or State wherein the marriage is celebrated, and not upon the law of the 1 Huey's Appeal, 1 Grant's Cases, * See cases cited above. 51 ; Story's Conflict of Laws, 51, 3 3 Martin's Dig. 1. 65; Barnurn v. Baruum, 42 Md. 251; 4 3 Martin's Dig. 2. White v. Howard, 46 N. Y. 144. 192 INTER-STATE LEGAL STATUS OF PERSONS. domicile, if the marriage take place in a different State or sov- ereignty. 1 There are exceptions to this rule of cases, involving usages, laws or customs, which outrage the moral senses and principles of the advanced civilization of the age, as for instance polygamous and incestuous marriages, though tolerated where entered into, will not be regarded as legal in communities where such practices are inhibited by law. 3 But where there is a mere inhibition or incapacity to marry in one State and marriage is had in another, it is otherwise, as where a citizen of New York, who labored under disability to marry again during the lifetime of a former wife from whom there had been a divorce, married again in New Jersey, himself and the person whom he so married in New Jersey both residing at the time in New York and con- tinued thereafter to reside in New York until his death, the widow was adjudged entitled to dower as his widow by lawful marriage, she having no knowledge at her marriage of the exist- ing inhibition in law to her husband's marriage in New York, and it not appearing that they went to New Jersey to be married in order to evade the effect of the law of New York. 3 But where parties are incapacitated by the law of their domicile from marrying, and with the intent to avoid such law escape into another jurisdiction where their marriage is valid and are there married, and then return to the place of their domicile, such a marriage will be considered as invalid as being in contravention of the law by which the parties were governed. 4 Plea of Infancy. When the plea of infancy is set up in de- fense of a suit on a contract made in a different State than the one wherein the suit is pending, then the law of the place ot making the contract is the rule of decision; 6 and if there be no evidence before the court as to what that law is, then the com- mon law on the subject is presumed to be the law. So that proof 1 Pondsford v. Johnson, 2 Blatchf. Mass. 157 ; Putnam t>. Putnam, 8 Pick. 51; 2 Kent's Com. *459 and notes; 433; Stevenson v. Gray, 17 B. Hon. Story's Conflict of Laws, 101 et seq. 193. See supra, Chap. XVIII. 4 Le Breton t>. Nouchet, 3 Martin, 1 Pondsford v. Johnson, 2 Blatchf. 00; 2 Kent's Com. *459 and notes. 51 ; 2 Kent's Com. * 459. s Holmes v. Mallett, Morris, (Iowa,) 8 Pondsford v. Johnson, 2 Blatchf. 82; and, ante, Inter-State Law of Con- 51; State v. Kennedy, 76 N. C. 251; tracts, Chap. VIII. ; Huey's Appeal, Commonwealth v. Kinney, 6 The Re- 1 Grant's Cases, 51. porter, 733 ; Medway v. Needham, 16 LEGAL CAPACITY TO ACT. 193 of an age, at the time of making the contract, which fixes infancy on the defendant within the terms of the common law, dispenses with the necessity of evidence to prove the law of the place of the contract in support of the plea. 1 1 Holmes . Mallett, Morris, (Iowa,) C 13 194 JURISDICTION OF PERSONAL PROPERTY. CHAPTER XX. LEGAL STATUS AND JURISDICTION OF PERSONAL PROPERTY AND PERSONAL INTERESTS. I. THE LEGAL STATUS FOLLOWS THE OWNER. II. EXCEPTIONS TO THE RULE. III. SALES AND TRANSFERS VALID WHERE MADE ARE VALID ELSEWHERE. IV. DISTRIBUTION OP A DECEASED PERSON'S MOVABLES. V. LOCALITY AND SITUS OF MONEY OBLIGATIONS AND DEBTS. VI. MORTGAGES OF PERSONAL PROPERTY. VII. SUBSCRIPTIONS TO CAPITAL STOCK. VIII. VOLUNTARY ASSIGNMENTS. IX. WHEN PERSONAL PROPERTY is TAXABLE. I. THE LEGAL STATUS FOLLOWS THE OWNER. No fixed Situs. In the language of RANNEY, J., " personal prop- erty has no fixed situs." It " adheres, in contemplation of law, to the person of the owner, and is disposed of in almost every respect, whether of transfers inter-vivos, testamentary dispositions, or suc- cessions by the law of his domicile." 1 This is a universal rule of law among all civilized people, and has become a sort of common law of the world. So thoroughly is it a part of the /to gentium or law of nations, that instead of the local law of place giving way to it as matter of comity, it is itself, in virtue of its universality, a part of the local law in every civilized community. 3 In the language of the court, in Despard v. Churchill,* " personal prop- erty is subject to the law which governs the person of its owner, 1 Swearingen v. Morris, 14 Ohio St. 424, 429 ; Sill t>. Worswick, 1 H. Black. 424; Guillander v. Howell, 35 K Y. 665,690; Holmes v. Remsen, 4 John. C57; Mills v. Thornton, 26 111. 800; Ch. 4CO; Harvey v. Richards, 1 Mas. Ackerinan v. Cross, 54 N. Y. 29; Des- 381; Moultrie v. Hunt, 23 N. Y. 394; pard v. Churchill, 53 N. Y. 192 ; Har- DeCouche . Savetier, 3 John. Ch. 190 ; vey . Richards, 1 Mas. 381 ; Kelly v. DeGobry n. DeLaistre, 2 Har. & John. Crapo, 45 N. Y. 86; Partee v. Silli- 193; Shultz . Pulver, 3 Paige, 182; man, 44 Miss. 272. Mills v. Thornton, 26 111. 300. 1 Swearingen v. Morris, 14 Ohio St 8 53 N. Y. 192. EXCEPTIONS TO THE RULE. 195 as to its transmission by last will and testament; and this prin- cipal, though arising in the exercise of international comity, has become obligatory as a rule of decision by the courts." As is said by Lord LOUGHBOROUGH: " It is a clear proposition, not only of the law of England, but of every country in the world where law has the semblance of science, that personal property has no locality. The meaning of that is, not that personal property has no visible locality, but that it is subject to that law which gov- erns the person of the owner, both with respect to the disposi- tion of it and with respect to the transmission of it, either by succession or by the act of the party. It follows the law of the person. The owner, in any country, may dispose of his per- sonal property. If he dies, it is not the law of the country in which the property is, but the law of the country of which he was a subject, that will regulate the succession." 1 And RANNEY, J., in Swearingen v. Morris,* above cited, says: "Indeed, so universally has it been treated as a part of the jus gentium, and thus incorporated into the municipal law of every country, that C. J. ABBOTT declared it not correct to say, that the law of Eng- land gives way to the law of the foreign country; but that it is a part of the law of England that personal property should be distributed according to the jus domicilii" Justice RANNEST adds: "The doctrine has been universally acted upon in this country, and it will be readily seen that it could nowhere be applied with greater benefit or less inconvenience than between the States of the American Union." II. EXCEPTIONS TO THE RULE. Local Liabilities. To this general rule of the law there are these exceptions: That visible or tangible personal property situ- ated in another State than that of the owner's domicile is there first liable, by paramount right of the local government, and of credi- tors of the owner therein resident, to be distributed in satisfac- tion of all just demands against the same or against the owner thereof, which the local government or its citizens or subjects 3 are 1 Sill v. "Worswick, 1 H. Black. 690. transfer of the owner, as, for instance, 2 14 Ohio St. 424, 429. an assignment with preferences, for 3 Swearingen v. Morris, 14 Ohio St. benefit of creditors, then if such 424, 429; Guillancler v. Howell, 35 K transfer be prohibited by the law of Y. G57. And if claimed under a the State where the property is situ- 196 JURISDICTION OF PERSONAL PROPERTY. entitled to, and is there liable, also, to taxation, if in a different sovereignty. 1 A sale or transfer by the owner, valid where the owner lives, is valid in the State where the property is, not only as between the parties thereto, but also as against all others, except citizens or subjects of the State wherein the property is, having prior just claims against the owner, to which it may be subject, or as against the claims of the State itself. The right of satisfaction of these out of the property is paramount. 2 So if the owner die intestate, the property is to be distributed in the manner and to those to whom it descends by the law of his domicile at the time of his death, but being first subject to such local claims of persons or the State as exist where it is situated. The residue, after satisfying these, is to be thus distributed by the local court, or turned over to the administrator of the domicile of the de- ceased to be then distributed. 3 And in like manner a devise or testamentary disposition of the personal property, valid by the law of the domicile of the testator, is (subject to the liabilities and exceptions aforesaid,) valid where the property is situated in such other jurisdiction, and will be so distributed, either by the court of the country where situated, or else the residue, after satis- faction of liability, will be turned over to the administrator or executor of the deceased, in the courts of the country of his late domicile.* But this rule of law, though general, as before stated, is nevertheless subject to alteration or legislative control of the several States, they being sovereign in their own domestic affairs; and therefore, where a different rule is by statute enacted in a State, then such local statutory law of such State will govern in regard to personal property therein situated, although the prop- erty be owned by a resident or citizen of another State. 5 So, if atecl, it will not be enforced in the Grattan v. Appleton, 3 Story, 755; courts of such State as against credi- Williams v. Williams, 5 Md. 467; 2 tors of the assignor. Ibid. ; Despard Kent's Com. *429. v. Churchill, 53 N, Y. 192, 199. * Swearingen v. Morris, 14 Ohio St. 1 See Post Sec. IX. of this chapter. 424; Harvey v. Richards, 1 Mas. 381 ; 8 Swearingen v. Morris, 14 Ohio St. Dawes r>. Head, 3 Pick. 128; Despard 424; Parsons T>. Lyman, 20 N. Y.103; . Churchill, 53 N. Y. 192, 199; Du- Kelly 0. Crapo, 45 N. Y. 86. puy v. Wurtz, 53 N. Y. 556 ; 2 Kent's * Swearingen n. Morris, 14 Ohio St. Com. *429. 424 ; Johnson . Copeland, 35 Ala. 6 Guillander v. Howell, 35 N. Y. 521; Hill v. Townsend. 24 Tex. 575; 657; Despard t>. Churchill, 53 N. Y. Townes r>. Durbin, 3 Met. (Ky.) 352; 192, 200. SALES AND TEANSFERS VALID WHERE MADE. 197 to enforce the law of the owner's domicile, or to enforce a sale of property there made by him, valid where made, would violate the policy of the State where the property is situated, or be contrary to good morals, or work an injury to citizens or residents of such State, the law of the former will control. 1 So, if the personal property has a sort of fixed locality and purpose, as if the owner has mills or other local property to which there is personal prop- erty appurtenant or servient in its uses, then the rule of law is in some respects different. 3 Under such circumstances personal property thus servient may pass with the realty, under the local laws of the State or country. In regard, however, to remitting the effects of assets of a decedent's estate to the administration at the domicile, after satisfying local claims, it is held not to be so much a rule of imperative law requiring the same to be done, as it is a matter within the just and sound discretion of the court. 3 Leaseholds. The proceeds of leasehold estates are to be re- garded as personal effects, and as corning within the rule of fol- lowing the person of a decedent, and as distributable in accordance with the law of his domicile.* III. SALES AND TRANSFERS YALID WHERE MADE, ARE VALID ELSEWHERE. A legal transfer of personal property by a duly recorded deed in a State where such transfer carries the ownership, and is valid irrespective of possession thereof, has like validity in all other States where property of the description transferred is by law recognized as property, notwithstanding the absence of posses- sion under such transfer, and notwithstanding no record is made of the deed, in the State or States to which such property is removed, and irrespective of any law of such latter State or States requiring, as a prerequisite to validity, the recording of transfers of such property, where the possession thereof has not passed with the transfer to the grantee in the deed. The contract being valid where made, and not made in reference to performance in 1 Guillander v. Howell, 35 N. Y. 192, 200; Harvey v. Richards, 1 Mas. 657; Despard v. Churchill, 53 N. Y. 381; Parsons v. Lyman, 20 N. Y. 103. 192, 200. 4 Despard v. Churchill, 53 K Y. 2 Mills v. Thornton, 20 111. 300. 192. 8 Despard v. Churchill, 53 K Y. 198 JURISDICTION OF PERSONAL PROPERTY. any particular place, is valid everywhere else where the subject matter of it is regarded in law as property. The local State laws thus requiring recording are intended to operate on property within the State, and contracts or sales made within such State, and cannot affect contracts made out of the State as to property also out of the State at the time, however the latter be brought into the State thereafter. 1 Thus, when an absolute title to mov- ables is acquired in a State where the property is situated by the laws of that State, such title will be respected in every other State wherein the property comes, if it be such property or thing as by law of the latter State is regarded as legitimate subject of ownership. 3 If, in making such title, the laws of the other State wherein the title was acquired come in question, they are to be proven as facts, State courts not taking notice of the statute laws of other States. 3 In Suarez v. Mayor of New York, the vice-chancellor lays down the same doctrine in the following terms : " It is an uni- versal principle of jurisprudence at this day, in civilized coun- tries, that the succession of personal or movable property, wherever situated, is governed exclusively by the law of the country where the decedent was domiciled at the time of hi& death." * Sales Valid and Sales Invalid for Illegal Intent. Although it is the law that if property be sold, and delivered, in the State where the contract is made, and the sale is there legal, and no further act is to be done to complete the transaction on the part of the vendor, the price thereof may be recovered in another State wherein by law such sales would be illegal; 5 yet if the intent is that the goods shall be illegally sold in another State, or that the vendor shall do some act to assist or aid in the illegal sale, the contract will be treated as void, and will not be enforced in the 1 Bank of United States v. Lee, 13 Taylor v. Boardman, 25 Vt. 581 ; Pet. 107; De Lane v. Moore, 14 How. Dakin t. Pomeroy, 9 Gill, 1. And if 253, 266; Bruce r. Smith, 3 Har. & no proof be given of what the law of John. 499; Crenshaw v. Anthony, the other State is, then the presump- Martin & Yerger, 102, 110; Rabun v. tion is that it is the same as the law Rabun. 15 La. Ann. 471 ; Ockerman of the forum. Ibid. v. Cross. 54 N. Y. 29, 32. 2 Sandf. Ch. 173. 2 Taylor v. Boardman, 25 Vt. 581. B Banchor c. Mansel, 47 Maine, 58, 61. SALES AND TRANSFERS VALID WHERE MADE. 199 State where it contemplated the goods were to be disposed of, and wherein by law such sales are prohibited. 1 The case of De Lane v. Moore involved an ante-u\vptisi[ contract entered into and recorded in the State of South Carolina, where the property- then was, and the parties then resided ; after making and record- ing the contract, the parties thereto removed to, and became citi- zens of Alabama, taking the property with them, and there retaining it. After the death of the wife, the husband sold it, or a portion of it, in violation of the ante-nuptial contract. One defense against the right of the wife and her representatives set up was, that for want of recording in Alabama, the contract was inoperative, inasmuch as the husband exercised continuously the outward evidences of possession and apparent ownership; but the Supreme Court of the United States as to that point, ruled in favor of the continued force and validity of the contract. DANIEL, J., in delivering the opinion of that court, says: " The position here advanced is not now assumed for the first time in argument, in this court. It has, upon a former occasion, been pressed upon its attention, and has been looked into with care, and unless it be the intention of the court to retrace the course heretofore adopted, this may be now, as it formerly was, called an adjudicated question. The case of The Bank of the United States v. Leef brought directly up for examination of this court, the effect of a judgment and execution obtained by a subsequent creditor in the District of Columbia, upon property found within that district, but which had been settled upon the wife of a debtor, by a deed executed and recorded in Virginia, according to the laws of that State, the husband and wife being at the time of making the instrument, inhabitants of the State of Virginia. The question was * * * elaborately investigated, and the cases from the different States, founded on their registry acts, carefully collected. * * * This court came, unhesitatingly and clearly to the conclusion, that the deed of settlement exe- cuted and recorded in favor of Mrs. Lee, in conformity with the law* of Virginia, protected her rights in the subject matter settled, against the judgment of the subsequent creditor in the District of Columbia." Thus, it seems to be well settled in these States, that the ownership of personal property, and its liability 1 Smith t>. Godfrey, 28 N. II. 879; 2 13 Pet. 107. Wilson i>. Stratum, 47 Maine, 120. 200 JURISDICTION OF PERSONAL PROPERTY. or non-liability to sale by another, or to execution for the debts of another, are not affected by its removal out of one State into another; for although in the case of De Lane v. Moore, 1 the ultimate ruling was against the claim of the wife's heirs, yet that ruling was expressly put upon the staleness of the claim, and the great lapse of time between the time of their arrival of age, the death of the parents, and the time of commencing the suit. IY. DISTRIBUTION OF A DECEASED PERSON'S MOVABLES. Follows the Law of his Domicile. The personal property of persons who die intestate is distributable according to the law of the deceased person's domicile, without regard to the place of his death, or the jurisdiction in which the property is situated; and such, too, is the rule in questions involving, in such cases, the inheritable capacity of claimants, as their legitimacy, marriage, and degrees of relationship. 3 These principles have prevailed so long and so universally, that they have come to be regarded as part of the law of nations. 8 If such be the national usage among governments foreign in every respect to each other, then still more forcible is the rea- son of the rule among kindred communities like the American States. WAYNE, J., quoting from Erskine's Institutes of the Laws of Scotland, says, in substance, that when a Scotchman dies abroad, his personal estate, in case he dies intestate, descends according to the law of Scotland; and that when a foreigner dies in Britain, his personal estate descends according to the law of his domicile or own country; and that such is the law, whatever the locality of the property may be, and that this law of Scot- land, which is an instance of the law of the other European countries on the subject, was at one time different, but is now in accord with the general law, it having been so brought into har- mony with the law of the rest of Europe by the decision of the House of Lords, in Bruce v. Bruce, 6 Brown's Par. Cases, 550, 1 14 How. 266, 267, 268. istration, should be remitted to the 8 Ennis e. Smith, 14 How. 400, 465, administrator of the domicile by order 466; Warren v. Hofer, 13 Ind. 167; of court for distribution. Ibid. Green McClerry v. Matson, 2 Ind. 79. And v. Rugely, 23 Tex. 539 ; Moultrie v. in case of ancillary administration, Hunt, 23 N. Y. 394, 404, 405. the remaining property, after admin- 8 Ennis v. Smith, 14 How. 400. DISTRIBUTION OF DECEDEXl's MOVABLES. 201 566. * In the earlisest decision reported on the subject in the English law, Lord HARDWICKE recognized the rule, that personal estate in cases of intestacy, follows the person and becomes distributable as provided by the law of his domicile. 8 He re- affirmed the same doctrine a few years afterwards, 3 and such has been the doctrine of the English courts ever since. The Supreme Court of the United States, WAYNE, J., in Ennis v. Smith, say: " In the United States the rule has been fully recognized," and that " the rule prevails, also, in the ascertainment of the person who is entitled to take as heir or distributee." So it may be regarded as well settled law, that wherever a person may die intestate, his personal property is distributable wherever it may be, according to the law of his domicile. 4 Lands Descend According to the Law of the State wherein Situated. Not so, however, in regard to the realty. Lands descend, in all cases of intestacy, according to the law of the State or territory in which they are situated. 5 Removal from the State. If the family of a decedent removes from the State wherein he dies, and take with them, or remove, the personal property of the deceased, into another State, before administration is granted of the estate, and administration be had in the State into which the property is thus removed, then the rights of distribution thereof is in accordance with the laws of the place of decedent's domicile, and from which the property has been removed. s Creditors seeking enforcements of their claims must do it through administration in the State to which the property is removed. 7 Proof of the Law of the Domicile of Deceased. The law under which such right of distribution is claimed, or under which any other right is claimed, must be produced and proven by the 1 Ennis v. Smith, 14 How. 400, 424, kins v. Holman, 16 Pet. 25; Clark v. 425. Graham, 6 Wheat. 577 ; Brown v. Ed- * Pipon v. Pipon, 1 Ambl. 26 ; Som- son, 23 Vt. 435 ; Tardy v. Morgan, 3 ervillet>.Somerville,5Ves.750;Burne McL. 358; Blake v. Davis, 20 Ohio, v. Cole, 1 Ambl. 415. 231; Nowler v. Coit, 1 Ham. 236; 8 Thorne v. Watkins, 2 Ves. Sr. 35. Wilkinson v. Leland, 2 Pet. 627 ; Lat- 1 Ennis v. Smith, 14 How. 400, 424, imer v. Union Pacific R B. Co., 43 425 ; Olivier v. Townes, 14 Martin, 92, Mo. 105. 99 ; Shultz t>. Pulver, 3 Paige, 182. Green v. Rugely, 23 Tex. 539. 5 U. S. v. Fox, 4 Otto, 315, 320 ; Wat- Green v. Rugely, 23 Tex. 539. 202 JURISDICTION OF PERSONAL PROPERTY. party claiming the benefit thereof. 1 And if not so produced and proven, it will be presumed by the court to be the same as the law of t\\e forum, or place where the court is held. 3 The law, if statutory, should be proven in accordance with the act of Congress of May 26th, 1790. V. THE LOCALITY OR SITUS or MONET OBLIGATIONS AND DEBTS. Follows the Owner's Domicile. The legal situs, or locality, of bonds, mortgages, and debts generally, and all obligations and undertakings for payment of money, and all choses in ac- tion, follows the personal domicile of the owner thereof, 4 and is not taxable at the residence or domicile of the debtor. 5 Exception as to Bank Notes. To this doctrine of legal situs there is an exception of circulating bank notes. 6 In the case of Cleveland, Painesville & Ashtdbula Railroad Company v. Pennsylvania, the United States Supreme Court advert to and disregard the several decisions of the Supreme Court of Pennsylvania holding a different doctrine from the above. An effort was made by law to tax the bonds, held by non-residents, on the Cleveland, Painesvillle & Ashtabula Hail road, and to col- lect the tax by requiring the railroad company to withhold the amount from dividends of such bondholders and to pay the same to the State. The Supreme Court of the United States held, not only that the State laws had no &cra-territorial force, and there- fore could not reach the property of the bondholders, but also that such legislation was void as in violation of the contract between the bondholders and the debtor corporation. That court, FIELD, J., say: "The bonds issued by the railroad company, in this case, are undoubtedly property, but property in the hands of the holders, not property of the obligors. So far as they are held by non-residents of the State, they are property beyond the jurisdiction of the State." A contrary doctrine would give to an obligation as many places of local situs as there might be 1 Atkinson v. Atkinson, 15 La. Ann. Iowa, 539; Railroad Company v. 491. Jackson, 7 Wall. 2G2; People r. Com- 5 Green v. Rugely, 23 Tex. 539. missioners, etc., 23 N. Y. 224. 8 1 U. S. StaL at Large, 122; R. S. * Cleveland, Pain. & Asht. R. R. of U. 8. 1874, 906. Co. t>. Pennsylvania, 15 Wall. 800; 4 Cleveland, Pain. & Asht. R. R. People c. Eastman, 25 Cal. 601 ; Mur- Co. -. Pennsylvania, 15 Wall. 300; ray v. Charleston, G Otto, 432. Davenport c. Miss., etc., R. R. Co., 12 6 Supra. VOLUNTARY ASSIGNMENTS. 203 different domiciles in different States of joint and several obligors or debtors. 1 Nor does it alter the case that the debt be secured by mortgage on real estate situated in a different State than that which is the domicile of the creditor. The mortgage is but a security, and confers no interest on the creditor in the mortgaged property, but only a right to realize his debt thereof over others. If such local mortgage could give a situs to the debt or bonds secured thereby, then in case the security be on lands in different counties or States, which of these localities would become the situs of the debt? It could not be at each. It is with the cred- itor, or that one of them, if several, who holds possession of the obligation. It follows the person. 3 And a debt is not property. a VI. MORTGAGES OF PERSONAL PROPERTY. Mortgages of personal property made in the State where the property is at the time situated, and which are there recorded as required by law, so as to be valid where made, will be held valid in every other State into which the property is afterwards carried or removed. 4 This, too, is the law, although possession of the property remains in the mortgageor. 5 VII. SUBSCRIPTIONS TO CAPITAL STOCK. Governed by Law of the Company's Residence. Subscriptions made in one State to the capital stock of a private corporation which exists by law in another State, and there transacts and carries on its business and has its principal offices or places of business, are contracts to be performed in the latter State at such place of business, and are governed and are to be construed by the laws of that State. 6 VIII. VOLUNTARY ASSIGNMENTS. Of Personalty, How far Valid in Other States. Voluntary assignments of personal property for the benefit of creditors, 1 Cleveland, Pain. & Aslit. R. R. Fleming, 13 Md. 392; Wilson v. Car- Co, v. Pennsylvania, 15 Wall. 300. son, 12 Md. 54; Shelton v. Marshall, 2 Ibid. 16 Tex. 344. 3 Murray v. Charleston, 6 Otto, 432. 6 Jones v. Taylor, 30 Vt. 42. 4 Jones v. Taylor, 30 Vt. 42; Fergu- 6 Penobscott R, R. Co. v. Bartlett, son v. Clifford, 37 N. H. 86; Jeter v. 12 Gray, 244. Fellowes, 32 Pcnn. St. 4G5 ; Fouke v. . 204 JURISDICTION OF PERSONAL PROPERTY. when valid by the laws of the State wherein they are made, are, upon general principles of public policy and comity, recognized in the courts of other States as obligatory, whether such assign- ments would have been valid or not if made in such other of the States wherein they are sought to be enforced, except in so far as bona fide transfers, payments, liens, or other interests may have intervened. 1 Of Bealty, Must Conform to the Lex Loci Rei Sites. An assignment to creditors made in one State or Territory of lands situated in a different State, must conform to the law of the place where the lands are situated, in the legality of its pur- pose. Its validity depends upon the lex loci rei sitce. Thus, an assignment executed in the District of Columbia, in view of insolvency of the makers, of lands situated in the State of Iowa, and designed to prefer certain creditors, is repugnant to the law of Iowa inhibiting such preferences, and will, therefore, be held of no effect in Iowa, and in equity will be set aside. 8 IX. WHERE PERSONAL PROPERTY is TAXABLE. Taxable Property. Goods and chattels, horses, cattle, and other movable property of a visible or tangible character, are liable to taxation in the jurisdiction or State wherein the same are, and are ordinarily kept, irrespective of the residence or domicile of the owner. 3 Legal protection and taxation are reciprocal, so that such personal property and effects of a copo- real nature, or that may be handled and removed, as receives the protection of the law is liable to be taxed by the law where it is thus protected. 4 But this rule does not apply to property 'Brashear v. West, 7 Pet, 608; Hartland t>. Church, 47 Maine, 169 ; Black v. Zacharie, 3 How. 483 ; Mow- Steere v. Walling, 7 R. I. 317 ; Mills ry v. Crocker, 6 Wis. 326 ; Whipple v. v. Thornton, 26 111. 300 ; People v. Thayer, 16 Pick. 25 ; Burlock v. Tay- Com'rs Taxes, 23 N. Y. 224; Leonard lor, 16 Pick. 335; Daniels t. Willard, v. New Bedford, 16 Gray, 292; Rie- 16 Pick. 86 ; Means v. Hapgood, 19 man v. Shepard, 27 Ind. 288 ; Black- Pick. 105 ; Holmes v. Remsen, 4 John, stone Manf. Co. v. Inhabitants of Ch. 460 ; Sanderson v. Bradford, 10 N. Blackstone, 13 Gray, 488 ; Sangamon H. 260; Saunders v. Williams, 5 N. & Morgan R. R. Co. v. County of Mor- H. 213 ; Smith c. Chicago & N. W. R gan, 14 111. 163. R. Co., 23 Wis. 267 ; Ockerman v. 4 Bank of U. S. . Mississippi, 12 Cross, 54 N. Y. 29, 32; Atwood v. Sm. & M. 456; DePauw v. New Al- Protection Ins. Co., 14 Conn. 555. bany, 22 Ind. 204; Egleston. Charles- * Loving v. Pairo, 10 Iowa, 282. . ton, 1 Tread. (3. C.) Const 45. WHERE PERSONAL PROPERTY IS TAXABLE. 205 which is in transit, or which is temporarily within a State, as, for instance, if a resident of one State go into another on a visit or business, traveling in his own conveyance, or carrying with him personal effects for his own use during his temporary stay, or sent into a State for sale, such property is not subject to taxa- tion there, although entitled to and receiving the temporary pro- tection of the law for the time being. l Intangible Property. Interests of an intangible character are taxable only where the owner makes his residence, for in con- templation of law they accompany the person of the owner; as, for instance, debts owing in one State to a person in another State are not taxable at the place of the debtor's residence. 2 Tangible Personal Property. It is said to be a general prin- ciple of the law, that tangible personal property having no fixed locality follows the person of the owner and is taxable at his domi- cile, provided there be no express law taxing it where it is situated, if in a different jurisdiction; but this rule, we think, is confined to cases where the domicile of the owner is in the same State and only in a different county or district, and not to cases where the owner resides in a different State. 3 In the case here cited of /Sangamon & Morgan It. It. Co. v. County of Morgan, Justice CATON, speaking of local taxation of real estate, says: " The same rule does not apply to personal property, but that it follows the residence of the owner is certainly true, and is there taxable when the owner resides within the State and the property is only temporarily absent;" and further he gives the following illustration: " Thus, if a man keeping a livery stable in Spring- field had a team absent on a journey in another State at the time the assessment was made, he would be bound to include that property in the schedule of taxable property, while the rule might be different if he had personal property permanently located in another State or another county." 4 The owner of the property in this case was a railroad company; the personal prop- 1 St. Louis v. Wiggins Ferry Com- Delieselline, 3 McCord, 374 ; Murray pany, 40 Mo. 580; Sangamon & Mor- v. Charleston, 6 Otto, 432. gan R. R. Co. . Morgan County, 14 8 Sangamon & Morgan R. R. Co. v. 111. 163; People v. Com'rs of Taxes, County of Morgan, 14 111. 163; Peo- 23 N. Y. 224, 240; People v. Com'rs pie v. Com'rs of Taxes, 23 N. Y. 224, of Taxes, 23 N. Y. 242. 231. 8 Augusta . Dunbar, 50 Geo. 387; 14 111. 165. Ante v. of this chapter ; Hayne v. 206 JURISDICTION OF PERSONAL PROPERTY. erty was kept in Springfield, Sangamon county, when not in use; when in use it was in transit to and through Morgan county and back; the company was an Illinois corporation; and taxes were levied in botli counties in the aggregate on the personal and real property. The Supreme Court of Illinois held that the realty was only taxable, each part, in the county where situated, the law being general, and that the personal property was taxable only in Sangamon county, the principal place of business of the com- pany, and where the property was kept when not in use, and was not taxable at all in Morgan county, wherein it only went on busi- ness trips. But, notwithstanding it is justly said, that personal property, though it be of a tangible nature, has no fixed situs, yet it is not true that it has no situs at all. On the contrary, it has an actual situs, but not like that of real property, a fixed and per- manent one. Real property being immovable its situs is not only fixed, but is permanent; but personal property being movable, its situs is susceptible of change. 1 The actual situs of each is in the State where it is situated or located, although the owner resides in a different State; and each being by the law of the locality protected, is in turn, by the law of the locality, liable to be taxed. 2 By a fiction of law, however, of universal import, if there be no law to the contrary at the place of its actual situs, the situs of the personal property is made to follow the person of the owner and the law of his domicile, if in another State, in all matters pertaining to its sale and transfer by him, and of descent and distribution in case of his death. 3 1 People v. Com'rs of Taxes, 23 N. Y. son v. Lexington, 14 B. Hon. G48. 224, 226. 3 People v. Com'rs of Taxes, 23 N. s People v. Com'rs of Taxes, supra; Y. 224, 228, 239 ; see supra i.-iv. of Finley v. Philadelphia, 32 Penn. St. this chapter. 381; Catlin v. Hull, 21 Vt. 152; Jolm- LEGAL STATUS AND JUKISDICTION OF LANDS. 207 CHAPTER XXI. LEGAL STATUS AND JURISDICTION OF LANDS. I. JURISDICTION AS TO LANDS is LOCAL. II. TITLE PASSES ONLY BY THE LEX REI SIT^B. III. COURTS OF OTHER STATES MAY ACT UPON THE OWNER'S PERSON TO COERCE A CONVEYANCE. IV. ONE STATE OWNING LANDS WITHIN ANOTHER. V. GOVERNMENT LANDS. I. THE JURISDICTION AS TO LAND is LOCAL. The jurisdiction of courts over land is local. Neither State nor Federal courts can reach or confer title, nor sell under a decree those which are situated in a different State from that in which the court sits. 1 In a leading case, Boyce's Executors v. Grundy, the United States circuit court for the district of West Tennessee assumed to decree a lien against and sale of lands lying in the State of Mississippi, the Supreme Court of the United States held the decree to be erroneous for want of jurisdiction. 3 In this case the court say, STORY, J. : "Another objection is to that part of the decree which creates a lien upon the land in controversy, lying in another State, and decrees a sale for the discharge of the lien. We are of opinion that the decree is erroneous in this respect, * * * the court had no jurisdiction to decree a sale 1 Boyce v. Grundy, 9 Pet. 275 ; Wat- cial Bank, 68 111. 348; Ex parte kins t>. Holman, 16 Pet. 26. And so Reid, 2 Sneed, 375; Tardy v. Mor- in the district as to United States cir- gan, 3 McL. 358; Price v. John- cuit courts. Northern Ind. R. R. Co. ston, 1 Ohio St. 390; Wilkinson v. v. Michigan Cent. R. R. Co., 15 How. Leland, 2 Pet. 627 ; Story's Conf. of 233; Watts v. Waddle, 6 Pet. '400; Laws, g 19, 20, 538, 543; Rorer on Nowler v. Coit, 1 Ohio, 236; Brown v. Jud. & Ex. Sale, 3d ed. 58; Brine Edson, 23 Vt. 435 ; Latimer v. Union v. Ins. Co., 6 Otto, 627. Pac. R. R. Co., 43 Mo. 105; City s 9 Pet. 275. Ins. Co. of Providence v. Comrner- 208 LEGAL STATUS AND JURISDICTION OF LANDS. to be made of land lying in another State by a master acting under its own authority." In WatkiHs v. Uolman, just cited, the facts were that Hoi- man had executed in his lifetime, in Massachusetts, a title bond to one Brown, for land situated in Alabama, and had died with- out making a conveyance therefor. Administration on Holman's estate was granted in Massachusetts. On petition of Brown the probate court in Massachusetts, by a decree, licensed or empow- ered the administratrix to make conveyance of the property to Brown, who executed to Brown a deed in accordance with the decree. This deed coining in question was held to be void for want of jurisdiction of the court authorizing it to be made. On that subject the Supreme Court of the United States, McLEAN, J., assert the rule of law in the following terms: "That this deed is inoperative, is clear. It was executed by the administratrix under a decree or order of the Supreme Court of Massachusetts and by virtue of a statute of that State. * * * And no principle is better established than that the disposition of real estate, whether by deed, descent, or by any other mode, must be governed by the law of the State where the land is situated." 1 II. TITLE PASSES ONLY BY THE LEX REI SIT.E. Muniments of Title. It is uniformly held that if the instru- ment be made in one State for the conveyance of realty situated in another, or for the creating or imposing any lien thereon, or in any manner affecting title thereto, then under all circum- stances it must, in substance and in its execution, and also in the evidences thereof, conform to the law of the place where the land to be affected thereby is situated, 3 for it is a well settled prin- ciple of the law that the jurisdiction over real property is local 1 16 Pet. 26, 57. & M. 450; Loving t>. Pairo, 10 Iowa, 2 United States . Fox, 4 Otto, 315, 282; Jones v. Berkshire, 15 Iowa, 248; 320; Brine v. Insurance Co., 6 Otto, Morton v. Smith, 2 Dillon, 316; Car- (.27; McCormick i>. Sullivant, 10 penter t>. Dexter, 8 Wall. 513; McGoon Wheat. 192, 202; Morgan v. New Or- v. Scales, 9 Wall. 23; Secrists. Green, leans R R Co., 2 Woods. 244 ; Darby 3 Wall. 744; Clark v. Graham, 6 v. Mayer, 10 Wheat. 465; Kerr v. Wheat. 577; Steele v. Spencer, 1 Pet. Moon, 9 Wheat. 565 : United States v. 552 ; Northern Ind. R R. Co. t>. Mich- Crosby, 7 Cr. 115; Watts v. AVaddle, 6 igan Cent. R. R Co., 15 How. 233; PeL 389 ; Root c. Brotherson, 4 McL. White v. Howard, 46 N. Y. 144. 230; Perry Manf. Co. t>. Brown, 2 W. TITLE PASSES ONLY BY THE LEX REI SIT^E. 209 and appertains to the State wherein the property lies, and that title thereto passes only by conformity to the laws of such State. 1 In the language of the United States Supreme Court, FIELD, J. : " The power of the State to regulate the tenure of real property^ within her limits, and the modes of its acquisition and transfer, and the rules of its descent and the extent to which a testa- mentary disposition of it may be exercised by its owners, is undoubted." 2 Record as Notice. If the certificates of acknowledgment and of the official character of the person taking the acknowledg- ment be not in conformity with the law, or be not evidenced as required by the law of the State wherein the land is situated, then, although the deed be of record, yet, as a general rule, it will be invalid as against subsequent purchases without actual notice, as well when the purchase is at execution sale as when by direct conveyance from the owner. 3 In some States, however, the record is notice, whether duly authenticated or not, and the 1 United States v. Fox, 4 Otto, 315, 320, 321 ; Brown v. Edson, 23 Vt. 435 ; Callawaya. Doe, 1 Blackf. 372; Tardy v. Morgan, 3 McL. 358 ; Wilkinson v. Leland, 2 Pet. 627 ; Latimer v. Union Pac. Pi. K. Co., 43 Mo. 105 ; Blake . Da- vis, 20 Ohio, 231 ; Nowler v. Coit, 1 Ohio, 519 ; Price v. Johnston, 1 Ohio St. 390; Clark v. Graham, 6 Wheat. 577; Watkins v. Holman, 16 Pet. 26 ; Darby v. Mayer, 10 Wheat. 465 ; United States v. Crosby, 7 Cr. 115 ; Kerr v. Moon, 9 Wheat. 565; Cutter v. Davenport, 1 Pick. 81 ; Sell v. Miller, 11 Ohio St. 331 ; Lucas v. Tucker, 17 Ind. 41 ; God- dard v. Sawyer, 9 Allen, 78; Harvey v. Marshall, 9 Md. 194; Eyre . Storer, 37 N. H. 114 ; Lapham v. Olney, 5 R. I, 413 ; Monroe v. Douglass, 5 N. Y. 447 ; Livingston v. Jefferson, 1 Brock. 203. And wills, to pass lands, must con- form to the law of the place where the land lies. Lapham v. Olney, supra; Story's Conf. of Laws, 554. So the courts of one State cannot order sale of lands lying in another State. Blake v. Davis, 20 Ohio, 231 ; Henry v. Doctor, 9 Ohio, 49 ; Newell v. Coit, 1 Ohio, 519 ; Wills v. Cowper, 2 Ohio, 124; Rorer on Jud. & Ex. Sales, 2d ed. 58 ; Brine v. Ins. Co., 6 Otto, 627. And a sale on mortgage decree, although of a national court, where by the State law there is a right to redeem, is to be made subject to such right. Ib. 2 United States v. Fox, 4 Otto, 315, 320. Such too is the rule in the United States courts as well as in the State courts. Brine v. Ins. Co., 6 Otto, 627. 3 Morton v. Smith, 2 Dillon, 516. This rule holds good, too, in regard to the capacity of the grantor to convey. Whether the deed be executed in the one State or the other, the status of the grantor as to legal capacity to convey must be such as is required by the law of the State wherein the lands lie. It is not enough that he be of age by the law of the State where he has his domicile and makes the conveyance, he must be of age by the law of the place or State where the land is situated. Barnum v. Bar- num, 42 Md. 251. LEGAL STATUS AND JURISDICTION OF LANDS. defect only goes to the requirement of other proof of the deed when offered in evidence than is afforded by such defective acknowledgment or certificate thereof; and such is the law of Illinois. 1 Foreign Deeds. When, by the law of the State wherein the property is situated, deeds therefor executed in other States are to be acknowledged and certified, or proven to have been executed in conformity to the laws of such other State where made, then courts of the United States, when the same comes in question before them, will take judicial notice of those laws. 2 Evidence of Official Character. Nor need there be any evi- dence of the official character of the officer certifying acknowl- edgment or proof of the conveyance, unless the statute in the State where the land lies requires it. 8 Foreign Wills and other Instruments. So, in regard to wills of real estate, made in a State other than the one in which the lands are situated, they must be executed and evidenced in accord- ance with law of the latter State. 4 If, however, as is often the case, the law where the land is situated requires deeds or other instruments affecting lands, when executed at a place out of the State of their locality, to be ex- ecuted, acknowledged, or proven, and certified in conformity to the law of the place where executed, then the requirements of the law of that place is in effect the requirements of the law of the place where the land is situated, and compliance therewith is sufficient. 8 The rule that the lex rei sites governs in conveyances of real property is asserted with much force in Crusoe v. Butler * This case involved the effect of a will made, probated and allowed in one State of lands situated in another State, and it was held that although to carry title to real estate in another State than where made and probated, it must be then probated according to the 1 Carpenter t>. Dexter, 8 Wall. 513. penter v. Dexter, 8 Wall. 513 ; Cheever * Carpenter v. Dexter, 8 Wall. 513, v. Wilson, 9 Wall. 108; Pennington c. 531 ; Cheever c. Wilson, 9 Wall. 108; Gibson, 16 How. 80. Pennington v. Gibson, 16 How. 65, 80. 36 Miss. 150 ; McCormick v. Sulli- 8 Carpenter v. Dexter, 8 Wall. 513, vant, 10 Wheat 202 ; United States v. 531. Crosby, 7 Cr. 115; Kerr v. Moon, 9 4 Kerr e. Moon, 9 Wheat 565; 1 Wheat 565; Wells v. Wells, 35 Miss. Reclfleld on Wills, * 398. 633. Secrist v. Green, 3 Wall. 744; Car- COURTS MAY ACT UPON THE PERSON. 211 law of the latter, yet, that in Mississippi, on presentation of a copy from where originally probated in the State where made, authenticated as a record, in accordance with the act of Congress, it may then be admitted to probate in Mississippi, and will pass lands situated therein. 1 Executory Contracts and Deeds made in Pursuance Thereof. Sometimes the transaction is partly affected by both the law of the place of contracting and the law of the situs of the property contracted for. Thus, if an executory bargain be made in one State to purchase lands situated in another State, the manner of perfecting the bargain, so far as relates to the transfer or title to the land, is to conform to the lex rei sites of the property, or law of the State where the land is situated; but the executory contract itself is construed and controlled, if not otherwise ex- pressed, by the law of the place of contracting. 3 Official Powers are Local. The acknowledgment and certifica- tion of a deed taken and made by an officer of a State must be taken and certified within the State tinder which the officer holds his authority to do the act. He cannot receive or certify the acknowl- edgment in a different State than the one under the laws of which he holds his office or has power to act. 3 In a case in Delaware, the court say: " The taking the acknowledgment of a deed is an official, perhaps a judicial, act, and the authority of the public officer cannot extend beyond the limits of his appointment." 4 III. COURTS OF OTHER STATES MAY ACT UPON THE PERSON OF THE OWNER. Jurisdiction over the Person. But, although a State court can- not, in law or in equity, reach or control the title to lands, or the possession of lands situated within a different State, by any di- rect action or process against the land itself, and cannot decree away the title thereto, or authorize a commissioner to convey the same, yet if a court of general equity jurisdiction obtain juris- diction of the person of the owner of lands so situated, in the course of an equity proceeding involving a proper case for coer- cion of the title by a direct action of the court, as in cases of 1 Crusoe v. Butler, 36 Miss. 150; 8 Harris v. Burton, 4 Harr. (Del.) Wells v. Wells, 35 Miss. 633. 66. 2 Glenn t>. Thistle, 23 Miss. 42 ; Beth- 4 Ibid, ell v. Bethell, 54 Inrt. 428. 212 LEGAL STATUS AND JURISDICTION OF LANDS. trust or fraud, or even contract, in case the lands were within its jurisdiction, then such equity court may compel a conveyance by order or decree acting directly on the person of such owner, and may enforce the same with all the powers incident to a court of chancery in case of disobedience. 1 And so it may compel a sale of realty lying partly out of its jurisdiction for the satisfac- tion of a trust or mortgage, by direct action against the persons . of those concerned, if it get jurisdiction of their persons. But in such cases the court does not convey or authorize the act. It merely acts on the person, and compels the exercise of powers already by him possessed. It is not like conferring power on an administrator to sell lands lying in another State. The latter cannot be done. 8 In the case cited below of Muller v. Dows, the circuit court of the United States for the Iowa district decreed a sale of the whole of a railroad, which lay part only in Iowa, and the other part in Missouri, and the proceeding was sustained by the United States Supreme Court. But this was a proceeding in a national court, and the parties in interest were in court, and the case i& not as one in a State court, whose jurisdiction over the local property is circumscribed within the boundaries of its territo- rial limits; whereas, United States courts doubtless have power to reach interests, however local, in a chancery proceeding, with all the parties before them, if enough of local jurisdiction be obtained as to a part of property involved, and which is an en- tirety, to enable them to act on the part so situated within the district of the forum; especially so where, as in the case just cited, both States are within the same circuit of a United States court. When such a decree of a court of one State compelling the 1 McElrath v. Pittsburgh & Steu- 6 Whart. 392; Lewis v. Darling. 16 benville R. R Co., 55 Penn. St.- 189 ; How. 1 ; Corbett v. Nutt, 10 Wall. 464. Watkins v. Holman, 16 Pet. 26; Me- 2 McElrath v. Pittsburgh & Steu- Gregoru. McGregor, 9 Iowa, 65; Mas- benville R. R. Co, 55 Penn. St. 189; sie v. Watts, 6 Cr. 148; Sturdevant v. Muller v. Dows, 4 Otto, 444, 450, in Pike, 1 Incl. 277 ; McLean v. Lafayette which latter case the United States Bank, 3 McL. 622; Watts v. Wad- Supreme Court refer to and recog- dle, 6 Pet. 389 ; Northern Ind. R. R. nized the correctness of the Penn- Co. v. Michigan Cent. R R Co., 15 sylvania case above cited. Wood . How. 233, 243; Whiter. White, 7 Warner, 15 N. J. Eq. 81, 85. Gill & J. 208; Vaughan v. Barclay, GOVEKoSTMENT LANDS. 213 conveyance of land situated in another State comes in question in the courts of the State wherein the land is situated, it will be entitled to full faith and credit in these latter courts as to what is the real or true equities of the parties thereto, if juris- diction of the defendant in the decree was obtained by the court rendering the same; and such decree may be pleaded as a defense to an action or suit, or as a cause of action, if applicable, in the courts of such latter State. 1 Actions for Breach of Covenant. And actions for breach of cov- enant of quiet enjoyment may be maintained in the courts of one State when the covenant was entered into in another State in ref- erence to a subject matter situated in the latter. 3 Such action affects the person of the defendant or covenanter, and not the status or title of the land. IV. ONE STATE OWNING LANDS WITHIN ANOTHER. Not Different from Private Ownership. The ownership of lands by one State within the terrritorial limits of another State is in nowise different from that of the ownership of an individual person. The title and estate in such case is acquired and held subject to all the incidents of ordinary private ownership, so far as regards the mere circumstance of a State being the owner. 3 If a different effect is claimed it must flow from the intent and purpose of the grant as shown by the muniments of title. Y. GOVERNMENT LANDS. The doctrine as to local jurisdiction of lands, and of the title passing only in accordance with the lex loci rei sitcB laid down in the previous sections of this chapter, has no application to the public lands of the United States. Over these the States and local governments have no control, and the State laws do not affect them in any manner whatever, until the title thereto passes out of the national government in such manner as is provided by national law. 4 J Burnley v. Stevenson, 24 Ohio St. Boggs v. Merced Co., 14 Cal. 279, 375; 474. 3 Wash. Real Prop. 4th Ed. 188, 19. 2 Jackson v. Hanna, 8 Jones Law, 4 Turner v. American Baptist Mis- 188 ; Mott v. Codcliugton, 1 Robert. sionary Union, 5 McLean, 344 ; Wi-1- 267. cox v. Jackson, 13 Pet. 499. 3 Burbank v. Fay, 65 N. Y. 57; LEGAL STATUS AND JURISDICTION OF LANDS. Title from National Government. The national government only can grant to individuals, States or other grantees the right and title to the public lands of the United States. 1 Congress has the sole power of declaring the dignity and effect of a patent or grant of lands issued or granted by the United States, and the character of the title thereby vested in the grantee to government lands thus disposed of, and no State law can lessen or enlarge the same; such grants carry the fee, and are the best title known to the law in both national and State courts. 2 Action at Law will not Lie on Certificate of Entry in United States Court. It is equally well settled in the United States courts that no action at law, for recovery of lands, will lie against a defendant in possession, upon a mere entry or certificate of entry or purchase from the register and receiver of the United States land office. These are but evidences of an equity, and do not pass the legal title; and, though State statutes may allow such equitable evidence as a ground of recovery in State courts, against a defendant showing no better title, yet such statutes are not a rule of law or property in courts of the United States as evidence of legal title. 3 Revocation of Patent. When the title has passed from the government by the issuance and delivery of the patent for lands, then the power of the political and ministerial departments of government over them ceases, and such patent cannot be revoked by mere act of the head of the land department, or secretary of a department. The courts of law or equity alone possess the power of setting the same aside for cause shown according to the course of local practice and jurisdiction, if in a State court, or of the Federal jurisdiction and practice, if the proceeding be in a United States court. 4 1 Mitcliel v. United States, 9 Pet. Wilcox v. Jackson, 13 Pet. 499; Bag. 712; Johnson v. Mclntosh, 8 Wheat, nell v. Broderick, 13 Pet. 436; Irvine 543; United States v. Fernandez, 10 o. Marshall, 20 How. 558. Pet. 303; United States v. Rillieux, 8 Hooper r. Scheinier, 23 How. 235. 14 How. 189; Wilcox v. Jackson, 13 4 Moore v. Robbins, 6 Otto, 530; U. Pet, 499 ; Hooper v. Scheimer, 23 S. r. Hughes, 11 How. 552, and 8. C. t How. 235. 4 Wall. 232. 2 Hooper c. Scheinier, 23 How. 235 ; CRIMINAL JURISDICTION. 215 CHAPTEK XXII. CRIMINAL JURISDICTION. I. Ov THE NATIONAL COURTS. II. Otf THE STATE COURTS. III. "WRIT OF ERROR FROM UNITED STATES SUPREME COURT TO STATE COURT. IV. INCIDENTS TO NATIONAL LOCAL JURISDICTION. V. INTER-STATE EXTRADITION OF FUGITIVES FROM JUSTICE. VI. POWER OF ONE STATE TO ENFORCE THE PENAL LAWS OF ANOTHER AND TO PUNISH CRIME COMMITTED IN ANOTHER. VII. LARCENY AT COMMON LAW BY BRINGING STOLEN PROPERTY INTO A STATE. VIII. CRIMES COMMITTED PARTLY IN ONE STATE AND PARTLY IN AN- OTHER. IX. CRIMES COMMITTED IN A STATE WITHOUT THE OFFENDER BEING THEREIN. X. No CONCURRENT CRIMINAL JURISDICTION IN STATE AND NATIONAL COURTS. I. OF THE NATIONAL COURTS. The national courts, according to best received opinions, have no common law criminal jurisdiction, or jurisdiction over com- mon law offenses, as such; their jurisdiction is of statutory authority, and confined to oifenses arising under the Constitution and laws of the United States. 1 But as to the entire absence of criminal common law juris- diction there has been expressed a judicial doubt. 2 There can be no doubt, however, that where, in the exercise of their legitimate jurisdiction over statutory offenses, the principles of the common law, as existing in criminal jurisprudence in the original States, when applicable, will be resorted to as rules of right. 1 U. S. v. Hudson, 7 Cr. 82; Penn- How. 518; U. 8. v. Fox, 5 Otto, 670. sylvania v. Wheeling Bridge Co., 13 r ' U. S. v. Coolidge, 1 Wheat. 415. -!<'> CRIMINAL JURISDICTION. Jurisdiction of United States Courts of Offenses Against Stato Laws. Tlie United States courts cannot entertain jurisdiction of State offenses. They can punish only crimes against the United States. Thus it has been held that Congress could not give jurisdiction to United States courts to try indictments found in the State courts. 1 So, where a person indicted in a State court for selling intoxicating liquors, which by the State law is a misdemeanor, notwithstanding the fact that the accused has a license under the revenue laws of the United States, the trial of such indictment cannot be removed into the United States courts. 8 The criminal jurisdiction of the Federal courts being thus limited to offenses against the Constitution and laws of the United States, it follows that all other cases come within the jurisdiction of the courts of the States. II. CRIMINAL JURISDICTION OF THE STATE COUBTS. The State courts have exclusive jurisdiction, within their respective territorial limits, of all crimes, offenses, misdemeanors and penalties arising under the rightful authority of the State constitutions and laws, except such as occur in the national forts, arsenals, and other places belonging to, and under the crim- inal jurisdiction of, the United States, hereinafter more fully designated. Jurisdiction of State Courts of Offenses Against the United States. The same rule applies in such cases, as we have seen above, applies to offenses against the States, not being triable in United States courts. The State tribunals cannot punish crimes against the laws of the United States as such. The same act may, in some instances, be an offense against both, and it is only as an offense against the State laws that it can be punished by the State. 3 III. ERROR FROM UNITED STATES SUPREME COURT TO STATE COURT. If, however, in a prosecution for any violation of such laws, in any trial in a State court, a defense be set up, under and by 1 People v. Murray, 5 Parker Cr. v. Tuller, 34 Conn. 280; State v. Zu- Cases, 577. lich, 5 Dutch. 409 ; Matter of Hopson, 8 State v. Elder, 54 Maiue, 381. 40 Barb. 34; Ross v. State, 55 Geo. 8 People 9. Kelly, 38 Cal. 145 ; State 192. INCIDENTS TO NATIONAL LOCAL JURISDICTION. 217 alleged authority of the Constitution or a law of the United States, and the ruling be against the validity of such defense, then error lies to the United States Supreme Court, from such decision, if in the highest State court having jurisdiction or power to hear and determine the same. 1 IY. INCIDENTS TO NATIONAL LOCAL JURISDICTION. As a sequence to local jurisdiction of the Federal courts over crimes committed in forts and other places exclusively under Federal criminal jurisdiction, also follows the power and author- ity, everywhere else in the States necessary to the carrying of the same into effect; thus, if the offender flee from such places to some place beyond, the authority of the Federal government and courts extend to the arrest and return of the culprit; so, where the court sits elsewhere, as is usually the case, the authority extends to the transferring of the prisoner through the States to the place of trial; and, likewise, where the punishment is to be inflicted outside of such places, as in a State prison, at some other place, jurisdiction extends to all necessary acts of trans- portation of the convict to the place of punishment; and where the law, in case of capital punishment, directs the body of the deceased to be delivered up to medical persons for dissection, a like authority accompanies those in charge of it elsewhere than at the place of trial and conviction ; and so, where by law the rescue of such body of the executed person is made criminal by the United States laws, then the power of the Federal govern- ment and courts extend wherever in any State it may be necessary for the arrest and punishment of those offending against such law; and the law itself exists in force, as a general law, every- where alike throughout the States, so as to render the act criminal wherever committed. 2 And this general force and authority of the Federal laws and courts is not the mere creature of the necessity thereof, to carry out and complete jurisdiction in cases where given, but results from the constitutional provision making the Constitution itself, and the laws enacted in virtue thereof, the supreme law of the land, everywhere, at all times, and in all places. That is: supreme in their own rightful sphere and 1 Cohens . Virginia, 6 Wheat. 264, * Cohens v. Virginia, 6 Wheat. 264, 414, 415, 416, 421. 425, 426. 218 IXTEU-STATE CRIMINAL JURISDICTION. orbit; supreme over and in relation to such things as they rightly pertain to under the national Constitution, while the State con- stitutions and laws have, at the same time, equal force and vitality in their proper spheres and judicial orbits, neither detracting from the powers of the other. 1 National Municipal Corporations. But laws of the national Congress, enacted for purposes of local government, as for in- stance, the incorporation of a city, will not be construed by the courts, unless expressly so stated, to be intended to operate or confer power to operate, or do acts beyond the territorial limits of the corporation; and more especially such acts as may be in violation of the penal or criminal laws of a State. Thus, the act of Congress incorporating the city of Washington, and con- ferring on the city authorities power to establish a lottery, under certain circumstances, by consent of the President, is not construed to enable the city to sell lottery tickets in a State the laws of which prohibit lotteries and sales of lottery tickets. 8 V. INTER-STATE EXTRADITION OF FUGITIVES FROM JUSTICE. Among the Colonies. Though the extradition of criminals as between certain of the English- American colonies prior to the declaration of American independence, and afterwards under the Articles of Confederation before the adoption of the national constitution, are not subjects strictly per.tinent to this chapter as partaking of the relation of the States to each other, or to the national government under the constitution, yet as matter of inducement thereto, and as leading to a correct exposition of the present system of extradition, they are subjects proper to be treated of, and as pointing out the origin of the same among the American communities. "While the North American-English communities were colo- nies of the crown, a sense of mutual interest aud security led to the making of a compact among a portion of them, for the mutual rendition or delivery up of persons fleeing from justice from any one of them, where charged with crime, and seeking refuge in any one of those colonies which were party to the compact. Thus, as early as the year 1643, the plantations under the gov- 1 Cohens T. Virginia, 6 Wheat. 204, 9 Cohens v. Virginia, 6 Wheat. 264, 414, 427, 428, 429. 447. INTER-STATE EXTRADITION. ernments severally of Massachusetts, New Plymouth and New Haven, in articles of confederation, pledged their faith to each other, that on escape of any criminal or fugutive for any criminal cause, from any one to any other of said colonies, the colony wherein he shall be found, should, upon certificate of two magis- trates of the jurisdiction from which the escape occurred, stating that he was a prisoner or an offender at the time of making the escape, forthwith grant the proper warrant for the apprehension of such person and the delivering him into the hands of the officers, or other persons in pursuit of him. 1 Under the Articles of Confederation. When, after the Decla- ration of Independence, the thirteen colonies entered into articles of confederation, they included therein a similar but more explicit provision for extradition or rendering up mutually to each other of persons fleeing from justice, in any State into another of the States, worded as follows: " If any person guilty of or charged with treason, felony, or other high misdemeanor, shall flee from justice, and be found in any other of the United States, he shall, upon demand of the governor or executive power of the State from which he fled, be delivered up and removed to the State having jurisdiction of his offense." 2 Under the Constitution. Afterwards, upon the adoption of the Constitution of the United States, the same provision was liter- ally included therein, that had existed in the articles of confed- eration, with the exception that for the words "high misde- meanor" was substituted the word "crime;" and it is held by the United States Supreme Court, that the word "crime" thus substituted includes every offense made punishable by the law of the State in which it is committed. 3 It will be seen that in the original compact of certain of the colonies above referred to, the word " treason " was not used, inasmuch as these colonies not being then sovereignties, treason could not be committed against them; 4 but that in the Constitution of the United States, and in the articles of confederation, that word is used, as the colonies had then become independent States, and the crime of treason 1 Winthrop's History of Massachu- 2 Articles of Confederation, Art. IV.; setts, Vol. II. 121, 126 ; Kentucky v. Kentucky v. Dennison, Governor of Dennison, Governor of Ohio, 24 How. Ohio, 24 How. 66, 101, 102. 66, 100, 101 ; Commonwealth v. Dea- z Ibid, con, 10 S. & R. 129. 4 Ibid. 220 INTER-STATE CRIMINAL JURISDICTION. could therefore be committed against them as such; and also, for the purpose of negativing the idea, that this extraditionary duty extended no further than the previous ordinary comity between sovereigns, under which the more general practice had been not to deliver up political criminals, or persons charged only with a political offense, and that therefore in order to obviate all doubt upon the subject, on forming these closer relations, first of con- federation, and afterwards, of one common national constitution, the word treason was used. 1 By virtue, then, of this provision of the national constitution, it becomes the duty of a State to deliver over to another State a person fleeing from justice from one of such States into or found within such other, who is charged with any offense whatever made punishable by law in the State from which such person shall have fled. 3 But the Supreme Court of the United States hold this duty to be but a moral one, not enforcible by any authority of law, and resting solely on the sense of patriotism and fidelity of the person charged with the performance thereof to the solemn compact of the constitution. 3 Duty to Surrender. The insertion of the foregoing provision into the Constitution of the United States, renders absolute the duty of rendering up criminals by one State to another, which before the adoption of the country, was entirely a matter of comity, optional with the State or States of which the require- ment was made; for without such a clause, it is held in the American courts to be mere matter of discretion. 4 1 Articles of Confederation, Art. IV. ; criminals on the part of the States, it Kentucky v. Dennison, Governor of would seem from the use of the word Ohio, 24 How. 66, 101, 102. "shall," in the clause of the Consti- * Ibid. tution here referred to, is compulsory. * Ibid. And yet, there being no power lodged 4 Kentucky v. Denuison, Governor in the United States to compel the of Ohio, 24 How. 66 ; Prigg v. Com- execution by the States of that clause, mouwealth, 16 Pet. 539; Holmes v. the duty seems to be one entirely db- Jennison, 14 Pet. 540; Commonwealth cretional, so far as the United States t>. Green, 17 Mass. 514-548 ; Common- laws are concerned. But some of the wealth c. Deacon, 10 S. & R. 125; Case individual States have made local of Jose Ferreira dos Santos, 2 Brock, regulations, which, in effect, make 493; United States v. Davis, 2 Sumn. the constitutional provision binding 482,486; Compton v. Wilder, 7 Am. and free from all discretion upon Law Record, 212; Taylor r. Taiutor, 16 their officers who are charged with Wall. 366. The duty of surrendering the execution of the same. INTER-STATE EXTRADITION. 221 Nature of the Offense for Which Extradition is Asked. As to the nature of the offenses referred to in the 4th Article of the Constitution above cited, it is held that all offenses made punish- able by law in the State where the act charged is committed, come within the meaning of the words " treason, felony or other crime," and therefore that extradition of fugitives by force of said provision is obligatory upon the State to which they have fled, for any crime made punishable by the laws of the State making the demand. 1 The rendering up the fugitive, when a case is made out filling the exigency of the law, or constitutional provisions above referred to, leaves no discretion with the State of which the demand is made as to the nature of the crime. 3 The requisi- tion, or proceeding upon which the surrender is sought, must show that the alleged crime was committed within the jurisdic- tion of the State making the application. 3 So, too, the charge must be positive, and not merely upon information, or inform- ation and belief. 4 U. S. Courts Have Power to Examine Into Charge. The courts of the United States have full power and jurisdiction over cases of this nature, and may examine into the sufficiency of the proceedings, and discharge the prisoner or remand him to the custody from whence taken, as the principles of the law may require; for the proceeding on which the arrest is ordered is predicated upon the Constitution and authority of the United States; and this, too, notwithstanding the State in which the order of arrest is made has legislated upon the same subject. 5 What Must be Shown to Justify the Delivery of the Fugitive. To justify the arrest and delivery of a person to the authorities of another State by the authorities of the State wherein he may be found, as a supposed criminal and fugitive from justice in such other State, it is necessary under the Federal Constitution and laws that the charge of criminality shall have been made in 1 Kentucky v. Dennison, Governor Law of Habeas Corpus, 3d Ed. G01. of Ohio, 24 How. 66; In re Voorhees, 2 Kentucky 0. Dennison, Governor 32 N. J. Law, 141 ; In re Hughes, of Ohio, 24 How. 66. Phillips' (N. C.) Law, 57 ; In re Hey- 8 Ex parte Smith, 3 McL. 121. ward, 1 Sandf. 701; In re Fetter, 3 Ibid. Tab. 311 ; In re Greenough, 31 Vt. 279 ; 5 Ibid. Brown's Case, 112 Mass. 409 ; Kurd's 222 INTER-STATE CRIMINAL JURISDICTION. the State demanding him to some court, magistrate or officer, in form of an indictment, information, affidavit, or other accusation known to the laws of such State, and charging the offense to have been committed therein. 1 An arrest not based on such charge is unauthorized, and the court before which it is made, or the prisoner is brought, is without jurisdiction thereof, and the proceedings are void. 8 It follows, therefore, that as a court before whom a person thus arrested without authority is brought, is without jurisdiction over the person of the accused, that a bond taken for his appear- ance at a subsequent day before such court to answer the charge, and which is given as a means of obtaining a discharge from such illegal restraint, is void. 3 In the case of State v. Hufford the arrest was made on a charge preferred in Iowa, on affidavit, without any charge or demand from the other State, and the pro- ceeding was held void. Object of Our Extradition Law. Its Perversion Cannot be Used for Civil Obligations. The provision of the United States Constitution, article IY., for the extradition of persons charged with treason, felony, or other crime, who flee from justice and are found in another State, is designed to enable a State to vindi- cate its sovereignty and laws, by trial and punishment in its own forum, of those who violate the same, and is designed for no other purpose. It is in nowise intended for the benefit of private persons, or for enforcement by them, and may not be resorted to for the purpose of bringing a debtor of the prosecutor within a State for the purpose of obtaining jurisdiction of his person in a civil suit, or to coerce out of him surety for a debt. The law will not tolerate so oppressive and corrupt a proceeding and abuse of process, and any contract or obligation made by a person under an arrest thus procured, or with his friends, for the pur- pose of effecting his release, will be held null and void. 4 1 State v. Hufford, 28 Iowa, 391 ; * State v. Hufford, 28 Iowa, 391, 396. People v. Brady, 56 N. Y. 182; Ex * Fay v. Oatley, 6 Wis. 42; Carpen- parte Clark, 9 Wend. 219; Kurd's ter v. Spooner, 2 Sandf. 717; Snelling Law of Habeas Corpus, 2d Ed. 212, v. Watrous, 3 Paige, 314; Benning- (510. hoffc. Oswell, 37 How. Pr. 235. But 3 State v. Hufford, 28 Iowa, 391 ; Ex parties who are not concerned in parte Smith, 3 McL. 121 : Ex parte bringing the so-called fugitive back, Clark, 9 Wend. 212 ; In re Heyward, 1 it has been held would not be pre- Sandf. 701. eluded from suing or capiasing, even INTER- STATE EXTRADITION. Demand of the Governor of the State of the Fugitive. This process of extradition by a State, of a person found as a fugitive therein, by delivery over to the authorities of another State, is only authorized upon demand of the executive of such other State, and where a criminal charge is actually pending against an alleged fugitive in the State making the demand. 1 In such cases, the proceeding in the State making the demand must be such, as is usual in similar charges against residents thereof, and the war- rant, indictment, and demand, must specify the nature of the crime charged. 8 May be Surrendered for High Misdemeanors. High misde- meanors are held to be within the meaning of the word " crime " as used upon the subject of surrendering fugitives from justice, in the Constitution of the United States. 3 Copy of the Indictment need not accompany Demand. It is not necessary that a copy of the indictment found in the State making the demand, shall accompany the writ of the executive or governor, authorizing the arrest and delivery over of the fugitive; it is sufficient if referred to in the writ. 4 Sufficiency of the Charge, may be examined into on Habeas Corpus. The judicial power may be interposed by writ of habeas corpus in cases of arrests for extradition, and the sufficiency of the charges and regularity of the proceedings be examined into. 6 Sufficiency of Affidavit. Fugitive from Justice. An affidavit of a person of one State that he was " shot with intent to kill, * * * and that he believes, and has good reason to believe from evidence now in his possession, that a certain person therein named was accessory before the fact of the intended murder; and that the said person is a citizen and resident of another State," on the gov- ernor of which a requisition is made for delivery of the implicated person, is not sufficient to sustain a demand for the arrest and though the fugitive was brought back 450 ; People v. Brady, 56 N. Y. 182. by trick or device. Aclriance v. La- s Morton v. Skinner, 48 Ind. 123. grave, 59 N. Y. 110. See, however, Nichols v. Cornelius, 7 Ind. 611 ; Wanzer v. Bright, 52 111. 35. Robinson v. Flanders, 29 Ind. 10. 1 Ex parte White, 49 Cal. 434; Com- 5 People v. Brady, 56 N. Y. 182 ; In monwealth v. Deacon, 10 S. & R. 125; re Manchester, 5 Cal. 237; Ex parte People v. Brady, 56 N. Y. 182. Thornton, 9 Tex. 635 ; Lagrave's Case, * Ex parte Culbreth, 49 Cal. 436; 14 Ab. Pr. (N. s.) 333; Williams v. Commonwealth v. Deacon, 10 S. & Bacon, 10 Wend. 636. R. 125; Ex parte Pfltzer, 28 Ind. 224 INTER-STATE CRIMINAL JURISDICTION. extradition of the alleged criminal, since the same does not fulfill the requirements of the law in showing or charging that the supposed culprit has fled from justice in one State and has taken refuge or is found in the other. 1 In this case, the court say: "It is the duty of the State of Illinois to make it criminal in one of its citizens to aid, abet, counsel, or advise, any person to commit a crime in her sister State. Any one violating the law would be amenable to the laws of Illinois executed by its own tribunals. Those of Missouri could have no agency in his conviction and punishment. But if he shall go into Missouri, he owes obedience to her laws, and is liable before her courts to be tried and punished for any crime he may commit there; and a plea that he was a citizen of another State would not avail him. If he escapes, he may be surrendered to Missouri for trial. But when the offense is perpetrated in Illinois, the only right of Missouri is to insist that Illinois com- pel her citizens to forbear to annoy her. This she lias a right to expect. For the neglect of it, nations go to war, and violate territory." In the matter of Manchester, who was demanded of the gov- ernor of California by the governor of Ohio, as a fugitive from justice, the court of California held that the governor making the demand, is the proper judge of the authenticity of the doc- ument relied on, and that behind his judgment the courts of California could not go; and that although the papers did not in words charge that the prisoner was a "fugitive from justice" that still the allegation being that he committed the crime and secretly fled, is sufficient from which to deduce that conclusion. 2 Fugitive being in Custody under Local Process when delivered up. However formal and legal the requisition or demand may be, when made by a governor of a State upon the governor of another State for the extradition of a person found therein, yet if the person demanded be in actual custody of the officers of the law, on either criminal or competent civil process, to answer some offense or action where so in custody, he cannot be delivered up until the demands of justice and law are satisfied or exhausted under which he is so held. The State of which the demand is made is not bound to postpone its own legal claims to dispose of 1 Ex parte Smith, 3 McL. 121, 138, 5 Cal. 237. 139 ; Jones v. Leonard, 13 West Jur. 15. IXTETC-STATE EXTRADITION. 225 the person of the offender, or of its own laws to those of the other; but, on the contrary, only after the same are satisfied. Then the party should be delivered up. 1 Fugitive Returned under an Invalid Process may be tried when not. In Pennsylvania it is held that if a prisoner who is under indictment for a crime in that State and flees to another, is arrested and returned without lawful authority, yet that will not be ground for his discharge without trial, if the governor of the State from which he is thus illegally taken does not demand his discharge. 2 Extradition among the States based exclusively on the Consti- tution not upon Comity. The power of the several States to render up alleged criminals, found within their limits to the authorities of each other, as matter of mere comity as practiced sometimes between States entirely foreign to each other does not exist, as we conceive, under our National Constitution. By sec- tion 2 of article IY. of that instrument, it is provided that " the citizens of each State shall be entitled to all privileges and immu- nities of citizens of the several States." Thus a citizen of one State has not only a right to change his residence into another State, but also a right to become a citizen of the latter, and there remain,? as against all natural right of such State to extradite him, banish him, or deliver him over to any other actual or pre- tended power, and it results, therefore, that the only authority as between the American States, for the extradition of criminals, is that provided by the National Constitution, and if the proceeding be not in conformity thereto, extradition cannot be enforced. 4 For a citizen of a State is a citizen of the United States, 5 and a State cannot expel a citizen of the United States from its terri- tory or extradite him therefrom except in the manner provided by the National Constitution. As Between a State and a Foreign Power. A State has no power to grant, or cause, the extradition of one of its citizens, on de- mand of a foreign power, or any government not being one of 1 In re Briscoe, 51 How. Pr. 422. 1 Sanclf. 701 ; Fay v. Oatley, 6 Wis, 8 Dows' Case, 18 Penn. St. 37. 45 ; Ex parte White, 49 Cal. 433 ; Ex, 3 Corfleld v. Coryell, 4 Wash. C. C. parte Culbreth, 49 Cal. 435 ; People v. 371. Brady, 56 N. Y. 182 ; Ex parte Thorn 4 Ex parte Smith, 3 McL. 121 ; State ton, 9 Tex. 635. v. Hufford, 28 Iowa, 391 ; Ex parte B Gassies . Ballon, 6 Pet. 761. Clark, 9 Wend. 212; In re Hey ward, 15 226 INTER-STATE CRIMINAL JURISDICTION. the States or Territories of the American Union. The United States alone possess that power. Under the Constitution the interconrse with foreign powers is vested exclusively in the United States. 1 Therefore, State statutes authorizing such extradition are unconstitutional and void. 9 For a State to be able to exercise this power of extradition would be, in effect, to enable one alone of the States to surrender up to a foreign power citizens of the United States; for citizens of the States are citizens cf the United States; 3 not even the highest officer of the government would be exempt from sub- jection to such authority, if found within the limits of any one of the respective States, whether justly accused or not, thereby imperiling the operation, if not the existence, of national authority. The case cited from New York originated in an application of the kingdom of Belgium, through its minister, for the extra- dition of a person charged, in said kingdom, as alleged, with the crimes of murder, robbery and arson. The governor of New York, upon whom the request was made, issued his warrant and caused the arrest to be made, with intent to deliver up to the agent of the Belgian government, in pursuance of an act of the legislature of the State. The case being brought before the courts upon habeas corpus, it was held by the court, and the ruling was affirmed by the court of appeals, that the act of assembly was unconstitutional, as a violation of the Constitution of the United States, which places in Congress and the national government the exclusive power as to intercourse and treaties with foreign nations; and that, therefore, the warrant of the governor was void. The constitutionality of the State law, and power of the governor to extradite the prisoner, were attempted to be sus- tained as of those powers which, though conferred upon Congress, yet a State may exercise until Congress has acted upon the subject, and that as the United States had not by treaty with Belgium regulated or assumed the duty of extraditing fugitives from that kingdom, from justice, the State of New York had power to act upon the subject. But the court utterly ignored the power as appurtenant to a State, and held that the 1 People t>. Curtis, 50 N. Y. 321 ; Cooper v. Galbraith, 8 Wash. C. Holmes v. Jennison, 14 Pet. 540. C. 546; Read v. Bertrand, 4 Wash. C. People v. Curtis, 50 N. Y. 321. C. 556. POWER TO ENFORCE PENAL LAWS. 227 exclusive power is in the national government. The court of appeals, CHURCH, 0. J., say: "The whole subject of foreign in- tercourse is committed to the Federal government. Indeed, this was one of the principal purposes of the Union. As to foreign countries, the States, as such, are unknown. * * * If O ne State may, all the States may make these arrangements, which arrangements may differ from each other; and the same States may make different arrangements with each foreign nation. The embarrassment which such an exercise of power by the States would produce to the general government in its foreign policy is obvious. * * * It cannot be said, from the absence of a treaty with any country, or with all countries, that the power is dormant. It may be as much exercised by refusing, as by making a treaty." 1 Right of a State to Punish for Other Crime than that Alleged as Ground for Extradition. Whatever the obligation of good faith may require as between foreign nations, as to holding prisoners extradited under treaty stipulations for such offense only as is specified in the application for extradition, 3 yet no such obliga- tion rests upon the American States, as between themselves, in regard to prisoners extradited from one of these States to the other, under the provisions of the national Constitution, and the act of Congress 3 for carrying the same into effect, and State courts have a right to hold and try persons, thus extradited from one to another of them for other crimes than that upon which the extradition proceedings are based, if allegations of other crimes against the State are preferred against the prisoner. 4 VI. POWER OF ONE STATE TO ENFORCE THE PENAL LAWS OF ANOTHER AND TO PUNISH CRIMES COMMITTED IN ANOTHER. Offenses are Local. One State or sovereignty cannot enforce the penal or criminal laws of another, or punish crimes or offenses committed in and against another State or sovereignty. 5 1 50 N. Y. 326, 327. State t>. Knight, Taylor's, (N. C.) 65; 2 In re Noyes, 17 Alb. Law Jour. Scoville v. Canflekl, 14 John. 338 ; 407. Slack v. Gibbs, 14 Vt. 357 ; Common- 3 Act of 12th of February, 1793, Re- wealth v. Green, 17 Mass. 515,548; vised Stat. U. S. 5279. Simpson v. The State, 4 Humph. 456 ; 4 In re Noyes, supra. State v. Carter, 3 Dutch. 499 ; Story's The Antelope, 10 "Wheat. 66, 123; Conf. of Laws, 620-623. IXTER-STATE CRIMINAL JUKISDICTION. Such laws have no extra-territorial force. If it were ever a subject of doubt elsewhere, yet as between the American States all doubts are put at rest, and a contrary intention is shown by Section 2 of Article IV. of the Constitution, which provides that " a person charged in any State with treason, felony, or other crime, who shall flee from justice, and be found in another State, shall, on demand of the executive authority of the State from which he fled, be delivered up, to be removed to the State having jurisdiction of the crime." This provision clearly presupposes that criminals are to be tried and punished in the State wherein they commit offenses; and, upon the well settled principle that the including of one is the exclusion of the other,* shows with additional clearness that jurisdiction was regarded as apper- taining exclusively to the State whose laws should be offended against, and wherein the crime should be committed: hence the words " to be removed to the State having JURISDICTION of the crime." Nor is it supposable that a people who had, in their bill of rights, so recently made complaint against the crown of Great Britain, of their subjection to trial for pretended offenses, beyond seas, ever intended that their citizens, being in other States, should be there tried for supposed crimes, alleged to have been committed in, and against the laws of, their own State. Thus, in New York, in a somewhat early case, it was held that a dual marriage outside the State, as for instance, one marriage in another American State than New York, and then another by the same man in Canada, is not bigamy in New York, criminally punishable there, although the last married parties come into and reside and cohabit in the State of New York, ostensibly as husband and wife. The second marriage, in Canada, took place beyond the force of New York law, and was not, therefore, in violation thereof; and the cohabiting, afterward, in New York, was but adultery. 3 VII. LARCENY AT COMMON LAW BY BRINGING STOLEN PROPERTY INTO THE STATE. "Whether bringing stolen property, by the thief, out of one State into another State, foreign to each other in the light in 1 " Inclusio unius est exclusio alter- * People . Hosier, 2 Parker's Cr. tut." Branch' 8 Principia, 59; Broom's Cases, 195. Maxims, * 652. LAKCENY AT COMMON LAW. 229 which the American States are to each other foreign, amounts to larceny at common law in the State into which it is brought, and is there punishable as such, is a question upon which the decisions of the courts are by no means uniform. The Rule in England. In England the ruling is, that bringing stolen property out of France into England does not constitute larceny, and is not punishable in England as such. 1 In some American States. So, likewise, there is the same rul- ing in many American cases, not only as between the several American States, but also in reference to cases arising in Canada. It is held that bringing the stolen property into the State, or hav- ing it in possession therein by the thief, does not, at common law, amount to larceny in the State into which it is thus brought, and that there can be no punishment of such person therein. 2 American Rulings to the Contrary. On the other hand, it is held in the courts of others of the States, that the bringing stolen property by the thief into another State amounts to larceny in the latter State, and is there punishable as such. 3 Many of these rulings in favor of jurisdiction were made under statutory pro- visions, which we will take occasion to refer to. The True Rule at Common Law. The true rule at common law we believe to be, that bringing stolen property by the thief out 1 Reg. v. Madge, 9 C. & P. 29; Bex v. Prowse, Ry. & M. 349 ; Roscoe Cr. Ev. 7th Am. Ed. 662; 2 Russ. on Crimes, 4th Eng. Ed. 328 et seq.; 4 Bac. Abt. Bouvier's Ed. 179; Hex v. Anderson, 2 East P. C. 772, c. 16, s. 156. 2 State v. Brown, 1 Hayw. (N.C.) 100; People v. Schenck, 2 John. 479 ; Peo- ple . Gardner, 2 John. 477 ; People v. Loughridge, 1 Neb. 11; State v. New- man, 9 Nev. 48; Stanleys. State, 24 Ohio St. 166; Simmons . Common- wealth, 5 Binn. 617 ; Simpson D. State, 4 Humph. 456 ; Commonwealth v, Uprichard, 3 Gray, 434; Beal. State, 15 Ind. 378; State v. Reonnals, 14 La. Ann. 276; State v LeBlanch, 31 N.J. 82; State v. Bennett, 14 Iowa, 479. 3 Commonwealth v. Cullins, 1 Mass. 116; Commonwealth v. Andrews, 2 Mass. 14; State v. Douglass, 17 Maine, 193; Hamilton v. State, 11 Ohio, 435; 1 Bish. Cr. L. g 136-144; State . El- lis, 3 Conn. 186; Henry v. State, 7 Cold. 331; Tyler v. People, 8 Mich. 320 ; Commonwealth v. Uprichard, 3 Gray, 434; People v. Williams, 24 Mich. 156; State v. Cummings, 33 Conn. 260; State v. Williams, 35 Mo. 229; Ferrill v. Commonwealth, 1 Du- val, 153; State v. Underwood, 49 Maine, 181 ; Commonwealth v. Hol- der, 9 Gray, 7 ; Watson v. State, 36 Miss. 593; State v. Stimpson, 45 Maine, 608; Commonwealth v. Bea- inan, 8 Gray, 497 ; Ham v. State, 17 Ala. 188; Hemmaker v. State, 12 Mo. 453; State v. Seay, 3 Stew. 123; People v. Burke, 11 Wend. 129; State v. Bennett, 14 Iowa, 479. *2oO INTER-STATE CRIMINAL JURISDICTION. of the State where stolen into another State, does not amount to larceny at common law in the State in which it is thus brought, and is not punishable as such therein. That to make it a crime punishable therein, it must be so declared by statute; and in such case it is the act of Twinging the stolen property into the State, and not the stealing of it in the other State, that is to be punishable by statute; for one State cannot punish a crime com- mitted in another against the laws of such other, for such laws have no force, except in the State where enacted ; nor can it pun- ish in virtue of its own laws, for they likewise' are confined in authority to the State where enacted, and not being in force in the State where the crime is committed, are in no manner vio- lated. Nor would a local law be valid providing for such a state of things. It would be void as assuming to reach beyond the territorial boundaries of the enacting power; but a law making it a crime, of whatever name it might be called, to bring into a State, or have possession therein, of property stolen in another State, knowing it to have been stolen, when such bringing in or having in possession is with intent to prevent the true owner thereof from regaining possession of the property, and punishing such crime on indictment and conviction, would doubtless be valid. Nor would or should such a law and punishment be a defense, if pleaded on a trial for larceny in the State where the act of steal- ing was committed, for in the one case the crime is the larceny, and in the other it is the bringing stolen property into a differ- ent State; or having it therein, with intent to prevent its being regained by the owner. The one act is a crime against the laws of one State, and the other act is a distinct crime against the laws of the other. But whatever a State and its courts may assume to do, whether to punish as a common law offense, or by virtue of some statutory provision of its own, the bringing of stolen property into its territorial limits, yet, in virtue of the national Constitution, it is compelled to deliver up the culprit, and desist from either, on demand of the State wherein the principlal crime is committeJ, properly made under the national laws and Constitu- tion. 1 In the case cited of People v. Williams, the learned Justice COOLEY, in reference to this duty of delivering up the culprit to another jurisdiction, says: " It may be suggested that, to sustain, 1 People v. Williams, 24 Mich. 156, 1G6. LARCENY AT COMMON LAW. 231 this, jurisdiction might stand in the way of the performance of constitutional obligation on the part of the States to return fugi- tives from justice. There does not appear to me to be any diffi- culty on that score. When one is demanded as a fugitive from justice, the paramount law requires his surrender, and there can be no pretense for refusal, when the crime alleged in this State is not the principal offense, but consists simply in persistence in the crime committed in the State demanding him." 1 To our mind the constitutional obligation to deliver up the thief precludes the idea of punishment in the State to which he has fled, as for committing in the other State the original offense, but does not deprive the State into which the stolen property is brought of the right or power to pass laws making the act of bringing it into the State a crime, and of punishing it as such. But the constitutional obligation to deliver up the culprit is paramount in any event. Statute of Michigan Providing for Punishment of Thief Bring- ing Property into the State. In Michigan there is a statute de- claring that " every person who shall feloniously steal the prop- erty of another, in any other State or country, and shall bring the same into this State, may be convicted and punished in the same manner as if such larceny had been committed in this State, and in every such case such larceny may be charged to have been committed in any town or city into or through which such stolen property shall have been brought." 3 It was under this statute, and not as at common law, that the prosecution in the People v. Williams, above cited, was carried on, and consequently the very able remarks of the learned jurist, COOLEY, in reference to the jurisdiction of the court and State in such cases are to be taken as made in reference to this statute, and the power to and duty of the States to provide for such cases by statute. Iowa. In Iowa there is also a statute intended to meet such cases. It declares that, "When the commission of a public offense commenced without this State is consummated within the boundaries thereof, the defendant is liable to punishment there- for in this State, though he was without the State at the time of the commission of the offense charged: Provided, He con- summated the offense through the intervention of an innocent or 1 24 Mich. 166. 163 ; 2 Compiled Laws of Mich. 1871, 1 People . Williams, 24 Mich. 156, 7G06. INTER-STATE CRIMINAL JURISDICTION. guilty ugcnt within this State, or any other means proceeding directly from himself; and in such case the jurisdiction is in the county in which the offense is consummated.'' 1 It was upon this statute that the prosecution of State v. Bennett * was at- tempted to be sustained; but the court held the statute inappli- cable to the case, and sustained the conviction upon general principles, " that the continued possession of the property stolen is itself a complete and full larceny." New York ; Illinois ; Alabama. By statutes in both New York and Illinois, the offense of bringing stolen property into the respective States is made punishable. 3 So, also, in Alabama. 4 The Law of the Trial. If the punishment inflicted by the State into which the stolen property is brought is to be regarded as a punishment of the larceny committed in the other State, then by what law shall the prisoner be tried, and by the terms of what law shall the punishment be measured? If by the law of the State where the larceny was committed, then as such laws have no extra territorial effect, and as a State does not administer the criminal laws of another State, trial and punishment by virtue thereof is impracticable. If, on the other hand, the trial and punishment of the larceny committed in the other State is to conform to the law of the forum, the law of the State into which the stolen property is brought, then this law in like man- ner, having no extra territorial force, is not the law against which the offense was committed in the State where the larceny was committed, for this law never was in force there, and, there- fore, never has been violated. Moreover, the degree of punish- ment is not necessarily the same in each of the States by the statute law of each; so that if the punishment be measured by the law of the State in which the larceny occurred, it may be more severe than punishments of like offenses committed in the jurisdiction of the forum, so that it may result that suoh crimes committed in a different State are punished more severely in the courts of a neighboring State than local crimes therein of its own citizens are punished; and so, on the other hand, the power to pardon, vested in the Governor of the State into which the 1 State v. Bennett, 14 Iowa, 479, 480, 8 Rev. Stat. N. Y. Part 4, Chap. I., 481; Revision of I860, 4505; Code Tit. 7, 4; Rev. Stat. 111. 1874, 407, of 1873, g 4157. 390. 14 Iowa, 479. 4 Rev. Code Ala. 1867, 707, 3713. LARCENY AT COMMON LAW. 233 property is brought and in which conviction is had, is so exer- cised as to pardon (if a pardon be granted) a crime committed in a different State. Plea in Bar of Second Trial. If after trial, conviction and pardon abroad, or after trial, conviction and suffering the punish- ment abroad, the convict return to the State wherein he actually committed the larceny, and is arraigned for trial there for the same offense, are these proceedings in a different State a good plea in bar in his defense? To us it is clear that no such power exists or can be enacted by legislatures of the States to punish crimes committed in other States. The spirit of the National Constitution forbids it, wherein the duty is imposed upon the States to surrender criminals. As to the necessity of a State protecting itself from being made a refuge for the criminals of other States in case they are not followed and demanded, it were constitutional and sufficient to make it by statute a crime to thus abuse the hospitality of a State a distinct crime from the original offense. It is no hard- ship, then, or violation of constitutional law, that the culprit be punished in turn for each. Nor can comity confer such a power of enforcing the criminal laws of other States. Comity judi- cially exercised is confined to the enforcement of contract, per- sonal liabilities usually recognized as such by civilized nations and which follow the person wherever he goes, and to such torts committed upon the person or personal property as are recognized at common law as such, and in regard to which actions are of a transitory nature; and whoever seeks a remedy for these obtains it according to the law of the forum. If larceny committed in one State is to be punished in another, then may also most offenses. The Supreme Court of New York, soon after the decision of the case of the Commonwealth v. Cullin, L above referred to, decided directly to the contrary in two similar cases, and thus the principle was settled in New York, 3 until by the revised statutes of that State it was enacted that " every person who shall feloniously steal the property of another in any other State or country and shall bring the same into this State, may be con- victed and punished in the same manner as if such larceny had J 1 Mass. 110. 2 People v. Gardner, 2 John. 477; People v. Scheuck, 2 John. 479. 234 INTER-STATE CRIMINAL .iriHSDICTION. been committed in this State; and in every such case such larceny may l>o charged to have been committed in any town or city into or through which the stolen property shall have been brought." Subsequently, in a prosecution under this statute (which seems to have been copied from that above referred to, of Michigan,) it was held by the Supreme Court of New York that the defendant, who had brought stolen property from Canada, where it was stolen by him, into Xew York, was liable to be tried and punished therein; 1 but that the trial and punishment was for bringing in the stolen property as an offense against the State, and not for the original crime committed in Canada. 2 The court say, SAVAGE, C. J.: " It is not the larceny in Canada which we punish, but the larceny committed in the State of New York, in every place into which the stolen property has been brought." 3 In the case of the People v. Gardner f above cited, the court say: " When the original taking is out of the jurisdiction of this State, the offense does not continue, and accompany the posses- sion of the thing stolen, as it does, in the case where a thing is stolen in one county and the thief is found with the property in another. The prisoner can be considered only as a fugitive from justice from Vermont." In the subsequent case, in Massachusetts, of the Common- wealth v. Upi'i <4 }t<(i'. People, 11 Mich. 327. LARCENY AT COMMON LAW. 235 erty was brought by the thief into Massacl in setts. He being there arrested and tried, instead of being remanded to Rhode Island, the supreme judicial court held that the courts of that State had jurisdiction of the offense, and he was convicted and sentenced accordingly. 1 The jurisdiction was expressly sustained on the principle of English law, making the thief liable as for a new taking in any and every county wherein he entered in Eng- land with the stolen goods. Yet it is obvious, that there is not the semblance of a parallel between the relative political or judi- cial position of the American States toward each other, and that of the several counties toward each other in England. The latter are of the same sovereignty. The States here are independent of, and in their jurisprudence foreign to, each other. Even in England, such offenses committed in Scotland are not within the o jurisdiction of the English courts, although both these countries are subject to the same government. It is clear, then, that the reason of the rule asserted in the Massachusetts case does not exist in the United States, and where the reason of the law fails, the law itself does not exist. In the Massachusetts case above cited, Commonwealth v. Culling, the relation of the American States are erroneously recognized as the same as is the relation of two counties in the same State to each other, totally ignoring the sovereignty of the State. The court said, SEDGWICK, J., that they were " clearly of opinion that stealing goods in one State and conveying stolen goods into another State was similar to steal- ing in one county and conveying the stolen goods into another, which was always held to be felony in both counties, and there- fore the jury (if they believed the witness) would find the defend- ant guilty." 2 "We may remark here, that when the larceny is in one county, and trial in another, within the same State or king- dom, the law of the crime and of the measure of punishment is always the same, whether tried in one or the other of the conn- ties. But not so when the crime is committed in one State, and the trial is had in another State. What is grand larceny in one may be petty larceny in the other. The punishment in one may be at the whipping post; in the other it may be in the peniten- tiary. As between two counties, the offense is nevertheless com- mitted, wherever triable, against one and the same sovereignty; 1 Commonwealth v. Cullins, 1 Mass. 2 1 Mass. 117. 116. 236 INTER-STATE CRIMINAL JURISDICTION. but as between two States, the original offense is committed against one of them, and if tried in another State the trial is for violations of the law thereof, and not of the State where the crime is committed; for one State cannot administer the crimi- nal laws of another State. If the trial be, however, for bring- ing stolen property into the State, and that is by statute there made criminal, then there can be no question as to jurisdiction. The subsequent case of Commonwealth v. Andrews 1 was mainly put upon authority of Commonwealth v. Cullins above referred to, and the doctrine of similar relations of States and of coun- ties was therein again erroneously assumed. In the case of Ham- ilton v. The State, cited above, as ruling in favor of the jurisdic- tion, the supreme court of Ohio hold that, on general principles, a theft in one State is liable to be punished in another State wherein the stolen property is brought by the thief, as a contrary course would "afford a large immunity for crime.'' 2 But READ, J., in his dissenting opinion, more judicially suggests that it were an easy matter for the State to enact a law making it crimi- nal for the thief to bring into the State property stolen by him in another State. If, however, such statutory provision were made, it would remain to determine the law of the other State, to ascertain if by the law there the act amounted to larceny; so, even then it would have become necessary to construe and act on the law of both States, as the act, in view of either one alone, would not amount to a crime in the State where the trial was pending, and thus 'would recur the question again of the power to enforce or act upon the criminal laws of a foreign State. In the case of Commonwealth v. Uprichard, the whole sub- ject is reviewed most ably by Chief Justice SHAW; and though the court in that case followed the law as settled in the cases above cited from Massachusetts, yet this decision clearly shows that not only these earliest cases in Massachusetts were errone- ously decided, and that the principle of analogy therein declared be ween States of the Union and counties in the English Kingdom does not exist; but the learned judge says, in substance, that if the question was a new one, a different conclusion would perhaps be now come to. 3 While this case conforms to the rule of la\v, as already settled in Massachusetts, the very lucid and learned 1 2 Mass. 14, 19. * Commonwealth v. Upricliard, 3 * 11 Ohio, 435. Gray, 434, 439. LARCENY AT COMMON LAW. 237 opinion clearly shows that the true rule of the law is the other way, and that the courts of one State have no power, whether at common law or by statute, to punish crimes committed in other States or in any manner inflict punishments involving the enforce- ment of the criminal laws of such other States. Mississippi. By statute, in Mississippi, a person who steals property in another State and brings it into the State of Missis- sippi, is indictable and punishable in like manner as if the crime were committed in the said State, and the venue may be charged in any county into or through which the property shall have been brought. * In prosecutions under such a statute it is held that to charge a defendant with larceny, as committed merely in a certain county, without words to bring the case within the statute, by showing or alleging the offense to have had its inception in another State, is bad. The charge in the indictment should bring the case within the language of the statute. The case of Stanley v. The State 2 involved the question as to bring- ing stolen property into the State from Canada. In this case the ruling in State v. Bartlet* and Sun v. Underwood* were referred to and disapproved, and the rule adopted that goods stolen in & foreign country and brought into Ohio would not sub- ject the thief to a prosecution in that State. But where the goods were stolen in another State and brought into Ohio, the court intimated that they would feel bound by a prior decision, 5 and would hold the thief liable to a prosecution for larceny. Thus, then, the rule of law established in Ohio in Hamilton v. The Statef that bringing stolen property into the State from a sister State wherein it has been stolen is larceny at common law, has been denied in cases where the property is brought in from a foreign State wherein it had been stolen. 7 In the case above cited 8 the court seem to still tolerate the 1 Norris v. State, 33 Miss. 373 ; Com- the property being brought in dead, monwealth v. Beaman, 8 Gray, 497. Ibid. And if live property be stolen and 2 24 Ohio St. 166. killed in one State, and be carried 3 11 Vt. 650. dead into another, even if otherwise 4 49 Maine, 181. punishable, it is not sufficient to 5 Hamilton v. State, 11 Ohio, 435. charge generally in the indictment 6 11 Ohio, 436 the stealing and bringing the prop- * Stanley v. State, 24 Ohio St. 166. erty in, but the particulars must be 8 Ibid, so alleged as to show the fact of 238 INTER-STATE CRIMINAL JURISDICTION. doctrine of Hamilton v. The State upon the principle of stare decisis, but regards it as otherwise illfoimded; and MC!VAINE, J., says: " I have no doubt the Legislature might make it a crime for a thief to bring into this State property stolen by him in a foreign country. And in order to convict of 'such crime, it would be necessary to prove the existence of foreign laws against larceny. The existence of such foreign laws would be an ingre- dient in the statutory offense. But that offense would not be larceny at common law, for the reason that larceny at common law contains no such element. It consists in taking and carry- ing away the goods of another person in violation of the rules of the common law, without reference to any other country. 1 In the case, State v. Ellis? already cited, although the supreme court of errors maintain the doctrine that bringing stolen prop- erty by the thief into another State than where stolen is larceny, yet it is conceded that it is only so by analogy, as in cases be- tween counties in England; but the court adheres to the original ruling, in that it is too late to recur to first principles, citing at the same time the early cases in Massachusetts as establishing the same doctrine, also recurring again to the English cases; but to our opinion the rule and reason of the law as laid down in the opinion of PETERS, J., in the same case in a dissenting opin- ion is not only more reasonable, but the better law in these States, the constitutional relations of which contemplate the delivery up and punishment of criminals in the State and under the laws thereof wherein crimes are committed, in case the culprit be found in another State. There is a brief, but interesting, sum- ming up of the rulings on this subject in People v. Louglibridge, where the right to exercise any such inter-State authority is denied. The court, after referring with approbation to the prac- tice in regard to goods stolen and brought from one county to another in the same State, very aptly says: "To extend this application to States, is to attach to the crime of larceny penal- ties uncertain in their character, possibly greatly incommensu- rate with the offense committed and such as do not attend any other crime." 3 1 Stanley . State, 24 Ohio St. 166, s 8 Conn. 188. 174. 1 Neb. 11, 13. CRIMES COMMITTED PARTLY IN TWO STATES. VIII. CRIMES COMMITTED PARTLY IN ONE STATE AND PARTLY IN ANOTHER. Difficult questions of inter-State law occasionally arise in respect to offenses committed partly in one State and partly in another; as where the act is done to a person in one State which results in his death in another; or where fire is wantonly set in one State to a building situated partly in that State and partly in another; or, as if one fire a gun in one State across the State line into another State at, and intentionally thereby kill a person sit- uated in the other State. The decisions of the American courts in this respect are by no means uniform. Under a statute of Michigan declaring that if a mortal wound shall be given, or other violence or injury shall be inflicted, or poison administered on the high seas or on any other navigable waters, or on land, either within or without the limits of that State, by means whereof death shall ensue in any county thereof, such offense may be prosecuted and punished in the county where such death may happen. 1 In a case under this statute the supreme court of Michigan held it to" be constitutional and valid. 2 In the case here cited, the wound which caused the death was inflicted within the limits of Canada that is, upon that part of the river St. Glair which is on the eastern or Canadian side of the boundary line between the United States and Canada and the death resulting from that wound occurred within the county of St. Clair, in the State of Michigan. The defendant being convicted of manslaughter, the supreme court of Michigan held the jurisdiction to be right- ful and affirmed the conviction. 3 The supreme court of Michi- gan, MANNING, J., in illustration of their ruling, say substan- tially that the wrong act itself, and the wound which was the immediate consequence thereof, did not constitute the offense. That, had death not ensued, the prisoner would have been guilty of assault and battery, not murder, and would have been crimin- ally accountable to the laws of Canada. But that the conse- quences of the wrongful act were not confined to Canada; that they followed the injured person into Michigan, where they con- 1 Tyler v. People, 8 Mich. 320, 2 Ibid. 332. Ibid. 240 INTER-STATE CRIMINAL JURISDICTION. tinned to operate until the crime was consummated in his death. 1 In an early case in New Jersey, on the other hand, it has been held that such a law as the one above referred to as existing in Michigan, is necessarily void. 8 But in the case of Hunter v. The State, decided as late as November, 1878, in New Jersey, Chief Justice BEASLEY, after a very logical discussion of this question, in giving the opinion of the court on the disputed point, whether the courts of New Jersey, under their local stat- ute, could punish a person giving a mortal blow within the juris- diction of that State, where the death of the victim occurs within that of another State, held that the courts had no such jurisdic- tion. The court also denies the correctness of the earlier case cited above. 3 Where the Offense is Committed by a Person Out of the State Through a Resident. Accessories. On this subject we have been able to find but few cases, and the conclusion of these are to some extent in conflict. The better and more generally accepted doc- trine would seem to be that which holds that a person who resides in another State, but procures a person within the State to com- mit a felony is not guilty of any offense punishable in the State where the offense was committed. 4 False Pretenses. If a person makes a sale in one State of that of which he falsely pretends to be the owner, but in fact to which he has no right whatever, and in pursuance to such sale executes a conveyance therefor and receives the purchase money in another State, he is guilty in the latter State of obtaining money by false pretenses, and may be prosecuted and punished therefor in the courts of the latter State. The offense, though conceived in the first named State, is in such cases actually com- mitted in the latter State, where, by reason of such false pre- tenses and still holding them out and acting on them, he obtains the money. 5 1 Tyler v. People, 8 Mich. 320, 332. This is a very instructive case, and J State v. Carter, 3 Dutch. 499. valuable for its thorough discussion 8 Hunter v. State, 40 N. J. Law, of this subject. 49o. See, also, Commonwealth v. * State . Wyckoff, 31 N. J. Law, 65 ; Macloon, 101 Mass. 1. where the court State c. Moore, 26 N. H. 448; State . holds that the State wherein the death Knight. 1 Taylor (N. C.) 65. But, occurs has jurisdiction to punish the see contra, State v. Gracly, 34 Conn. offender who committed that which 118. caused the death outside of the State. Commonwealth v. Van Tuyl, 1 OFFENDER BEING IN ANOTHER STATE. 241 In the case cited from Kentucky, the Commonwealth v. Van Tuyl, the defendant sold in Ohio, in times of slavery, a negro whom he claimed as his property, and pretended he had recap- tured him there as a fugitive from service in Tennessee, and delivering the negro to the purchaser to take out of Ohio at his own risk, they crossed into Kentucky, where the conveyance was made and the money paid to the vendor, when, in fact, the negro was a freeman. On indictment of the pretended owner, in Ken- tucky, for obtaining the money by false pretenses, it was held that the oifense was committed in that State and that the courts there had rightful jurisdiction of the case. Where one made false pretenses, in Indiana, and relying upon which the person to whom they were made delivered goods in New York to the one who made the false pretenses, it was held that the person so making the false pretenses was not liable to indictment in Indiana. 1 IX. CRIMES COMMITTED IN A STATE WITHOUT THE OFFENDER BEING THEREIN. Crimes may be committed in a State without the wrong-doer or offender being present therein. 3 This, too, as well through the agency or instrumentality of an innocent person who is resident or otherwise present in such State, 3 as the direct act or conduct committed or done by the wrong-doer outside of the State, whereby an injury is inflicted on a person therein or a crime therein committed against the State. 4 For such crimes the culprit may be rightfully tried and pun- ished, if caught within the State, so as to get jurisdiction of his person, just as if the offender had been actually within the State when the crimes were committed, and regardless of the fact as to whether the offender owed allegiance to the State or not, so far as such crimes are of the class known as such against natural Met. (Ky.) 1; Adams . People, 1 v. Ellis, 3 Conn. 185; States. Wyckoff, N. Y. 173, though not precisely in 81 N. J. Law, 65 ; State v. Moore, 26 point, may be referred to with ad- N. H. 448 ; State v. Grady, 34 Conn, vantage. See, also, ante, 6 of this 118. chapter. Adams . People, 1 N. T. 173, and 1 Stewart v. Jessup, 51 Ind. 413. other cases cited above. "Adams v. People, 1 N. Y. 173; 4 Adams . People, 1 N. Y. 173; Thayer v. Brooks, 17 Ohio, 489 ; State Thayer v. Brooks, 17 Ohio, 489. 16 242 INTER-STATE CRIMINAL JURISDICTION. law as well as against the statute laws of the State. 1 These natural laws are written upon the hearts of men as well as in the statute books of States, and existed before government existed, and are binding everywhere, in all countries, and at all times. 8 Of the declaratory and administrative regulations of the State, it may be different; these are more for the government of the citizens than for all who chance to come within the State or may offend therein by acts done from without. 8 As to persons owing allegiance to a State and who have not expatriated themselves by casting off the same, they may be punished if found therein for some crimes and offenses committed at places, if outside of other legal jurisdictions, beyond the boundaries of the State whereof they are citizens or subjects; thus, for treason, wherever committed. 4 In regard to mere personal injuries or torts at common law thus inflicted by persons while in one State upon the persons or property of others in another State, such injuries may be prose- cuted by private action in the State where the injuries are suffered, if the aggressor be found therein or wherever he be found. 5 The case of Adams v. The People, above referred to, was a conviction for obtaining money by false pretenses. The defendant, residing in Ohio, by means of false grain receipts purporting to show delivery to him of a quantity of grain to be forwarded to a commission house in New York, obtained money thereon through an innocent agent in that city to whom the paper was forwarded for collection. The defendant afterward went to New York, was there arrested, indicted, tried and con- victed, although he was not in that State at the time the money was obtained. 6 The case of Thayer v. Brooks was one brought in a court of Ohio against a citizen of Pennsylvania, service being effected in Ohio, for a nuisance or injury caused to plaintiff's real property a mill site and mill situated in Ohio by diverting, in Pennsyl- vania, the waters of a lake which fed a stream which supplied water power to plaintiff's mill in Ohio. The Supreme Court of 'Adams . People, 1 N. Y. 173; Smith . Bull, 17 Wend. 323; Chap- Thayer v. Brooks, 17 Ohio, 489 ; Jones man v. Wilber, 6 Hill, 475 ; Northern -D. Leonard, 13 West. Jur. 15. Cent. R. R. Co. . Scholl, 16 Md. 831 ; 1 Adams t>. People, 1 N. Y. 173. Thayer v. Brooks, 17 Ohio, 489. 3 Ibid. 1 N. Y. 173. 4 Ibid. OFFENDER BEING IN ANOTHER STATE. 243 Ohio held that the action would lie. 1 Such, too, no doubt, is the law, for the action for injury to the realty being local, the rightful jurisdiction at law is in the State where the injured property is situated. 2 But in Thayer v. Brooks, the court went further and said, that in such actions for injuries to the realty, where the injurious act is done in one State and the injury resulting therefrom is to property situated in another State, the action would lie in either State, citing as authority therefor the rule laid down by Chitty 3 that " when an injury has been caused by an act done in one county to land, etc., situated in another, the venue may be laid in either." 4 This doctrine^ as to counties of the same State, does not apply, however, as between two States. The error in that respect consists in supposing the legal relations of the American States to be the same as that of English counties toward each other, as was erroneously held in an early case in Massachusetts. 8 By statute in Indiana, it is declared that " every person, being without this State, committing or consummating an offense by an agent or means within the State, is liable to be punished by the laws thereof, in the same manner as if he were present, and had commenced and consummated the offense within the State." 6 The Supreme Court of Indiana hold that this statute is not to be construed to embrace persons who out of the State become mere accessories before the fact to crime committed in the State. 7 The case is not the same when a party who is outside the State procures an innocent party in the State, to commit an act within the State, which, though innocent in respect to his own intent, is neverthe- less the consummation in its effects of a criminal act in such State. In the latter case, the promoter of the act who is without the State, brings about within the State the entire act and cir- cumstances that amount to the crime, and he is therefore guilty 1 Thayer v. Brooks, 17 Ohio, 489. is clearly illustrated in Cornnion- 2 Watts D. Kinney, 23 Wend. 484 ; wealth . Uprichard, 3 Gray, 434, al- Livingston t>. Jefferson, 1 Brock. 203. though the ruling in Commonwealth 3 1 Chitty on Plead. 999. v. Cullins "was followed, but upon a 4 Thayer v. Brooks, 17 Ohio, 489- different principle than the alleged 493. analogy. 6 Commonwealth . Cullins, 1 Mass. 6 Johns . State, 19 Ind. 421, 423. 116. The error as to the supposed T Ibid. analogy between counties and States 244 IXTER-STATE CRIMINAL JURISDICTION. as principal of the act criminal in itself, within the State which constitutes the crime, and is the principal therein. 1 In such case the innocent person in the State is the means used to perpe- trate the crime therein, just as if a person who out of a State shoots across the line into another State and therein intentionally kills another person, is in such case guilty of committing the criminal act within the State without himself being at the time therein. He does so by using the ball ; as the means of perpetrat- ing the crime, propelled into the State by force of the gun and powder therein, instead of by force of his own will, using the person of an innocent individual to bring about the criminal result 9 X. No CONCURRENT CRIMINAL JURISDICTION IN STATE AND NA- TIONAL COURTS. In the early history of our national jurisprudence, laws of Congress were passed conferring on State courts jurisdiction under the national laws, in cases brought by the United States to recover penalties and forfeitures for violation of revenue laws, to the same extent as the jurisdiction in that respect of District courts of the United States, and also to take proof and hear and determine as to the remission of such penalties and forfeitures under the acts of Congress in reference thereto. For a time, those powers were exercised by the State courts, without objec- tion, as mere matter of comity, but not as a duty obligatory in law; but in the course of time, some of the States authorities declined the exercise thereof as infringing too much upon the time and labor of the State courts, and others from a doubt, also, as to the authority thus emanating from a different sovereignty, unless confirmed expressly by the legislative department of the State; 3 so that the policy of their jurisprudence came to be in that respect altered by law. Since then it has uniformly been held, or recognized as law, that State courts cannot take cogni- zance of crimes against the national government and laws. 4 Thus, perjury committed, in an oath taken under an act of Con- 1 Johns v. State, 19 Ind. 421. 423. 4 State t>. Adams, 4 Blackf. 146; * Bee as bearing on this point, Johns State v. McBride, 1 Rice, 400 ; People v. State, 19 Ind. 428. t>. Kelly, 38 Cal. 145; State v. Tullcr, 8 Kentucky v. Dennison, Governor 34 Conn. 280 ; State v. Zulich, 5 Dutch, of Ohio, 24 How. 66, 108. 409. NO CONCURRENT JURISDICTION. 245 gress, is not punishable in a State court. 1 Nor can a State court punish a larceny committed by stealing a letter from the United States mail. So the United States courts have no jurisdiction over crimes committed against State laws. 3 1 See cases cited above. And, also, pie v. Murray, 5 Parker Cr. Cases, 577 ; State v. Pike, 15 N. H. 83. State . Elder, 54 Maine, 381. 2 State v. McBride, 1 Rice, 400 ; Peo- 246 THE POLICE POWER. CHAPTER XXIII. THE POLICE POWER. I. THE POLICE POWER is IN THE STATES. II. ITS EXTENT. III. THIS POWER REMAINED IN THE ORIGINAL STATES. IV. AND BY PARITY OF RIGHT is IN THE NEW STATES. I. THE POLICE POWER is IN THE STATES. The police power is in the States so far as regards their domes- tic police; but cannot be so regulated or exercised as to interfere with or fetter commerce, or to infringe upon the exclusive power of Congress to regulate commerce with foreign nations, and between the several States and with the Indian tribes. 1 II. ITS EXTENT. It extends to the protection of the lives, limbs, comfort and quiet of all persons, and may exclude from introduction into the State contagious and infectious diseases; may make inspection laws; and may exclude or prevent the introduction of criminals, convicts, paupers, idiots, lunatics, and others likely to become a burden or public charge, so far as it may be exercised without interfering with the power of Congress over the subject of com- merce, hereinbefore referred to. 3 The precise extent of this power, it is " difficult to define with sharp precision," but what- ever invades the domain of legislating vested exclusively in 1 Railroad Company v. Husen, 5 Cases, 5 How. 504 ; Beer Company v. Otto, 465; Thorpe v. Rutland & Bur- Massachusetts, 7 Otto, ; Cooley on lington R. R. Co., 27 Vt. 140; North- Const. Lim., 4th Ed. 715. western Fertilizing Co. v. Hyde Park, * Railroad Company . Huseu, 5 Chicago Legal News, Vol. XI. p. 81 Otto, 465 ; Commonwealth v. Alger, (U. S. Supreme Court, October Term, 7 Cush. 84; Munn v. Illinois, 4 Otto, 1878); Patterson v. Kentucky (TJ. S. 113; Thorpe v. Rutland & Burlington, Supreme Court, October Term, 1878), R. R. Co., 27 Vt. 149 ; Cooley on Const Chicago Legal News, Vol. XI. p. 183; Lira., 4th Ed. 713 et teq. Gibbons v. Ogclen, 9 "Wheat. 1 ; License IN THE ORIGINAL AND NEW STATES. 247 Congress is void, no matter how closely allied to powers belonging to the States. 1 It is well said, that as the range of this power sometimes comes very near to the field committed by the constitution to Congress, it is the duty of the courts to guard vigilantly against any needless intrusion. 2 The police regulations of a State requiring railroad corpora- tions to fence their roads, or in default thereof to pay for injuries to live stock thereon, applies as well to foreign railroad corpora- tions running lines of railroad in the State, as to local or domestic corporations. The fact that such statute can only be enforced within the State where enacted does not alter the case. A foreign corporation there operating a railroad is subject to the statute to the sariie extent as local corporations, and so the danger to the public is equally great from one and the other. The object is not only to protect the owners of live stock from loss, but also to protect the public, as passengers, from injuries resulting from accidents caused by running against and over live stock coming onto the roads. Such foreign corporations are not only within the act, but are suable in the State by service on their agents. 3 III. THIS POWER WAS IN THE ORIGINAL STATES. The police power belonged to the several original States of the Union, before and at the time of the adoption of the national constitution, and except in so far as its exercise by them may impair the right of Congress to regulate commerce as conferred by the constitution, it was not surrendered or taken away from the States by the adoption of the same. 4 IY. AND BY PARITY OF EIGHT is IN THE NEW STATES. It follows that it exists in the new States to the same extent as in the old ones, from their admission into the Union on an equal footing with the old, or original ones. 5 1 Railroad Company v. Husen, 5 Husen, 5 Otto, 465 ; U. 8. v. Reese, 2 Otto, 465, 470, 472. Otto, 214; U. S. v. Cruikshank, 2 2 Ibid. Otto, 542; Patterson v. The Common- 3 Purdy v. New York & New Haven wealth (U. S. Sup. Ct.,Oct. Term, 1878), R. R. Co., 61 N. Y. 353. XI. Chicago Legal News (Feb. 22d, 4 Northwestern Fertilizing Co. v. 1879), p. 183 ; Cooley on Const. Lim., Hyde Park, Chicago Legal News, Vol. 4th Ed. 715. XI. p. 81 (U. S. Supreme Court, Octo- 6 Supra. ber Term, 1878); Railroad Co. v. 248 INTER-STATE RIGIITS OF EXECUTORS. CHAPTER XXIV. UTTER-STATE BIGHTS, POWERS AND DUTIES OF EXECUTORS, ADMINIS- TRATORS AND GUARDIANS. I. WHERE LETTERS TESTAMENTARY AND OF ADMINISTRATION SHOULD BE GRANTED. II. THE POWERS, LIABILITIES AND DUTIES OP EXECUTORS AND ADMINIS- TRATORS ARE LOCAL. III. INTER-STATE ACTIONS BY AND AGAINST EXECUTORS AND ADMINIS- TRATORS ON FOREIGN JUDGMENTS. IV. EXECUTORS AND ADMINISTRATORS SUING IN THEIR OWN RIGHT. V. NON-RESIDENCE AND REMOVAL FROM THE STATE. VI. STATUTORY POWER TO ACT IN OTHER STATES. VII. WILLS; PROBATE; VALIDITY OF. How FAR BINDING IN OTHER STATES. VIII. GUARDIANS OF MINORS AND LUNATICS. IX. DOWER. X. JURISDICTION OF NATIONAL COURTS IN INTER-STATE PROBATES. XI. PLEADINGS IN INTER-STATE SUITS IN PROBATE MATTERS. I. WHERE LETTERS TESTAMENTARY AND OF ADMINISTRATION SHOULD BE GRANTED. The Place of Domicile. The proper jurisdiction in which to obtain letters testamentary or of administration is in the State and place of the decedent's domicile, at the time of his death. J Ancillary Letters. If there be assets in another State or States, and administration be obtained there, such administration is ancillfiry to that of the administrator or executor acting as such at the place of the decedent's domicile, at and immediately preceding his death. 2 Excess of Assets. But although it is a general principle that administration on a decedent's estate granted elsewhere than in 'Crosby . Leavitt, 4 Allen, 410; * Ibid. And see, also, Probate Court Christy v. Vest, 36 Iowa, 285 ; Cham- v. Kimball, 42 Vt. 320; Chamberlin t>. berlin e. Wilson, 45 Iowa, 149; 1 Wil- Wilson, 45 Iowa, 149. Hams on Executors, .495, et seq. Gth Am. Ed. top paging. WHERE LETTERS SHOULD BE GRANTED. 249 the State of decedent's domicile is regarded as ancillary to the administration of the domicile, yet it is nevertheless the law that it is so only as to the excess of assets over what satisfies domestic creditors; and inasmuch as every State has the right of directing by law the disposition of property therein, therefore property in a State belonging to a non-resident is, on his decease, subject to be disposed of under the laws of the State, and to be sold, in case of insolvency of the estate therein, notwithstanding the estate be solvent in the State where the decedent died, for the creditors are not bound to look for payment in a foreign juris- diction. 1 Void Letters. If administration or letters testamentary be granted of a deceased person's estate in a different State than that of his last and true domicile, and there are no assets of the deceased in the said State or jurisdiction in which the letters are thus obtained, then such letters and authority are totally void, 2 for there is no property or interest of the deceased therein to confer jurisdiction on the court, or to grant administration or testamentary letters upon. It is well settled that an administrator of a deceased person cannot be appointed by a court of a State other than that of his domicile at his death, if in such other State he left no estate. 3 And the fact that at his death he was defendant in an attach- ment suit in another State, wherein property of his was attached and in the custody of the law, will not alter the case when such property has been receipted for to account to the officer and removed to the place of domicile in another State. The appoint- ment of an administrator where the suit is pending, and rendi- tion of judgment in such suit against him under such circum- stances, are equally void. 4 Surplus of Assets to be Turned Over to Principal Adminis- trator or Executor by Ancillary Administrator. If there be ancillary administration also, that is administration in some 1 Gilchrist v. Cannon, 1 Cold. 581 ; s Christy v. Vest, 36 Iowa, 285. Goodall v. Marshall, 11 N. H. 88; 3 Crosby v. Leavitt, 4 Allen, 410; Churchill . Boyden, 17 Vt. 819; Ste- Miller v. Jones, 26 Ala. 247; Grimes vens v. Gaylord, 11 Mass. 256. And v. Talbert, 14 Md. 169; Thumb v. see, also, Perkins' note to Williams Gresham, 2 Met. (Ky.) 306; Brough- on Executors, vol. III., p. 1763,6th ton v. Bradley, 34 Ala. 694; Jeft'erson- Am. Ed. Sec, further, Miner . Aus- ville R. R Co. c. Swayne, 26 Ind. 447. tin, 45 Iowa, 221. 4 Crosby v. Leavitt, 4 Allen, 410. 250 INTER-STATE RIGHTS OF EXECUTORS. other State than that of the decedent's domicile, in which other State there are assets, then this ancillary administration is ser- vient to the other, which other is the principal administration, and, therefore, when local claims, liens and legacies of a local character are satisfied out of the assets, as also costs and charges of administration, the residue of the estate in the hands of the ancillary administrator will be required, by the court, as a usual course, to be handed over to the administrator of the domicile for distribution under the law thereof. 1 Payment of a debtor to a foreign administrator will not discharge him from the debt.* I II. THE POWERS, LIABILITIES AND DUTIES OF EXECUTORS, ADMIN- ISTRATORS AND GUARDIANS ARE LOCAL. Are Local to the State wherein Granted. The rights, powers and duties of administrators of deceased persons are co-extensive only in a territorial point of view with the territorial boundaries of the State in which their letters testamentary, or letters of administration, are obtained; they do not, in law, extend beyond such jurisdiction, or into that of any other State or States, by virtue of their own force, or in virtue of the force or power of the government or laws, from which such letters emanate. They do not confer without more a right or title to property, although it be of a personal or movable nature; nor right of property or control of any interests, or debts, or choses in action, so situated within other States, or power to release, transfer, or discharge the same; nor right to institute and maintain in their official or fiduciary capacity any action or suit in the courts of another State or States, than the one where such letters are granted; and, therefore, no such powers or authority can be exercised by such administrators outside of the local jurisdiction of the State from which their powers are obtained, or over property or rights situated outside of such local jurisdiction, by mere force of their respective original letters or grant, but can only be exercised and enforced by them in such other State, by virtue of authority of law existing in such other State or States, if such law there be, permitting the exercise of such powers and conferring such rights upon administrators of other States; 3 and if there be no 1 Probate Court t>. Kiinball, 42 Vt * Young v. O'Neal, 8 Sneed, 55. 320; Lowe. Bartlett, 8 Allen, 259; Ela ! McClure . Bates, 12 Iowa, 77; v. Edwards, 13 Allen, 48. Karrick v. Pratt, 4 G. Greene, 144; DUTIES OF EXECUTORS ARE LOCAL. 251 such law in such other State, then letters of administration must be had therein, in accordance with the laws* thereof, to confer the right of property, or control of property, of the decedent, or right of action in regard thereto, in the courts of such other State, upon an administrator of the deceased; and, in so doing, the administrator to whom grant of letters is made in such other State must execute bonds therein and take the oath of office, and otherwise comply with all the requirements of the local laws there in force, irrespective of any action in that respect which may have been had in any other State or States, and this, too, whether the persons to whom the grant is made be the same persons to whom letters had before issued in the State where first granted, or be a different person or persons. 1 Some Exceptions in Louisiana. In Louisiana, however, it i& held that the title of an administrator being legal at the domi- cile of the deceased, confers on the possessor power to pursue and recover the property, if abstracted from his possession and carried into other jurisdictions or States. 2 Not Liable to Suits in other States. Administrators and execu- tors are not liable to suit in any other jurisdiction, sovereignty or State than the one in which their authority is granted, for assets coming into their hands lawfully in their fiduciary capa- Picquetfl. Swan, 3 Mas. 469; Vaughan 259; Kerr . Jones Eq. 276; Noonan v. Bradley, 9 Webb, 1 Barb. 231 ; Boyd v. Lambeth, Wall. 394; Beckham v. Wittkowski, 24 Miss. 433; Kirkpatrick v. Taylor. (14 X. C. 464; Sayre v. Helme, 61 Penn. 10 Rich. L. 393; Naylorc. Moflatt, 20 St. 299; Swatzel v. Arnold, 1 Woolw. Mo. 126; Vickery v. Beir, 16 Mich. 383; Riley v. Moseley, 44 Miss. 37; 50. See, also, 1 Williams on Execu- Stone v. Scripture, 4 Lans. 186; Pond tors, 419 et seq., 6th Am. Ed. note ., T. Makepeace, 2 Met. 114; Cutters, where this subject is very thoroughly Davenport, 1 Pick. 81; Goodwin v. discussed. Jones, 3 Mass. 514. But they may on * DUTIES OF EXECUTORS ARE LOCAL. virtue of the office, bring suits in the courts of States other than the one wherein the letters are granted, but must take letters anew, or otherwise conform to the law of the State where suit is intended to be brought; yet, when an executor or administrator has been regularly made plaintiff in a judgment recovered by the deceased during his lifetime, by substitution of record in the State where his letters are granted, and such judgment is ob- tained, then such executor or administrator may sue upon such judgment in courts of other States, without taking o M t letters testamentary or of administration therein, for the right of action attaches to the person, and not to the office, after judgment, and he may sue thereon, although his right be a trust, just as any other trustee may sue in a State other than that of his residence or citizenship. * Local Letters Procured after Suit Commenced. Though an administrator appointed by the court of one State or territory cannot ordinarily sue, as such, in the courts of another State or territory, without taking like letters therein, or in some way bringing himself within the statutory provision, if any there be, of the latter State, permitting the same, 2 yet if after suit actually commenced he procure letters of administration in the State wherein the suit is pending, that fact may be brought before the court, and suit will be allowed to proceed. 3 The proper method of showing such subsequent grant of ad- ministration, according to the rules of pleading and practice, is by a supplemental pleading; but if done by an amendment, so called, it may be sustained. 4 The case of Swatzel, Admr., v. Arnold, here cited, was com- menced in the district court of the Territory of Nebraska, by bill to foreclose a mortgage given to the complainant's deceased intestate, brought by Swatzel, acting in virtue of letters of ad- ministration granted to him in the then Territory of Kansas. The defendant demurred, alleging for cause of demurrer that complainant had not obtained administration in Nebraska. The demurrer was sustained. Subsequently the complainant obtained administration in Nebraska, and averred that fact by way of an amendment to his bill, filed by leave of the court. The plaintiff *. 1 Greasons v. Davis. 9 Iowa, 219, 225. 3 Swatzel v. Arnold, 1 Woolw. 383. 2 Swatzel v. Arnold, 1 Woolw. 383 ; 4 Ibid. Dixon v. Ramsay, 3 Or. 319. '254 INTER-STATE RIGHTS OF EXECUTORS. was a citizen of the State of Missouri, and the defendant a citi- zen of Nebraska, BO that when, at this stage of the proceedings, Nebraska became a State, the cause went into the circuit court of the United States for that district for trial. In the United States circuit court defendant demurred to the bill as amended, for the reason that the appointment as administrator in Nebraska was after proceedings commenced. In disposing of the demurrer the untimeliness of the appointment as administrator was not only urged, but it was contended, also, that the amendment was ineffectual to bring the subsequent appointment before the court; that a supplemental pleading was the required practice; but the court, MILLER, J., ruled against such necessity, conceding at the same time that the more approved or general practice had been a supplemental bill, in bringing before the court and into a cause facts or circumstances occurring after the filing of the original bill. The court cited, in support of the allowance of the prac- tice by amendment, Story's Equity Pleadings 1 and Humphreys \. Humphreys,* from which it seems that such is sometimes the practice, as in case of this amendment before answer filed. The objection for want of local letters of administration, when the foreign letters are granted in the State of the late domicile of the decedent, goes to the capacity to sue, and not to the right of the administrator to the subject matter of the suit; 3 for that is well settled, that a payment voluntarily made to the adminis- trator of the domicile by a foreign debtor is a good acquitance of such foreign debt. 4 The court, in Swatzel, Admr., v. Arnold, lay down the rule that the administrator of the domicile had an inchoate right to appointment in such other State in which there were assets, and that a local administrator then appointed would be required, after satisfying local claims and costs, to pay over the residue of the assets to the administrator of the domicile. 6 1 8S5. Richards, 1 Mas. 381. See, also, s 3 P. "NVms. 849. Mackey v. Coxe, 18 How. 100, 104. * Swatzel . Arnold, 1 Woolw. 383, * Swatzel v. Arnold, 1 Woolw. 383, 388, 389. 888, and citing Stevens v. Gaylord, 11 4 Swatzel v. Arnold, 1 Woolw. 383, Mass. 255 ; Harvey . Richards, 1 889, citing Lewis v. Doolittle, 7 John. Mas. 381 ; Burn v. Cole, 1 Ambl. 415; Ch. 45; Davves V. Head, 3 Pick. 128; Soinmerville v. Soinmerville, 5 Vea. Stevens t>. Gaylord, 11 Mass. 256; Da- 751, 791. See, also, Probate Court v. vis v. Estey, 8 Pick. 475 ; Harvey t>. Kimball, 42 Vt. 320. DUTIES OF EXECUTORS ARE LOCAL. 255 Inability Bemoved as to District of Columbia. But this ina- bility to sue in courts of other States and jurisdictions than those of the States in which their letters testamentary or of adminis- tration are obtained has been so far removed as to give the right to sue in the courts of the District of Columbia, by act of Con- gress of June 24, 1812, which provides " that it shall be lawful for any person or persons to whom letters testamentary or of ad- ministration hath been or may hereafter be granted by the proper authority in any of the United States, or the territories thereof, to maintain any suit or action, and to prosecute and recover any claim in the District of Columbia, in the same manner as if the letters testamentary or administration had been granted in the District." 1 Ancillary Administration. An appointment made where there is property of a decedent subject to administration, and at a place in a different State than that of the domicile of the de- ceased, if of the same person who is administrator in the State of the domicile, is merely ancillary to the administration of the domicile, 3 and accountability will not be required of such ancil- lary administrator, at the place of such appointment, for assets coming to his hands in the jurisdiction of the principal admin- istration. Nor will suit lie against him in the jurisdiction or State of the ancillary appointment for debts, by creditors or by heirs or legatees, to be paid or distributed out of the assets received and accountable for in the State where is made such original or principal grant of administration. 3 Distribution. Distributees and legatees must look to the forum of administration in the State of the decedent's domicile, where there are two such administrations granted to the same person, unless otherwise directed as to the local assets, in the discretion of the court where ancillary administration exists. 4 Assets First Liable to Local Claims. But such assets are first liable to the local creditors and debts within the jurisdiction or 1 Mackey . Coxe, 18 How. 100, Executors, 419, et seq., note u, 6th Am. 103. Ed. 2 Porter v. Heydock, 6 Vt. 374. 4 Hapgood v. Jennison, 2 Vt. 294 ; 8 Selectmen of Boston v. Boylston, Richards p. Dutch, 8 Mass. 500 ; Dawes 2 Mass. 381 ; Hapgood v. Jennison, 2 v. Boylston, 9 Mas. 837, 356 ; Harvey Vt. 294; Probate Court v. Matthews, v. Richards, 1 Mass. 381, 408; 1 Will- 6 Vt. 269, 275. See, for a full discus- iarns on Executors, 419, note , 6th fiion of this subject, 1 Williams on Am. Ed. 256 INTER-STATE RIGHTS OF EXECUTORS. State wherein they are thus administered, and the residue only will be turned over for distribution at the forum of the dece- dent's domicile. 1 Establishing Claims of Creditors and Payment Thereol. "When a decedent's estate is being administered in different States the creditors may proceed in the court of either of the States to establish and obtain payment of their claims, but if the estate is unable to pay in full all the claims for which it is liable, no one of the creditors can obtain a larger payment than his pro rata share, or dividend, although his claim be allowed in the courts of both States; any amount paid in one State will be deducted from his payments as for the whole claim made to him in another. 8 Order of Payment of Foreign Judgments. In State laws declaring the order of payment in probate of a decedent's debts, the term "judgments" will not be construed to include foreign judgments that is, judgments existing in another State and not put into judgment in the State wherein the assets are being administered. Such judgments of other States, though entitled to full faith and credit under the constitution and laws of the United States are not judgments of such other States, and though not liable there to any objection as to validity as evidence of a debt, but such objections as would invalidate them in the State where rendered are not of the same grade in other States with domestic judgments. The latter are liens, in certain cases, whereas the former cannot be in the nature of things. To allow them equality of grade would be to divide with them the pro- ceeds of judgment liens existing under domestic judgments, thus displacing in part the priority oi lien of such domestic judgment. 3 Public Administrator. The case cited of Union Mutual Life Insurance Company v. Lewis, Public Administrator of /St. Louis co.unty, State of Missouri, decided by the supreme court of the United States, at the October term, 1878, grew out of a life policy issued by said company, a corporation of the State of Maine, to one "William Burton, of Milwaukee city and county, 1 Goodall ti. Marshall, 11 N. H. 88; 9 Loomis . Farnum, 14 N. H. 119; Richards v. Dutch, 8 Mass. 506; Low Goodall v. Marshall 11 N. H. 88; Ty- v. Bartlett, 8 Allen, 259 ; Churchill v. lor t. Thompson, 44 Tex. 497. Boyden, 17 Vt. 319. And, see supra. 3 McElmoyle v. Cohen, 13 Pet. 312. DUTIES OF EXECUTORS ARE LOCAL. 257 in the State of Wisconsin, and who died in said city of Milwau- kee, and never having resided in the State of Missouri, and who had no money, property, paper, or other estate therein. The Insurance Company having an agent in St. Louis, on which pro- cess was had under the statute of Missouri, the public adminis- trator assumed to bring an action on the said life policy in a State court of Missouri against said company. The suit was removed to the United States circuit court, and judgment of said court was rendered against the company, and thereupon the company, as plaintiff in error, carried the case to the supreme court of the United States. The supreme court held that the powers of such public administrator, as an officer of the State of Missouri, were local, and confined to the matters confided to him by the local or State law, and did not extend to such a case. That court say, HARLAN, J. : "It was not the purpose of the statute to authorize a suit by a public administrator in Missouri against a foreign corporation doing business there upon the contract; not made or to be executed in that State with a citizen of another State who neither resided, nor died, nor left any estate in Mis- souri. Without discussing the validity of any local statute framed for such purposes as are imputed by this -action to the Missouri statute of 1868, it is sufficient to say, that the present case is not within the statute, according to any reasonable inter- pretation of its provisions." III. INTER-STATE ACTIONS BY AND AGAINST EXECUTORS AND ADMINISTRATORS ON FOREIGN JUDGMENTS. Action of Debt on Judgment. It seems to be a well settled principle of the law, that an action of debt will not lie against an administrator in one State, on a judgment obtained in another State, against a different administrator of the same intestate appointed under authority of such other State. 1 An adminis- trator cannot do any act that will affect or control the assets which are in another State, inasmuch as his own authority can- not extend beyond the authority or jurisdictional limits of the government from which he receives it. Where there are two 1 Stacey v. Thrasher, 6 How. 44; Chenowith, 7 Ind. 211; Lowe. Bart- Aspden v. Nixon, 4 How. 467 ; Me- lett, 8 Allen, 259 ; Ela v. Edwards, 13 Lean v. Meek, 18 How. 16; Slauter v. Allen, 48. 17 258 INTER-STATE RIGHTS OF EXIXTTOKS. such administrations, they are equal and independent of each other within their respective jurisdictions, if there be no local law to the contrary. 1 It is, to some extent, different as between executors of the same testator, some of whom reside in one State, and others in another, and all appointed by the same will, buc each qualifying only in the respective States where they reside, and so, also, if one is administrator with the will annexed. 2 In such case, it is said that although in a suit against the executor in one State on a judgment obtained in another State, aud although the judgment be not conclusive, yet it may properly be the basis of an action and go in evidence; since although there is no privity in law, between administrators of a common intestate, in different States, as they take their authority exclu- sively from the laws, there is, however, a privity of right and official identity between executors, inasmuch as their interest and powers emanate from their testator, and that judgment against one in one State may be rightfully brought into administration in the other State by proper proceeding against the executor locally existing there; and that if not a subject matter of recovery in itself in such other State, yet it may go in evidence, when the suit includes also the original demand, on which such judgment was rendered, to show that such demand has been carried into judgment in another State against one of the executors, qualified in such other State, and that therefore the other executors are precluded by reason of such judgment from pleading prescrip- tion, or the statute of limitations, in reference to the original cause of action, when such judgment in another State, is held, by the courts of t\\Q forum to preclude prescription, or the run- ning of the statute. 3 For the better understanding of the case cited, it may be proper to remark that the suit embodied not only judgment against the executor, but also one rendered against the testator in his lifetime, as also on several bills or notes not nego- tiable instruments, and that by the law of Louisiana where the action was tried, prescription, as there called (statutes of limita- tions), does not run against non-negotiable paper, and this circum- stance is also referred to as in part the ground of the decision of the 1 Stacey . Thrasher, C How. 44; * Hill t>. Tucker, 13 How. 458; La- Aspclen t>. Nixon, 4 How. 467; Me- tine v. Clements, 3 Kelly 436. Lean r. Meek, 18 How. 16. 8 Hill . Tucker, 13 flow. 458; Goodall v. Tucker, 13 How. 469. EXECUTORS SUING IN THEIK OWN EIGHT. 259 Supreme Court of the United States. 1 That court say, WAYNE, J.: "When, then, the court below rejected, as inadmissible in evidence in this case, the judgment obtained in Virginia against Allen and Johnson, the executors of Robinson in that State, we think it erred, and that it should have been admitted for the pur- pose mentioned. The court also instructed the jury, that the causes of action in this suit against Tucker, the co-executor of Allen and Johnson, were barred by prescription. In this we think there was error. The article of her code (the Louisiana code) upon which that instruction was given, 3,505, is in these words: ' Actions on bills of exchange, notes pa.yable to order or bearer, except bank notes, those of all effects negotiable or trans- ferable by indorsement or delivery, are prescribed by five years, reckoning from the day when these engagements are payable.' It is not applicable to either of the causes of action set out in the plaintiff's petition." And that as to the one note put into judgment in the testator's lifetime, it estops the executors and obliges them to pay it out of his assets wherever they may be; and so, too, if administrators (instead of executors), in different States, as administrators, in whatever State appointed, are privy to the intestate and are estopped by judgment against him. 2 IV. EXECUTORS AND ADMINISTRATORS SUING IN THEIR OWN RIGHT. May Sue in Their Own Personal Right. But notwithstanding a foreign executor or administrator, in the absence of any statute to the contrary, must take out letters in another State to enable him to sue therein, yet such necessity does not exist in reference to an executor who sues in another State, for lands therein, devised to himself in the will of his testator, for such executor's right is derived from the will, and therefore letters testamentary are not required to give him title as in the case of an adminis- trator suing for personalty. 3 Division of a State. And if, after such will is duly recorded in the State where made and wherein the testator died, a portion of the State be erected into a new and different State, it is not necessary to the validity of the will as to lands situated in such 1 Hill v. Tucker, 13 How. 468. * Lewis v. McFarland, 9 Cr. 151, 4 13 How. 467, 468. 153. 2GO INTER-STATE RIGHTS OF EXECUTORS. new State that it be subsequently recorded therein. 1 And so, too, in Maryland and other of the States, a foreign executor may enforce by suit in his own name, in the State court, a judgment of a court of another State recovered by him, as such executor where his letters testamentary were granted, and may also recover upon liabilities created to himself; 8 although the rule exists there as generally elsewhere, that a foreign executor or adminis- trator cannot by mere force of such foreign authority act as such, or administer the assets of his decedent in said State; 8 for the courts or laws of one State cannot confer authority of an official or fiduciary character to be exercised over property in another State. Laws have no extra-territorial force in themselves ; 4 but such authority may be exercised in other States if permitted by the laws thereof. 6 Thus, under the statute in Pennsylvania allowing the sale and transfer of capital stocks of a decedent, by his executor, upon registration by him of the will in the proper office in Pennsylvania, duly probated in the court of another State where decedent resided at the time of his death, it is held that a foreign executor may make such sale or transfers of stocks of Pennsylvania corporations, and that the corporation is not under the necessity of ascertaining if the will confers such power, for the power is derived from the local law. 6 When a foreign executor or administrator sues upon a judg- ment of another State rendered in favor of himself, he sues in his own right, for that which is his own in his representative character, as was held in the case cited above; 7 for although such judgment may have been rendered on a demand due the estate, yet that demand is merged in the judgment, and the debt is then due to him, and may be enforced by him, although held by him in his trust character. 8 1 Lewis c. McFarland, 9 Cr. 151, 153. 'Sheldon v. Rice, 30 Mich. 296; * Barton v. Higgins, 41 Md. 539. Turner v. Linam, 55 Geo. 253. And they need not, in such suit, aver * Sheldon v. Rice, 30 Mich. 296. probate of the will, either in the 5 Williams . Pennsylvania R. R. courts of such other country or of the Co., 9 Phila. 298; Turner v. Linam, State where suit is brought. Leland 55 Geo. 253. v. Manning, 4 Hun, 7; Smiths. Webb, Williams v. Pennsylvania R. R. 1 Barb. 230; Trotter v. White, 10 S. & Co., 9 Phila. 298. M. 607 ; Lawrence v. Lawrence, 3 T Wayland c. Porterfleld, 1 Met Barb. Ch. 71 ; Hall u. Harrison, 21 (Ky.) G38. Mo. 227 ; Wayland t>. Porterfleld, 1 Ibid. Met. (Ky.) 638. NON-RESIDENCE AND REMOVAL FROM STATE. 261 Assignee of Executor or Administrator. Suit By. And so, too, where an executor duly qualified to act as such, assigns to a person a promissory note belonging to the deceased at his death and payable to such decedent, the assignee of the note may sue the maker thereof in another State without the necessity of let- ters testamentary or of administration being had in such latter State, or of any other thing preliminary to his right of action therein upon such note, if by the law of the forum actions are maintainable by the assignees of promissory notes. For by the assignment the personal ownership of the instrument passes to the assignee, and to sustain an action thereon he need only show fiduciary character of the assignor as executor by the proper record of his appointment of the will, and make proof of the assignment. 1 o Note Payable to Bearer. Suit on. Likewise an administrator, whether foreign or domestic, may maintain suit in his own name although it be with the additional description of administrator, on a promissory note payable to bearer, and although the admin- istrator's intestate owned the note at the time of his death; and in such case he may make judgment without proof of his repre- sentative capacity as administrator, for that is mere matter of description and is immaterial, inasmuch as being the holder of the note so payable to bearer, he is thereby vested with its legal ownership, and might sue in his individual name without refer- ence to his fiduciary character of administrator. 2 In the language of Justice LYONS, in Sanford v. McCreedy, " in such case it was entirely unnecessary that the plaintiff should state in his complaint the source from whence he derived title to the note; and, having stated it, it was not incumbent upon him to prove it. The mere production of the note on the trial was sufficient prima facie to entitle him to judgment." 3 "V. XoN-RESIDENCE AND REMOVAL FROM THE STATE. Removal from the State. The powers of an executor who has duly qualified and is authorized to act, are not vacated or sus- pended by his removal from the State, if there be no statute giv- 1 Harper v. Butler, 2 Pet. 239. ertson v. Crandall, 9 Wend. 435; 2 Sanford v. McCreedy, 28 Wis. 102, Bright . Currie, 5 Sandf. 433. 106 ; Brooks v. Floyd, 2 McCord, 364 ; 3 28 Wis. 100. Patchen v. Wilson, 4 Hill, 57 ; Rob- 2C2 IXTEK-STATE KIOIITS OF EXECUTORS. ing such effect to his removal out of the jurisdiction. 1 And by a parity of reasoning we suppose the rule equally applicable to administrators, under like circumstances. The case just cited, Griffith v. Frazier, was one in which the question arose in this way: An executor duly appointed and qualified in South Carolina, where he resided, removed from the State after his appointment and qualification. The ordinary, in whom resided the probate powers, regarded the removal of the executor from the State as having the effect of vacating his office, and thereupon assumed to appoint another in his stead. The supreme court of the United States, MARSHALL, C. J., said, in delivering the opinion: ".The appointment of an executor vests the whole personal estate in the person so appointed. He holds as trustee for the purposes of the will, but he holds the legal title in all the chattels of the testator. He is, for the purpose of administering them, as much the legal proprietor of those chattels as was the testator himself while alive. This is incompatible with any power in the ordinary to transfer these chattels to any other person by the grant of administration on them. His grant can pass nothing; it conveys no right, and is a void act. If the ordinary possesses no power to grant administration where an executor is present performing his duty, what difference can his absence make, provided that absence does not disqualify him from executing his trust? * * * It would seem that he is potentially present, though personally absent." In this case a judgment had been revived, and execution sale thereon was made, in proceedings against the administrator thus illegally appointed, which gave rise to the suit, as involving the validity of the sale. The judgment and sale were adjudged void. If there is no law of the State requiring an administrator to be a resident of the State wherein letters of administration are granted, then his removal therefrom and becoming a citizen of a different State, after the granting of his letters, does not vacate or affect the validity of the same. Suit in United States Circuit Court. Every citizen has a right to change his citizenship from one State to another at pleasure, and if, having obtained administration of the estate of a dece- dent from the courts of a State in which he at the time resides, 1 Griffith v. Frazier, 8 Cr. 8, 22. ATTTHOEITT TO ACT I1ST OTHER STATES. 263 he afterwards removes his residence into another State and be- come a citizen thereof, his right as administrator to sue a citizen of the State of his former residence for liabilities due his dece- dent in the circuit court of the United States for the district wherein the person sued resides, is not affected by the fact that his legal capacity as administrator is the creature of the State wherein the suit is brought. The right so to sue is a personal one, and the capacity of administrator being attached to the person of the plaintiff does not take it away. 1 And it does not matter, to the contrary, that the intestate was a citizen of the same State with the defendant and if still alive could not sue in the Federal court; nor is the status of the parties altered as to the place of suit by the fact that the creditors or legatees of the decedent are citizens of the same State with the defendant. 2 The legal interest in the choses in action of a decedent who died intestate is conferred on his administrator by virtue of ap- pointment as such, and therefore his personal right of suing in the Federal court is in no wise affected by that right having come to him through the State court of the State wherein he sues in a court of the United States. 3 YI. STATUTORY AUTHORITY TO ACT IN OTHER STATES. Statutory Authority in Other States. In some of the States foreign executors and administrators may sue by virtue of the local statute, either unconditionally, as in actions by individual persons, or else under such terms as the statute prescribes. 4 In Ohio such statutory right exists, and letters properly authenti- cated under the act of Congress are evidence of such fiduciary capacity. 5 In Illinois such statutory right exists. 8 So, also, in New Jersey. 7 Foreign Executors and Administrators, Suit by. In Wiscon- sin, where there is a statute allowing foreign executors or admin- istrators of deceased persons, who were not at their death residents 1 Rice v. Houston, 13 Wall. 66. Bank of United States, 9 Wheat. 738. 8 Rice v. Houston, 13 Wall. 66 ; Coal 3 Rice v. Houston, 13 Wall. 66. Co. v. Blatchford, 11 Wall. 172; Me 4 Price v. Morris, 5 McLean, 4. Nutt v. Bland, 2 How. 9; Browne . 6 Ibicl. Strode, 5 Cr. 303; Chappedelaine v. R. S. of 111. 1874, 42, p. 112. Dechenaux, 4 Cr. 306; Childress v. ' Rev. of 1877, 23, p. 757. Emory, 8 Wheat. 642, 669 ; Osborn v. 264 INTER-STATE RIGHTS OF EXECUT' of the State, to bring suits in the courts of said State on tiling in the probate court of the county where suit is to be brought a copy of their authority to act as such, it is held that before the tiling thereof, their inability to sue is mere matter of disability, and not of right, and that therefore no new letters are necessary to confer a right to the subject matter of the suit involving assets, since such right inures to the executor or administrator by virtue of his foreign appointment; 1 and that such disability may be cured after action brought, 3 and can be taken advantage of by plea in abatement only. 3 Where, by the statute of a State, foreign executors and admin- istrators are allowed to sue in its courts, their authority to act as such is determinable by the laws of the State wherein they profess to have been appointed. 4 VII. WILLS; PROBATE; VALIDITY OF. How FAR BINDING IN OTHER STATES. The probate and establishment of wills duly done and perfected in the court of the proper jurisdiction of one State is valid and binding in the courts of every other State, when collaterally brought in question, so long as the record thereof remains in force; 6 except as affecting the title to real estate lying in such other State, in which case the will must be established in accord- ance with the laws of the State where the land is situated. 6 But when the law of the locality allows probate in accordance with the laws of another State, and in such other State, or the wit- nessing and execution thereof, in accordance with the laws of any other State wherein the same is made, than a compliance therewith is essentially a compliance with the law where the land is situated. 7 Federal Courts Cannot Take Proof of Wills. The federal courts, having no power to make probate of wills, are bound by 1 Smith t>. Peckham, 39 Wis. 414, 642, 704; Gaines t>. Hennen, 24 How. 418. 553, 615. s Smith 0. Peckham, 39 Wis. 414, Kerr v. Moon, 9 Wheat. 565. 418 ; Sabine v. Fisher, 37 Wis. 376. 7 Secrist v. Green, 8 Wall. 744; Car- Smith . Peckham, 39 Wis. 414, penter v. Dexter, 8 Wall. 513, 531 ; 418. Cheever v. Wilson, 9 Wall. 108; Pen- 4 Newton v. Cockc, 5 Eng. 169. nington v. Gibson, 16 How. 65, 80; 8 Gaines t>. New Orleans, 6 Wall. Langdon v. Goddard, 2 Story, 267. WILLS; PROBATE; VALIDITY OF. 265 the action of the State courts in that respect, and cannot enter- tain an original bill to review or set aside the probate of a will as having been done contrarv to law. 1 c3 v State Courts. The jurisdiction of probate of wills belongs ex- clusively to the courts of the several States and territories. 3 When Wills Probated in Other States are Evidence. Wills probated in another State, according to the laws thereof, are evi- dence, except as to the realty, in the courts of States where the record of such probate is produced and offered therewith, duly authenticated according to the laws of Congress of 1790 in ref- erence to proof of records and judicial proceedings of States in courts of others of the States. 3 But to operate on the title to lands, they must be executed and probated according to the laws of the foTum where thus offered in evidence, or must otherwise satisfy the requirements of the local law. 4 Devise to Minors. In Louisiana, a devise by a foreign testator, established in another State, of property situated in Louisiana, to minors resident therein, and who are under the tutorship or guardianship of their parents, will be administered by such guardians, under the usual supervision of the proper court, not- withstanding a provision in the w r ill appointing or requiring to be appointed special functionaries to control and manage the property during the nonage of the devisees. For although such foreign bequest is conclusive to confer the title of the testator to property in said State, when properly established, 5 yet it cannot alter or change the legal or practical manner of administering the same which is provided by the laws of Louisiana. So much' of the will as seeks to thus provide a practical means of admin- istering the property different from that of the law of the forum will be regarded simply as if never made. 6 Nor can an executor of a foreign testator execute his office in Louisiana under the will, or under foreign appointment. This authority must emanate from the local court of the State. 7 1 Fourvergne v. New Orleans, 18 5 Succession of Butler, Chi. Legal How. 470. News, Vol. XI., 52, (Sup. Ct. of La.) 2 Langdon v. Goclclard, 2 Story, 267. 6 Succession of Fourcher, Marquise 3 Newman v. Willett, 52 111. 98 ; Arj- . "Wilson, 29 Wis. 383. 4 Ibid ; 2 Moreau & Carleton's Par- Levericn v. Adams, 15 La. Ann. tidas, 842, 843, 844, 845. 310. Potter v. Hiscox, 30 Conn. 508. Ibid. DOWEK JURISDICTION OF NATIONAL COURTS. 269 IX. DOWER. The law of the domicile of the deceased husband, at the time of his death, determines as to the dower or portion of the widow in the personal estate of the deceased. 1 In regard to real estate, her right of dower will be measured by the lex rei sites, or law of the State where the lands lie. 3 In Louisiana, where community of property exists as between the husband and wife, it is held that a husband and wife who were married, and spent their entire married life in another State, do not come within the law of Louisiana, which establishes com- munity of property, or partnership interests, in gains acquired after marriage, although such property be acquired by the hus- band, within the State of Louisiana, and be so held until his death. The law of Louisiana, in that respect, applies only to married persons who reside in the State. 3 Rights of Citizenship cannot change this rule. Nor does the provision of the constitution of the United States, which declares, that " the citizens of each State shall be entitled to all the privi- leges and immunities of citizens in the several States," enable persons thus living and dying in another State to claim the ben- efit of said law. 4 X. JURISDICTION OF NATIONAL COURTS IN MATTERS OF PROBATE. Jurisdiction Depends on Citizenship. Where the parties pos- sess the necessary citizenship, circuit courts of the United States will take jurisdiction over executors and administrators, and adjust claims against them, upon the same rules which the local or State courts enforce or act upon, in reference to the rights of the citizens of the State in similar cases, so far as they are not repugnant to the laws of the United States. 5 And the right of executors and administrators to sue in such courts, so far as citi- zenship is concerned, depends upon the citizenship of such executors or administrators, and not upon that which was the decedent's whom they represent. 6 But in exercising such jnris- 1 Gilraan v. Gilman, 53 Maine, 184. 4 Ibid. 2 Ibid. 5 Walker v. Walker, 9 Wall. 743, 754, 3 Louisiana Code, Articles 2369, 755. 2370 ; Conner v. Elliott, 18 How. 591. Childress v. Emory, 8 Wheat. 642. 270 INTEH-STATE RIGHTS OF EXECUTORS. diction the United States courts will not regard as applying to tliL-m, State laws taking away in effect their jurisdiction as between citizens of different States. 1 State Statutes in Derogation of Jurisdiction of United States Court. A State statute preventing suit against executors and administrators of insolvent estates, is not construed to extend to creditors, residents of other States, so as to exclude them from euit against such executors or administrators in the United States circuit court. No law of any State can restrict the constitutional and legal right of a plaintiff to sue in said court. A State may pass general laws of limitation, as to the time within which actions may be brought, but they must be of a reasonable char- acter, acting uniformly, and as such may become the law of the forum of a United States court administering the laws of such State; but to deny the action altogether is in contravention of the right of the citizens of one State to sue citizens of another State in the United States courts; a right given by the Federal constitution and laws, and which cannot be circumscribed by the laws of a State. 3 Thus a law of a State preventing suit against the executor or administrator after the estate is declared insolvent, and directing distribution of assets among certain then recognized creditors and established claims, if to be regarded simply as a denial of right of action, has no application to United States courts whose power to entertain such suits, as well as the rights of a plaintiff otherwise qualified to sue, in these courts emanate from the national government, and are not affected by any such law which strikes not only at the right of the citizen to sue, but at the jurisdiction of the court itself. If, on the other hand, the restriction is regarded merely as part of the State system of insolvency, then it is inoperative as against a creditor residing in a different State, for want of jurisdiction over his person or the debt, unless he has in some manner submitted personally to the jurisdiction in the State proceedings in which such insolvency is declared. 3 1 Suydam v. Broadnax, 14 Pet. 67, 18 How. 503; Watson v. Tarpley, 18 75 ; Watson t>. Tarpley, 18 How. 517, How. 517, 521. 521. Suydam v. Broadnax, 14 Pet. 67, * Suydam v. Broadnax, 14 Pet. 67 ; 74, 75, 76 ; Union Bank of Tennessee Union Bank of Tennessee t>. Jolly, t>. Jolly, 18 How. 503; Watson v. Tar- pley, 18 How. 517. JURISDICTION OF NATIONAL COUETS. 271 Judgment Lien. The effect of the judgment lien, or other opera- tion of the judgment when obtained, upon the assets of the deceased debtor, depend upon and are controlled by the local or State law, otherwise irremediable conflfcts of jurisdiction would be liable to arise. 1 The case cited of Watson v. Tarpley, affords an apt illustration of this principle. It was an action on a bill of exchange, for non-acceptance thereof on presentation before due, for acceptance; recovery was resisted by defendant as to that particular bill, by virtue of a statute of the State of Mississippi (the suit being pending in the United States Circuit Court for the Mississippi district), which declared in substance that no action should be maintained on any bill, until after maturity. The court below ruled thereon for defendant, but on error to the United States Supreme Court, that court held, it being a general rule of commercial law that a right of action accrues to the payee or endorsee of a bill on presentation and refusal to accept, and that this law is not circumscribed to any local limits, and cannot be by State laws, in its applicability to the United States courts, inasmuch as it would infringe upon the jurisdiction of these courts, and impair the rights of citizens and others secured by the constitution and laws of the United States, to litigate there- in. 3 In the same case, the Supreme Court referring to their rul- ing in Swift v. Tyson* with approval, as to the extent to which State laws are by act of Congress designed to be made the law of the Federal courts, recur to the act of Congress known as the Judiciary act, which provides that the laws of the several States, except where the constitution, treaties, or statutes of the United States shall otherwise require or provide, shall be regarded as rules of decision in trials at common law, in the courts of the United States, in cases where they apply, and say: " It never has been supposed by us, that this section did apply, or was intended to apply to questions of a more general nature, not at all depend- ent upon local statutes, or local usages of a fixed and permanent operation; as for example, to the construction of ordinary con- tracts or other written instruments, and especially to questions of general commercial law." 4 'Union Bank of Tennessee v. Jolly, 2 Watson v. Tarpley, 18 How. 517, 18 How. 503, 507; Williams v. Bene- 521. diet, 8 How. 107: McGill v. Armour, 3 16 Pet. 1. 11 How. 142. 18 How. 520. I* 7:2 IXTER-STATE RIGHTS OF EXECUTORS. XI. PLEADINGS IN INTER-STATE SUITS IN ADMINISTRATION MATTERS. Suit on Judgment of other State. Re unques administrator is not a good plea to an action by an administrator on a judg- ment rendered in his favor as administrator. The question of the plaintiff's capacity or right to sue is settled, and merged in the former proceeding and judgment. The right becomes, by such judgment, a personal one in the administrator, which he may recover on without stating his capacity; and, therefore, when his character as administrator is stated in the declaration or petition in such action, it is to be regarded merely as descrip- tive.^ In the case here cited of Biddle v. Wilkins, the action was one of debt upon a judgment rendered in the district court of the United States for the western district of Pennsylvania, in favor of plaintiff as administrator, which Pennsylvania judg- ment was rendered on a judgment obtained in the mayor's court at Calcutta by plaintiff as such administrator. To the action in Mississippi, the defendant pleaded, First, ne unqiies adminis- trator; Secondly, that defendant was himself the administrator of the same decedent, duly appointed as such in the State of Mississippi; and, Thirdly, that the judgment sued on was ob- tained by fraud. To the two first pleas, there was a demurrer, and there was joinder in fact to the third, to the country. Judg- ment was rendered for defendant on the demurrer and the case went up on error to the supreme court of the United States. On argument of the demurrer there, the first plea was substantially abandoned as bad, and reliance was placed upon the second. The court regarded it as substantially raising the same point as the first, but in a more exceptionable form. In disposing of the case in the supreme court, THOMPSON, J., delivering the opinion, says: "The debt sued for is, in truth, due to the plaintiff in his personal capacity, and he may well declare that the debt is due to himself," and that, therefore, it was " totally immaterial whether the defendant was or was not administrator, * * * in the State of Mississippi." The judgment below was reversed, with an order for leave to plead anew, if desired.* 1 Biddle v. Wilkins, 1 Pet. 686 ; Tal- 3 1 Pet. 693. mage v. Chapel, 16 Mass. 71. PEIVATE CORPORATIONS IN TWO STATES. 273 CHAPTEK XXY. PRIVATE CORPORATIONS AND WORKS EXISTING IN TWO OR MORE STATES. I. POWER TO SELL CAPITAL STOCK THEREOF ON EXECUTION. II. POWER TO TAX MORTGAGE DEBT THEREOF BY THE STATES. III. LIABILITY TO SUIT FOR COMMON LAW CAUSE OF ACTION. IV. POWER OF UNITED STATES COURT AS TO MORTGAGE, FORECLOSURE AND SALE OF PROPERTY SITUATED IN Two STATES. I. POWER TO SELL CAPITAL STOCK OF INTER-STATE WORKS ON EXECUTION. Nice questions of law sometimes arise in regard to jurisdic- tion of State courts concerning inter-State corporate works of internal improvements. Process from State Court. Thus, where the corporation and its work exist in two or more States, as, for instance, in the case of the Dismal Swamp Canal Company and its works, the cor- poration existing by law in both Virginia and North Carolina, and the works of the company being partly in each of these States, and the stock of the company being by statute declared real estate, it is held that it cannot be levied and sold on execu- tion emanating from State courts of either of said States, if it is to be considered as savoring of the realty in reference to execu- tion, levy and sale. 1 Savoring of the Healty. In such case the capital stock savors of the realty, which exists in part in each of the States, and the shares being on the whole amount thereof, and yet indivisible in themselves, it results that each share represents land in each of said States, and that a sale in one State cannot confer title to property locally situated in the other, nor to any part of the property situated in the State wherein the proceedings are had, 1 Cooper v. The Dismal Swamp 195 ; Rorer on Jud. & Ex. Sales, 2d Canal Co., 2 Murph. L. & Eq. (N. C.) Ed. 1325. 18 274 PRIVATE CORPORATIONS IN TWO STATES. inasmuch as the share interests are of an entirety and cannot be so separated as to affect only the property lying within the State where the sale is made. Hence, where an execution sale of capital stock of the Dismal Swamp Canal Company was made in North Carolina on process from a court of North Carolina, and the pur- chaser took proceedings in chancery against the company to enforce the transfer of the capital stock upon its books, the enforcement thereof was refused, on the ground that the sale was void for want of jurisdiction in the court under whose process the sale was made to reach the same by its process, if the stock was to be regarded as realty. 1 But the supreme court of North Carolina seem disposed to regard the statutes declaring the capital real estate, as intended t > give it an inheritable character rather than to influence its liability to sale on execution, main- taining, however, as herein stated, that if it is to be considered as in that respect affecting its liability to levy and sale, then such dis- position of it under State process would be a legal impracticability for the jurisdictional reasons already stated; and that, therefore, no execution sale of it could be made if it were real estate; that if it is to be regarded otherwise, then, as mere choses in action, the shares of stock could not be so sold, since in North Carolina choses in action or capital stock of a private corporation was not in law liable to levy and sale on execution. In order to more clearly illustrate the ruling of the court and character of the proceeding in that case, we annex here a marginal note of the material part of the opinion of the court. 3 1 Cooper v. The Dismal Swamp of president and directors of the com- Canal Co., 2 Morph. L. & Eq. (N. C.) pany has by these acts been located. 195; Rorer on Jud. & Ex. Sales, 2d It therefore follows that the courts of Ed. 1325. each State have equal jurisdiction; 8 Cooper p. Dismal Swamp Canal but the court in either State in which Co., 2 Murph. L. & Eq. 195. HALL, J. : a suit shall be first properly instituted "The last question submitted to this does, by such priority, oust all other court should be first considered. Have courts of the jurisdiction during the the courts of North Carolina jurisdic- pendency of such suit and while any lion of the present suit? It is to be judgment which may be regularly observed that the canal lies partly in given in such suit remains in force. Virginia and partly in this Stale, and "But the complainant has not ap- that the acts of assembly incorporat- plied to the proper jurisdiction. He ing the company give no preference ought to have applied to a court of to the courts of either State. And it common law for a mandamus to corn- is to be further observed that the office pel the officers of the company to POWER TO TAX MORTGAGE THEREOF. 275 II. POWER TO TAX MORTGAGE THEREOF. Not Taxable in Either State. Mortgage bonds of a railroad corporation, created as a corporation by the laws of two differ- ent and adjoining States, and whose line of road is an entirety, and is partly situated in each of those States, and is in all its parts covered by the mortgage and bonds, as such entirety, can- not be subjected to taxation in and by either of said States. 1 register his deed in case he be entitled to have it registered. * * * It is not necessary to discuss this point, as the first and second points made in this case must be decided against the complainant. " It is true that the acts of incor- poration declare that the shares shall be considered real property, and it is also true that real property may be sold under writs of fieri facias in this State. But it was not contemplated to make such shares liable to debt as real property. The object of the acts was to give the shares the quality of being inheritable. This idea is strengthened by a clause in the act which declares that there shall be no severance of a share. If the shares are to be considered real property as to the payment of debts, they must be viewed as savoring of and issuing from the land, in which case they have locality; and part of the land lying in Virginia is not within the jurisdiction of this court, so that an execution could be levied on it; and we have just seen that that part which lies in this State cannot be sold, be- cause there can be no severance of a share. If the shares be considered as unconnected with the land, although as to some purposes they be consid- ered as real estate, yet, as to execu- tions, they are cJwses in action, and not the subject of seizure or sale. It may be aptly said of them what Lord ELLENBOROCGH, in the case of Scott v. Scholey, (8 East, 467) said of equita-' ble interests in terms for years, ' that they had no locality attached to them so as to render them more fitly the subject of execution and sale in one country than in another.' " The complainant, purchaser and holder of a sheriff's deed for stocks sold on execution, had brought his bill to compel the president and direct- ors to register his deed. 1 Railroad Company v. Jackson, 7 Wall. 262. The tax referred to in this case was levied by the State of Penn- sylvania of three mills on the dollar of all money owed by solvent debtors. The debt of railroad corporations it claimed to reach by requiring the debtor corporation to pay the tax and allowed it to deduct the same from payments of coupons. To this the creditor declined to submit, and brought suit upon his coupons. The United States supreme court held the tax illegal. See Railroad Co. v. Penn- sylvania, 15 Wall. 800. Neither are bonds issued by a railroad company in the hands of a non-resident of a State subject to taxation in the State ot the company. See cases just cited, and also Davenport v. Miss. & Mo. R. R. Co., 12 Iowa, 539 ; People v. East- man, 25 Cal. 603; Commonwealth v. Chesapeake & Ohio R. R. Co., 27 Gratt. 844. See, on the contrary, Maltby v. Reading & Col. R. R. Co., 52 Penn. St. 140. 27G TKIYATE CORPORATIONS IX TWO STATES. Such mortgage indebtedness rests for its security upon the credit and value of the entire line of road, its fixtures and franchises in both States, and which is indivisible, and so is each bond of the mortgage debt. The security being an entirety, and existing as it does locally in two different States, and is equally liable to sale in satisfaction of the mortgage debt. If one of these States may tax the whole, so may the other, and each will, in that case, tax interests and property situated in part without its territorial lim- its and jurisdiction, while neither that portion of the road situ- ated in one or the other of these States is separately liable for any separate part of such indebtedness or bonds, but each is lia- ble with all its interests for the whole. No portion of the bonds pertain to any one part of the road more than to another ; and as there is no severance to the bonds, none can be made for tax- ation proportionate, or in reference to, the comparative work or line of road within the two different States. If taxable as to one bond, it is so as to all, and if in one State, so likewise in the other; and the result would be double taxation of the bonds or bondholders, and thus the burden would increase and be doubled again, if permissible at all, and the line of the road and its unity existed in still another one or more States. In the language of the United States supreme court, NELSON, J., as a better illustra- tion than our language may give, " If Pennsylvania can tax these bonds, upon the same principle Maryland can tax them. * * * The only difference in the two cases is, that the line of road is longer within the limits of the former than the latter. Her tax would be a more marked one beyond the jurisdiction of the State, as the property and interests outside, of its limits would be larger. The consequence of this taxation of three mills on the dollar, if permitted, would be double taxation of the bond- holders. Each State could tax the entire issue of bonds. * * * The effect of this taxation upon the bondholders is readily seen. A tax of three mills per dollar of the principal at an interest of six per centum payable semi-annually, is ten per centum per annum of the interest. A tax, therefore, by each State at this rate amounts to an annual deduction from the coupons of twenty per centum; and, if this consolidation of the line of road ex- tended into New York or Ohio, or into both, the deduction would have been thirty or forty. If Pennsylvania must tax bonds of this description, she must confine it to bonds issued LIABILITY TO SUITS. 277 exclusively by her own corporations. * * * To permit the deduction of the tax from the coupons in question, would be giv- ing effect to the acts of the legislature of Pennsylvania upon the property and interests lying beyond her jurisdiction." III. LIABILITY TO SUIT FOE COMMON LAW CAUSE or ACTION. Suit in Either State. A railroad company which is incorpo- rated by two States, and which operates as one road in both States, is liable to an action in the courts of one of those States for dereliction of common law duties in the other State, as a common carrier, by discriminating between persons as to trans- portation on the road. 1 The case cited of MoDuffee v. The Portland & Rochester R. R. Co. 2 was this: The Portland & Rochester Railroad Company, chartered by both the States of New Hampshire and Maine, and operating its road in both said States, discriminated in the State of Maine between certain per- sons in relation to the carriage, accommodations arid price of car- riage of express matter. There being a statute in New Hamp- shire inhibiting such discrimination, the plaintiff predicated his right of action upon such statute. Objection being made thereto, the court ruled that the statute but re-enacted the common law on the same subject, and which prevailed in Maine, and that, therefore, the common law right of action being essentially the same in both States, and the action being a transitory one, it might be maintained in the courts of New Hampshire, if the pleadings be so reformed as to make it an action at common law, saying nothing of the statute, and advised an amendment accord- ingly; and in so amending the court suggested, that it might be well to employ as much of the statutory language as practicable, but without reference to the statute. This proceeding was an action on the case, and the decision of the New Hampshire court asserts the right to maintain such an action, if for a common law cause, in one State for a cause aris- ing in another State, when the laws of each on the subject of the right are as at common law, against a railroad corporation oper- ating its road in both States. So. in the case of Harris v. The Baltimore & Ohio Railroad, a corporation created in Maryland, 1 McDuffee v. The Portland & Railroad Co. . Harris, 12 Wall. 65. Rochester R. R. Co., 52 K H. 430; 2 52 N. H. 430. 278 PRIVATE CORPORATIONS IN TWO STATES. and subsequently in the State of Virginia, and by act of Con- gress in the District of Columbia, by which its corporate capacity was extended under one and the same name into both Virginia and said District, making it one and the same corporation, with like powers in each. The plaintiff below, Harris, having bought a ticket in the District of Columbia over the road of said com- pany to the Ohio river, was injured en route in Virginia, by a collision. Having sued the corporation in the District of Colum- bia for his injuries in Virginia, and the case having gone to the supreme court of the United States, that court held that such action would lie in said District, the company being one and the same there and elsewhere. 1 In this case the plaintiff alleged a contract for safe transportation, and that by negligent manage- ment a collision occurred causing the injury, resting the right of action partly on contract and partly in tort as for negligence. The contract for passage was made in the District of Columbia, and the court held the suit rightly brought there. The action was predicated on only a common law right; thus the question as to the right to sue in one State, in a statutory action, for injuries incurred in another State, for which an action is given by statute of the State where the injury occurs, did not arise in this case. So in the case of Richardson v. The Vermont <& Massachu- setts Railroad Company? incorporated by, and operating its road in, the States of Vermont and Massachusetts, the supreme court of Vermont, in an action ex contractu, held that the com- pany were liable to suit in each of said States. Moreover, the Vermont charter embodied a clause in substance requiring some officer of the company to at all times reside in Vermont, on whom process could be served, and that the company should be held to answer in the jurisdiction where service and return should be made. 3 But here again, the point is not reached as to whether, if an action be brought in one of those States against this same company for an injury inflicted within the territorial limits of the other of those States, and the character of the action is not one at common law, but is one created by a statute of the State wherein the injury occurs, jurisdiction can be sustained in the State where such suit is brought. 'Railroad Co. . Harris, 12 Wall. 65. 8 Richardson v. Vermont & Mass. 9 44 Vt 613. R R. Co., 44 Vt. 613. POWERS OF UNITED STATES COURT. 279 IV. POWERS OF UNITED STATES COURT AS TO MORTGAGE FORE- CLOSURE AND SALE OF PROPERTY SITUATED IN Two STATES. But when the proceeding is in the circuit court of the United States, and the proper parties exist to confer jurisdiction, as well as all other necessary jurisdictional circumstances to enable such court to take cognizance of the subject matter of the suit, and actual jurisdiction be obtained of the parties, then the court may decree in reference to the subject matter; as, for instance, against corporate works situated partly in two different States, and if the proceedings be for foreclosure of a mortgage against the same, and for sale thereof, irrespective of the property being locally situated in different States and districts than that in which the court is held, then the decree, in addition to order of sale, will enforce the parties in possession to deliver over to the purchaser the property sold on confirmation of the sale. 1 1 Muller v. Dows, 4 Otto, 444, 448, burgh & Steubenville R. B. Co., 55 449. See, also, McElrath v. Pitts- Perm. St. 189. 280 FOREIGN PRIVATE CORPORATIONS. OHAPTEK XXVI. FOREIGN PRIVATE CORPORATIONS. I. INTEB-STATE SUITS BY AND AGAINST CORPORATIONS. II. RIGHT OF A STATE TO EXCLUDE CORPORATIONS OF OTHER STATES. III. FOREIGN CORPORATIONS MAT DO BUSINESS IN A STATE IF NOT PRO- HIBITED. WHAT LAW GOVERNS THEIR CONTRACT. IV. INTER-STATE POWER OF CORPORATIONS TO HOLD LANDS. V. INTER-STATE SUIT AGAINST STOCKHOLDERS TO ENFORCE INDIVIDUAL LIABILITY. VI. INTER-STATE CONSOLIDATION OF RAILROAD CORPORATIONS. VII. POLICE POWER OVER FOREIGN CORPORATIONS IN A STATE. I. INTER-STATE SUITS BY AND AGAINST FOREIGN CORPORATIONS. May be Plaintiffs. Actions and suits ex-contractu may, by comity, be brought by a corporation, as plaintiff, in the courts of other States than that wherein the plaintiff resides, against nat- ural persons or corporations of such other States; and this, too, irrespective of whether such plaintiff corporation be created under State or national authority. 1 But qucere, as to actions for torts. It is suggested by high authority that the latter cannot be maintained. 3 In the case here cited, the supreme court of Illinois, LAWRENCE, J., say: "This was an action for a libel, brought by an insurance company incorporated under the laws of the State of Ohio. A demurrer to the declaration was sus- tained in the superior court, and that ruling is assigned for error. It has been held, both in England and this country, that a do- mestic corporation may maintain an action for libel. Whether a 1 Angel & Ames on Corps. 372, Bank of Edwarclsville . Simpson, 1 376; Libbey v. Hodgdon, 9 N. H.894; Mo. 184; Hahnemannian Life Ins. Tombigbee R. R. Co. v. Kneeland, 4 Co. v. Beebe, 48 111. 87; 1 Potter on How. 16; Bank of Augusta v. Earle, Corporations, 83. See, also, Na- 13 Pet. 519 ; Bank of Marietta v. Pin- tional Bank v. Nichols, 4 Biss. 315. dall, 2 Rand. (Va.) 465 ; British Am. * Hahnemannian Life Ins. Co. v. Land Co. v. Ames, 6 Met 391 ; Fra- Beebe, 48 111. 87. zier . Willcox, 4 Rob. (La.) 519; INTER-STATE SUITS BY AND AGAINST. 281 foreign corporation may do so is a question which we do not find to have been. decided. It is only by comity that we permit a foreign corporation to bring suit in our courts, upon its contracts, and it is not necessary to decide in the present case whether the comity should be so as to permit a suit for libel, as we are of opinion that, even conceding the power to sue, the demurrer to the present declaration was properly sustained." 1 Defendants. In States where there are no such statutory pro- visions for service on an agent, or no such agency and office ex- exists, corporations of other States cannot be personally sued. For it is a settled principle, that corporations dwell in the State of their creation, and cannot emigrate or be personally present in another, so as to be there sued by service on the corporate body. 2 If a non-resident or foreign corporation has property in a State, subject by law to its debts or liabilities, proceedings in rem may be sustained in the courts of the State wherein the property is, and the same may be seized by attachment, and condemned and sold. 3 And it is not every cause of action arising against a cor- poration in the State of its creation that can, by mere comity, be enforced against it in a different State. The better doctrine seems to be, that in the absence of statutory provisions to the contrary, only actions ex contractu may be so enforced in another State. 4 If, however, the statute of such other State, as is the case in 1 Ilahnemannian Life Ins. Co. v. trary, the numerous cases cited for Beebe, 48 111. 87. the defendant fully support the oppo- 2 Andrews v. Michigan Cent. R. R. site conclusion. A foreign corpora- Co., 99 Mass. 534; Newell v. Great tion can only be sued in this corn- Western Ry. Co., 19 Mich, 336. In monwealth by me ins of an attach- the case of Andrews v. Michigan nient of its property, unless, as in the Cent. R. R. Co., HOAR, J., says: "This case of foreign insurance companies, is an action against a railroad corpor- by virtue of an express statute pro- ation established in the State of Mich- vision." See, further, Lathrop v. igan, and the only service of the writ Union Pac. R. R. Co., 1 McArthur, was upon the treasurer of the cor- 234. poration, at their office in Boston. 3 Andrews v. Michigan Cent. R. R. There was no attachment of property. Co., 99 Mass. 534. See ante, Chap. The writ alleges that the corporation XII., and Drake on Attachment, has its usual place of business within 79, 80. See, also Selma, etc., R. R. the commonwealth. We are aware Co. v. Tyson, 48 Geo. 351. of no authority for the maintenance 4 Harriott v. New Jersey R. R. Co., of such an action, and none has been 2 Hilton, 262. On this subject see found by the diligence of the learned Chapter XV., 3. counsel for plaintiff. On the con- 282 FOREIGN PRIVATE CORPORATIONS. Massachusetts, in regard to foreign insurance companies, provide for jurisdiction of its courts over causes of action generally aris- ing therein against such foreign corporations, and provides for service on the agent of the corporation transacting business as such in the State, then actions other than those upon contracts will lie against the company therein, if the right of action accrues within the State. 1 Defendants, Continued. Service on Resident Agent. Juris- diction of a foreign corporation thus obtained by service on a resi- dent agent or officer thereof, (the law providing for such service on agents of foreign corporations doing business within the State,) is personal of the corporate body ; it places the corporate entity or person in court, as defendant, and will not only sustain or justify a general judgment against it, if a case be made out, for a recovery, 8 but an action may be sustained upon such general judgment against the corporation in the proper court of the State wherein such corporation is created and exists by law, if the same be properly authenticated. 3 Appearance gives Jurisdiction. Although, except by service on its agent, when authorized as aforesaid, a foreign corporation may not be subject to suit by personal service, as the corporate entity is in another State, and it may be that no service is attain- able as against it as a legal person; yet if the court has jurisdic- tion of the subject matter of the action or cause of action, con- sent may confer jurisdiction of the legal person or corporate body, 1 Andrews B. Michigan Cent. R. R. corporations, whether of other of the Co., 99 Mass. 534. American States, or of countries 2 Gibbs B. The Queen Ins. Co., 63 strictly foreign, doing business and N. Y. 114, 124; Martine B. Interna- exercising the special privileges tional Life Ins. Society, 53 N. Y. 339, within a State, with agents therein, 348 ; Libbey B. Hogdon, 9 N. H. 394. by permission of and in compliance It has been held, in Georgia, that a with the local law thereof, are re- foreign corporation doing business garded as domiciled there, and liable, within that State is subject to the ju- as domestic corporations are, to the risdiction of its courts, and may be law of the land. Martine B. Interna- served by serving the officer or agent tional Life Ins. Society. 53 N. Y. 339, of the corporation. City, etc., Ins. 846, 348; Milnor B. N. Y. & N. H. R. Co. v. Carrugi, 41 Geo. 660. It is R. Co., 53 N. Y. 363, 367 ; Newby v. within the power of a State" legisla- Von Oppen, L. R. 7 Q. B. 293. ture to authorize a suit against a for- 3 Lafayette Ins. Co. B. French, 18 eign corporation in personam Barrett How. 404; Gibbs u. The Queen Ins. B. Chicago, etc., R. R. Co., 4 Hun, 114; Co., 63 N. Y. 114. 8. C., 6 Thomp. & C., 358. Foreign INTER-STATE SUITS BY AND AGAINST. 283 and the appearance of a foreign corporation to the action, by an attorney, and answering thereto, amounts to such consent, and places the defendant in court subject to its jurisdiction. 1 So, the appearance and pleading by a non-resident insurance company, defendant to an action in a court of Minnesota, instituted against it under the statute, by mere filing of a petition, is a waiver of all irregularities or insufficiency as to the manner of bringing the action, and places the defendant in court. 2 And the provi- sion of said statute rendering insurance companies organized by foreign governments liable for twenty-five per centum damages on the amount found against them for neglect to pay insurance money, in case of loss, within the time specified in the policy, applies only to such companies as are incorporated by govern- ments strictly foreign, and not to those companies incorporated by others of the American States. 3 Construction compliance with Local provisions. A contract of insurance with a foreign insurance company, the policy in which, though executed by the company in another State, and delivered by its agent to the assured in the State where he resided, and there paid for by the assured, and before delivery counter- signed by the agent, and which contained a provision that it should not be obligatory until paid for and so countersigned, is held to be a contract made in the State where the same was delivered by the agent, and governed by the laws of that State, in reference to its construction and interpretation. 4 Foreign insurance companies who in Massachusetts have issued policies before complying with the statute of that State, authorizing them to do business therein, may, after compliance, enforce by suit the payment of assessments on such policies. 5 "Where by law something is required of foreign corporations as a condition to doing business in the State, the rul- ing is, that a foreign corporation which has not complied with the 1 McCormick v. Penn. Cent. R. R. * Pryce v. Security Ins. Co. of N. Co., 49 N. Y. 303, 309; McQueen v. Y. 29 Wis. 270. Micldletown Manf. Co., 16 John. 5; 8 Ibid. Faulkner v. Del. & Rar. Canal Co., 1 4 Pomeroy v. Manhattan Life Ins. Denio, 441 ; Paulding v. Hudson Co., 40 111. 398 ; Heebner v. Eagle In- Manf. Co., 2 E. D. Smith, 38; Wat- surance Co., 10 Gray, 131, 143; Ken- son v. Cabot Bank, 5 Sandf. 423 ; 8. G., nebec Co. . Augusta Ins. and Bank- 4 Duer, 606, note ; De Berner v. Drew, ing Co., 6 Gray, 204, 208. 39 How. Pr. 406. 5 National Mut. Fire Ins. Co. v. Pursell, 10 Allen, 231. 284 FOREIGN PRIVATE CORPORATIONS. requirements of the local statute as to the terms upon which it may do business in said States, cannot recover on a note given to it for premium on insurance by it therein. 1 Defendant, where State is a Stockholder. Though a sovereign State may not be sued without its own consent, yet such exemp- tion from suit does not extend to a corporation for business pur- poses in which the State is a stockholder; nor if the State owns all the stock, while the president, directors and other designated persons are the corporate body. In the latter case, this corporate entity or " metaphysical person is liable to suit," notwithstanding the interest it represents belongs to the State. 9 In the case here cited of Bank of Kentucky v. Wister, the United States Supreme Court, JOHNSON, J., say: "It is, we think, a sound principle, that when a government becomes a partner in any trading com- pany, it divests itself, so far as concerns the transactions of that company, of its sovereign character, and takes that of a private citizen. * * * Thus many States of the Union which have an interest in banks, are not suable even in their own courts, yet they never exempt the corporation from being sued." 3 A rail- road corporation of one State which has built a railroad in such State, is liable for a violation of a patent on said road by a cor- poration of a different State, which is sole operator of the road, and sole owner of the capital stock thereof. 4 The corporation cannot absolve itself from responsibility and performance of its obligation without consent of the legislature. It may doubtless lease or confide the operating of the road to others, but such others' wrong acts are its own wrong acts in that respect, unless the letting or sale be authorized by the legislature or charter. 8 A Quo Warrant lies only in the Home State. Courts of a State other than wherein a corporation is created, are powerless to inquire into and declare a forfeiture of its corporate charter or privileges. They have no jurisdiction to determine that question, either in a collateral or direct inquiry. Such inquiry and judgment of forfeiture can only be had in the courts of the State which conferred or granted the corporate powers. 8 Such 1 JEtna Ins. Co. r. Harvey, 11 Wis. ers' Bank of Georgia, 9 Wheat. 904. 394 : Williams e. Cheney, 8 Gray, 206 ; 2 Pet. 318, 323. Huvcrhill Ins. Co. v. Prescott, 42 N. * York & Maryland Line R. R. Co. H. 547. v. Winans, 17 How. 30. 8 Bank of Kentucky t>. Wister. 2 Pet. Ibid. 818; Bank of United States 9. Plant- Carey 9. Cm. & Chi. R. R Co., 5 EIGHT OF STATE TO EXCLUDE CORPORATIONS. tiS5 proceeding should be against the persons claiming to be the cor- porators and not against the acting corporation by its assumed corporate name. 1 To proceed against it by its corporate name, would in effect be an admission of its corporate existence. 2 II. RIGHT OF A STATE TO EXCLUDE CORPORATIONS OF OTHER STATES. May do Business by Comity. Whatever the right of a State may be to exclude corporations of a foreign nation from doing business within its limits, a matter which it is not our purpose to consider, as it does not come within the compass of our subject, yet, if the question as to the power of the American States to exclude corporations of their sister States from that privilege had never been touched upon by decisions of our U. S. Supreme Court, then it would seem to us that under that part of sec. 2 of article IV., of the United States constitution, which declares that " the citizens of each State shall be entitled to all privileges and im- munities of citizens in the several States," no State can exclude the citizens or corporations of citizens, of any others of the States from carrying on or transacting any such business within its limits, as its own citizens or corporations of its own citizens are allowed to carry on and transact therein. This subject, however, has repeatedly been before the United States Supreme Court, and the uniform ruling has been that the provision of the national constitution above referred to, relates to natural persons, and not to artificial bodies as corporations, and that the privileges and immunities guaranteed thereby means those of a general char- acter, allowed to a State's own citizens, and not those special privileges conferred on corporate bodies. In Lafayette Ins. Co. v. French , 3 the Supreme Court of the Iowa, 357, 368; Canal Co. v. Railroad State, 43 Ind. 236; State v. The Inde- Co., 4 Gill & J. 1 ; Trustees of Vernon pendent School Dist., 44 Iowa, 227 ; Society v. Hill, 6 Cow. 23; People v. High on Extraordinary Remedies, The Society for Propagating the Gos- 661. pel, 1 Paine, 653. 3 13 Pet. 519. So the same doctrine 1 State v. Independent School Dist., is substantially asserted by the same 44 Iowa, 227; Mud Creek Draining learned court, NELSOX, J., in Ducat v. Co. v. The State, 43 Ind. 236; People Chicago, 10 Wall. 410; also, by Jus- v. Rensselaer & S. R. R. Co., 15 Wend, tice FIELD in Paul v. Virginia, 8 114, 128. Wall. 168, and still earlier in The 1 Mud Creek Draining Co. v. The Bank of Augusta v. Earle, 13 Pet. 519; 286 FOREIGN PRIVATE CORPORATIONS. United States, CURTIS, J., say: "A corporation created by Indi- ana can transact business in Ohio, only by the consent, express or implied, of the latter State. This consent may be accompa- nied by such conditions as Ohio may think fit to impose, and these conditions must be deemed valid and effectual by other States, and by this court; provided, they are not repugnant to the constitution and laws of the United States, or inconsistent with those rules of public law which secure the jurisdiction and authority of each State, from encroachment by all others, or that principle of natural justice which forbids condemnation without opportunity for defense." But if there be no express provision of law to the contrary, such permission may be presumed or implied. 1 The same doctrine is held in Yirginia, that the States have a right to regulate the terms upon which foreign insurance com- panies may do business as corporations within their territorial limits, by all such reasonable regulations as do not infringe upon the jurisdiction of the national courts or rights of Congress under the constitution. 3 And that the privileges and immuni- ties secured to the citizens in the several States under the con- stitution of the United States do not apply to legal persons or entities, such as private corporations of the several States. 3 In the subsequent case of Insurance Co. v. Morsef the supreme and in Covington Drawbridge Co. v. ed by this provision to give to the Shepherd, 20 How. 227 ; Ohio & Miss, laws of one State any operation in R. R. Co. v. Wheeler, 1 Black, 286. other States. They can have no such In all those cases, the doctrine is operation, except by the permission, recognized, that the admission of a express or implied, of those States, foreign corporation to transact busi- The special privileges which they ness within a State is discretionary confer must, therefore, be enjoj-ed at with the State itself, and depends home, unless the assent of other States upon permission express or implied, to their enjoyment therein be given." In the language of the learned Justice Paul v. Virginia, supra. FIELD, " the privilges and immunities ' Story's Conf. of Laws. 38. secured to citizens of each State, in * Slaughter v. Commonwealth, 13 the several States by the provision in Gratt. 767. question, are those privileges and iin- 'Slaughter c. Commonwealth, 13 munities which are common to the Gratt. 767, 773, citing Commonwealth citizens in the latter States, under their v. Milton, and Lexington v. Same, 12 constitution and laws, by virtue of B. Mon. 212 ; Tateni v. Wright, 3 Zab. their being citizens. Special privi- 429 ; Corfleld v. Coryell, 4 Wash. C. C. leges enjoyed by citizens in their own 871. States are not secured in other States * 20 Wall. 445. by this provision. It was not intend- EIGHT OF STATE TO EXCLUDE CORPORATIONS. 287 court of the United States, HUNT, J., say: "We do not consider the question whether the State of Wisconsin can entirely exclude such corporations from its limits, nor what reasonable terms they may impose as a condition of their transacting business within the State. These questions have been before the court in other cases, but they do not arise here." And, again, in Doyle v. The Continental Insurance Co., 1 the court reassert the doc- trine that a State may impose terms upon private corporations of other States doing business within its limits not inconsistent with the rights and jurisdiction of the Federal government- and courts; and having given permission, may revoke it at will. 2 But, qucere, as to this without cause, if contract rights have vested on the faith of such permission? A State cannot Impose Terms which Conflict with the United States Constitution and Laws. But whatever other terms of doing business in another State may be imposed upon such cor- poration, it is well settled that the terms must not be such as impair the rights of the National government or courts under the constitution. Hence a State law requiring foreign corporations, as a condi- tion to doing business in the State, to enter into a stipulation to keep in such State an attorney or agent, on whom service in suits against the corporatioii. may be made as on the corporation, and agreeing not to remove suits against such corporation from the State to the United States court, is invalid as violating the con- stitution; and such stipulation, so far as regards the removal of suits, is ineffectual to prevent removals, and that the jurisdiction of the United States court cannot be affected by either such statute or stipulation. 3 But where such statute also requires in addition to such stipulation, and as a prerequisite to so trans- acting business in the State, a license authorizing it so to do, and requires such license to be cancelled by State authority in 1 4 Otto, 535. Sec, also, Ducat v. 3 Insurance Co. v. Morse, 20 Wall. Chicago, 10 Wall. 410; Lafayette Ins. 445; Doyle v. The Continental Tns. Co. v. French, 18 How. 404; Christ Co., 4 Otto, 535; Insurance Co. v. Church v. Philadelphia, 24 How. 300 ; Dunn, 19 Wall. 214 ; Stevens v. Phcenix People v. Roper, 35 N. Y. 629 ; People Ins. Co., 41 N. Y. 149 ; Holclen . Put- v. Commissioners of Taxes, 47 N. Y. nam Ins. Co., 46 N. Y. 1 ; Hadley v. 501. Dunlap, 10 Ohio St. 1. See, also, 2 Doyle v. Continental Ins. Co., 4 Home Ins. Co. v. Davis, 29 Mich. 238. Otto, 535. 288 FOREIGN PRIVATE CORPORATIONS. the event of the parties removing a suit in violation of such agreement, as is the case in the statute of Wisconsin on that subject, it is held by the State court, since the decision in the I a n ranee Co. v. Morse, above referred to, that notwithstanding said decision of the United States supreme court as to the insulli- ciency of such legislation to prevent a removal of a suit, that nevertheless the State court may rescind such license if such removal be made. 1 How far this act of rescinding a license already existing for the mere doing of what the United States supreme court has held to be lawful will be upheld, has not, so far as we know, been decided by that court. But whatever the right of exclusion from doing business locally and entirely con- lined within a State, it is certain that no State can exclude a corporation which is engaged in inter-State transportation or commerce, 3 nor an inter-State corporation organized under or in accordance with a law of the United States. 3 In the case here cited of Pensacola Telegraph Company v. The Western Union Telegraph Company, the supreme court of the United States, adverting to the ruling in Paul v. Virginia,* to the effect that a State might exclude a corporation of another State from its jurisdiction, say that the case of Paul v. Virginia was not in reference to a corporation engaged in inter-State com- merce, and that if it had been then very different questions would have been presented, as is shown by the terras of the opinion in that case. 5 III. FOREIGN CORPORATIONS MAT DO BUSINESS IN A STATE, IF NOT PROHIBITED. WHAT LAW GOVERNS THEIR CONTRACTS. No principle of the law is better settled than that corporations aggregate of a private nature, created in one State, may do such business in other States as their charter authorizes where created, if such business is not inconsistent with the laws or policy of such other States, and their contracts in reference thereto, if otherwise lawful, will be enforced/ 1 State v. Doyle, 40 Wis. 175, 220. ern Union Telegraph Co.,6 Otto, 12, 13. 4 Pensacola Telegraph Co. v. West- ' Conn. Mutual Life Ins. Co. t>. ern Union Telegraph Co., 6 Otto, 1. Cross, 18 Wis. 109 ; Thompson t>. Wa- Ibid. ters, 25 Mich. 214. See, supra, 2 of 4 8 Wall. 168. this chapter. See, further, Baltimore, Pensacola Telegraph Co. t>. West- etc., R. R. Co. . Glenn, 28 Md. 287; \W GOVERNS THEIR CONTRACTS. 289 The same principle is equally well settled that they have capa- city to sue in the courts of such other States, in action ex con- tractu. 1 But a corporation of one State making contracts in another State does so by comity of the latter. Its power to con- tract, however, and the contract itself, is in reference to the law of its charter and the laws of the State wherein it is created and exists. These govern the nature, obligation and interpreta- tion of the contract, and not the local law of the State where the contract is made, as ordinarily would be the case in reference to contracts between natural persons. But except so far as differ- ent by reason of the artificial character of the corporate person, its powers, capacities and purposes, the local law of the contract will apply. 2 Yet a foreign corporation doing business as a rail- road company in another State, by extending the line of its road therein, by permission of law of such State, is deemed, as to contracts made therein by it, to possess the powers and as sub- ject to the liabilities of similar corporations created by the State into which it is so allowed to enter, as settled by the adjudica- tions of the courts of such State; and it will not be permitted, after making contracts therein, in the exercise of privileges thus conceded to it, to then set up incapacity to thus contract under the law of the State where it was chartered. 3 A foreign corporation authorized by statute of another State to construct an extension of its road therein, and granting it all the privileges and immunities, and subjecting it to all the restric- tions conferred and imposed on it by law in the State wherein it is created, though not made a domestic corporation by such grant, is, nevertheless, so far domesticated as to be exempt from process of attachment, when by the law of its creation it is so exempt. 4 Such grant and the terms thereof of the State wherein it is thus allowed to enter and do business, are so far of the nature of a Williams c. Creswell. 51 Miss. 817; Mining Co., 4 Allen, 580; Bank of Newburg Petroleum Co. v. Weare, 27 Augusta v. Earle, 13 Pet. 519; Arms Ohio St. 343; 1 Potter on Corpora- v. Conant. 36 Vt. 744; Wood Hydraulic tions, 271, 272. Co. v. King, 45 Geo. 34. 1 Conn. Mutual Life Ins. Co. v. * Milnor v. New York & N. H. R. R. Cross, 18 Wis. 109 ; Bank of Augusta Co., 53 N. Y. 863. v;. Earle, 13 Pet. 519. See, supra, % 1 4 Martin v. Mobile & Ohio R. R. of this chapter. Co., 7 Bush, 116. 8 Hutchins v. New England Coal 19 290 FOREIGN PRIVATE CORPORATI- contract that the same may not be impaired by subsequent enact- ments or conduct of the State. 1 IV. INTER-STATE POWER TO IloLD LANDS. Although corporations created by the laws of a State, and authorized to acquire and hold lands for the purposes of the corporation, cannot take and hold lands in another State without permission therefor expressed or implied, and although a law of such other State may render lands thus acquired and held sub- ject to escheat or forfeiture to the State, yet lands thus acquired and held by trustees for use of such foreign corporation are right- fully held and possessed by such trustees and corporation until title is divested by the necessary legal proceedings of the State set on foot for that purpose. 8 Hold Lands, if no Inhibition. If no statutory inhibition, cor- porations created in one State may sue in another State; 3 may take lands in security for debts, and enforce such security; 4 may make promissory notes and other contracts not violatory of the laws of such other States; 5 and may loan money on mortgage therein, if authorized by its charter to so loan, where incorpor- ated, and not prohibited by the laws of the State wherein the loan is made. 6 But foreign railroad corporations, authorized by law of a State to do business therein are thereby doubtless authorized to take and hold necessary lands. V. INTER-STATE SUIT AGAINST STOCKHOLDERS TO ENFORCE INDIVIDUAL LIABILITY. Neither an action at law, or a bill in equity, will lie against a stockholder of a corporation to enforce individual statutory lia- bility for corporate debts, in a court of a State other than that wherein the corporation exists in law, or was by law created, 1 Martin t>. Mobile & Ohio R R * New York Dry Dock Co. t>. Hicks, Co., 7 Bush, 116. 5 McL. 111. 2 Runyan v. Coster, 14 Pet. 122 ; Ibid. Thompson v. Waters, 25 Mich. 214. * New York Floating Derrick Co. See, also, White v. Howard, 38 Conn. v. N. Jersey Oil Co., 3 Duer. 648 ; 342; Carroll t>. East St. Louis, 67 111. Thompson v. Waters, 25 Mich. 214. 568 ; U. S. Trust Co. v. Lee, 73 111. 142 ; Farmers' Loan & Trust Co. t>. Mc- Claremout v. Royce, 42 Vt 730. Kinney, 6 McL. 1. CONSOLIDATION OF RAILKOAD CORPORATIONS. 291 although the defendant reside in such other State, or be found and served with process therein. 1 Such liability, in New Hampshire, being in virtue of the stat- ute, it cannot be enforced in the courts of Massachusetts, inas- much as the statute of New Hampshire imposing the liability and defining the remedy has no extra-territorial force, and there- fore will not sustain an action in another State. 2 Nor will the courts of another State enforce the right upon principles of comity, when the remedy prescribed is of a character suitable only to the local jurisdiction ; as, for instance, where the remedy is by bill in equity, in pursuing which, by the settled principles of equity practice, the other creditors and the corporation itself should be made parties ; for a foreign court will not assume con- trol of the affairs of a corporation of another State. 3 VI. INTER-STATE CONSOLIDATION OF RAILROAD CORPORATIONS. Does not Make them one Corporation. The consolidation of railroads existing in different States, and organized under the laws thereof, respectively, as separate and distinct organizations, does not make them one corporation or company, nor affect them in like manner as does the consolidation of such corporations when each is situated within and is organized under the laws of the same State. And though a corporation be created by two States, each of like name and import, the one in one State and the other in the other, and the two having such a physical connection as to make them practically one line and road, yet they are not the same legal entity in each State, but each is a separate corporation and organization. The effect is merely to create between them a community of interest in case the two be consolidated. 4 Unity of Control and of Contract. Though such is the abstract 1 Erickson . Nesmith, 4 Allen, 233; mith, supra; Smith n. Mutual Life Derrickson v. Smith, 27 N. J. Law, Ins. Co., 14 Allen, 336. 166 ; First Nat. Bank v. Price, 33 Md. 4 Erickson v. Nesmith, 15 Gray, 487 ; Scovil le v. Canfleld, 14 John. 338. 221. The courts, however, seem to hold 3 Erickson v. Nesmith, 4 Allen, 233 ; that where the liability of the stock- Hadley v. Russell, 40 N. H. 109. holders is in the nature of a contract, * Racine & Miss. R. R. Co. v. The and does not conflict with the policy Farmers' Loan & Trust Co., 49 111. and laws of the forum, that such lia- 331 ; Farnum v. The Blackstone Canal bility will be enforced. SeeHealyu. Co., 1 Sum. 47; Muller v. Dows, 4 Root, 11 Pick. 389. Erickson v. Nes- Otto, 444. 292 FOREIGN PRIVATE CORPORATIONS. doctrine and technical force of the law, yet when such consolida- tion is effected by permission of law of the two States, then, if the united line be practically placed under one and the same control, and contracts are made by such controlling power, as- suming a unity of action and liability, courts will, for the pro- tection of others interested, and to enforce good faith, hold that such contracts are made by each of such corporations. 1 This same question of the effect of such consolidation arose in Indiana, in Paine v. The Lake Erie & Louisville Railroad Company,* but the parties being severally before the court, it was found that full justice could be done without a formal decision of the question. The supreme court of Indiana said, however, in that case: " A very grave question is presented in the argu- ment as to the power of two States to create one corporation. It is claimed that to maintain the action, the consolidation must have resulted in the formation of one company, and that this ift simply impossible. It is urged that it might, with as much propriety, be argued that a child may have two mothers, as that two States can create one corporation. Under our view of the case, the question becomes of no importance. It is admitted by the counsel for the appellants that the effect of the consolidation might be to create two corporations with the same name and stockholders a unity of stock and interests. This suit, in our judgment, can well be maintained under either view. If there is but one corporation, as a result of the consolidation, then the suit is undoubtedly well brought; if there are two corporations, then all the parties necessary for a complete settlement of the matter in dispute are before the court." 3 Unity of Interest, but not of Entities. The case cited of Farnum v. The Blackstone Canal Co., involved the consolidation of two corporations created by different States. The learned Judge STORY, held, that while such consolidation created a unity of in- terest of the two, yet it did not follow that either of them ceased, by reason thereof, to exist, but that their powers, rights and duties remained distinct and general, as before. That there was no cor- 1 Racine & Miss. R. R. Co. . Tho * 81 Ind. 283. And as to the saving Farmer's Loan fe Trust Co., 49 111. of such rights, see, also, Phila.&Wil- 331 ; Bissell v. The Mich. Southern & minptin R. R. Co. v. Maryland, 10 N. Indiana R. R. Co., 22 N. Y. 258. How. 876. * 31 Ind. 283. POLICE POWEK OVER. 293 porate identity, and that neither was merged in the other; neither was there any merger of the two. The union was of interests and of stocks, but not of personal or legal identity or existence. 1 Domesticated. In Rhode Island, however, it is held that when corporations of two different States are united by legislative en- actment of such States, each of such corporations is thereby domesticated in each State, and therefore neither is subject to attachment process in either State, inasmuch as only foreign cor- porations are subject to proceedings by attachment. 2 Where two such corporations are created as one line by legislative enact- ments of different States, then, in proceedings to foreclose a mortgage upon the works thereof situated in the different States, jurisdiction of a United States circuit court may be exercised to enforce foreclosure and sale in an entire proceeding against the whole interest in each State, if the court obtains jurisdiction of the parties in interest, notwithstanding a part of the property be locally situated in a State other than that where the court is sit- ting that makes the decree of sale. 3 VII. POLICE POWER OVER FOREIGN CORPORATIONS IN A STATE. Subjects of Police Power. All persons, whether natural or artificial, doing business within a State, are subject to the police powers and regulations thereof, other than such as are within the jurisdiction of the national government, as to the regulation of commerce. Thus, a railroad corporation of one State operating a railroad in another State is subject to the police power of the latter State ; and so is that portion of its road which is situated therein. It results from this principle that such road and corporation is subject to the State law requiring railroads to be fenced, or else to be held liable to pay for injuries to live stock injured on such roads. The requirement is of a police nature, being intended to promote the safety of the traveling public, as well as to guard against injury to animals which may, without such fence, go upon the roads. 4 For, although such State law has no extra- 1 Faruum v. The Blackstone Canal 3 Muller v. Dows, 4 Otto, 444; Mc- Co., 1 Sum. 46, 62. See. also, Bissell Elrath v. Pittsburgh & Steubenville p. Southern Mich. & N. Indiana R. R. R. R. Co., 55 Penn. St. 189. Co., 22 N. Y. 258. * Purdy v. New York & N. H. R. R. J Sprague v. Hartford, Providence Co., 61 N. Y. 353. & Fishkill R. R. Co., 5 R. I. 233. 294 FOREIGN PRIVATE CORPORATIONS. territorial force, and therefore cannot reach the foreign corpora- tion in the other State wherein it is created and exists, 1 yet it applies in the same force to railroads in the State belonging to and operated by foreign corporations as it does to such roads as belong to domestic corporations, and the power thereof may not only be brought to bear upon the roads, but also upon the for- eign owners operating the same, where they have agents or officers subject by law to process as against the company resident within the State. 8 1 Thompson v. Whitman, 18 Wall. Purdy t>. New York & New Ha. 457, and ante, Ch. YIII, 1. ven R R. Co., 61 N. Y. 353. RECEIVEKS AND TEUST FUNDS. 295 CHAPTEE XXYII. RECEIVERS, OTHER TRUSTEES, AND TRUST FUNDS. I. RECEIVERS OF STATE COURTS HAVE NO POWER IN OTHER STATES. II. STATE COURTS HAVE NO POWER OVER EFFECTS IN HANDS OP A RECEIVER OF A UNITED STATES COURT. III. RECEIVERS OF COURTS CANNOT SUE EACH OTHER AS SUCH. IV. TRUST FUNDS WILL BE FOLLOWED INTO OTHER STATES. I. RECEVERS OF STATE COURTS HAVE NO POWER IN OTHER STATES. No Extra Territorial Authority. The powers of a receiver are co-extensive only with the jurisdiction of the court making his appointment. They do not reach property, although movable, which is situated beyond the confines of the State. He is the representative of the court, and from it derives his authority, and inasmuch as the authority of the court does not extend into other sovereignties than that in which the court exists, neither can the receiver's authority pass those bounds. Money and prop- erty in his charge are in the custody of the law. and whosoever would show himself entitled to it must do so through the same court, for the receiver is the creature of the court. The court carries out through him such of its powers as are to be enforced in pais; he can do only such acts as the court directs, or the laws permit; hence, he cannot sue in a different State for choses in action or for property of the debtor. His actions and powers are restricted to the State of his appointment. 1 But although jurisdiction of the State court does not extend to property in another State so as to reach it by process of sequestration or exe- cution, or through a receiver; yet if the defendant having pos- session thereof be found within the jurisdiction of the court, it is said he may be compelled to bring the property within the 'Booth v. Clark, 17 How. 322; Farmers' & Merchants' Ins. Co. D. Needles, 52 Mo. 17. 296 RECEIVERS AND TRUST FUNDS. jurisdiction, if personal property, or if real property to execute such conveyance thereof as will pass title according to the lex loci rei sites. 1 But the receiver himself cannot, as such, pass the bounds of the State to control such property. In the lan- guage of WAYNE, J., in Booth v. Clark, " He has no extra terri- torial power of official action; nor can the court appointing him confer such authority, or enable him to go into a foreign juris- diction to take possession of a debtor's property; nor any power which can give him, upon principles of comity, a privilege to sue in a foreign court or another jurisdiction as the judgment cred- itor himself might have done, where his debtor may be amenable to the tribunal which the creditor may seek. 2 II. A STATE COURT HAS NO JURISDICTION OF EFFECTS IN THE HANDS OF A RECEIVER OF UNITED STATES COURT. A State court has no jurisdiction in regard to property which is in the hands of a receiver appointed by a United States court. Hence, where a railroad and its appurtenances has been placed in the possession of such receiver by authority of a Federal court, the State courts have no jurisdiction of a foreclosure proceeding to foreclose a mortgage against the same. Such a proceeding would involve a direct interference with the authority of the United States court, and would amount to contempt thereof. To enable a party to resort to any separate tribunal other than the one thus appointing a receiver, leave therefor must be had of such court. 3 III. RECEIVER OF DIFFERENT COURTS CANNOT SUE EACH OTHER AS SUCH. Not Suable Without Leave of Court. A trustee, or receiver of property and assets of an insolvent person or corporation, who is appointed such by a State court, before any proceedings J Booth v. Clark, 17 How. 322, 332. See, also, Ex parle Norwood, 3 Biss. s 17 How. 338. See, further, Warren 504. . Union Nat. Bank, 7 Phila. 156; "Mil. & St. Paul R. R. Co. v. Mil. Hope Mutual Life Ins. Co. v. Taylor, & Minn. R. R, Co., 20 Wis. 165, 174; 2 Rob. (X. Y.) 278. See, however, Chautauqua Co. Bank v. Risley, 19 N. cases holding a contrary doctrine, Y. 369; Wiswall c. Sampson, 14 How. Hoyt v. Thompson, 5 N. Y. 320 ; Hunt 52. . Columbian Ins. Co., 55 Maine, 290. CANNOT SUE EACH OTHER AS SUCH. 297 adverse thereto set on foot in a United States court, and whose duties arise under the laws of the State in regard to his trust, cannot be sued in reference to the subject matter, thereof in a circuit court of the United States, although the amount in con- troversy and citizenship of the parties are sufficient to enable the court to take jurisdiction in a proper case for the exercise thereof. 1 Trust Fund Not Subject to Levy. Nor can the trust fund be levied on or disturbed in the hands of the trustee by process of execution from any other court. 3 Exceptionable Cases. There are cases which are exception- able, where a creditor has a specific lien, as a mortgage deed for security of his debt created by the debtor himself, the enforce- ment of which cannot interfere with the trust fund in the hands of the trustee. Then suit to foreclose and enforce such lien lies in a different court than the one from which the trusteeship emanates, as in a circuit court of the United States, for instance, the citizenship and amount involved being sufficient; 3 or, as we suppose, in the same court, if possessed of the proper jurisdic- tional powers to enable it to dispose of or adjudicate the matter. For the right to a specific lien carries with it the right to enforce it, which is not displaced by death or insolvency of the debtor. Some of the cases cited here arose in relation to administrations of deceased persons; but the general rule is none the less appli- cable on that account, for administrators and executors are trustees, and in the exercise of the powers and performance of their duties they act as such, under the control of the court from whence emanates their appointment. In the leading case cited above, the Agricultural Bank of Mis- sissippi was proceeded against under a law of that State and its charter declared forfeited, and Peale was appointed trustee and assignee of the bank as sole representative of the corporation. This proceeding and appointment was in the State court. The plaintiff in the original action brought suit against the trustee in the circuit court of the United States for the District of Lou- isiana, setting up certain claims against the defunct bank, and 'Peale V. Phipps, 14 How. 368; Robinson . Atlantic & G. W. R. R. Vaughan v. Northup, 15 Pet. 1. Co., 66 Penn. St. 160; Skinner v. Max- 2 Williams . Benedict, 8 How. 107 ; well, 68 N. C. 400. Wiswall v. Sampson, 14 How. 52; 3 Erwin v. Lowry, 7 How. 172. 298 RECEIVERS AND TRUST FUNDS. claiming to enforce their payment against the said trustee and the trust estate in his hands. A decree in favor of the plaintiff WHS accordingly had in the circuit court, but the case coming up in the United States supreme court, among other points the question of jurisdiction in the circuit court, the supreme court held that there was no jurisdiction in the court below, and reversed the decree and directed judgment to be entered in the circuit court for Peale, who was the plaintiff in error, but defendant in the court below. The court, in that case, TANEY, C. J., say: "AVe see no ground upon which the jurisdiction of the court can be sustained. The plaintiff in error held the assets of the bank as the agent and receiver of the court of Adams county, and subject to its order, and was not authorized to dispose of the assets, or to pay any debts due from the bank, except by the order of the court. He had given a bond for the performance of this duty, and would be liable to an action if he paid any claim without the authority of the court from which he received his appoint- ment. The property, in legal contemplation, was in the custody of the court of which he was the officer, and had been placed there by the laws of Mississippi." And that, "no other court had a right to interfere with it, or to wrest it from the hands of its agent, and thereby put it out of his power to perform his trust." 1 It is seen here, then, that the very ground upon which jurisdiction was denied in this case was the principle so often asserted in the courts, that the jurisdiction of another court, having previously attached to the case and subject matter of the suit, no other court can interfere therewith except in a properly appellate character. The case which we have here cited of Williams v. Benedict is also a strong illustration of the same principle. By the law of Mississippi it became the duty of the orphans' court, where estates were insolvent, to order the property to be sold by the executor or administrator; cause the claims of creditors to be audited; and after deducting expenses of administration, last sick- ness and funeral charges, distribute the proceeds of sale among the creditors, a like per centum of the claims of each. A judg- ment creditor who had obtained his judgment against the admin- istrator before insolvency of the estate was declared, caused exe- 1 Peale t>. Phipps, 14 How. 368, 874, 375. FOLLOWED INTO OTHEB STATES. 299 cution from the United States circuit court in the northern dis- trict of the State, wherein the judgment was rendered, to be levied upon the property of the estate upon which the judgment would have been a lien in case the estate had been solvent. A bill was filed by the administrator to restrain by injunction the proceedings on execution, and though dismissed in the circuit court, the supreme court of the United States on appeal reversed the decision, and sustained the bill upon the ground that juris- diction of the orphans' court had attached to the assets, and that they were in custody of the law and could not be seized by pro- cess of another court. 1 So, in Wiswall v. Sampson, it was held that lands in the charge of a receiver of a chancery court of the State of Alabama were not liable to levy and sale on an execu- tion in the hands of the marshal, issued out of the circuit court of the United States for the district, notwithstanding the judg- ment was a lien in law upon the lands, and the execution was levied before the control or possession of the receiver attached, and that the remedy of the judgment creditor was by applica- tion to the same court that appointed the receiver, and that there- upon his rights and priority, if he had the latter would be respected in the distribution of the funds in court. 3 In Vaughan v. Norihup* it was held that suit would not lie against an administrator in another State than where administra- tion was obtained, for the reason that the administrator is bound by the law and his bond to account for all the assets coming into his hands to the courts of the government from which he derives his grant of administration. This, too, although the assets had been received by the administrator in the State in which he waa sued.* IV. TKTTST FUNDS WILL BE FOLLOWED INTO OTHER STATES. Trust funds will be followed and applied wherever they may be found, and so of trust estates in lands, if converted into or exchanged for lands in another State, equity will hold the land in the other State thus acquired subject to the original trust, except as may be necessary to give protection to innocent holders 1 Williams t>. Benedict, 8 How. 107. 8 15 Pet. 1. 8 14 How. 53. 4 Ibid. 300 RECEIVERS AND TRUST FUNDS. as bojia fide purchasers. 1 The question, however, as to exist- ence and abuse of the original trust is to be decided upon the law of the State wherein it is alleged to have existed. 8 1 Pcnsenneau v. Pensenneau, 22 Mo. * Pensenneau v. Pensenneau, 22 Mo. 27; United States v. State Bank, 6 27. Otto, 80. MARITIME CASES. 301 CHAPTEK XXVIII. ADMIRALTY AND COMMON LAW JURISDICTION IN MARITIME OASES, I. ADMIRALTY JURISDICTION. II. MARITIME LIEKS. III. MARITIME TORTS. IV. COMMON LAW JURISDICTION OF MARITIME CASES. I. ADMIRALTY JURISDICTION. The United States district courts have jurisdiction in all cases r civil and criminal, of a maritime character. Or, in the language of the constitution, " all cases of admiralty and maritime juris- diction." This jurisdiction depends in most cases upon the locality or place where the cases arise, and not upon the character of the cases involved. 1 It is sufficient to confer jurisdiction if they arise upon the public navigable waters; 2 and if such be the locality, then it is no objection to this admiralty jurisdiction, that the place is within the body of an organized State or county. 3 The United States district courts have exclusive jurisdiction of all maritime cases purely in admiralty where the proceeding is in rem, or what is termed admiralty proceedings, as contradis- tinguished from proceedings in personam against the owner or persons in control of the thing that is derelict, instead of against the thing itself. 4 The best guides as to the extent of such admiralty jurisdiction so vested in the Federal courts are, in the language of Justice 1 The Belfast, 7 Wall. 624, 637 ; The roft, 44 N. Y. (5 Hand,) 415 ; Bird v. Plymouth, 3 Wall. 20; Desty's Fed- The Steamboat Josephine, 39 N. Y. eral Procedure, 563, p. 22; 1 Conk- 19; De Lovio v. Boit, 2 Gall. 474; ling's U. S. Admiralty, 1, et seq. Dunlap's Ad. Pr. *43 ; The Moses 2 The Genesee Chief*. Fitzhugh, 12 Taylor, 4 Wall. 411; The Hiiie v. How. 443. Trevor, 4 Wall. 555 ; see Desty's Fed- 3 Waring v. Clarke, 5 How. 441. eral Procedure, 563, p. 22; 1 Conk- 4 The Belfast, 7 Wall. 624, 636 ; War- ling's U. S. Admiralty, 1, et seq. ing p.Clarke, 5 How. 441 ; Vose u.Cock- 302 MARITIME CASES. CLIFFORD, " the Constitution of the United States, the laws of Congress, and the decisions of the Supreme Court." l This jurisdiction is not so restricted as to subjects cognizable therein, as was that of the English courts of admiralty, at the time of the revolution and attainment of American independence, nor, on the other hand, so extensive as that of the courts of the con- tinental governments, exercising jurisdiction according to the principles of the civil law. 8 This judicial power of the Federal courts over all cases of maritime and admiralty jurisdiction, is conferred upon the Fed- eral government by the Constitution of the United States, and Congress cannot enlarge it. 3 But it may be restricted, as is the case upon the western lakes, where it is by act of Congress restricted to steamboats and vessels engaged in commerce and navigation between ports and places in different States and terri- tories. 4 There are to be found, in Allen v. Neicberry,* indications of a different opinion in regard to the power of Congress to enlarge such jurisdiction, but as is said (CLIFFORD, J.,) in the case of The Belfast, "they were not necessary to that decision as the contract in that case was for the transportation of goods on one of the western lakes, where the jurisdiction in admiralty is restricted, by an act of Congress, to boats and other vessels * * * employed in the business of commerce and navigation between ports and places in different States and Territories." 8 The admiralty jurisdiction of the United States was originally held to be limited to waters affected by the ebb and flow of the tide, as in England. 7 But in the case of the Genesee Chief, the Supreme Court of the United States held that jurisdiction in admiralty did not depend in this country upon the ebb and flow of the tide, but upon the navigable character of the water; that if navigable, it was public, and if public, it comes within the scope of admiralty jurisdiction as conferred by Congress. 8 Thus ' The Belfast, 7 Wall. 636. 428; The Belfast, 7 Wall. 637; War- "Bags of Linseed, 1 Black, 103; ingc. Clarke, 5 How. 441; IConkl ing's The Belfast, 7 Wall. 624, 636. U. 8. Admiralty. 13, et teg. 8 The Belfast, 7 Wall. 624, 641. 8 The Genesee Chief v. Fitzhugh, 12 *Ibid. How. 457; The Belfast, 7 Wall. 639; 21 How. 245 The Eagle, 8 Wall. 21 ; Fretz c. Bull, 7 Wall. 641. 12 How. 468. 1 The Thomas Jefferson, 10 Wheat ADMIRALTY JURISDICTION. 303 is the admiralty jurisdiction extended over all the public navigable waters ot the country, in all its breadth, except as limited as hereinbefore stated upon the western lakes. This jurisdiction is exclusive in the district courts of the United States when the proceeding is in rem, 1 but where a common law remedy in per- jonam is only sought, the jurisdiction as to the cause of action, but not as to the proceeding in rem, is concurrent in the courts of the States of the proper locality and jurisdictional character, and also in the circuit courts of the United States of the proper district, if the character of the parties as to citizenship and amount in controversy are such as to permit of jurisdiction in these courts. In the language of CLIFFORD, Justice, in the case of The Belfast, the party " may proceed in rein in the admiralty, or he may bring his suit in personam in the same jurisdiction, or he may elect not to go into admiralty at all, and may resort to his common law remedy in the State courts or in the circuit court of the United States, if he can make proper parties to give that court jurisdiction of his case." 2 Maritime jurisdiction in cases growing out of contracts, depends upon the nature of the contract; in cases of civil torts, it depends upon the locality where the act occurs. 3 To confer admiralty jurisdiction of torts, they must occur upon the public navigable waters which are within the admiralty and maritime jurisdiction. 4 Contracts, claims, and service touching rights and duties in relation to commerce and navigation on maritime waters, whether between ports of different States or of the same State, as for instance contracts of affreightment or for transportation of pas- sengers, are of admiralty jurisdiction. 8 For a breach of such contracts and for the infliction of such torts, maritime liens arise in favor of the injured party enforcible only in the United States district court; but they may be waived and a remedy pursued at 1 The Belfast, 7 Wall. 624, 644; The Phcebus, 11 Pet. 175; The Thomas Moses Taylor, 4 Wall. 411. Jefferson, 10 Wheat, 428. 2 7 Wall. 664; Dougan v. Cham- 4 The Belfast. 7 Wall. 624, 637 ; The plain Trans. Co., 56 N. Y. 1 ; Baird v. Commerce, 1 Black, 574. Daly, 57 N. Y. 236; De Lovio v. Boit, 6 The Belfast, 7 Wall. 624, 637; 1 2 Gall. 398; The Lottawana, 21 Wall. Conkling's Admiralty, 19, 32; Steam- 558. boat Orleans v. Phoebus, 11 Pet. 184; 3 The Belfast, 7 Wall. 624, 637 ; Rail- De Lovio v. Boit, 2 Gall. 398 ; Rail- road Co. v. Steam Towboat Co., 23 road Co. v. Steam Towboat Co., 23 How. 215 ; Steamboat Orleans v. How. 215. 304 MARITIME CASES. common law in personam against the master or owners of the vessel or craft offending. 1 II. MARITIME LIENS. The States have no power to create or enforce maritime liens in rem. The jurisdiction in that respect is exclusively in Con- gress and the national courts. 2 By Section 2 of Article III. of the Constitution, the judicial power of the United States is expressly extended " to all cases of admiralty and maritime jurisdiction,'* and Section 9 of the judiciary act of 1789 declares that the dis- trict courts of the United States "shall have exclusive original cognizance of all civil causes of admiralty and maritime juris- diction," saving to suitors the common law remedy where the common law can give it. This exclusive cognizance is exclusive of the State courts as well as of other Federal courts. 3 Parties entitled to proceed as for a maritime lien in rem may do so in the district court of the United States, or if possessed of the requisite citizenship to enable them to sue in the United States circuit court, may waive the lien and proceed in the latter court in personam against the master or owners of the vessel; but there is no concurrent juris- diction in rein in the State courts. 4 In all cases where the maritime lien is sought to be enforced in rem, the jurisdiction is exclusive in the district courts of the United States. 5 If the party elect to proceed in persomim in the circuit court of the United States instead of proceeding in rein in the district court, 1 Sturgis t>. Boyer, 24 How. 117; Octavia, 1 Wheat. 24; The Samuel, 1 Chamberlain t>. Ward, 21 How. 548; Wheat. 9; Walters t>. Steamboat Mol- The Belfast, 7 Wall. 624, 643; The St. lie Dozier, 24 Iowa, 192. Lawrence, 1 Black, 522; The General 4 The Belfast, 7 Wall. 624, 643. In Smith, 4 Wheat. 438; The Reindeer, Trevor c. The Steamboat Ad. Hine, 2 Wall. 384; Manro v. Almeida, 10 the Iowa supreme court sustained Wheat, 473. the State court jurisdiction in rem r 'The Belfast, 7 Wall. 624; Walters but the pleadings did not show the v. Steamboat Mollie Dozier, 24 Iowa, case to be one of maritime character. 192. See, also, Desly'a Shipping & 17 Iowa, 349; Vose v. Cockroft, 44 Admiralty, 68, et seq. N. Y. (5 Hand.) 415. 8 The Belfast, 7 Wall. 624, 638 ; New 8 People's Ferry Company v. Beers, Jersey Steam Nav. Co. v. Merchants' 20 How. 393, 402; The Belfast, 7 Wall. Bank, 6 How. 344, 390; United States 624, 64(5; The Moses Taylor, 4 Wall. v. The Betsey, 4 Cr. 442 ; United States 411; Weston t>. Morse, 40 Wis. 455; v. La Vengeance, 3 Dall. 297; The The Lottawanna, 21 Wall. 558. MARITIME TORTS. 305 as we have above seen lie may do, when qualified in point of citizenship, the proceedings are the same in such cause as in other cases in said court at common law or suits not maritime; and if attachments are allowable under the State law, they may be resorted to in such suits as auxiliary to the proceedings in personam, as in other cases. 1 Maritime liens do not arise out of contracts to furnish mate- rials and supplies for vessels in the home port; therefore, the States may, by law, create such liens as they deem proper in this class of cases, and may enforce the same in the State courts by all reasonable rules of law which do not amount to a regulation of commerce. 3 Contracts to build ships or for materials for ship building do not create maritime liens; they are not mari- time contracts. 8 III. MARITIME TOETS. Maritime torts can only occur upon the water, and then only where such waters are under maritime jurisdiction. If an injury occur upon the land, it is not a maritime injury, or tort, although the immediate cause thereof, and proceeding from a maritime vessel lying in maritime waters, or from the negligence of the master or servants in charge of such vessel. To render it a maritime tort, both the injury and the wrong act that causes it must take place upon the water. 4 In such case the jurisdiction of the tort in rem is exclusively in the United States court; but if the injury occur upon the land, then the jurisdiction is in the State courts, although the cause of the injury proceed from on board a maritime craft, in maritime waters. 5 The case of the Plymouth, here cited, occurred in this wise: The steam propeller Falcon, a vessel navigating the great lakes, was anchored off the wharf in the Chicago river, in " navigable water," and while so anchored took fire from negligence of some of those having her in charge, which fire communicated itself to erections on shore 1 The Belfast, 7 Wall. 624, 643, 645 ; & R. 58 ; The Jerusalem, 2 Gall. 191 ; Sturgis v. Boyer, 34 How. 110, 117; Francis v. The Harrison, 1 Sawyer, Chamberlain v. Ward, 21 How. 548, 355. 553. 8 Roach v. Chapman, 22 How. 129. 2 The Belfast, 7 Wall. 624, 645, 646 ; 4 The Plymouth, 3 Wall. 20 ; 1 Conk- Roach v. Chapman, 22 How. 129 ; The ling's U. S. Admiralty, 32, et seq. Edith, 4 Otto, 518 ; Morrison v. Burns, Ibid. 40 Mo. 491 ; Williams v. Tearney, 8 8. 20 306 MARITIME CASES. and destroyed the same and their contents. The Falcon was also destroyed. The owners ol the shore property thus burned pro- ceeded in admiralty, as for a marine tort, against the owners of the Falcon and attached the Plymouth, a vessel belonging to the defendants. The United States district court held that the case was not one coming within the admiralty jurisdiction, and dis- missed it accordingly. On appeal, the supreme court of the United States affirmed the decision. NELSON, J., delivering the opinion of the court, said: "The cause of action not being com- plete on navigable waters, affords no ground for the exercise of the admiralty jurisdiction." 1 Vessels on the Mississippi river, plying from point to point of opposite shores in two different States, are within the admiralty jurisdiction, notwithstanding their principal business is that of ferrying between opposite sides of said river. 8 IY. COMMON LAW JURISDICTION OF MARITIME CASES. State courts have jurisdiction of personal actions growing out of maritime contracts by proceeding at common law, not for a lien, but for a personal recovery for breach of contract. Thus an action at law lies on a bill of lading for carriage of goods by a carrier upon maritime waters, from a port in one State to a port of another State, to recover damages for breach of the con- tract of carriage. 3 They also have jurisdiction at common law against the person for personal injuries and other torts, if there is a common law remedy, and this whether the right of action be one at common law or be given by statute. 4 The term " suits at common law," in the Federal Constitution, is used in contradistinction to equity proceedings and proceed- ings in admiralty, in which latter a mixture of public law, mari- time law and equity are sometimes found in the same suit. The term does not contemplate such proceedings only as in form and J 3 Wall. 36. hugh, 12 How. 443 ; The Moses Tay- * The Gate City, 5 Biss. 200. lor, 4 Wall. 441 ; The Belfast, 7 Wall. 8 Home Ins. Co. v. Northwestern 624. Packet Co., 32 Iowa, 223 ; New Jersey 4 Dougan v. Champlain Trans. Co., Steam Nav. Co. . Merchants' Bank, 56 N. Y. 1, 6 ; Swarthout t>. New Jer- 6 How. 344; Waring . Clarke, 5 sey Steam Nav. Co., 48 N. Y. 209. How. 441 ; The Genesee Chiefs Fitz- COMMON LAW JURISDICTION. 307 practice conform strictly to those of the old common law. In other words, proceedings at common law, in their true sense, " embrace all suits which are not of equity and admiralty juris- diction, whatever may be the peculiar form which they may assume to settle legal rights." 1 To enable the common law courts of a State to exercise com- mon law jurisdiction in admiralty cases, where a common law remedy exists, it is not necessary that the right of action should be one known to the common law; it is sufficient, though the right be given by statute, if it can be enforced by a common law proceedings. 3 Where a party having a right of action in admiralty is willing to forego his right of proceeding in rem, and to proceed at com- mon law for his remedy in a personal action against the parties liable thereto, he has his election so to do, and may, if he elects to proceed at common law, have his action in the proper State court; 3 or, if the parties and amount in controversy be such as to bring the case within the common law jurisdiction of the United States circuit court, may bring his action in the latter court, at his election. 4 Such action lies thus at common law, if the circumstances, as before stated, be such as to warrant it, as well if the right of action be one at common law, or one given by statute. 5 The case here cited, of Steamboat Co. v. Chase, was an action for the death of a person while crossing a high- way, given by a statute of Rhode Island, in cases where the death is caused by negligence of a common carrier. The deceased was crossing Narragansett Bay on a public highway, and was run over and killed by a steamer there plying as a common carrier. The supreme court of the United States held that the common law action lay therefor in personam against the owner of the vessel, under the statute. Though by the civil law it is other- wise, yet, under the maritime law of the United States, neither a ] Parsons v. Bedford, 3 Pet. 433, 446, How. 553 ; Swarthout . New Jersey 447. Steam Nav. Co., 48 N. Y. 209. - Dougan v. Champlain T-rans. Co., 4 Steamboat Co. v. Chase, 16 Wall. 6 Lans. 430; S. C., 56 N. Y. 1. 522; Sturgis t>. Boyer. 24 How. 117; 3 1 U. S. Stat. at Large, 76 ; The Bel- Chamberlain v. Ward, 21 How. 553. fast, 7 Wall. 666; Baird . Daly, 57 N.Y. 6 16 Wall. 522 ; Baird v. Daly, 57 N. 236, 247 ; Dougan . Champlain Trans. Y. 236, 247 ; Swarthout v. New Jersey Co., 56 N. Y. 1 ; Sturgis v. Boyer, 24 Steam Nav. Co., 48 N. Y. 209. How. 117 ; Chamberlain v. Ward, 21 308 MARITIME CASES. contract to build a ship, or to furnish materials for that purpose, is a maritime contract; and causes of action resting on such contracts do not come within the jurisdiction of the United States court, under that clause of the Constitution which declares, in substance, that the judicial power of the United States shall ex- tend to all cases of admiralty and maritime jurisdiction. 1 Such contracts to build, and to furnish material with which to build ships, are within the jurisdiction of the State courts, and the pur- view and force of State laws giving liens for security of payment for labor and materials thus furnished and bestowed, as also within the rules and regulations provided by such State laws for their enforcement, which do not amount to a regulation of commerce. 8 1 Edwards t>. Elliott, 21 Wall. 532, Edwards . Elliott, 21 Wall. 532, 556,557; Roach c. Chapman, 22 How. 555, 556, 557; The Belfast, 7 Wall. 129. 645 ; Sheppard . Steele, 43 N. T. 55. LNTER-STATE COMMERCE. 309 CHAPTEK XXIX. INTER-STATE COMMERCE. I. THE TERM COMMERCE. POWER TO REGULATE INTERSTATE COM- MERCE. II. UNTIL CONTROLLED BY CONGRESS IT is FREE. III. STATE REGULATION OP VESSELS ENGAGED IN COMMERCE. TAX OF COMMANDERS, AND OF ARRIVALS AND INTER-STATE PASSENGERS BY LAND AND BY WATER. IV. STATE PROPERTY TAX OF VESSELS ENGAGED IN INTER-STATE COM- MERCE. V. PILOTAGE. VI. WAREHOUSING AND ELEVATING. VII. STATE CONTROL OF BAYOUS AND SLOUGHS OF RIVERS. I. THE TERM COMMERCE. POWER TO EEQULATE INTER-STATE COMMERCE. Commerce is a term of comprehensive import. It includes in- tercourse, for the purposes of trade, in any and all forms. The power to regulate, say the supreme court of the United States, " embraces all the instruments by which such commerce may be conducted." 1 Where the subjects are local in their nature, it has been held that the States may provide regulations until Congress acts in reference thereto; 3 but where the subject is of a national character, or such as to admit of uniformity of regulation, the the power is in Congress, exclusive of all State authority. 3 Under the Control of Congress. The Constitution of the United States places commerce between the several States exclu- sively within the control and regulation of Congress. Congress, 1 Welton v. Missouri, 1 Otto, 275. wanna, 21 Wall, ft'8, 531 ; Ei parte And see, to same effect, The Pensa- McNiel, 13 Wall. 23P, 240; Wilson cola Telegraph Co. v. The Western v. Blackbird Creek Marsli 0<> , 3 Pet. Union Telegraph Co., 6 Otto, 1. 245. * Welton v. Missouri, 1 Otto, 275; 3 Welton v. Missouri, i Otto, 275, Sherlock v. Ailing, 3 Otto, 99; U. S. 280. 0. Bevans, 3 Wheat. 337 ; The Lotta- 310 INTER-STATE COMMERCE. alone, has power to regulate commerce among the States. 1 Any impediment imposed by a State upon commerce with other States is unconstitutional and void. Thus, a State law levying a stamp duty on exports is unconstitutional as a tax upon exports, and is of no force whatever. 3 This power to regulate commerce con- ferred upon Congress by the Constitution, is not confined to the means of carrying on the same which were known and used at the time the Constitution was adopted. This power was not con- ferred for a particular time, but for all times. It is commensu- rate with the increased subjects of commerce as the same increase from time to time, and extends in like manner to all new appli- ances and means used in carrying on the same. 3 In the language of the United States supreme court, WAITE, C. J., such powers " keep pace with the progress of the country, and adapt them- selves to the new developments of time and circumstances. They extend from the horse, with its rider, to the stage coach; from the sailing vessel to the steamboat; from the coach and steamboat to the railroad; and from the railroad to the tele- graph, as these new agencies are successively brought into use to meet the demands of increasing population and wealth. They were intended for the government of the business to which they relate, at all times, and under all circumstances." 4 It is thus held that not only the ordinary means of inter-State trans- portation and traffic, but also the means of inter-State commu- nication, as the electric telegraph, are within the power thus be- stowed upon Congress by the Constitution, and that no State can confer on any one a monopoly of the telegraphic business within 'Sec. 8, Article I. Cons. U. S.; 577; Foster v. Master, etc., of Port of Brown v. Maryland, 12 Wheat. 419, New Orleans, 4 Otto, 246. 425, 444; Welton v. Missouri, 1 Otto, s Alrny v. California, 24 How. 1G9. 275 ; Corfleld v. Coryell, 4 Wash. C. 3 Pensacola Telegraph Co. v. The C. 371 ; Almy v. California, 24 How. Western Union Telegraph Company, 169; Gibbons v. Ogclen, 9 Wheat. 1; 6 Otto, 1. Pennsylvania v. Wheeling Bridge Co., 4 Pensacola Telegraph Co. v. The 18 How. 421 ; Passenger Cases, 7 How. Western Union Telegraph Co., 6 Otto, 283; Council Bluffs v. Kansas City, 1. A like principle is asserted in the etc.,R.R. Co., 45 Iowa, 338,349; State case of the Genesee Chief, 12 How. Freight Tax Case, 15 Wall. 232; Rail- 443, in regard to admiralty jurisdic- road Co. v. Husen, 5 Otto, 465 ; Inman tion, and is sustained in all subse- Steamship Co. v. Tinker, 4 Otto, 238; quent rulings on the subject; that State Tonnage Tax Cases, 12 Wall, having now become a leading case. 204 ; Cannon v. New Orleans, 20 Wall. UNTIL CONTROLLED BY CONGRESS, IT IS FREE. 311 any part of its territorial jurisdiction. 1 It is so regarded as an instrument of commercial intercourse, upon the same principle as is the postal service and intercourse of the United States regarded and treated in law as such. 3 II. UNTIL CONTROLLED BY CONGRESS, IT is FREE. No State may in any manner fetter or obstruct inter-State com- merce, or discriminate injuriously against the products or trade of other States, or against the rights of their citizens, although Congress has not exercised its privilege of regulating such inter- course or trade. Until Congress exercises its authority upon the subject, inter-State commerce is free. In the language of the United States supreme court, " its inac- tion on the subject, when considered with respect to foreign com- merce, is equivalent to a declaration that inter-State commerce shall be free and untrammeled." 3 In the case just cited, it was held that a statute of Missouri is void which discriminates between the sale in that State of goods or property not the product of the State, and the sale of goods and property the product of the State, by requiring a license for sale of the former and not for the latter, and making the sale of such foreign products without a license a penal act, subjecting the party to a penalty. 4 The case of Railroad Company v. Ifusen* was one brought by Husen against the Hannibal & St. Joe Railroad Company in a State court of Missouri, for alleged damages caused by a violation by said company of an act of the legislature of that State in relation to the introduction of Mexican, Texas or Indian cattle into said State. The first section thereof reads as follows: " No Texas, Mexican, or Indian cattle shall be driven or other- wise conveyed into, or remain in, any county in this State be r tween the first day of March and the first day of November in 1 Supra. Wheat. 425, 444 ; Van Buren v. Down- 2 Ibid. ing, 41 Wis. 122. The court follow- 3 Welton v. Missouri, 1 Otto, 275, ing in this last case the ruling in the 282; Van Buren v. Downing, 41 Wis. Welton v. Missouri, and disavowing 122. accordingly the prior ruling in Wis- 4 Welton v. Missouri, 1 Otto, 275. cousin, in Morrill v. The State, 38 So, likewise, of a similar Maryland Wis. 428. statute. Brown . Maryland, 12 5 5 Otto, 465. 312 IXTER-STATE COMMERCE. each year by any person or persons whatsoever; provided, that nothing in this act shall apply to any cattle which have been kept the entire previous winter in this State; provided, further, that when such cattle shall come across the line of this State, loaded upon a railroad car or steamboat, and shall pass through this State without being unloaded, such shall not be construed as prohibited by this act; but the railroad company or owner of a steamboat performing such transportation shall be responsible for all damages which may result from the disease called thy Spanish or Texas fever, should the same occur along the line of such transportation; and the existence of such disease along such route shall be priina facie evidence that such disease has been communicated by such transportation." Another section thereof is: " If any person or persons shall bring into this State any Texas, Mexican or Indian cattle, in violation of the first section of this act, he or they shall be liable, in all cases, for all damages sustained on account of disease communicated by said cattle." The defense was placed mainly upon the unconstitutionality of the law. The highest State court held it to be constitutional, and the case having been taken on error to the United States supreme court, the act of the assembly was there held to be unconstitutional, as violating that part of the United States con- stitution which vests in Congress the exclusive power to regulate commerce with foreign nations and among the several States, and with the Indian tribes. It was held to be " a plain regulation of inter-State commerce, a regulation extending to prohibition." In reference to the attempt to sustain the validity of the State statute as matter of police, the United States supreme court con- cede the power in the local government to make quarantine and health regulations, and to exclude from introduction into its limits, convicts, paupers, idiots, lunatics and other persons likely to become a public charge, and persons afflicted with contagious and infectious diseases, as a right founded in the law of self de- fense, and in like principles the right to exclude property dan- gerous to the property of the inhabitants of the State; but that whatever such power of police might be, it could not be exercised by a State over subjects confided exclusively to Congress by the Federal constitution. That whenever a statute of a State invades the domain of legislation which belongs exclusively to Congress, it is void, no matter under what class of powers it may fall, or how UNTIL CONTROLLED BY CONGRESS, IT IS FREE. 313 closely allied it may be to powers conceded to belong to the States. 1 The ruling of the supreme court of Illinois in favor of the constitutionality of a similar statute was referred to, but not regarded with approbation by the United States supreme court. State Discrimination Between Residents and Non-Residents. So, an act of a State legislature is void which discriminates against non-residents and in favor of residents of the State as to the terms upon which they may engage in buying and selling articles of commerce and merchandise in such State. Such dis- criminating legislation violates Section 2 of Article IV. of the Constitution of the United States, which provides that citizens of each State shall be entitled to all the privileges and immuni- ties of citizens of the several States. 3 And where such statute imposes a penalty for its violation re- coverable by indictment and trial in the State court, error lies from such conviction to the supreme court of the United States, if on the trial the validity of such statute is drawn in question nnder the Federal constitution in the highest State, in which a decision in the case could be had, and the decision of such high- est State court is in favor of the validity of the statute. 3 A distinction is made, as we have before seen, in regard to the rights arising under said Section 2 of Article IV. of the Consti- tution, in this: That while legal entities, as corporations, for instance, are held to be so far citizens as to entitle them to the benefit of some other provisions thereof, that the section above referred to applies to natural persons only. 4 Inhibition of State Interference. This inhibition to State interference extends to and protects such property as is trans- ported into a State as articles of commerce from all hostile or interfering legislation until it has mingled with and has become a part of the general property of the country, and as such is sub- jected alike to similar protection and to no greater burdens. 6 1 Railroad Co. . Husen, 5 Otto, 465, Husen, 6 Cent. Law Journal, 172, and 471, 472. See, also, Henderson v. note criticising the opinion. Mayor of New York, 2 Otto, 259; 2 Ward v. Maryland, 12 Wall. 418, Gibbons t>. Ogden, 9 Wheat. 1; Chy 429, 432. Lung v. Freeman, 2 Otto, 275; Wei- 3 Ibid. 1 U. S. Stat. at Large, 85. ton v. Missouri, 1 Otto, 275; Passen- 4 Paul v. Virginia, 8 Wall. 168. ger Cases, 7 How. 283. See, also, a 5 Welton . Missouri, 1 Otto, 275, report of the case of Railroad Co. v. 281 ; Cook v. Pennsylvania, Chicago 314 IXTER-STATE COMMERCE. State Police. But this power conferred on Congress is not intended to prevent the States from legislating on all subjects relating to the health, life and safety of their citizens, although such legislation might indirectly affect the commerce of the country. 1 III. STATE KEGULATION OF VESSELS ENGAGED IN COMMERCE. TAX OF COMMANDERS, AND OF ARRIVALS AND OF INTER- STATE PASSENGERS, BY LAND AND BY WATER. State laws assuming to regulate the movements of vessels nav- igating the waters of the State, when such vessels are licensed and enrolled under the laws of the United States are unconsti- tutional and void, except such laws as are of a police character. Hence a State law requiring of the owners or masters of such ves- sels the filing of a statement in writing in a designated State office, setting forth the name of the vessel, the name of the owner or owners, his or their place of residence, and interest of each owner, before leaving a port of the State, and under a specified penalty, is void, as conflicting with the constitution and also with the acts of Congress regulating commerce and the coasting trade. 3 State Police. But the power of the States to make inspection, quaratine, and other necessary local regulations of a police nature not affecting commerce or the instrument of commerce, exists as matter of domestic police. 3 State laws imposing a payment of a sum of money upon vessels engaged in commerce, and plying between the ports of such State and those of another State, for each arrival, and for the benefit Legal News, Vol. XI. p. 65, U. S. S. Foster v. Davenport, 22 How. 244. Ct. October Term, 1878. By this case So, likewise, a State law levying a a State tax on auction sales of goods stamp duty upon bullion, money, or from another State while yet in the property carried out of the State, is original packages, was held equally void as violating the constitution and within the prohibition. conflicting with the enactments of 1 Sherlock??. Ailing, 3 Otto, 99, 103; Congress, in relation to commerce, License Cases, 5 How. 504; Bode v. the coasting trade, and intercourse State, 7 Gill. 326; Kettering v. Jack- among the States, and as a tax upon sonville, 50 111. 39 ; Thomason . State, exports. Alrny v. California, 24 How. 15 Ind. 449 ; License Tax Cases, 5 169. Wall. 462; Passenger Cases. 7 How. 8 Steamship Company t>. The Port 283. "Wardens, 6 Wall. 31. 8 Sinnot v. Davenport, 22 How. 227 ; STATE REGULATION OF VESSELS. 315 of port officers without service performed or offered therefor, is- unconstitutional and void, as amounting to an interference with commerce between the States. 1 The case is not like one arising under the law of pilotage, by which pilots are compelled to go out and offer service to incoming vessels, and if service be refused from the pilot first offering it, entitling such pilot to half pilot- age. In the latter case, the law compels the offer of service, and if declined, gives to the party tendering it half pilotage as com- pensation for the labor and risk of making the offer, and the same law implies a contract on the part of the shipowner or master to pay it. 3 But the imposing of a sum certain upon vessels for each arrival without any consideration in return is a tax, and to the extent imposed, operated directly in restraint of commerce. In the language of the United States Supreme Court in the Steamship Company v. Port Wardens, 3 it " works the very mischief against which the constitution intended to protect com- merce among the States." State Capitation Tax on Inter- State Travelers. So, a State law is unconstitutional and void which imposes a capitation tax upon a person leaving the State by railroad, stage coach or other vehicle engaged or employed in the business of transporting passengers for hire, collectable of the proprietors or owners and corporations so engaged in transporting passengers. 4 Such a law strikes at the right of the people to have free ingress or egress to and from and through all the States and Territories composing our common government, and also at the right of that government to require and enforce their presence into and out of such States and Territories, and to cause them to pass through the same on such occasions as national exigencies may require within the con- stitutional powers of such government. 5 State Tax on Commanders of Vessels or Passengers. And equally obnoxious to the constitution are State laws assuming to enforce a tax for any purpose whatever upon commanders of vessels, foreign or inter-State, or on passengers thereon, coming 1 Steamship Company v. The Port ens of Philadelphia, 12 How. 299. Wardens, 6 Wall. 31. 8 Supra. 2 Steamship Company . Port War- 4 Crandall v. Nevada, 6 Wall. 35 ; dens, 6 Wall. 31 ; Ex parte McNiel, 13 Passenger Cases, 7 How. 283. Wall. 236 ; Steamship Company v. 5 Crandall v. Nevada, 6 Wall. 35, 48. Joliffe, 2 Wall. 450; Cooley v. Ward- 316 INTER-STATE COMMERCE. into ports of the State. Such laws are in direct violation of the provisions of the United States constitution, which confers upon the national Congress the exclusive power of regulating foreign commerce and commerce between the States, and which prohibits the States from imposing import duties and exports. 1 The cases of Smith v. Turner and N orris v. City of Boston, known as the Passenger Cases, here cited, arose in this way: New York passed a law requiring for hospital purposes the payment of a tax by the master of every vessel from a foreign port, for himself and each cabin passenger, one dollar and fifty cents; for each steerage passenger, mate, sailor, or mariner, one dollar. And from the master of each coasting vessel, for each person on board, twenty-five cents; except coasting vessels from New Jer- sey, Connecticut and Rhode Island, which were required to pay for no more than one voyage in each month. Said law also pur- ported to empower the master in all such cases to collect such sums from the persons on whose account he was thus assessed. Smith, the master of a British ship, having landed passengers from a foreign port in New York, and refusing to pay such tax, was sued by the health officer, Turner, for the amount thereof. To the right of recovery defendant demurred on the ground of the unconstitutionality of the statute. Judgment was rendered thereon by the highest State court of New Y^ork, for the plaintiff, after overruling the demurrer. The case having gone to the United States Supreme Court, it was there held, McLEAN, Jus- tice, delivering the opinion, that the statute assumed to regulate foreign commerce, and was void as in conflict with that clause of the United States constitution which confers upon the national Congress the exclusive power to regulate commerce with foreign nations and among the several States. 2 In this connection the learned court say: "A tax or duty upon tonnage, merchandise, or passengers, is a regulation of commerce, and cannot be laid by a State except under the sanction of Congress and for the purposes specified in the constitution." N orris v. The City of Boston, grew out of similar legislation by the State of Massa- chusetts, assuming not only to levy and collect a tax upon passengers arriving by ship from foreign ports, but also to exclude from the privilege of landing certain of such passengers, as 4 Passenger Cases, 7 How. 423. 8 Passenger Cases, 7 How. 283, 408. STATE PROPERTY TAX OF VESSELS. 317 lunatics, idiots and other specified objectionable persons. The plaintiff, ISTorris, an inhabitant of St. John, in the British dominion, arrived in the port of Boston with and in command of a schooner which had foreign passengers on board, and the tax being demanded on such passengers by the Massachusetts authorities, was, by the said commander, paid under protest, and suit was brought to recover back the amount paid, against the city of Boston in the common pleas court. Judgment was ren- dered for the defendant, which judgment was affirmed by the Supreme Court of the State. The Supreme Court of the United States held the law to be unconstitutional for like reasons as in, Smith v. Turner, and both cases were by the Supreme Court ot the United States, reversed. 1 IV. STATE PROPERTY TAX OF VESSELS ENGAGED IN INTER-STATE COMMERCE. State Taxation at the Home Port. Though commerce between the States is not a subject of State taxation, yet the vehicles or instruments of local commerce used or engaged in carrying it on, as, for instance, steamboats or other means of transportation, are. Their situs is at the home port, and they are taxable by the State within which that port is situated just as other movable property is there taxable. Such home port is the port nearest to which the owner, husband, or managing agent usually resides in, in the district of their registry. They are not within the jurisdic- tion of the other States between whose ports or in whose waters they ply only temporarily, and are not there subject to State tax- ation any more than travelers of other States would be in passing through and stopping temporarily on business. Vessels thus employed do not become blended with the taxable interests or property of the States in which they temporarily touch, or do business, in their accustomed routes. In the language of HUNT, J., a vessel so employed is "engaged in inter-State commerce, with her home port still remaining unchanged and the property continuing unmixed with the permanent property 'of either State" so visited. 2 Vessels thus engaged are free to come and : Passenger Cases, 7 How. 283, 408. Ferry Co., 11 Wall. 423 ; People v. 2 Morgan v. Parham, 16 Wall. 471, Commissioners of Taxes, 58 N.Y. 242 ; 478; Hays v. Pacific Mail Steamship People v. Commissioners of Taxes, 23 Co., 17 How. 596; St. Louis v. The N.Y. 224. 318 INTER-STATE COMMERCE. free to go, and are not, in law, liable to be interfered with in the ports of the different States to which they ply, except as it respects such municipal and sanitary regulations of the local authorities as are not inconsistent with the constitution and laws of the general government, to which belong the regulation of commerce between the States. 1 If this were not so, then aside from the indirect effect upon the inter-State commerce which the hindrance and delay, occasioned by claims to local taxation, might occasion, there would result inexplicable difficulties to the owners by the conflicting claims of taxation set up in the different States in whose ports they enter. The circumstances, in the case of Morgan v. Parham, were these: A vessel engaged in the coast- ing, or inter-State commerce, between Mobile and New Orleans, but which before so engaging was duly registered in the port of New York under the ownership of the plaintiff, Morgan, was seized for taxes by the tax collector of the city of Mobile for taxes levied upon her by said city. The owner, Morgan, brought an action of trespass for the seizure against the officer, and the cause being decided in favor of the defendant, and the legality of the tax asserted by the court, the case went to the supreme court of the United States, and judgment was there reversed, that court ruling as herein before stated that the vessel was taxa- ble only at the home port of the owner. The case here cited of Hays v. The Pacific Steamship) Co.* was of a similar character, and originated out of an effort of the authorities of the State of California to tax the steamships of said company, registered in New York, and plying and carrying freight and passengers in connection between New York and San Francisco. The effort at taxation was held to be illegal. So of Ferryboats at Inter- State Ferries. So ferryboats belong- ing to a corporation of one State, employed and used in ferrying persons and property from and to such State, across a navigable river to and from another State, at the opposite shore of such river, and making such opposite shore a mere landing place and terminus for discharging and receiving persons and property so carried or to be carried across said river, are not subject to local taxation by the authorities of such latter State, or of any of its municipal governments of towns or cities at which said boats 1 Morgan n. Parham, 16 Wall. 471; 17 How. 596. Hays D. Pacific Mail Steamship Co., *17 How. 596.' STATE PROPERTY TAX OF VESSELS. 319 thus land. 1 Tlieir home situs is in the State where the corpora- tion owning and thus employing them resides and exists, which is in the State wherein the corporation is by law created, 2 and in that State only, while thus employed, they are liable as property to be taxed. 3 The Wiggins Ferry Company, a private corporation created under the laws of the State of Illinois, was engaged in ferrying persons and property across the Mississippi river, between the Illinois shore of said river and the opposite shore thereof, in the State of Missouri. The boats, when not running, were kept at the Illinois shore, and when running, their stoppage at the Mis- souri shore was limited in time by the St. Louis city authorities, and was merely temporary, to put off and take on persons and property transported or to be transported across the river from one State to the other. But the boats were registered, under the United States laws, at the registry office in St. Louis. That city assumed the right to tax said boats as property, which was resisted by the ferry company by legal proceedings in the circuit court of the United States for the district of Missouri. Said circuit court of the United States held that the tax was illegal, and on error to the supreme court of the United States that court affirmed the decision of the court below, and held that as property the" boats were taxable only in the State of Illinois, where, in fact, it appeared that a tax was paid upon them. SWAYNE, J., delivering the opinion of the court, says: 4 "The owner was, in the eye of the law, a citizen of that State (Illinois), and from the inherent law of its nature conld not emigrate or become a citizen elsewhere. As the boats were laid up on the Illinois shore when not in use, and the pilots and engineers who ran them lived there, that locality, under the circumstances, must be taken to be their home port. They did not so abide within the city (St. Louis) as to become incorporated with, and form a part of, its personal property. 3 Hence they were beyond the jurisdiction of the authorities by which the taxes were assessed, and the validity of the taxes cannot be maintained." 6 1 St. Louis v. The Ferry Co., 11 6 Citing here Hays v. Pacific Steam- Wall. 423, 432. ship Co., 17 How. 596; New Albany 2 Ibid. . Meekin, 3 Ind. 481. 3 Ibid. 6 Here citing Railroad Company v. 4 11 Wall. 431, 433. Jackson, 7 Wall. 262. 320 INTER-STATE COMMERCE. V. PILOTAGE. The regulation of pilotage of sea-going vessels in national waters of a State, though a subject which Congress has a right, under the national constitution, to assume and exercise the ex- clusive control of, is nevertheless one that may be exercised by a State until Congress shall see fit to act upon the subject. 1 When so acted on by Congress, the authority of the State retires and lies in abeyance until there is a recurrence of the occasion for its exercise. 2 Half Pay when Service Declined. State laws regulating pilot- age, where such occasion exists for them, are valid, and a provision that gives half pay to a pilot who is first to tender his service and is refused, is a reasonable regulation, that is enforcible in the United States court as arising out of the commercial marine, although the law upon which the claim to such pay is based be a statute passed by a State. Such right of recovery is not as for a tort, but as matter of contract. The law fixes the compensation for services and com- pels the pilot to oifer to serve. If his service is declined, the same law fixes his compensation for the labor performed and time consumed, and risks incurred in going out, and implies a promise on the part of the ship owner or master to pay the same, and gives a lien on the vessel for the amount. 8 Jurisdiction of Federal Court. The jurisdiction of the Fed- eral court over the subject is not by virtue of the State law, for a State law cannot confer jurisdiction on a national court. That jurisdiction is in virtue of the subject matter being of maritime concern, and the only effect of the State law is to invest the party with a right of action ; that is, a right to recover the legal compensation fixed in such cases thereby. 4 The enforcement thereof may be in any court competent to take jurisdiction of the subject matter. Hence this has sometimes been done in the State courts. 1 Cooley v. Wardens of Philadel- * Ex parte McNiel, 13 Wall. 236, phia, 12 How. 299 ; Ex parte McNiel, 240. 13 Wall. 236; Oilman C.Philadelphia, 8 Ex parte McNiel, 13 Wall. 236; 3 Wall. 713; Steamship Co. . Port Steamship Co. v. Joliffe, 2 Wall. 450. Wardens, 6 Wall. 31 ; Steamship Co. 4 Exparte McNiel, 13 Wall. 236, 243 ; t>. Joliffe, 2 Wall. 450. Hobart v. Drogan, 10 Pet. 108, 120. STATE CONTROL OF BAYOUS AND SLOUGHS. 321 VI. WAREHOUSING AND ELEVATING. But the legislatures of the States may regulate the business of warehousing and elevating of grain, when such warehouses and elevators are situated clearly within the territorial limits of the respective States assuming to regulate the same, notwith- standing the grain be in course of inter-State transportation, or is intended to be carried out of one State into or through another State, and notwithstanding such regulation, and the costs and expenses incident thereto, may indirectly affect the value of the property, or profits thereof; but the State cannot in any manner interfere with its inter-State carriage or traffic. 1 VII. STATE CONTROL OF BAYOUS AND SLOUGHS OF RIVERS. The bayous and sloughs of great and navigable rivers, such as is the Mississippi River, which are not required by the interests of commerce to be preserved for the purposes of navigation, are under the control of the governments of States in which they are situated. The obstruction of them by the city authorities of such States, within the corporate limits of cities, for purposes of local improvement, is not an interference with commerce between the States, nor a violation of the ordinance and laws respecting the freedom of navigation of such rivers, or declaring them common highways, although such bayous and sloughs be susceptible of being navigated. 8 J Munn . Illinois, 4 Otto, 113. See * Ingraham c. Chicago, D. & M. B. Cooley on Const. Limitations, 4th ed. R. Co., 84 Iowa, 249 ; People t>. St. 742, et seq. Louis, 10 111. 850. 21 u-'J STATE TAXATION OF NATIONAL CHAPTER XXX. STATE TAXATION OF NATIONAL BANKS, BONDS AND CREDITS. I. STATE TAXATION OP NATIONAL BANKS AND SHARES OF STOCK IN THE SAME. II. STATE TAX ON NATIONAL BONDS OR CREDITS. I. STATE TAXATION OF NATIONAL BANKS AND SHARES OF STOCK m THE SAME. Capital Stock. The capital stock of national banks, consisting in part, or as a whole, of stocks or bonds of the national govern- ment, is, upon general principles, not a legitimate subject of State or municipal taxation. 1 Lands Taxable. But the lands of the corporation may be taxed, as other lands are taxed ; they do not partake of the char- acter of government securities, as does the capital, which consists of, or rests upon, the bonds of the government. 3 The tax upon the capital at an aggregate valuation, is a tax upon the bonds, or property in which the capital is invested, as contradistinguished from the privileges and franchises enjoyed within the State. 3 Shares of Stock Taxable. But the shares of such bank, of capital stock, are subject to taxation, for State and municipal purposes, in the States wherein the banks are located, at a rate not greater than is assessed upon other moneyed capital, belong- 1 Collins v. Chicago, 4 Biss. 472 ; Bank, 55 Penn. St. 45 ; Bradley . National Bank u. Commonwealth, 9 The People, 4 Wall. 459; Osborn v. Wall. 353; Bradley v. The People, 4 Bank of U. S., 9 Wheat. 738; Morse- Wall. 459 ; People v. Commonwealth, man v. Younkin, 27 Iowa, 350 ; Na- 4 Wall. 244; Van Allen o. The Assess- tional State Bank of Oskaloosa v. ors, 3 Wall. 573. Young, 25 Iowa, 311. j Bank of Commerce v. Comm. of * Van Allen v. The Assessors, 3 Taxes, 2 Black, 620 ; Bank Tax Case, Wall. 573 ; Bradley v. The People, 4 2 Wall. 200; Collins v. Chicago, 4 Wall. 459. Biss. 472 ; Pittsburgh v. First National AND SHARES OF STOCK IN THE SAME. 323 ing to individual citizens of the State, and not in excess of the rate of taxation imposed upon the shares of banks organized under authority of the State. They are the property of the in- dividual shareholders, and not the property of the corporation, or bank ; while, on the other hand, the capital of the bank is the property of the corporation or bank itself. 1 Inasmuch as such taxation of the shares of national bank stock is not to be in excess of that levied upon shares of banks existing under the law of the State, it has been held that if none be enforced on the shares of the local banks, therefore none can be imposed upon the shares of national banks for the time being. Thus, where the local banks were taxable on their capital, the shares not being taxed as such, the ruling was that no tax could be enforced upon the shares of the national banks. 3 This, however, is a matter so easily obviated by the States resorting to taxation of the indi- vidual shares of the local or State banks, that the obstacle in that respect to taxation of shares of the national banks is merely temporary. The Shareholder Tax May be Collected Through the Bank. The tax thus authorized to be enforced upon the shares of national bank stock is, by the act of Congress, made payable where the bank is situated; 3 and, to that end, it is lawful to require pay- ment thereof at the hands of the bank itself; for as such tax is allowable upon the shares as well of non-residents as residents of the State, there would be difficulty in enforcing the tax direct from the non-resident owner of a share or shares. 4 It is the general method of State taxation of shares of local banks, to which like taxation of shares in national banks is 1 Morseman v. Younkin, 27 Iowa, The People, 4 Wall. 459 ; National 350; Hubbardfl. Supervisors, 23 Iowa, Bank v. Commonwealth, 9 Wall. 353. 130 ; Lauman . Des Moines County, s Bradley v. The People, 4 Wall. 459 ; 29 Iowa, 310. But such State taxation Hubbard v. Supervisors, 23 Iowa, 130 ; of shares cannot be enforced under a Van Allen v. The Assessors, 3 Wall, law of the State subjecting the capital 573. of such banks to taxation. The power 3 Act of June 3, 1864, U. S. Stat. at to tax the capital the State does not Large, Vol. 15, 34; 2 Brightley's Dig. possess, and the power to tax the p. 67; E. S. of U. S. 1874, 5219, p. shares, though it exist, cannot be en- 1015. forced without a law providing there- 4 Lionberger . Rouse, 9 Wall. 468 ; for. Ibid. Van Allen v. The Assess- National Bank v. Commonwealth, 9 ors, 3 Wall. 573 ; People ?;. The Com- Wall. 353. missioners, 4 Wall. 244; Bradley v. 324 STATE TAXATION OF NATIONAL BANKS. required to conform, and exceptionable cases do not deprive a State of power to tax under the act of Congress. l It is not understood that the power thus to tax the shares of stock in the national banks is conferred upon the States by said act of Con- gress, but that such power being concurrent in the State and Federal governments, as to corporations created under authority of the latter, when the paramount right of the latter is not asserted, that by the act of Congress merely the intent of Con- gress not to exercise the power, but to leave it with the States for the time being, is avowed; 8 thus leaving in the State the exercise of the privilege until Congress, as it may at any time do, 3 asserts and assumes to exercise the national paramount authority and jurisdiction over the subject. II. STATE TAX ON NATIONAL BONDS OR CEEDIT. Likewise, State laws taxing bonds of the national government, or other means devised or employed by it for carrying out its con- stitutional powers and functions, are unconstitutional and void. This inhibition against State taxation applies to every species and form of indebtedness of the national government resorted to or used for the purpose of carrying out, or in the course of executing the powers invested in it by the Constitution. 4 The power of the States to impose and collect taxes is co-exten- sive only with their sovereign power over property interests and things within their own territorial limits, and constitutional sphere of action. That is, to every thing and interest that exists by State authority or permission, but does not extend to those means originated and employed by Congress to carry into execu- tion those powers conferred on that body and the national gov- ernment by the Constitution and people of the United States. Among those powers is the power to borrow money on the credit 1 Lionberger v. Rouse, 9 Wall. 468. McCulloch v. Maryland, 4 Wheat. 316 ; 4 Van Allen T.The Assessors, 3 Wall. Brown v. Maryland, 12 Wheat. 419 ; 573, 585. The Banks t. The Mayor, 7 Wall. 16 ; 8 Oilman v. Philadelphia, 3 Wall. Bank of Commerce t>. Commission. 713, 731, 732. But " Congress may ers of Taxes of New York, 2 Black, interpose, whenever it shall be deemed 620, 628 ; Bank Tax Case, 2 Wall. 200 ; necessary, by general or special laws." Bank v. The Supervisors, 7 Wall. 26 Ibid. 732. See, further, Cooley on Taxation, 56,, 4 Weston c. Charleston, 2 Pet. 449 ; et seq. BONDS OK CREDITS. 325 of the United States. To allow State taxation of government stocks or bonds in the hands of individuals, or other means resorted to by the government to carry out its functions and maintain its constitutional authority, would put it in the power of the States to obstruct, retard and cripple the national power, by depreciating the credit of the government and placing local difficulties in the way of its constitutional action. 1 The case of Weston v. The City of Charleston^ cited above, originated in an attempt of that city to tax United States stocks issued for money loaned, in the hands of Weston. The supreme court of the United States, MARSHALL, J., say, in delivering the opinion in that case: " The tax on government stock is thought, by this court, to be a tax on the contract, a tax on the power to borrow money on the credit of the United States, and consequently to be repugnant to the Constitution." 1 McCulloch v. Maryland, 4 Wheat 8 2 Pet. 469. 316; Weston v. Charleston, 2 Pet. 449. 326 BANKRUPTCY. CHAPTER XXXI. BANKRUPTCr. I. EFFECT ON JURISDICTION OF STATE COURT. II. FIXED LIENS. III. STATE INSOLVENT OK BANKRUPT LAWS. IV. STATE INSOLVENT LAWS. How AFFECTED BY NATIONAL BANKRUPT LAW. I. EFFECT ON JURISDICTION OF STATE COURTS. Civil Proceeding Arrested in State Court. Proceedings in bankruptcy in the district court of the United States arrest all ordinary civil proceedings pending and undecided in the State courts, except those upon contract liens and upon attachments, where the latter have been commenced not less than four months next preceding the inception of the proceedings in bankruptcy. 1 Attachments. Attachment proceedings against the bankrupt, commenced more than four months before the commencement of the proceedings in bankruptcy, are no further affected thereby than to prevent a judgment in personatn against the defendant for the time being, before decision as to his final discharge; and if discharged, then to prevent such personal judgment entirely; but the attached property, if liability be established, may be sold, or enough thereof, to discharge such liability and costs, by judgment of the State court, as in case no bankrupt proceedings were pending. 8 In attachment proceedings in a State court instituted less than four months before the commencement of the bankrupt proceed- ings in the Federal court, the effect of the latter is to dissolve the 1 14 U. S. Stat. at Large, 522; R. S. 159; Same Cases, 99 Mass. 376; Samp- of U. S. of 1874, 5044; In re Pat- son v. Burton, 4 Nat. Bank. Reg. 1; lerson Nat. Bank. Reg. Sup. to Vol. 1, Bowman v. Harding, 56 Maine, 559; 27; Hatch v. Seeley, 37 Iowa, 493; Leighton v. Kelsey, 57 Maine, 85; Blumenstiel on Bankruptcy, 187. Hatch v. Seeley, 37 Iowa, 493 ; Blu- * Bates v. Tappan, 3 Nat. Bank. Reg. menstiel on Bankruptcy, 189. STATE INSOLVENT LAWS. 327 attachment and arrest the proceedings in the State court, and to bring under jurisdiction of the United States court the subject matter thereof, placing the plaintiff in attachment on the same footing of equality as other creditors, who have no lien, and vesting in the assignee in bankruptcy the property which was previously held by the attachment. 1 II. FIXED LIENS. Creditors having fixed liens on property of the bankrupt, as mortgages, for instance, or judgment liens acquired in good faith, may enforce them in the State court, if not redeemed by the assignee; 2 but the assignee may redeem the property from such lien for the benefit of the general fund and creditors, or the bank- rupt court may proceed to sell such property, subject to the lien. 3 But no personal judgment can be taken in the State court against the bankrupt during pendency of the bankrupt proceedings in the United States court. 4 III. STATE INSOLVENT OK BANKRUPT LAWS. The several States may pass bankrupt or insolvent laws, pro- vided they do not conflict with such as are passed by Congress; but no State can, by any such law, release or impair, or provide for the release or impairing, of the obligation of contracts. Such State laws may act upon the person of debtors, so as to discharge from duress of law, or liability to arrest or duress for existing debts or obligations, but cannot destroy the obligation or release the subsequently acquired property of the debtor from liability to pay the same. 5 This statement of the general law, however, 1 14 U. S. Stat. at Large, 522 ; R. 8. 2 Bates v. Tappan, 3 Nat. Bank. Reg. of U. S., 1874, 5044; In re Preston, 159; Brown v. Gibbons, 37 Iowa, 654, 6 Nat. Bank. Eeg. 545 ; Corner v. Mai- 657; Bowman . Harding, 4 Nat. lory, 31 Md. 368; In re Patterson, 1 Bank. Reg. 5; 8. C , 56 Maine, 559; Nat. Bank Reg. Sup. p. 27 ; Bates v. Blumenstiel on Bankruptcy, 293 ; Tappan, 3 Nat. Bank. Reg. 159; Bump on Bankruptcy, 594. Leighton v. Kelsey, 57 Maine, 85; 3 Brown v. Gibbons, 37 Iowa, 654, Bowman v. Harding, 56 Maine, 559; 657; Reed v. Bullington, 11 Nat. Bank. In re Brand, 3 Nat. Bank. Reg. 85; Reg. 408. In re Housberger, 2 Ibid. 33; In re 4 McKay v. Funk, 37 Iowa, 661, 663. Joslyn,3 Ibid. 118; In re Williams, 3 8 Sturges. Crowninsliield,4 Wheat. Ibid. 74; Hatch . Seeley, 37 Iowa, 122, 196, 197; McMillan . McNeill, 493; Stuart v. Hines, 33 Iowa, 60. 4 Wheat. 209; Ogden v. Saunders, 13 328 BANKRUPTCY. is Bubject to those exceptions: That in the absence of Federal legislation on the subject, States may pass insolvent laws which will discharge the debtor from the obligation of subsequently existing debts, where such debts were contracted within the State, and by persons resident in the same. 1 But where the contract or debt is one existing between citizens of different States, or the same was created in another State, no State insolvent law can dis- charge the obligation of the same, unless by the appearance and consent of the party to whom the obligation is owing. 8 The right of the State to pass such laws does not emanate as a grant of power from the Federal Constitution, but existed in the State governments prior to the adoption of that instrument by the States; but the Constitution limited its exercise by the provision therein that no State shall make any law impairing the obliga- tion of contracts, and by giving to Congress power to provide a uniform law of bankruptcy. 3 So that, under the Constitution, whatever the power of the States previously might have been in that respect, no insolvent or bankrupt law, nor any other law, may by them be made impairing the obligation of contracts; and though the States may pass bankrupt laws, under that name, or under that of insolvency, until Congress has exercised its powers on the subject by providing a uniform system, or even after the exercise thereof by Congress, yet such State laws may not go to the extent of impairing or acting upon contracts, and must not conflict with the acts of Congress on the subject. The power to make laws impairing contracts exists exclusively in Congress. 4 Though this power vested in Congress to establish uniform laws on the subject of bankruptcy is not in express words made exclusive, yet it is in effect so in regard to the im- Wheat 213 ; Boyle B. Zacharie, 6 Pet. Wagner, Baldwin, 300; Suydam v. 638 ; Cooley on Const. Lim. 4th Ed. Broadnax, 14 Pet 75 ; Donnelly . 859. Corbett, 7 N. Y. 500 ; Kelley t. Drury, 1 Ogden v. Sauuders, 12 Wheat, 213 ; 9 Allen, 27 ; Pratt v. Chase, 44 N. Y. Sturges v. Crowninshield, 4 Wheat. 597; Baldwin . Hale, 1 Wall. 231; 122; Cook v. Moffat, 5 How. 309; McMillan v. McNeill, 4 Wheat 209; Boyle v. Zacharie, 6 Pet. 348; Mather Marsh v. Putnam, 3 Gray, 551. v. Bush, 1C John. 233; Oilman . Lock- 3 Sturges 0. Crowninshield, 4 Wheat. wood, 4 Wall. 409; Pratt v. Chase, 44 122, 193, 199. N. Y. 597. 4 Sturges v. Crowninshield, 4 Wheat. * Cases cited above, and also Spring. 122, 193, 194, 208; McMillan v. Mc- er v. Foster, 2 Story, 387; Wyman v. Neill, 4 Wheat. 209; Farmers' & Me- Mitchell, 1 Cow. 316; Woodhull v. chanics' Bank v. Smith, 6 Wheat 131. HOW AFFECTED BY NATIONAL LAWS. 329 pairing by such laws the obligations of contracts, for the latter, being inhibited to the States, is necessarily exclusively in Con- gress. 1 In the case of Sturges v. Crowninshield, above cited, the supreme court of the United States, MARSHALL, C. J., say: " This court is ol the opinion that since the adoption of the Con- stitution of the United States, a State has authority to pass a bankrupt law, provided such law does not impair the obligation of contracts, within the meaning of the Constitution, and pro- vided there be no act of Congress in force to establish a uniform system of bankruptcy conflicting with such law." 2 IV. STATE INSOLVENT LAWS. How AFFECTED BY NATIONAL BANKRUPT LAW. As to the eifect of a general national bankrupt law upon the insolvent laws of the several States, there has been a diversity of rulings, as well in the national as in the State courts. In Iowa and some others of the States, the State courts have held that assignments under a general State insolvent law for the general benefit of creditors, is valid as against an assignee of the same debtor in bankruptcy where the bankrupt proceedings were com- menced after the making of the assignment. 3 In others of the State courts the rulings have been the other way. 4 So, in the national courts of original jurisdiction, there has been a like diversity of decisions. In some of the districts the State insolv- ent laws have been regarded as still in force, and proceedings under them have been respected when commenced anterior to the commencement of the proceedings in bankruptcy. 8 In others it has been held that the taking effect of the general bankrupt law of the United States had the effect of suspending the force of the State insolvent laws during its continuance. 6 With this diver- 1 Sturges v. Crowninshield, 4 Wheat. Day v. Bard well, 97 Mass. 246 ; Blauch- 193, 194. ard v. Russell, 13 Mass. 1 ; Griswold 2 4 Wheat. 208. v. Pratt, 9 Met. 16. 3 Reed v. Taylor, 32 Iowa, 209; In 5 Sedgwick v. Place, 1 Nat. Bank. re Hawkins, 2 Nat. Bank. Reg. 122; Reg. 204; Sedgwick v. Menck, Ibid. Clark v. Bininger, 38 How. Pr. 341; 108, 204; In re Campbell, Ibid. Sup. 8. C., 39 Ibid. 363; Ex, parte Ziegen- plement, 36; In re Hawkins, 2 Ibid, fuss, 2 Ired. L. 463 ; Cole v. Duncan, 3 122 ; Langley i. Perry, Ibid. 180. Chicago Legal News, 323. 6 Ex, parte Eames, 2 Story, 322; 4 Meekin v. Creditors, 19 La. Ann. Thornhill v. The Bank of Louisiana, 497; 8. 0., 3 Nat. Bank. Reg. 126; 3 Nat. Bank. Reg. 110. 330 BANKRUPTCY. sity of rulings it was justly said by COLE, Justice, who delivered the opinion in the Iowa case of Reed Bros. <& Co. v. Taylor, 1 the question could only be determined by the Supreme Court of the United States. At that time no decision of the question had been made by that court of last resort. In the case of Mayer v. Hell-man? decided by the Supreme Court of the United States in 1875, it was held that the Federal bankrupt law did not invalidate necessarily the State insolvent laws. But that both might exist at the same time. Nevertheless, if the assignment was made within six months previous to the institution of bankruptcy proceedings (three months if the proceedings are involuntary), then the assignment will not be sustained. 3 1 32 Iowa, 209. enstiel on Bankruptcy, 600 ; Bishop 8 1 Otto, 490. See, further, Blum- on Insolvent Debtors, 233. 8 Mayer v. Hellman, 1 Otto, 496. WEIT OF HABEAS COKPUS. 331 CHAPTER XXXII. WRIT OF HABEAS CORPUS. I. FROM A STATE COURT. II. FROM A UNITED STATES COURT. III. THE RETURN OF THE WRIT. I. FROM A STATE COURT. The writ of habeas corpus, though a writ of liberty, cannot authorize a State court or State judge to discharge from custody a person held or imprisoned by an officer or court of the United States, under authority, or claim, and color of authority, of the national government. 1 If the petition or application for the writ shows that the detention or imprisonment is under the national authority, or by an officer thereof claiming to hold the party in virtue and under color of such authority, then the writ should be denied; 3 but if the petition merely allege illegal impris- onment or detention, without so showing the claim of authority by which the prisoner is detained, then the writ should issue, and if by the return of the officer or other custodian of the person held, or otherwise, it is made to appear that the prisoner is held under authority, or claim and color of authority of the United States, then the court or judge issuing the writ is to go no further, but should dismiss the writ, leaving the person detained where it found him, for the sole jurisdiction in such cases is in the courts of the United States ; to those courts the party in custody can apply for relief, and their ruling, if not appealed from, is tinal; or if appealed from, then that of the Supreme Court of the 1 Tarble's Case, 13 Wall. 397 ; Ex, many conflicting cases prior to Tar- parte Holman, 28 Iowa, 88; Duncan ble's Case are referred to and dis- v. Darst, 1 How. 301, 310; McNutt v. cussed. Bland, 2 How. 9 ; Ex parte Anderson, 2 Tarble's Case, 13 Wall. 397 ; Ex 16 Iowa, 595. See note to Hurd on parte Holman, 28 Iowa, 88. Habeas Corpus, 2d Ed., 190, where the 332 WRIT OF HABEAS CORPUS. United States is final and binding everywhere upon both the Federal and State courts and authorities. 1 II. FROM A UNITED STATES COURT. So a court of the United States cannot on habeas corpus inter- fere with a prisoner who is held under the process or order of a State court, except such interference be for temporary purposes of obtaining the evidence of such prisoner in some judicial pro- ceeding, and that only upon writ of habeas corpus ad testifican- dum.* In the case here cited, Ex parte Dorr, 8 the United States Supreme Court say: " Neither this nor any other court of the United States or judge thereof can issue a habeas corpus to bring up a prisoner who is in custody under a sentence or execu- tion of a State court, for any other purpose than to be used as a witness. And it is immaterial whether the imprisonment be under civil or criminal process." Such prisoners are beyond the reach of a United States court even to answer an indictment therein. 4 III. THE RETURN OF THE WRIT. In such proceeding, in the first instance, before the court or judge issuing the writ, the return of the officer or person to whom it is directed should show and set forth the process, order or authority under which the prisoner is held, for the inspection of the court or judge, that it may be known if the prisoner is held in good faith, under authority, or claim and color of author- ity of the United States, and not under mere pretence of having that authority. The court or judge on finding such to be the case, can proceed no further, for his jurisdiction there ends. He cannot inquire into the merits of the question involved. 5 In the language of the Supreme Court of the United States, TANEY, C. J., " they then know that the prisoner is within the dominion and jurisdiction of another government, and that neither the writ of habeas corpus nor any other process issued under State authority can pass over the line of division between the two sov- 1 Ableman v. Booth, and United * Ex parte Dorr, 3 How. 103. States t>. Booth, 21 How. 506 ; Tarble's * Supra. Case, 13 Wall. 397, 409; Ex parte Ibid. Holman, 28 Iowa, 88; Ex parte An- 5 Tarble's Case, 13 Wall. 379, 410; derson, 16 Iowa, 595. Ex parte Holman, 28 Iowa, 88. EETUEN OF THE WEIT. 333 ereignties. He is then within the dominion and exclusive juris- diction of the United States. If he has committed an offense against their laws, their tribunals alone can punish him. If he is wrongfully imprisoned, their judicial tribunals can release him, and afford him redress." l All that is meant by the necessity of its appearing that the prisoner is held under authority, or claim and color of authority of the United States is, that it appears that the prisoner is held by an officer of the United States under what, in truth, purports to be authority of the United States; if that appears, then the validity thereof is to be determined by the courts of the United States under the national constitution and laws. 2 In the case of Duncan v. Darst, the prisoner was arrested and held by a marshal of the United States, in a civil cause in the United States court, by virtue of a capias ad testificandum, from which custody the State court assumed to discharge him in virtue of a State law in relation to insolvency, but the Supreme Court of the United States held that the State authorities had no such power. 3 1 Tarble's Case, 13 Wall. 410. 8 Duncan . Darst, 1 How. 801. 3 Tarble's Case, 13 Wall. 397, 411. 334 EIGHT OF COMMON. CHAPTER XXXIII. EIGHT OF COMMON IN WASTE PLACES AND WATERS, AND EIGHT OF EMINENT DOMAIN. I. IN THE TIDE WATERS AND WASTE PLACES. II. IN THE NAVIGABLE INLAND RIVERS AND LAND THEREUNDER. III. OWNERSHIP AND LOCAL JURISDICTION OF BOUNDARY WATERS. IV. RIGHT OF EMINENT DOMAIN. I. IN THE TIDE WATERS AND WASTE PLACES. Is in the People of the State. The right of common in the tide waters, rivers, and waste places of the several States appro- priated to the use of their respective citizens is a property right, the ownership of which is in the people of each State, in their aggregate sovereignty. 1 It is a right not of citizenship alone, but of citizenship and property combined. 2 Limitation of Use Thereof. Each State may, subject, however, to freedom of commerce and to the power of Congress over the same, control and limit the use of the same at will, and may restrict the use thereof to its own citizens; for this common property in a State, or the use thereof, is not vested in citizens of other States by force of that clause of the United States Con- stitution which declares that the citizens of each State are "en- titled to all the privileges and immunities of citizens of the several States." 3 II IN NAVIGABLE INLAND WATERS AND LAND THEREUNDER. Belong to the States. The shores of and ground under the navigable waters belong to the States; not by grant from the general government, but because they never were parted with. 4 1 Martin v. Waddcll, 16 Pet. 367, 8 McCready t). Virginia, 4 Otto, 391, 410; State t. Medbury, 3 R. I. 188. 395; State v. Meclbury, 3 R. I. 138. 2 McCready 0. Virginia, 4 Otto, 391, * Pollard 0. Hagan, 3 How. 212; 395. People v. Tibbetts, 19 N. Y. 523; EMINENT DOMAIN. 335 And upon terms of admission the same rights in that respect exists in the new States. 1 But this ownership, or right of the several States, is subject to the paramount right of the national government in reference to the regulation of commerce. 2 III. OWNERSHIP AND LOCAL JURISDICTION OF INTER- STATE BOUNDARY WATERS. In the absence of other express grant or arrangement, when two States have coterminous boundaries on such water, each takes jurisdiction to the center thereof, except as to the admiralty jurisdiction, and counties of such States expressed to be bounded by such waters will be held to extend to such coterminous State boundaries, in the center of the river or water, although in the law creating them they be said to extend to low water mark. By intend ment of law they are limited only by the center of the water or stream. 3 Bight of Fishery. And each State and its citizens has the exclusive right of fishery in its own internal waters, and may prevent the taking thereof by citizens of other States. 4 IY. RIGHT OF EMINENT DOMAIN. The right of eminent domain, not only on land but also over the soil under the navigable waters, for all municipal purposes, belongs exclusively to the States within their respective territorial jurisdictions, where not ceded to the United States; but it is a municipal authority, and one which may not be so used as to affect the exercise of any right of commerce or national domain of the national government, under the constitution of the United States and laws made in pursuance thereof; 8 and except as re- gards the public lands belonging to the United States. Mumford v. Wardwell, 6 Wall. 423; Trans. Co,, 35 N. Y. 352; Martin . Mahler . Norwich & New York Waddell, 16 Pet. 367, 410; Corfield t>. Trans. Co., 35 N. Y. 352; Martin*. Coryell, 4 Wash. C. C. 371, 385, 386; Waddell, 16 Pet, 367, 410; Corfield v. People v. New York & Staten Island Coryell, 4 Wash. C. C. 371, 385, 386; Ferry Co., 68 N. Y. 71. People v. New York & Staten Island 3 Mahler v. Norwich & New York Ferry Co., 68 N. Y. 71. Trans. Co., 35 N. Y. 352; Corfleld v. 1 Pollard v. Hagan, 3 How. 212. Coryell, 4 Wash. C. C. 386. 2 People v, Tibbetts, 19 N. Y. 523 ; 4 State . Medbury, 3 R. 1. 138. Mahler v. Norwich & New York 6 Pollard v. Hagau, 3 How. 230. 336 JURISDICTION OVER STATE BOUNDARY RIVERS. CHAPTER XXXIV. JURISDICTION OVER STATE BOUNDARY RIVERS. I. ADMIRALTY JURISDICTION OF UNITED STATES. II. THE TERRITORIAL STATE BOUNDARY AS TO THINGS PERMANENT. III. CONCURRENT STATE JURISDICTION AND ITS EXERCISE OVER THE WHOLE RIVER EXCEPT AS TO THINGS PERMANENT. I. ADMIRALTY JURISDICTION OF UNITED STATES. Jurisdiction Over Boundary Rivers. When by the funda- mental laws, or constitutions, or terras of their admission into the Union as States, certain of our States have navigable rivers for coterminous boundaries, with concurrent jurisdiction in each over the waters of such rivers, as to matters of rightful State jurisdiction, yet the United States at the same time have admi- ralty and maritime jurisdiction over every part of such navigable waters from shore to shore, in maritime and admiralty cases. This jurisdiction of the national government and courts extends to all matters and things of a maritime character, and to the regu- lation of commerce thereon and intercourse of a commercial nature between States bordering on, or reached by means in part of such navigable waters or river. 1 II. THE TERRITORIAL STATE BOUNDARY AS TO THINGS PERMANENT. Islands and Other Local Objects. "When by the constitutions and laws of two adjoining States they have for boundary between them the main channel of a navigable river, and also have con- current jurisdiction over the whole river in its entire width from shore to shore; yet, notwithstanding such concurrent jurisdic- tion, neither of them, or their courts, has jurisdiction or cog- nizance of objects of a fixed and permanent nature situated at the 1 Genesee Chief t>. Fitzhugh, 12 where the general subject of admir. How. 443. See ante, Chap. XXVIII., ally is discussed. CONCURRENT STATE JURISDICTION. 337 opposite shore, or beyond such main channel, and within the ter- ritorial boundary of the other State. 1 Territorial Boundary. The actual territorial boundary of each is the main channel of the river; and this is the limit of juris- diction over permanent objects, natural or artificial. 2 Jurisdiction of Permanent Objects. But in the very nature of tilings, jurisdiction of permanent objects is exclusive in the State on whose side of the main channel they are situated. Con- current jurisdiction of the abutting States over permanent ob- jects, as islands situated in the river, or permanent erections at either shore, would be utterly impracticable in the administrative aifairs of State, as rendering owners and residents of such prop- erty liable to taxation, and other liabilities and duties of citizen- ship and ownership, to each of the States. Hence, it can never be intended in law that jurisdiction* which is concurrent over a river is concurrent also over islands and other permanently fixed objects therein. i!^or does the reason of the law of concurrent jurisdiction apply to such objects whose true location in refer- ence to the center of the main channel can always be known or ascertained; but it was to obviate the difficulty of showing on which side thereof occurrences of judicial cognizance had taken place that concurrent jurisdiction was resorted to in law. III. CONCURRENT STATE JURISDICTION AND ITS EXERCISE OVER THE WHOLE UIVER, EXCEPT AS TO THINGS PERMANENT. The existence of concurrent jurisdiction in two States over a river that is a common boundary between them, as more partic- ularly referred to in Section I. of this Chapter, vests in each of such States, and in the courts thereof, except as to things perma- nent, and except as to maritime and commercial matters cogniz- able by the national government and courts, jurisdiction both civil and criminal, from shore to shore, of all matters of rightful State cognizance occurring upon such river in all parts thereof where it forms such common boundary. 3 Such concurrent juris- 1 Gilbert v. Moline Water Power Power and Manuf'g Co., 19 Iowa 319, and Manuf'g Co., 19 Iowa, 319 ; Miss. 323. & Mo. R. R. Co. v. Ward, 2 Black, 3 Gilbert v. Moline Water Power 485. and Manuf'g Co., 19 Iowa, 319 ; State 2 Miss. & Mo. R. R. Co. v. Ward, 2 v. Mullen, 35 Iowa, 199 ; State v. Cam- Black, 485 ; Gilbert v. Moline Water eron, 2 Finn. 490. For a somewhat 22 338 JURISDICTION OVER STATE BOUNDARY RIVERS. diction obviates the difficulty in judicial proceedings of ascer- taining on which side of the main channel of a boundary river occurrences have transpired, or crimes have been committed. 1 The Jurisdiction First Attaching Holds the Case. Of the matters thus subject to the concurrent jurisdiction of two States the court which gets actual jurisdiction of the cause, or subject of legal adjudication, prosecution or trial, is entitled to hold the same to a final determination thereof, and neither party thereto can be forced into a different jurisdiction upon the same subject matter of litigation, unless the case be removable to the United States court. 2 Moreover, the full and final adjudication thereof upon the merits by such court of concurrent jurisdiction directly made, is conclusive, and a bar in all other courts wherein the same subject matter, between the same parties, comes judicially in question. 8 Inequality and Effect of the System. This system of concur- current jurisdiction of the adjoining States, over a river, as common boundary between them, though a wise and almost necessary provision, is, nevertheless, in some respects, unequal and wanting in uniformity in its operation and effect. First, in a criminal point of view. Each State, in carrying out its own concurrent jurisdiction, must do so in the enforcement of its own laws. It cannot enforce those of the other State. This must be the result, not only as to the practical administration thereof in its courts, but also as to the measure of culpability or criminality and punishment. Upon general principles, not even an arrest may be made except for the alleged violation of law, and that law must needs be the law of the State whose tribunals and officers make the arrest, except in cases for extradition. Thus, in the course of things, it must happen that the offense charged occurred be- yond the main channel of the river. Technically, this is in the territorial limits of the opposite State, and yet arrest and pun- ishment is made and enforced under the laws of a different State kindred case, see Mahler v. Norwich Robinson, 6 McL. 355; The Robert & New York Trans. Co., 85 N. Y. 352. Fulton, 1 Paine, 621 ; Mallett v. Dex- 1 Gilbert v. Moline Water Power ter, 1 Curtis, 178; Freeman t>. Howe, and Manuf 'g Co., 19 Iowa, 319, 322. 24 How. 450 ; Buck t>. Colbath, 3 Wall. 8 Taylor v. Carry 1, 20 How. 583; 834. Shelby v. Bacon, 10 How. 56; Smith Herman's Law of Estoppel, p. 36, v. Mclver, 9 Wheat. 532; Ex parte 41. CONCURRENT STATE JURISDICTION. 339 than that in whose actual territorial limits the crime was committed. Again: The punishment for the offense may not be, and sel- dom is, in both States alike, nor the limitation of time in which it may be prosecuted. Yet the State whose tribunals first get actual jurisdiction of the case, by arrest, will complete the trial, and if conviction follows, will inflict the punishment. Thus the penalty or punishment for offenses committed on rivers, the jurisdictional features of which bring them within the jurisdic- tion of State courts, as contradistinguished from that of the Federal courts, over highways of commerce, may be greater or less, as the culprit may chance to first come under the actual jurisdiction of one or the other of such adjoining States. Secondly, a like disparity of liability may occur in regard to acts of commission or omission, upon such common water, which are by statutes of one or both such States made actionable. Take, for instance, the statutory liability to an action at law for dam- ages, for acts of negligence or wrong resulting in the death of a person. In one State, as in Illinois, the recovery may be limited to a certain sum, beyond which a jury cannot go, in finding a verdict. In the other, as in Iowa, the finding as to the amount is left discretionary in the jury, under the evidence, subject only to the restraining power of the court, in granting a new trial if the amount found be excessive under the evidence and the rules of law. Again, in one of the States the common law may pre- vail, as it does in Illinois, in regard to the liability of a principal for acts of negligence of a servant causing an injury to a co- servant of the same common employer, while in the other State, a statutory provision, as really is the case in Iowa, gives the action, as a general principle, irrespective of the relation of servant and co-servant. Yet, under all these circumstances, and diversities of the law, the State first obtaining actual jurisdiction of the particular case will carry its own laws into effect therein, irrespective of whether the occurrence transpired on the one side or the other of the main channel of the river, which main channel is the actual territorial boundary line, marking the territorial extent and territorial jurisdiction of each of such States. In still another view of this incongruity of the law, suppose an offense to be committed by the common act of several per- sons, involving equal culpability. It is a well known rule of 340 JURISDICTION OVER STATE BOUNDARY RIVERS. law that such persons may be tried separately ; now one of them falls into the hands of justice in one of those States, and another one of them, at the same time, into those cf the opposite State; they are both tried and convicted. By the law of one St-ite, the convict is punishable by imprisonment; in the other State, the same offense is punishable with death, and the convict there is executed. Yet these, and other like incongruities, are perhaps unavoidable, as the laws of each State should everywhere have a uniform operation in its own courts, in reference to offenses, whether committed on the land or on the water. Nor is the dif- ficulty obviated by each State undertaking to administer and enforce the law of the other, in regard to occurrences taking place, or crimes committed, on the other's side of the main channel of the river; for, in the first place, a State cannot admin- ister or enforce the criminal or penal laws of another State; 1 and, secondly, if it could, then the very difficulty is revived which the concurrent jurisdiction is intended to obviate: that is, the necessity of ascertaining, in each case, on which side of the main channel the trouble occurred, so as to bring the case within the jurisdiction of the laws of such other State. Thus, the reason of the law of concurrent jurisdiction would cease to exist; and it is a well known and salutary rule of law that when the reason of the law ceases, the law itself ceases to exist, and therefore such inter-State jurisdiction would cease. But, by reference to the origin thereof, it will be seen that this concurrent juris- diction is given, over the river, and not of the laws of the abutting States. Each State is left to administer its own laws. 3 But, to prosecute this subject still further: Suppose the laws of one of the abutting States prohibit and punish that which by the laws of the other is tolerated take for instance the sale of intoxicating liquors, or the keeping of disreputable places of resort, and persons engage in such business in boats moving along up or down on the river, at the probable main channel, or at or along, or near to, either of the shores, as convenience or caprice may suggest. Or, suppose that while prohibited by the 1 The Antelope, 10 Wheat. 66 ; Sco- * 3 U. S. Stat at Large, 428, Chap, ville v. Canfield, 14 John. 338; Pick- LXVII.; 5 Stat. at Large, 743; Iowa ering v. Fisk, 6 Vt. 102; State . Laws, decision of 1860, Chap. I. 3, Knight, Taylor Law and Eq. (N. C.) and Code of Iowa, 1873, Chap. I. 3. 65. CONCUKEENl 1 STATE JURISDICTION. 3-il laws of one of these States, these things are licensed by or under the laws of the other. What, then, is the jurisdiction, and to what extent to be enforced? Evidently the jurisdiction must fail, or else each State must enforce its own laws. In the case here cited, of State v. Mullen, the defendant was indicted, con- victed and punished for a nuisance, in the courts of Iowa, under the laws of that State, and the nuisance was abated, which consisted in the keeping of a house of ill-fame on a boat on the Mississippi, movable from place to place, but temporarily resting at an island therein, on the Illinois side of the main channel of the river, where it was landed for repairs, and was left tempora- rily aground by the receding of the waters, but in a condition to float again on the rising of the river. It appearing that the boat was kept as a movable resort, upon the river, between the shore of Illinois and the shore of the county in Iowa wherein the indictment was found, and that its location as thus landed was within these limits, the Supreme Court of Iowa held the juris- diction and conviction to be rightful. DAY, J., who delivered the opinion of the court, says: " The boat was constructed, not for the purpose of being permanently attached to the soil, but of floating upon the surface of the river. It was afloat or aground, as the waters rose or receded. "When, it settled down upon the soil, in consequence of the recession of the water, it did not become real estate. It rested upon no foundations. It had no fixed location. With every rise of the river it floated. Hence, it was on the river in a sense very different from the dam considered in the" cases of Railroad Co. v. Ward, 1 and Gilbert v. The Moline Water Power and Manufacturing Company? " And, if on the river, it became subject to the jurisdiction of this State concurrently with that of the State of Illinois, and the judgment of the court was right." So it doubtless was. But suppose the State of Illinois had, by law, licensed this very concern and its purposes, to be so used upon the river, as did the authorities of a neighboring State license, at one time, such places of resort on the land. Query then ? What would have been the result thereof upon the pros- ecution in the Iowa case above referred to? Would such a defense have been valid? And, if so, would such validity cover the 1 2 Black, 485. 19 Iowa, 819. 342 JURISDICTION OVER STATE BOUNDARY RIVERS. whole river, from shore to shore, or only that part which is on the Illinois side of the main channel? If the former: that is, if valid from shore to shore, then concurrent jurisdiction on that sub- ject no longer exists, and the jurisdiction of Illinois is, in that respect, exclusive, unless each administers its own laws irre- spective of the other or of its laws. If the latter: that is, if valid only on that part of the river which is on the Illinois side of the main channel, then the very difficulty arises, again, which it was the purpose of concurrent jurisdiction to obviate, to-wit: the difficulty, in judicial trials, of ascertaining the juxtaposition of the locus in quo to that of the main channel of the river. So questions may arise out of legislation of an economical character, the violation of which itself involves, in no degree, any moral turpitude. As, for instance, the prohibition of the taking of fish with nets or seines, in such a river, or at certain seasons of the year, enacted by one of such States, while the other declares by law the right of free fishery therein. But, these remarks being merely speculative, it is not our purpose to extend them further, nor are we, in the absence of any decisions in that respect, authorized to lay down any rule, or express any opinion, on the subject. It is nevertheless true, however, that all these and many other legal questions are liable to arise out of such concurrent jurisdiction, but we do not think that that establishes a good reason why it should not exist. So, in regard to contracts, which in many cases depend on the place of the contract for their force and validity and meaning. Contracts may be legal and binding if made in one of those States which, if made in the other one, would be illegal and void, and the contract would be enforced or not just as the question of enforcement chanced to come before the tribunals of one or the other of the States thus having concurrent jurisdiction over the place where it was made; for jurisdiction is matter of law, as well as of practical administration thereof. In the case last sup- posed, the validity of the contract must be tested by the laws of one or the other of those States, if it be not fixed by the evidence on which side of the line the bargain was made, and it therefore follows most reasonably that each State would enforce its own. In the case of The State v. Mullen, the Supreme Court of Iowa hold, that jurisdiction over offenses committed on the Mis- sissippi anywhere either on the one or the other side of the main CONCURRENT STATE JURISDICTION. 343 channel thereof, in front of any county of the State which abuts upon said river, attaches in the courts of said county of proper jurisdiction otherwise to try the same (unless such jurisdiction is exclusive, in courts of the United States). 1 A like concurrent jurisdiction of Wisconsin and Minnesota exists on the Missis- sippi river, where it is a boundary between these two States. 3 The Supreme Court of Wisconsin, in a trial of a charge of murder, hold on error a similar principle to that of the Iowa courts in The State v. Mullen ; that is, that jurisdiction of offenses committed on the said river in front of any county, is vested in the courts of such county competent to try such offenses if committed in its borders on the land, and this, too, regardless as to whether the act be committed on the one side or other of the main channel of the river. 3 As a tangible boundary of a Territorial character between Kentucky and Indiana, low water mark on the Indiana side of the Ohio river is the true line; but said States of Kentucky and Indiana possess concurrent jurisdiction, civil and criminal, over the whole river where said States possess the opposite shores. 4 State laws giving a right of action for wrongful acts causing the death of a person, may be enforced in personal actions of a com- mon law nature, within such concurrent jurisdictions, without infringing upon the right of Congress to regulate commerce, or on the maritime jurisdiction of the United States. 8 Where such concurrent jurisdiction exists, judgment in one State is a bar to an action for the same cause in the other State, and if judgment should be rendered in both States, yet satisfaction of one is satis- faction of the other. There can be but one satisfaction. 6 The river being entirely within the boundary of Kentucky, does not affect the concurrent jurisdiction of the two States thereon, in the face of the express grant thereof. 7 It is no defense to such an action that a sum of money is received on a life insurance of the deceased, where suit is for injury causing death. 8 Such a 1 State v. Mullen, 35 Iowa, 199, 203. e Sherlock . Ailing, 44 Ind. 194. 2 State v. Cameron, 2 Finn. 490. 6 Sherlock v. Ailing, 44 Ind. 184, Ibid., p. 495. 197; 8. G., 3 Otto, 399. 4 Sherlock v. Ailing, 44 Ind. 184, 7 Ibid. 194; Handly v. Anthony, 5 Wheat. 8 Railroad Co. v. Barron, 5 Wall. 90, 374; McFall v. The Commonwealth, 105; Althorf v. Wolfe, 22 N. Y. 355. 2 Met. (Ky.) 394 ; Carlisle v. The State, 32 Ind. 55. 344 JURISDICTION OVER STATE BOUNDARY RIVERS.
  • . Ailing, 44 Ind. 184; 8, * Stillman v. White Rock Manf. Co., t (7., 3 Otto, 399. 8 Wood. & M. 538, 543; Tyler .' 1 3 Wood. & M. 538, 541. Wilkinson, 4 Mas. 397. Ibid. CONCURRENT STATE JURISDICTION. 345 to the natural flow of the water. 1 The two localities were not only governed by laws of different States, but were situated in different circuits of courts of the United States administering these laws. The court (WOODBUBY, Justice,) held, the interest of the parties, to be a corporeal easement or right to an undivided half of the water of the whole stream, or tenancy in common therein, and that if either party took or diverted more than the half, such use or diversion thereof would be an" injury, entitled in law to redress by some sort of proceeding. 2 In such cases the injury is regarded as committed in waters possessed beyond the center of the stream; 3 as such interest may exist in water and in its use. 4 The first and direct injury, say the court, in this case, is to the easement and consequent rights of the injured party existing beyond the center of the stream. The next, and which is a consequential injury, is to the mills and lands adjoining the stream, before reaching the center; for this, too, a remedy is due, just as a right of way on land in one State, to property in another, is an interest situated in the State where such right of way is, and the injury thereto may therein be prosecuted. If a remedy be pursued in the United States court, it must be in that State wherein the injury is committed (where the canal is dug) and the owner resides, as an injunction in the other State could not be executed, and as so far as the cause of the injury is con- cerned, the proceeding is partly in rem, and must be there abated if at all. 5 Relief was granted by issuing an injunction. Where the center of a river is the boundary line between two States, permanent erections of value therein in either State, on either side of such line, are taxable in the State wherein they are erected. Thus, where the center of the Delaware river is the boundary line between the States of Pennsylvania and New Jer- sey, the piers and permanent bridge-work of a bridge across the river was held taxable; thus so much of this abutment and bridge as was on the New Jersey side of said boundary was tax- able in New Jersey as real estate, irrespective of the capital stock. 6 1 Stillman v. White Rock Manf. Co., 3 Stillman . White Rock Manf. Co., 3 Wood. & M. 538, 542 ; Cook v. Hull, 3 Wood. & M. 538, 544. 3 Pick. 270. 4 Bullen . Runnels, 2 N. H. 255, 259. 2 Stillman v. White Rock Manf. Co., 5 Stillman v. White Rock Manf. Co., 3 Wood. & M. 538, 543 ; Angell on 3 Wood. & M. 546. Watercourses, Sees. 5-9. * State v. Metz, 5 Dutch. 122. 340 JURISDICTION OVER STATE BOUNDARY RIVERS. The boundary of the State of New York, as between New York and New Jersey, is at the low water mark, at the New Jer- sey shore of the Hudson river. The jurisdiction of New York extends to said boundary and is plenary both in civil and criminal matters. 1 This jurisdiction enabled the courts of New York, for preservation and protection of the harbor and river, in the bay of New York, to restrain persons, by injunction, from filling in and forming land in the said river and harbor, at the .New Jersey shore. 8 Contracts of affreightment or carriage to be performed by a corporate common carrier, partly in crossing a common boundary river of two States, but mainly to be performed within the State wherein the carrier is incorporated, are to be construed as to the obligation of performance by the laws of the latter State. 3 In the case here cited 4 the contract was made at the wharf on. the Pennsylvania side of the Delaware river, for transportation of baggage over the defendant's railroad, from thence across the Delaware and through New Jersey to Atlantic City. The supreme court of Pennsylvania, SHARSWOOD, J., say: "As the contract relied on in this case, as the ground of the liability of the defendants, was to be performed in the State of New Jersey, we must look to the law of that State to determine the extent of that liability. It is no answer to say that part of the undertak- ing was to carry the plaintiff and his baggage across the Dela- ware to Camden, and so in part within the limits of Pennsyl- vania. That river is conterminous between Pennsylvania and New Jersey, and the inhabitants of both have equal rights of navigation and passage. * * * It was by virtue of their franchise as a corporation, derived from the State of New Jersey, that the defendants made the contract. Nor would it make any difference if it appeared that the trunk was stolen or lost at the wharf in Philadelphia, of which there is no evidence." 5 1 People 9. Central R R of New Co., 83 Penn. St. 316; S. G., 15 Am. Jersey, 48 Barb. 478. Ry. Reps. 421. Ibid. 4 Ibid. * Brown v. Camden & Atlantic R R 83 Penn. St. 316 ; S. (7., 15 Am. Ry. Reps. 431, 434. POWER OF STATES TO LICENSE FERRIES. 347 CHAPTEE XXXV. POWER OF THE STATES TO LICENSE INTER-STATE FERRIES. I. THE POWER TO LICENSE is A POLICE POWER. II. THE EXTENT THEREOF AND EFFECT OF ITS EXERCISE. I. POWER TO LICENSE is A POLICE POWER. Nice questions arise in regard to the grant of ferry privileges- across rivers and other waters which are a common boundary between two States. First. As to how far this species of intercourse comes within the jurisdiction of Congress and the Federal courts. The Power is in the State. It is well settled that the granting of a franchise or license to keep a ferry, whether across waters wholly within a State or across waters which are a boundary between two States, is of the police powers of the States which has never been parted with or surrendered to the National gov- ernment, but has always been exercised by the several States; and that the exercise thereof, in reference to mere matter of fer- riage from shore to shore, does not come within or infringe upon the constitutional grant to Congress of power " to regulate commerce with foreign nations and among the several States, and with the Indian tribes," nor does it infringe the provisions of the ordinance of 1787 in regard to the free navigation of the Mississippi river and its navigable waters. The authority of the several States over this subject is but part and parcel of that municipal and police power of the several States of making inspection laws, health laws and quarantine regulations, and laws for the regulations of local matters and of commerce wholly internal of the State; "all of which," in the language of Chief Justice MARSHALL, in Gibbons v. Oyden, " can be most advan- tageously exercised by the States themselves." 1 1 9 Wheat. 1; Conway u. Taylor, 1 goire, 16 How. 524; Chilvers . The Black, 603, 633, 635; Fanning v. Gre- People, 11 Mich. 43; Chiapella v. 348 POWER OF STATES TO LICENSE FERRIES. But its Exercise may not Interfere with Commerce. Should a State, in the exercise of any of these powers, encroach upon the commercial powers of the national government, it would become the duty of the United States supreme court to control or annul such encroachment. 1 But the possibility of abuse in its exercise is no argument against the existence of that power, which being first openly asserted in Gibbons v. Ogden, supra, has not, as was said by Justice SWAYNE in Conway v. Taylor's Executors, since been questioned in any adjudicated case, but is repeatedly affirmed by both State and United States courts. 2 It being thus settled, not only by the highest national court but by a general concurrence of opinion of the State courts, that this power of ferries and ferry franchises is one of a local and police nature appertaining to the several States within their own proper jurisdictional limits, the extent of its legitimate exercise becomes now the next subject of inquiry. II. THE EXTENT THEREOF AND EFFECT OF ITS EXERCISE. When the stream, the shores thereof, and the locality upon which this power of the States is brought to bear are situated wholly within the territorial limits of a State, then there can be no question as to the power in the State to grant such franchises and regulate the same by law. But when the water to be ferried over is the boundary line between two States, by reason whereof the opposite shores thereof are within the territorial jurisdiction of different States, then, although the power still exists in each of said States, yet the question arises as to the extent of that power, and in what manner it may be exercised. This we will now consider. Laws have no Extra- Territorial Force. It is well settled that the laws of a State have no extra-territorial force, and it there- fore results therefrom that grant of a franchise by a State law, or in virtue of a State law, cannot of its own mere force confer extra-territorial privileges, or extend the legal existence of such franchise into the limits of another State or territorial jurisdition. s Brown, 14 La. Ann. 189; Marshall *. Bridge Co., 13 How. 519; Conway . Grimes, 41 Miss. 27; Columbia D. B. Taylor, 1 Black, 603, 634. Co. v. Geisse, 38 N. J. Law, 39. * Conway ^.Taylor, 1 Black, 603, 634. 'Pennsylvania v. The Wheeling 8 Weld v. Chapman, 2 Iowa, 524; Blauchard v. Russell, 13 Mass. 1. EFFECT OF ITS EXERCISE. 349 The Grant is Local. It follows, from these principles, that a grant of a ferry franchise by a State over a river which is a com- mon boundary between such State and another State confers only the right to transport persons and things from the shore of the State making the grant to the shore and landing of such other State; but it need not confer the right to there land, for that . right exists without, as to all public landings; 1 and not the right to there take persons and passengers aboard and transport them back across such water course. 3 It is a Right to Carry, and not to Land. The Latter Exists without the Grant. " A ferry is in respect to the landing place, and not of the water. The water may be to one, and the ferry to another." 3 The franchise is local. " An estate in such a franchise, and an estate in land rest upon the same principle." 4 Being thus local, if the right conferred be in reference to a water which is a boundary between two States, then the only right that passes is to take passengers or property from the shore in the State where the grant is made. The grant is from that shore or landing place, and not to the landing in the opposite State. And so if a ferry franchise be granted in the opposite State, it is a grant from the shore or landing in such State, and not a grant of the right also of landing in the other State. 5 The right of landing in public places appertains to all water crafts, independent of special authority or privileges. 6 The enrollment or licensing of a boat under the United States laws, for the coasting trade, does not alter the case, as above btated, in regard to a right to ferry. It confers no such right. 7 As we have seen, a ferry license or franchise has reference to the land of the river shore in the State where the license is obtained, and to the particular place of the shore designated in the grant. 1 Conway v. Taylor, 1 Black, 603, of Hudson Co. v. State, 4 Zab. 718; 632, 634. Phillips v. Bloomington, 1 G. Greene, 2 Conway v. Taylor, 1 Black, 603; 498; Memphis v. Overton, 3 Yerg. Weld v. Chapman, 2 Iowa, 524; Koss 390; Bowman v. Wathen, 2 McL. 377. v. Page, 6 Ham. (Ohio,) 166; Somer- 4 3 Kent, *459; Conway . Taylor, ville v. Wimbisli, 7 Gratt. 205, 230; 1 Black, 603, 632. Memphis v. Overton, 3 Yerg. 387. 5 Conway v. Taylor, 1 Black, 603, 3 13 Viner's Ab. 208; Conway v. 631. Taylor,! Black, 603,630: People v. 6 Ibid. Babcock, 11 Wend. 587; Fanning?). 'Ibid. Gregoire, 16 How. 524; Freeholders 350 POWER OF MATK.s TO LICENSE FERRIES. It neither confers nor restricts any right of passing over the water. It is not a grant of the water, or of the use thereof; and though restricted to a particular locality of the river shore, there is no restriction as to how far up or down the stream the craft may go, or as to the route to be pursued, after leaving the land- ing place of the grant, or in approaching the same; nor does the validity of the franchise depend on the privilege of landing at the shore in the opposite State. It is a complete right when granted by the authorities of one State, and has reference merely to the right of taking and landing at the point of land therein designated in the license. 1 Hence it is, that in law the owner of the soil of the landing place is deemed to have the preference for such a grant. It is so, because, as hereinbefore stated, " a ferry is in respect of the landing place, and not of the water." 8 To create such a franchise, the concurrent action of the two States is not necessary, but each may make such from its own shore, a violation of which is restrainable by injunction. 8 So, in New York, the courts there hold that power exists in that State to establish and license ferries, by law, across the Niagara river, from the shore in that State, and that to run a ferry there without a license is a violation of the statute law ot New York in relation to ferries. It is held to be none the less so, that the State authority and jurisdictions extends only to the middle of the river. The power conferred is to ferry from the American shore. As to the right of landing on the Canada side, the State of New York has nothing to do with that. 4 It was objected that such exercise of authority by the State conflicted with the authority of Congress to regulate commerce with for- eign States; but the court held that it was a domestic right in the State, always conceded by the national to the State governments. 6 The Power is a Municipal One. The grant of ferry franchises, as a means of intercommunication over streams between States, is not vested in the United States by the Constitution, but is municipal in its character, and is under State control, both as to 1 Conway v. Taylor, 1 Black, 603 ; 9 Con way v. Taylor, 1 Black, 603, Columbia Dela. Bridge Co. v. Geisse, 629, 630. 88 N. J. 39 ; Newport v. Taylor, 16 8 Ibid. B. Mon. 699. * People v. Babcock, 11 Wend. 587. 5 Ibid. EFFECT OF ITS EXERCISE. 351 the making of the grant and the regulation of its exercise; 1 and although the right granted may not authorize the party to land in another State, or to take passengers therefrom, yet it is a grant within the jurisdiction of the State making it, and extends to the limits of such jurisdiction. Beyond that the power of the State making the grant cannot go. 3 Navigable Waters and Public Landings are Free. But irre- spective of the grant of the franchise, the navigable inter-State waters are free for the purposes of intercourse and navigation ; and so, also, are the public places of landing, a species of ease- ment free to all citizens of the several States. 3 They are thus free, not only on general principles, but are more especially so under the Constitution of the United States, which secures to the citizens of the States all the privileges and immunities of citizens of each State. 4 The exercise of a ferry privilege across a boundary river be- tween two nations or States that are at war is a contraband act, and for the suppression thereof by military force no civil action can be maintained. 5 The municipal regulations of a State for establishing ferries and bridges over waters forming county boundaries do not apply to streams which are boundaries between nations or States. 6 Subsequent to the occurrence for which the action above referred to was brought, an act of the Texas legis- lature had been passed in reference to bridges and ferries across international streams. This latter act of legislation provides for a system of reciprocity in respect to such streams; but the State cannot give a valid privilege or franchise beyond its boundaries, and these boundaries are the middle of the stream, if not other- wise stipulated, in cases where a river or water is the boundary between two nations or States, as is the Rio Grande, between the United States and Mexico; and, as a consequence, between the State of Texas and Mexico, along the same river, so far as bor- dered on by the State of Texas. 1 'State v. Freeholders of Hudson 8 Memphis v. Overton, 8 Yerg. 387, Co., 3 Zab. 206, 213 ; Memphis v. Over- * Ibid, ton, 3 Yerg. 387. Ogden v>. Lund, 11 Tex. 688, 691. 2 State v. Freeholders of Hudson Ibid. Co., 3 Zab. 203. ' Ibid. 352 REMOVALS TO UNITED STATES COURT. CHAPTER XXXVI. BEMOVALS TO UNITED STATES COURT. I. WHEN THE PROCEEDING is HAD FOR ACTS DONE UNDER AUTHORITY OF THE UNITED STATES. II. REMOVALS UNDER THE ACT OF CONGRESS OF MARCH SD, 1875. III. THE RIGHT OF REMOVAL CANNOT BE LIMITED OR BARGAINED AWAY. IV. CITIZENSHIP CAN ONLY BE DISPUTED BY PLEA IN ABATEMENT. V. CITIZENSHIP, How STATED BY CORPORATION PLAINTIFF. VI. UNITED STATES COURT is THE JUDGE OF THE CAUSE FOR REMOVAL. VII. WHEN STATE COURT REFUSES TO ALLOW REMOVAL. VIII. REMOVAL OF NATIONAL CORPORATION. I. WHEN THE PROCEEDING is HAD FOR ACTS DONE UNDER AUTHORITY OF UNITLD STATES. When an action, suit or other proceeding is commenced in a State court against an officer of the United States, or other per- son, for or on account of an act done under the United States revenue laws, or under color thereof, or on account of title, right or authority set up by such officer or person, the defendant may, any time before trial, on petition to the United States circuit court for the district, setting forth the particulars thereof, veri- tied by affidavit, and accompanied by a certificate of an attorney or counselor at law of the district, showing that he has examined into the particulars of the case and believes the petition to be true, may have tlie cause docketed in said circuit court of the United States, and have a writ of certiomri issued by the court, if in term, and by the clerk if in vacation, directed to such State court, requiring such State court to send to such circuit court of the United States the proceedings in the cause and to stay further proceedings in the State court, and on delivery of the writ to the State court the suit or proceeding is deemed removed, and all further proceeding in the cause in the State court is null and void. 1 l \ Brightly's Dig. of Laws, 128, of U. S. 1874, 643. See, further, 129 ; State v. Circuit Judge, 33 Wis. Dennistoun v. Draper, 5 Blatch. 336 ; 127; 4 U. S. Stat. at Large, 633; R. S. Wood v. Mathews, 2 Blatch, 370. UNDER ACT OF CONGRESS. 353 II. REMOVALS UNDER THE ACT OF CONGRESS OF MARCH 3, 1875. In a suit of a civil nature in law or equity brought in any State court, involving a matter in dispute which, exclusive of costs, exceeds the sum or value of five hundred dollars, and aris- ing under the constitution, laws or treaties of the United States; or in which the United States are plaintiff or petitioner; or in which there is a controversy between citizens of different States; or a controversy between citizens of the same State claiming lands under grants of different States; or a controversy between citi- zens of State and foreign States, citizens or subjects, either party thereto may have such suit removed for trial into the circuit court of the United States for the district wherein it is pend- ing. 1 And if there be several persons party defendant or plain- tiff, either one or more may enforce the rights of removal, if the matter can be properly determinable between them. 3 Removal, How Effected. Such removal is effected by filing a petition in the State court, at or before the term at which the suit should be first tried, and before the trial thereof, for the removal of the suit into the circuit court of the United States of the district where such suit is pending, and by making and filing therewith a bond with good and sufficient security for the enter- ing into said circuit court on the first day of its next session, a copy of the record of the suit, and for payment of all costs that may be awarded by said circuit court, if said circuit court shall hold the removal wrongful or improper, and also for the entering into special bail in said suit in said circuit court, if special bail be requisite in the original proceeding in the State court. There- upon the State court is to accept such petition and bond and pro- ceed no further. Such is the process of removal when the suit is for a money claim or demand. When Title to Land is Concerned. If the suit be one in which the title to land is concerned, and the parties be citizens of the same State, and the matter in suit exceeds the sum or value of five hundred dollars, exclusive of costs, the sum or value is to be made to appear, and one or more of the defend- 1 Session Act of Congress, March 3, 5 Session Act of Congress, March 3, 1875, 3; Session Acts of Congress, 1875, 2; Session Acts of Congress, 1874-5, 470. 1874-5, 470. 23 354 REMOVALS TO UNITED STATES COURT. ants must make affidavit, if required by the court, that the de- fense will rely upon a right or title to the land under a grant from a State, and shall produce the same, or an exemplification thereof, (if the loss of public records shall not have put its pro- duction out of the parties' power,) and shall move the court that any one or more of the other party inform the court whether he or they claim title or right to the land under a grant from some other State; the party or parties so required shall give such in- formation, or else shall not be allowed to plead such grant or give it in evidence on the trial of the cause; and if he or they give information that he or they claim under such grant, then any one or more of the party moving for such information may, on petition and bond as before stated, remove the cause for trial to the circuit court of the United States next to be holden in such district; and any one of either party so removing the cause shall not be allowed to plead or give evidence of any other title than that by him or them stated as aforesaid, as the ground of his or their claim. l III. THE RIGHT OF REMOVAL CANNOT BE LIMITED OB BARGAINED AWAY. The right of an individual citizen, or of a corporation of a State, when sued in the courts of another State by a citizen of such other State, to remove the suit for trial to the circuit court of the United States, when the amount in controversy or other circumstances involved are such as are contemplated by the acts of Congress in that respect, is a right that cannot be limited either by State enactments or bargained away by the citizen or corporation possessing the same. It is a right secured to them by the constitution and laws of Congress made in pursuance thereof upon the subject, to secure to the citizens of a State other than that in which suit may be brought against them in a State court, the removal thereof into the Federal court for trial by complying with the terms of the acts of Congress. Any con- tract of the party, or a statute law of a State made in abrogation of this right are unconstitutional, and are in their very nature inimical to law, and tend to close the avenues of justice. Every citizen has a right to invoke the power of the courts for vindica- 1 Act of Congress, March 3d, 1875, 5 ; Session Acts of 1874-5, p. 470. CANNOT BE LIMITED OR BARGAINED AWAY. 355. tion and protection of his rights, and may no more barter it away than he may his life or his liberty. He may omit its exer- cise, or decline to assert it when occasions arise for the opportu- nity, but he cannot beforehand bargain it away, or bind himself to forego it. 1 The case here cited of Insurance Co. v. Morse arose out of a statute of Wisconsin requiring foreign insurance companies, as a condition to doing business in that State, to stipulate against removing to the United States court any suits that might be brought against it in the State courts. The stipulation was made, but subsequently disregarded by the Insurance Company, and the case coming before the United States supreme court upon the validity of the State statute and binding effect of the stipu- lation, that court held the act of the legislature unconstitutional. In disposing of the case the court reiterate the often repeated ruling, that a corporation is a citizen of the State by which it is created, and wherein its principal place of business is situated, in so far as that it can sue and be sued in the Federal courts, as others can, and is within the clause of the constitution extend- ing the jurisdiction of the Federal courts to citizens of the different States, and the laws for removal of suits from State courts to the courts of the United States. 2 Parties cannot by contract oust the courts of their ordinary jurisdiction. They may compromise their suits and their rights of action already accrued, and give valid acquitals, or bind them- selves as to that particular matter not to sue, but a general under- taking not to assert one's legal rights or not to vindicate their injuries in the courts of the country, is void, as inimical to the authority and policy of the law. 3 insurance Co. . Morse, 20 Wall. 19 Wall. 214; Doyle . assert is the law this day in America Morse. Doyle t>. Continental Ins. as well as in the English courts, and Co., 4 Otto, 535. the latter one of the two is believed J Phelps o. O'Brien Co., 2 Dillon, to be the leading case upon this sub- 518. ject, and as such is cited by the U. 8. CITIZENSHIP. 357 the action in the Federal court the defendant demurred, and re- lied as for cause of demurrer upon said statute, which being a general statute was not by law in Iowa required to be specially pleaded. The court overruled the demurrer, and sustained the right of action in plaintiff; in doing so the court say, DILLON, J., LOVE, the District Judge, concurring: "The case made in the petition falls within the jurisdiction of this court * * * and this jurisdiction cannot be in any maunner limited or affected by State legislation." 1 IV. CITIZENSHIP CAN ONLY BE DISPUTED BY PLEA IN ABATE- MENT. When an action or suit is removed to the United States court, from a State court, under the twelfth section of the judiciary act, if the citizenship of the party, or of either party, is disputed, it must be by plea in abatement; the question cannot be raised or tried during the trial upon the merits. 3 Colorable Change of Residence. A merely colorable change of residence or citizenship, into another State, done with a view to confer jurisdiction of a contemplated cause of action upon the United States circuit court, and not with bona fide intent of be- coming a citizen of the State to which the party removes, will not confer a right to sue in the United States court. Bona Tide Change of Residence. But if the change of citi- zenship be bona fide, and with honest intention to become and be a citizen of the State removed to, then the right to sue in the Federal court attaches therefrom, although the acquirement of that right may have influenced the removal. 3 V. CITIZENSHIP: How STATED BY CORPORATION PLAINTIFF. So, in an action by a corporation, in the United States circuit court, or the removal of an action by a corporation from a State to a United States court, it is not enough that the proceedings allege the corporation to be a citizen of the necessary State, but the statement must be that the corporation is created under the laws of the State. 4 1 2 Dillon, 519. Smith v. Kernochen, 7 How. 198, 215, ^Jones v. League, 18 How. 76. 217. 3 Jones v. League, 18 How. 76, 81 ; 4 Lafayette Ins. Co. v. French, 18 How. 404 358 REMOVALS TO UNITED STATES COURT. Nominal Parties will Not Prevent Removal. The citizenship of the real party in interest is alone to be considered in deciding questions of jurisdiction dependent on citizenship, and the join- der of nominal parties to the suit can have no effect to oust the jurisdiction of the United States court. 1 Must Come within the Statute. The right of removal being a statutory right, to obtain the benefit thereof the party must bring his case for removal within the terms of the statute. 8 Corporate Residence. The residence of a private corporation is in the State where, by law, or under the laws of which, it is created. 3 Though, by the ordinary comity of States, it may do business in other States, if the character of its business is such as to permit of it, and it is not inhibited therefrom by the laws or policy of such other States, yet the transaction of business in another State, though by permission of the law thereof, as, for instance, the leasing, of another corporation existing therein, it& corporate works, and therein operating the same, does not make such lessee corporation a corporation of the latter State. 4 It still remains a corporation of the State where created, and is res- ident, and, for some purposes, continues to be a citizen thereof, as does a natural person, who is a citizen or resident of one State, still retain his citizenship and residence therein, although he transacts business in a neighboring State. Hence, a railroad corporation of one State, leasing and oper- ating, by permission of the law of another State, a railroad belonging to a domestic corporation in such other State, is not thereby made a corporation of the latter, or domesticated therein, but still remains a corporation of the State wherein it was created, and foreign to the State wherein it is operating such leased road; and, as a sequence, may, if sued in the courts thereof by a citizen of such State, in a matter of controversy involving over five hundred dollars, exclusive of costs, remove such suit for trial into the circuit court of the United States, under the twelfth section of the judiciary act of the United States. 8 1 "Wood . Davis, 18 How. 467. * Treadway t>. The Chicago & N. * Insurance Co. t>. Pechner, 5 Otto, W. R. R. Co., 21 Iowa, 351, 359. 183. Ibid. 6 Ibid. JUDGE OF CAUSE FOR REMOVAL. 359 VI. UNITED STATES COURT is THE JUDGE OF CAUSE FOR REMOVAL. "When a cause is removed from a State court into a circuit court of the United States, said circuit court is the proper judge of its own jurisdiction, and is not bound to proceed with the cause without satisfying itself upon that subject, but has a right to examine into the question of jurisdiction and decide the same, and to remand the cause to the court from whence it came if suf- ficient ground for its removal be not shown; and of the cause for removal and sufficiency thereof, the United States court, and not the State court, is the judge. 1 The Citizenship Required is Personal. The citizenship upon which the removal of a cause is dependent, is the personal citi- zenship to the parties, or persons, and not to their official relations, authority, or status. 2 The Citizenship has Reference to the Commencement of Suit. The right of removal being statutory, the party claiming it must bring himself clearly within the provisions of the statute, to enable him to have the benefit thereof. The citizenship requi- site to removal must be shown to have been such at the com- mencement of the suit. 3 The averment that a party is a citizen at the time of making the application is not sufficient. It does not follow therefrom that he was such at the commencement of the suit. 4 When State Court Refuses to Allow Removal. When a party claiming the right of removing a suit to the United States court brings his case clearly within the provisions of the act of Congress, and makes out such a case as entitles him to removal, and the removal is denied to him by the State court, or the State court declines to defer to the application, but on the contrary, pro- ceeds to entertain the cause, then the applicant may apply to the United States circuit court, under the act of Congress of 1875, 5 for coercive process to place the case in the United States court; 1 Urtetiqui c. D'Arcy, 9 Pet. 692 ; surance Co. v. Pechner, 5 Otto, 183. Pollard v. Dwight, 4 Or. 421 ; Wood v. 3 Insurance Co. v. Pechner, 5 Otto, Matthews, 2 Blatchf. 370 ; Dennistoun 183. . Draper, 5 Blatchf. 336 ; State v. Cir- 4 Ibid. cuit Judge, 33 Wis. 127. B Act of March 3, 1875, 7. 2 Amory v. Amory, 5 Otto, 186; In- 300 KK.MOVALS TO UNITED STATES COURT. and, also, if the State court persists in entertaining the cause, may therein plead such application to the jurisdiction of the State court, and the plea will be effectual ; for by such applica- tion, when thereby a case for removal is made out, the jurisdiction of the State court is at an end. 1 VII. REMOVAL BY NATIONAL CORPORATIONS. Corporations created or organized under laws of the United States (except banking corporations), and any member thereof, if sued in a court other than a circuit or district court of the United States, for alleged cause of action against such corpora- tion, or member thereof as such, may remove such proeeeding to the proper circuit or district court of the United States, on peti- tion, verified by affidavit, stating that a defense is relied on arising under, or by virtue of, the Constitution, treaty, or law of the United States, and offering security for entering the proceedings in the United States courts, and by doing cuch other acts as are required by the act for removal of certain causes, approved July 27, 1866, so far as the same may apply. 2 NOTE. For a very thorough and exhaustive discussion of the subject of Removal of Causes, in all its different phases, the reader is referred to Judge DILLON'S excellent Monograph on Removal of Causes, 2 Ed. We have sought to give but a mere outline of this subject, it being somewhat related to our text, and have considered it advisable to refer the reader to Judge DILLON'S work for an extended treatment of the same. 1 Shaft v. The Phoenix Mutual Life ly's Dig. of Laws, Vol. 2, 116, 18; Ins. Co., 67 N. Y. 544. R. S. of U. S. (1874), 114, 640. 8 15 Stat. at Large, 227, 2; Bright- FROM TERRITORIAL TO STATE GOVERNMENT. 361 CHAPTEE XXXVII. TRANSITION FROM TERRITORIAL TO STATE GOVERNMENT. I. JUDGMENT RENDERED DURING TRANSITION PERIOD. II. DISPOSITION OP RECORDS OF THE TERRITORIAL COURTS. III. EFFECT OF CHANGE OF GOVERNMENT ON TERRITORIAL DEBTS. I. JUDGMENTS KENDERED DURING TRANSITION PERIOD. Validity of Judgments. Judgments of a Territorial court, ren- dered between the time of the adoption of a State constitution by the people, and the time of their admission by Congress into the Union as a State, are valid judgments of such Territorial courts; their authority to act as Territorial courts does not cease with the adoption of the constitution, but continues unimpaired throughout the transition period, up to the time of their admis- sion into the Union as a State thereof. 1 Termination of the Territorial Entity. The mere act of adopt- ing a State constitution, and other preliminary steps for admis- sion by Congress do not create a State; State entity occurs, and Territorial entity ceases in our political system, only by the action of the national government in admitting the Territory and people therein as a State, and thereby terminating the national Terri- torial authority and government over the same. 3 The case here referred to of How v. Kane, was a proceeding of several judg- ment creditors by a creditor's bill, or in the nature of it, to enforce their judgments, one of which judgments was rendered by the court of the Territory of "Wisconsin after the formation and adoption of the State constitution by the people, and before its admission into the Union as a State. The objection to the force of this judgment was made, that the powers of the Terri- torial courts had terminated at the time it was rendered, but the court held that their power ended only with the admission of the 1 How v. Kane, 2 Finn. 531, 547. 2 Ibid. 362 FROM TERRITORIAL TO STATE GOVERNMENT. State into the Federal Union. That in our political system there cannot be any such tiling as an American State outside of the Federal Union, and that therefore the Territorial government and authority as creatures of the national power, continues to exist until terminated by admission of the country and people thereof by Congress as a State. Custody of Territorial Records. By reference to the case of Hunt v. Palao, 1 it will be seen that the records of such judg- ments and Territorial courts after dissolution of Territorial gov- ernment, properly belong to the Federal, and not to the State courts, since the Territorial courts were United States courts, and their records should pass into the keeping of the United States courts, and that no law of the newly created State can control them. This subject, however, will be more fully discussed in the next succeeding section of the present chapter. II. DISPOSITION OF RECORDS OF TERRITORIAL COURTS. Territorial courts are courts of the United States. When the country of the Territory is organized into a State, the records of the Territorial courts are not proper subjects of State control, but are subject to the control of the United States. 3 It is for Congress to declare to what tribunal or keeping these judicial records shall be transferred. No law of the State can control the same. 3 If left in the custody of an officer of such State or clerk of one of the State courts, a writ of error from the United States Supreme Court does not lie to carry the case to that court, although the case may have been such as that the writ would have been effected to the Territorial court during its existence. 4 So, the Cherokee nation, so called, is a Territory of the United States, like unto Territorial governments of the second grade, so called formerly under the ordinance of 1787, with the exception that they make their own laws, appoint their own rulers and officers, and pay their own expenses; yet they are under the pro- tection of the national government, and by treaty are to be entitled to a delegate in Congress of their own selection whenever Congress may provide therefor. Their laws and regulations, 1 4 How. 589. Hunt v. Palao, supra; 9 U. S. Stat. 9 Hunt 0. Palao. 4 How. 589 ; 9 U. at Large, 128, 212. 8. Stat. at Large, 128, 212. Hunt p. Palao, supra. EFFECT OF CHANGE OF GOVERNMENT. 363 however, are not to be inconsistent with the Constitution of the United States and laws of Congress regulating trade and coin- o o o merce with the Indians. 1 Such being the case, their courts may appoint administrators of the estates of decedents in their country with the same regularity and responsibility as if granted by State courts; a and such administrators come within the llth section of the act of Congress of 24th of June, 1812, declaring that "it shall be lawful for any person or persons to whom letters testa- mentary or of administration have been or may hereafter be granted, by the proper authority of any in the United States, or the Territories thereof, to maintain any suit or action, and to prosecute and recover any claim in the District of Columbia, in the same manner as if the letters testamentary or administration had been granted in the District." Therefore, an administrator appointed in said Cherokee nation may sue in said District of Columbia, contrary to the common law doctrine that such powers may not be exercised in other jurisdictions than where obtained. 3 So, too, by force of the same act, the right to sue in said District is conferred upon administrators and executors generally, of all the States and Territories of the United States, in express terms. III. EFFECT OF CHANGE OF GOVERNMENT ON TERRITORIAL DEBTS. By transition from a Territorial government into a State gov- ernment, the debts of the Territory are not extinguished, but by a principle of national law become debts of the State. The mere change of government or of rulers, or even of the allegiance of a people, does not affect their obligations. The new governments succeed to all the fiscal rights and liabilities of the former gov- ernment, of a civil nature. The new governments take the country cum onere.* Hence, where by the law of a State, the State may be sued, a civil action lies against such State upon a debt of the Territory which was superceded by the State. 5 If such were not the case upon general principles in regard to the Territorial indebtedness attaching itself to the State, yet it is held that such is the effect of a provision of the State constitu- tion as follows: "That no inconvenience may arise by reason of 1 Mackey . Coxe, 18 How. 100. 4 Wheaton on International Law, Ibid. 63; Baxter v. State, 9 Wis. 38. Ibid. Baxter o. State, 9 Wis. 38. 364 FROM TERRITORIAL TO STATE GOVERNMENT. a change from a Territorial to a permanent State government, it is declared that all rights, actions, prosecutions, judgments, claims and contracts, as well of individuals as of bodies corporate, should continue as if no such change had taken place." * 1 Baxter v. State, 9 Wis. 88. INDEX ABATEMENT, pendency of another action in another State no ground for, 145, 146. in U. 8. court is ground for, 146. whether pendency of suit in State Court is ground for, to a suit in U. 8. Court, 145. vice versa, 146. judgment in another State is ground for, 146. so, also, in U. S. court, 146. the fact that an appeal has been taken will not prevent the bar, 146 n. 4. what is necessary to make a judgment a bar to another suit, 147. must be upon the merits and final, 147. if suit barred in original State, whether barred in other States, 174, 175. See, further, BAB ; JUDGMENT. ACCEPTANCE, of bills, what law governs, 63. ACCESSORIES, non-resident, before the fact, 340, 243. liability to punishment, 240, 243. See CRIMES. ACKNOWLEDGMENTS, power to take is local, 211. ACTIONS. See REAL ACTIONS ; PERSONAL ACTIONS. ADMINISTRATORS. See EXECUTORS AND ADMINISTRATORS. ADMIRALTY. See MARITIME CAUSES ; MARITIME LIENS ; MARITIME TORTS ; JURISDICTION. AFFREIGHTMENT, contracts of, governed by what law, 71. what law governs bills drawn on the consignee, 71, 72. contracts of, made by foreign corporations, 72. ALIMONY, action at law will not lie in another State upon decree of, 183. bill in equity will lie on decree of, of another State, 183. when suit may be brought upon decree of, in U. S. court, 184. (365) 3G6 INDEX. ALIMONY Continued. a divorce a mensa et tTioro no defense to suit on, granted in another State prior thereto, 184. See DIVORCE. AMERICAN INTER-STATE LAW, definition of, 8. ANCILLARY ADMINISTRATION. See EXECUTORS AND ADMINISTATORS. APPEAL, effect of, as against a suit on the judgment in another State, 90. APPEARANCE, effect of, unauthorized on judgment, 103. of fraudulent, 102. gives jurisdiction of non-resident, 282. by an attorney of non-resident, 282. See JUDGMENT. ASSETS. See DISTRIBUTION ; EXECUTORS AND ADMINISTRATORS. ASSIGNEE, sued in U. S. court bar to suit in State court, 14, 15. See ASSIGNMENTS. ASSIGNMENTS, foreign, whether good against resident creditors, 138. which contravene the lex loci rei sitce, 138. of personalty, how far valid in other States, 204 of realty, must conform to the lex loci rei sites, 204. under insolvent law as against subsequent, under bankrupt law, 329, 330. See INSOLVENCY. ATTACHMENT, State cannot attach property in the hands of United States officer, 13. State courts can restrain its citizens from suing out, in another State, 43,44. bonds given to United States Marshal, where suable, 57. is a proceeding in rem, 124. no personal judgment can be rendered, 124, 126. unless defendant appears or is served, 124. effect of the levy in, 125. relation of the sale back to the levy, 125. only the property levied on is bound, 125. sale in, if regular carries title, 125. judgment in, will not sustain an action, 126. service in, if made in a different State, or by publication, will not sus- tain a personal judgment, 126. the levy in, does not work a satisfaction, 127. cannot be had against foreign corporation extending its road into the State by virtue of a statute, 289. how affected by subsequent bankruptcy, 327. See GARNISHMENT; IN REM. ATTESTATION AND SEAL, law governing, 113. See EVIDENCE. INDEX. 367 B. BANKRUPT LAWS, their effect on the jurisdiction of State courts, 326. arrest proceedings in State courts, 326. their effect on attachment proceedings, 326. their effect on fixed liens, 327. the lien may be enforced in State courts, 327. See INSOLVENCY ; INSOLVENT LAWS. BAE, suit in U. S. court against an assignee, to a suit against the same in State court, 14, 15. judgments are, to suit on original demands, 89, 90. judgment rendered in regard to matter occurring on Inter-State boundary river, 343. See ABATEMENT ; BOUNDARY RIVER ; JUDGMENT BASTARDY, suit on judgment rendered in another State, 91, 151. penalty for, is local, 150-154. discussed, 150-154. child born of non-resident and out of the State, 150, 151. statutes against not intended for the relief of other States, 150-154. See STATUTORY ACTIONS ; CRIMES. BAYOUS, subject to State control, 321. BEQUEST, of personal property, governed by what law, 196. See WILLS ; PERSONAL PROPERTY. BIGAMY, whether, if both marriages are foreign, 228. See CRIMES. BILLS AND NOTES. See NEGOTIABLE INSTRUMENTS BONDS. See TAXATION ; CONDITIONAL BONDS ; OFFICIAL BONDS. BOUNDARY RIVERS. jurisdiction over, 336. U. S. has admiralty jurisdiction over, 336. right of common in, 335, 336. territorial State boundary, 336, 337. as to things permanent, 336. jurisdiction, 336. islands, 336. other local objects, 336, 337. what is the, 337. States have concurrent jurisdiction over, 337. that attaching first, holds, 338. inequality and effect of the system, 338. discussed, 338. with reference to a criminal point of view, 338. with reference to statutory actions, 339. 368 IXDEX. BOUNDARY RIVERS Continued. States have concurrent jurisdiction over Continued, Inequality and effect of the system Continued. acts committed by different persons, 839, 340. acts prohibited by one, but allowed by the other State, 340, 841. with reference to contracts made thereon, 843. instances of jurisdiction, 343. judgment in one bar to suit in other, 343. act on one side doing injury to mill on other side, 844. may grant injunctions against doing certain acts on other side, 346. contract for carriage across, governed by what law, 346. permanent erections in, where taxable, 345. C. CAPACITY OF PERSONS TO CONTRACT, as to personal matters, 190, 191. governed by law of place where contract is made, 190, 191. as to real property, 190, 191. governed by law of place where situated, 190, 191. to marry, by what law governed, 191. when done in evasion of the law of the domicile, the effect, 192. plea of infancy, 192. of foreign corporations, 289. See CONTRACTS. CAPITAL STOCK, subscriptions to, governed by law of company's residence, 203. See STOCKHOLDER. CHANGE OF GOVERNMENT, effect of, on decrees rendered, 100. See GOVERNMENT. CHEROKEE NATION, is a territory, 362. administrators appointed by courts of, 363. CHILDREN CUSTODY OF, granted by court having jurisdiction is respected in other States. 183. See INFANTS ; GUARDIANS. CIRCUIT COURTS OF UNITED STATES, citizenship, how averred in suit in, 30. amount necessary to give jurisdiction, how proved, 30. administer State laws, 34. how take notice of State laws, 34. chancery proceedings in, how conducted, 34. in matters of general commercial law, 35. INDEX. 869 CIRCUIT COURTS OF UNITED STATES Continued. do not follow State forms or modes of proceedings, 35. when they do, 35. whether follow processes of highest State court, 36. follow State constructions of State constitutions and laws, 36. when not, 37. See UNITED STATES COUTITS. CITIZENS, who are, 19, 189. of the States, 19. how averred in suit in U. S. court, 30. under the act governing removal of causes, 190. foreign corporations not entitled to privileges of, 285, 286. See REMOTAL OF CAUSES. CIVIL LAW, in what States presumed to exist, 33. COERCION, domicile not acquired by, 188. See FRAUD. COMITY, what is, 4. its recognition by the States, 4. when recognized as governing courts, 4, 5. not effective to enforce penalties, 4. nor police regulations, 4. nor offenses against the States, 4, 233. nor statutory rights and remedies, 5. as giving the right to sue, 22. as giving extra-territorial force to laws, 167. See EXTRA-TERRITORIAL FORCE OF LAWS. COMMERCE AMONG THE STATES, meaning of the term, 309, 310. under control of Congress, 309, 310. States imposing impediments, 310, 311. until controlled by Congress is free, 311. State cannot discriminate against non-residents, 313. extent of inhibition of State interference, 313. State laws regulating vessels engaged in, void, 314 police power of States over, 314. State laws imposing tax for local benefits, void, 315. State cannot impose tax upon inter-St&te traveler, 815 States cannot impose tax upon commanders of vessels as such, 316. or for passengers whom they carry, 316. States may tax vessels at the home port, 317. but cannot be taxed in States where they temporarily are, 817. ferry-boat cannot be taxed on both sides of the river, 818, 319. pilotage may be regulated by Congress, 320. in the absence of, States may regulate, 315, 820. Federal courts have jurisdiction of suits for, 820. warehouses and elevators subject to State control, 821. State control of bayous and sloughs, 321. 24 370 INDEX. COMMON CARRIERS, what law governs contracts of, 59. when aflecting two or more States, 59. See CORPORATIONS. COMMON LAW, how the basis of State jurisprudence, 29. exists in the States, 83. presumption as to, 88, 84. to what extent prevails, 33. in what States not presumed to exist, 33. no national, 34. " COMMON LAW CIVIL JURISDICTION," meaning of, 29. COMMON, RIGHTS OF, in tide waters and waste places, 334. is in the people of the State, 334. State may restrict use of, to its own citizens, 334. right of fishery, 335. in navigable inland waters and land thereunder, 334. belongs to the State, 334. but subject to U. S. control of commerce, 385. in inter-State boundary waters, 335. extent of, 336. See BOUNDARY RIVERS. COLLUSIVENESS OF JUDGMENT, 108. See JUDGMENTS. CONCURRENT JURISDICTION, in cases of, the tribunal first obtaining jurisdiction has precedence, 12, 14. in civil cases, 28. of State and U. S. courts, 28. extent thereof, 28. in equity, 39. how affected by removal of causes, 40. See BOUNDARY RIVERS ; CRIMINAL JURISDICTION ; JURISDICTION. CONDITIONAL BONDS, actions on judgments rendered on, in other States, 95, 96. CONFORMITY, none between equity practice in State and U. S. courts, 40. See CIRCUIT COURT OF UNITED STATES; UNITED STATES COURTS. CONSOLIDATION, of inter-State corporations, 291. See CORPORATIONS. CONSTRUCTION, RULES OF, U. S. courts follow State courts, when, 30. in construing State Constitutions and laws, 36, 84, 85. when not, 37, 85, 86. See RULES OP PROPERTY AND RIGHT ; CIRCUIT COURTS OF UNITED STATES. CONTRACTS, what law governs, 45-50. INDEX. 371 CONTRACTS Continued. What law governs Continued. lex loci contractus, 8, 45-50. validity of, 8, 45-50. void where made, void everywhere, 47, 48, 49. lex fori, 52, 58. lex solutionis, 50, 51, 52. when evasion is resorted to, what law governs, 49. what law governs interest, 48, 49. having reference to two or more Slates, what law governs, 48, 49, 50. damages on, subject to what law, 58. made in violation of the laws of another State, 58. as to the illegal intent, 58. made by letter, 59. made by common carriers, 59. of affreightment, 71, 72. impairing obligations of, 75-80. of foreign corporations, 289. made on boundary rivers, 342. See, further, the different SUB-TITLES, and EXECUTORY CONTRACTS. CORPORATIONS OF OTHER STATES. legal dissolution of domestic corporations does not impair the obli- gation of a contract, 78. whether they can plead the Statute of limitations, 175, 176. existing in two or more States, 273-279. process against from State courts, 273. taxing bonds of, 275. . may be sued in either State, 277. TJ. S. court foreclosing mortgage of, 279. inter-State suits by and against, 280. may be plaintiffs, 280. as to actions on contracts, 280. on torts, 280. cannot be sued, 26, 281. property of may be attached, 281. subject to proceedings in rem, 281. service on resident agent, 282. appearance will give jurisdiction, 282. by an attorney, 282. made defendant when a State is a stockholder, 284. quo warranto lies only in home State, 284. right of State to exclude other State corporations, 285, 286. are not entitled to privileges of citizens, 285, 286. can do business only by consent, 286. may regulate terms upon which can do business, 286. having given permission, may revoke it, 287. cannot impose terms which conflict with the Consti- tution, 287. cannot require non-removal of causes, 287. 372 INDEX. CORPORATIONS OF OTHER STATES Continued. /ntor-State suits by and against Continued. Right of State to exclude other corporations Continued. if corporation remove the cause, State may revoke license, 288. no State can exclude, if engaged in Inter-State commerce, 288. or if organized under U. S., 288. may do business, if not prohibited, 288. and may sue on its contracts, 288. what law governs its contracts, 289. its capacity, 289. its powers, 289. authorized by statute to extend the road from another State, makes it exempt from attachment, 289. tftfer-State power to hold lands, 290. effect of enter-State consolidation of railroad corporations, 291. does not make them one, 291. unity of control and of contract, 291, 292. unity of interest, but not of entities, 292. become domesticated, 293. mortgage on may be foreclosed in U. S. court, 298. are subject to police powers, 293, 294. COURTS. See CIRCUIT COURTS OP UNITED STATES ; UNITED STATES COURTS ; STATE COURTS. CRIMES, are local, 227. cannot be punished in other States, 228. laws against, have no extra territorial force, 228. See BIGAMY ; LARCENY. committed partly in one State and partly in another, 239. difficult questions under this head, 239. the place of the wrongful act, 239, 240. of the consequence, 239, 240. by non-resident through a resident, 240. accessories, 240. false pretenses, 240, 242. committed in one State without the offender being therein, 241. in what instances, 241. where triable, 241. by non-resident citizens, 242. treason, 242. the rule in Indiana, 243. through an innocent third person resident in the State, 248, 244. CRIMINAL JURISDICTION, of the national courts, 215. no common law jurisdiction, 215. statutory jurisdiction, 215. when principles of the common law resorted to, 215. no jurisdiction of State offenses, 216, 245. INDEX. 373 CRIMINAL JURISDICTION Continued. of State courts, have jurisdiction of what, 216. no jurisdiction of offenses against United States, 216, 244. same act may be an offense against State and United States, 216. incidents to national local jurisdiction, 217. if offender flee may apprehend him, 217. may convey him through the State, 217. national municipal corporations confined to their territorial limit, 218. no concurrent State and National, 244. how regarded in the early history of the government, 244. State courts cannot punish crimes against United States, 244. U. S. courts cannot punish crimes against States, 245. See BOUNDARY RIVERS ; CRIMES ; JURISDICTION. CURATIVE LAWS, do not impair the obligation of contract, 77, 78. See OBLIGATION OP CONTRACTS. CUSTODY OF CHILDREN. See CHILDREN. D. DAMAGES, what law governs, 58. in contracts, 58. in torts, 58. See CONTRACTS ; TORTS. DEATH, statutory actions for the, of a person, 155. See STATUTORY ACTIONS. DEBTS AND MONEY OBLIGATIONS, follow the owner's domicile, 202. bank notes, 202. bonds of a corporation held by non-residents not taxable, 202. though secured by mortgage will not locate debt at the place of the property, 203. where taxable, 205. See PERSONAL PROPERTY ; TAXATION. DECISIONS OF COURTS, force of, of Federal courts in State courts, 31. See CONSTRUCTION ; RULES OF PROPERTY AND RIGHT. DECREES, of other States and of United States, actions on, 92, 93, 94. the same rules apply as to judgments, 93, 94. effect of change of government on, 100. in proceedings in rem, 100. defenses to suits on, 102. See JUDGMENTS. 374 INDEX. DEFENSES, to negotiable instruments, governed by what law, 60. to suits on decrees of other States, 102. to suits on judgments of other States, 102-108. See JUDGMENTS; DECREES. DISCHARGE. See INSOLVENCY. DISTRIBUTION OF ASSETS, of deceased persons' movables, follows the law of the domicile, 200. irrespective of place of death, 200. or the situation of the property, 200. if survivors remove the property, original domicile still governs, 201. in such case where creditors should seek payment, 202. proving the law of the domicile, 202. lands, governed by lex loci rei sites, 201. See EXECUTORS AND ADMINISTRATORS ; INSOLVENCY ; REAL PROPERTY. DISTRICTS, when several in the same State, within what jurisdiction, 31. DIVORCE, INTERSTATE LAW OF, originally granted by ecclesiastical courts, 179. subsequently by chancery courts, 179. by legislatures, 179. the lex loci contractus, 179. residence necessary, 179. husband and wife residing in different States, the courts of either have jurisdiction, 180. whether thus granted by one State, a bar to the other grant- ing, 180. defendant need not reside in the State, 180. granted where neither party is domiciled, and without service on defendant, is void, 180, 181. rule of wife's domicile when living separate from her husband, 181. inter-State validity of, 7, 181. valid where rendered, valid elsewhere, 181. want of residence and fraud open to inquiry, 182. See ALIMONY ; CUSTODY OF CHILDREN ; MARRIAGE. DOMICILE, rule of wife's, when living separate from her husband, 181. whether person can have a, and also a different residence, 186. difference between, and residence, 187. definition of, 187. not acquired by coercion, 188. of infants and minors, 188. how long it continues, 188. marital rights governed by, of husband, 188. of infants born abroad, 189. what necessary to give benefit of common schools, 189. See INFANTS ; PERSONAL PROPERTY ; RESIDENCE. INDEX. 375 DORMANT JUDGMENTS, suit on, in other States, 90, 91. See JUDGMENTS. DOWER, what law governs amount and kind, 269. with reference to real estate, 269. under the Constitution, 269. See MARRIAGE; DIVORCE. DUALITY, of State and national governments, 9, 10, 11. E. ELEVATORS, subject to State control, 321 See COMMERCE. EMINENT DOMAIN, right of, belongs to the States, 335. in land, 335. under navigable waters, 335. subject to the control of United States over commerce, 335. ENDORSEMENT, governed by what law, 60, 61, 62. delivery as completing contract of, 62. place of making not necessarily place of delivery, 62. See NEGOTIABLE INSTRUMENTS. EQUITY, concurrent State and national jurisdiction, 39. how affected by removal of causes, 39. practice and rules in U. S. courts in, do not conform to State rules, 40. to what they do conform, 40. See CIRCUIT COURTS OP UNITED STATES ; JURISDICTION. EVIDENCE, rules of national courts, 30. adopt State rules, 30. inter-Biaie proof of records national provisions on the subject, 110. applicable only to State courts, 111, 112. attestation and seal, 113. full faitli and credit, 113. extend to territories, 113. judge's certificate, 114, 115. informal judgment entries, 114. proof of statutes, 114. courts must have had jurisdiction, 114. proceedings of surrogate's court, 115. when there is no clerk, 115. apply only to courts of record, 115. do not apply to justice courts, 115, 116. 376 INDEX. EVIDENCE Continued. Jn&r-State proof of records Continued. National provisions on the subject Continued. do not apply to justice courts, except when part of record of an appellate court, 116. apply to court of chancery, 116. courts of probate, 116. the authentication is conclusive, 116. of records, when new State is formed out of old one, 117. fnfcr-Statc proof of State laws under act of Congress, 117. such laws should be pleaded, 117. State courts do not take judicial notice of, 118, 119. nor of local officers of other States, 118. except notaries public, 119. as by common law, 119, 120. the proof is to the court, 120. State may relax, but not increase the requirements of Con- gress, 120, 121. unwritten laws proven by books of reports, 121. private laws are proven as facts, 121. public laws, how proven, 121. Federal courts take notice of, 121. foreign laws proven as fact, 121. printed volumes of statutes as evidence, 121. clerk's certificate, under act of Congress, 121. presumption as to laws of other States, 122. proof of proceedings of justices of the peace, 122. in Iowa, 122. proof of records of office books, 123. EXECUTIONS, held by diflerent officers, 13, 14. See LEVY. EXECUTORS AND ADMINISTRATORS, jurisdiction of U. S. courts of, 41. where letters to, should be granted, 248. the place of domicile, 248. ancillary letters, 248. rule governing, 248. excess of assets. 248, 249, 254. when letters are void, 249. can be appointed only in the place of domicile or assets, 249. appointed in any other place, void, 249. powers are local to the State where appointed, 250. cannot convey lauds in another State, 208, 212. do not extend beyond the State, 250. nor confer a right to property beyond the State, 250. cannot sue in other States, 250. in Louisiana foreign, may sue, 251. INDEX. 377 EXECUTORS AND ADMINISTRATORS - Continued. cannot be sued in other States, 26, 27, 108, 251. even if found and served, 252. if they have jugdment, may sue in other States on the same, 252, 263. where letters are procured after suit commenced, 253. how shown, 253. may sue in District of Columbia, 255. domiciliary made ancillary administrator, 255. account should be kept separate, 255. accountability is separate, 255. suits and debts against, kept separate, 255. legatees must then look to the domiciliary, 255. assets first liable to local claims, 255. if estate is being administered in different States, creditors may pro- ceed in either, 256. order of payment of foreign judgments, 256. public administrator confined in his powers to locality of appoint- ment, 256. suits against, on foreign judgments, 257. whether actions of debt on, will lie, 257. being different administrators, 258. executors, 258. suing in other States in their own right, 259, for lands devised to them, 259. State being subsequently divided, 259. on judgments recovered by them, 260. on notes payable to bearer, 261. assignee of note may sue on, 261. removing from the State, 261. whether suspends powers, 261, 262. suit by, in U. S. courts, 41, 262, 270. statutory authority to act in other States, 263. their official character determined by law of place of ap- pointment, 264. suits against in U. S. courts, 270. State statutes in derogation of such jurisdiction, 270. liens of judgments thus rendered, 271. when follow local law, 271. pleading in inter-Slate suits by, 272. in suits upon judgments, 272. EXECUTORY CONTRACTS, concerning two States, governed by what law, 211. See CONTKACTS. EXEMPTION, property levied on, recoverable by suit, 14. governed by what law, 53, 54 EXTRADITION, among the colonies, 218. under the articles of confederation, 219. under the Constitution, 219, 220. 378 INDEX. EXTRADITION Continued. the duty to surrender, 230. whether absolute, 220, and n. 4. nature of the offense, 221. offense must have been committed within the jurisdiction asking for, 221. charge must be positive, 221. U. 8. courts have power to examine into the charge, 221. its sufficiency, 221. what must be shown to justify the delivery of the fugitive, 221. without such showing the arrest is void, 222. and a bond taken for his appearance also void, 222. object of our law, 222. cannot be perverted, 222. its use to enforce civil obligations, 222. invalid, 222. contracts made while so delivered up, void, 222 whether process served on him while so brought back is valid, 222 n. 4. demand must be made by the governor of the State of the fugitive, 223. may surrender for high misdemeanors, 223. whether copy of indictment should accompany demand, 223. sufficiency of charge may be examined into on habeas corpus, 223. of the affidavit, 223, 224. if fugitive be in custody under local process, whether delivered up, 224. whether fugitive returned under invalid process may be tried, 225. is based exclusively on the constitution, not on comity, 225. . a State cannot extradite to a foreign power, 225, 226. State may punish for crime other than the one for which fugitive is returned, 227. EXTRA TERRITORIAL FORCE OF LAWS, laws have none, 10, 167, 168. of natural or universal law, 167. by comity of State, 167. foreign remedies will not be enforced, 168. as governing citizens absent from the State, 169, 170. oath of office administered to Vice-President King in Cuba, 170. F. FALSE PRETENSES, made by party out of the State, 240. where indictable, 240, 242. whether at place of utterance or place where acted upon, 240, 241. See CHIMES ; CRIMINAL JURISDICTION. INDEX. 379 FEDERAL COURTS, paramount authority of, 9, 10, 11, 15. See CIRCUIT COURTS OF UNITED STATES ; UNITED STATES COURTS ; REMOVAL OF CAUSES. FEDERAL OFFICERS, not subject to State courts, 15. FEDERAL POWERS, cannot be affected by State laws, 37, 38. FERRIES, INTER-STATE, cannot be taxed on both sides of the river, 318, 319. power of States to license, 347. cannot interfere with commerce, 348. extent of, 348, 350. effect of exercise of, 348. cannot grant within the limit of other States, 348. grant of, is local, 349. is a right to carry, 349. not a right to land, 349. this exists without the grant, 349. over streams upon which foreign countries border, 350. is a municipal power, 350, 351. / navigable waters and public landings are free to, 351. between two States that are at war, may be suppressed, 351. FISHERY, right of, belongs to the people of a State, 335. FOREIGN ASSIGNMENTS. See INSOLVENCY; ASSIGNMENTS. FOREIGN CORPORATIONS. See CORPORATIONS. FOREIGN EXECUTORS AND ADMINISTRATORS. See EXECUTORS AND ADMINISTRATORS. FOREIGN LAWS, proven as facts, 121. FORFEITURES, for usury bear relation to the remedy, 83. See USURY. FRAUD, jurisdiction of person obtained by, is invalid, 26, 108. as a defense to suits on judgments of other States, 105-108. See JUDGMENTS ; STATUTE OF FRAUDS. FREIGHT. See AFFREIGHTMENT. G. GARNISHMENT. State court cannot garnish United States officer, 12, 13. is a proceeding in rem, 127. in the nature of an attachment, 127. when jurisdiction attaches, 130. the design and purpose of, 127. its phases in connection with Inter-St&te law, 127, 128. 380 INDEX. GARNISHMENT Continued. may be had against non-resident who is found within the State, if the property be with him, 127, 128. whether if the property be not with him, 128. applies equally to corporations, 129 if corporation is chartered by both States, 129. a valid judgment against garnishee is a defense to suit against him by the original debtor, 129. effect of service outside the State, 129, 130. resident debtor cannot be garnished if he is the assignee of the orig- inal debtor in another State, 180. See ATTACHMENT ; IN HEM. GOVERNMENT, change of, effect on judgments rendered, 100. transition of Territorial to State, judgments rendered during period of, 881. when Territorial entity terminates, 361. to whom belongs custody of the records, 362. effect of, on debt of Territory, 363. GOVERNMENT LANDS, not subject to local jurisdiction, 213. who can grant title to, 214. action at law will not lie in U. S. courts upon a certificate of entry 214. power to revoke patent to, 214. GUARDIANS, appointed at minor's domicile, 266, 267. custody of wards entrusted to what, 266. powers of, are local, 266. marriage of mother cannot change domicile of infants when, 267. of lunatics, to what courts accountable, 267. suit on foreign judgment by, 267. of non-resident minor's property, 267. sale of land procured by foreign, 267. removing ward and property into another State, 268. to what court then accountable, 268. the rule in Louisiana, 268. H. HABEAS CORPUS, issuing from a State court, 831. cannot discharge prisoner held under United States authority, 331. issuing from U. S. court, 832. cannot interfere with prisoner held under State authority, 332. what return of the writ should show, 332. See EXTRADITION. INDEX. 381 HUSBAND AND WIFE, marital rights governed by husband's domicile, 188. See MARRIAGE ; DIVORCE. IMPAIRING OBLIGATION OF CONTRACTS. See OBLIGATIONS. IMPRISONMENT FOR DEBT, abolition of, does not impair the obligation of a contract, 79, 80. INFANCY, plea of, governed by what law, 192. INFANT, grant of custody of, 183. domicile of, 188. born abroad, 189. plea of, governed by what law, 192. See DOMICILE ; RESIDENCE. INFORMAL JUDGMENTS, suit on, in other States, 89. See JUDGMENTS. INJUNCTIONS, cannot issue by either State or Federal courts against each other, 16. U. S. courts cannot restrain suits in State courts, 42. except in bankruptcy matters, 42. State courts may restrain persons from bringing suits in other States, 42,43. not proceedings in U. S. court, 43. may restrain its citizens from attaching in other States, 43, 44. the doing of acts on opposite sides of t'nfer-State- boundary rivers, 346. IN REM, foreign corporations subject to proceedings in, 281. See JUDGMENTS ; ATTACHMENTS ; GARNISHMENT ; MARITIME CAUSES. INSOLVENCY INTER-STATE LAW OF, discharge, effect of, by State court, 132. citizenship of the parties governs, 132, 133. place where contract performable does not govern, 132, 133^ jurisdiction of creditor necessary, 132, 133. cannot effect citizens of other States, 132-136. contract of indemnity and suretyship not affected by dis- charge in another State, 136. distribution of assets, national priority, 136. limit of, 137. subrogation of sureties paying, 137. if national debt is not yet matured, 137. 382 INDKX. INSOLVENCY INTER-STATE LAW OF Continued. foreign assignments, not good as against resident creditors, 138. though the creditors sue subsequent to, 138, 139. the rule in Maryland, 138. If contravene the lex rei sitae are not good, 138. if they do not contravene the law, and there arc no home creditors, will be respected, 139. real estate can only be assigned by conforming to the lex loci rei sites, 139. the remedies governed by the lex fori, 139. See INSOLVENT LAWS ; ASSIGNMENTS. INSOLVENT LAWS, whether, impair the obligation of contract, 80. States may pass, 327. extent of, 327. cannot discharge obligations existing at time of, 328. or if creditor is non-resident, 328. or if debt was created in another State, 328. how effected by bankrupt law, 329. whether assignment under an, valid against assignments under bank- rupt law, 329, 330. See BANKRUPT LAWS ; INSOLVENCY. INSURANCE, policy of, governed by the law of the place where delivered, 283. policy issued by company before complying with local statutes, 283. not having complied with local statute, company cannot sue on pre- mium notes, 284. INTENT, marriage contracted in evasion of laws of domicile, 192. sale made with, to evade laws of another State, 198. INTEREST, what law governs, 48, 49, 64. See USURY; NEGOTIABLE INSTRUMENTS. INTERLOCUTORY JUDGMENTS, suits on, in other States, 96. See JUDGMENTS. INTERNATIONAL LAW, defined, 6, 7. binding force of, 6, 7. INTESTACY, in case of, personal property distributed by law of domicile, 196. See DISTRIBUTION. INDEX. 383 J. JOINT JUDGMENTS, suit on, in other States, 96, 97. See JUDGMENTS. JUDGMENTS OF OTHER STATES, the domestic character of, 18. of U. S. courts not foreign, 18. how such are proved, 18. how of State courts proved, 18. actions on, 87, 88. court must have had jurisdiction, 87, 88. only on personal judgments, 87. courts will take notice of States rendering, 87. must have been personal service or an appearance, 88. judgments which were rendered against non-residents, 88. effect of payment of, when the original judgment is reversed, 89. statute of limitations will run from date of reversal, 89. are a bar to suits on original demand, 89. informal judgments, 89. effect of appeal from original judgment, 90. dormant judgments, 90, 91. judgments rendered in bastardy cases, 91. of justices of the peace, 92. actions in State or U. S. courts on judgments rendered in either, 94. conclusiveness of, 89, 90. inquiry into the jurisdiction of court rendering, 91, 92. on conditional bonds will not sustain actions in other States, 95, 96. rendered on penal bonds, 95, 96, 97. actions on such judgments, 95, 96, 97. interlocutory, 96. actions on such judgments, 96. actions on joint judgments, 96, 97. competency of the record as evidence, 98. presumption of its regularity, 98. jurisdiction, presumption as to, 98. admissibility of, 99. how authenticated, 99. must be pertinent, 99. when temporary judge has certified to its correctness, 99. where the judgment has been assigned, 99. See EVIDENCE. form of, not questionable, 99. where part has been satisfied, 100. execution levy on land no defense to suit on, in other State, 100. effect of change of government on, 100. 384 INDEX. JUDGMENTS OF OTHER STATES Continued, in rem, 100. effect of, 100, 101. levy binds what, 101. personal judgment when there is no service, 101. evidence of what, 101. defenses to actions on want of service, 102, 104, 107. want of jurisdiction, 107. acknowledgments of service in different States is invalid, 102. unauthorized appearance, 102. fraudulent appearance, 102. officer's return of service may be contradicted, 102. when the record shows insufficient service, 102, 103. proof of the State law, 103. want of service must be pleaded, 103. service had on director in a State other than that of the cor- poration, 104. plea of recovery on false testimony, 104. that defendant was non-resident no defense if he was at the time within the State, 104. error in rendering the judgment no defense, 104 whether jurisdiction should be averred, 105. of justices' judgments, 105. whether controvertible for fraud, 105, 106, 107, 108. only such admissible as were admissible where judgment rendered, 105, 106. may plead release, 106. may plead payment, 106. nul tiel record only plea which tests the validity of the record, 106. conclusiveness of judgments, 108. personal jurisdiction obtained by fraud, 108. that defendant is an administrator appointed in another State, 108. statute of limitations, 107, 171, 172, 173 actions on void judgments, 112. See JUDGMENTS. JUDICIAL NOTICE, of States, 87. of notaries public, 118. of laws of other States, 118, 119, 198. of officers of another State, 118. See PRESUMPTIONS ; JUDGMENTS. JUDICIAL POWER OF UNITED STATES, extent of, 17. See CIRCUIT COURT OP UNITED STATES ; UNITED STATES COURTS. JURISDICTION, of persons when necessary, 22. INDEX. 385 JURISDICTION Continued. Of persons when necessary Continued. how obtained, 22, 23. as against non-residents, 23. in personal actions, 22, 23. whether obtainable by the publication of notice, 23. in proceedings in rem, 23. where the defendant is non-resident, 23. no judgment can be rendered against the non-resident, 24. of non-residents, how obtained, 25. obtained by fraud' is invalid, 26. of U. S. courts, of executors and administrators, 41. of foreign bills of exchange, 66, 67. See BOUNDARY RIVERS; CONCURRENT JURISDICTION; CRIMINAL JURISDIC- TION ; EQUITY ; GOVERNMENT LANDS ; INSOLVENCY ; JUDGMENTS ; MARITIME CAUSES ; REAL PROPERTY. JURY, TRIAL BY, provisions respecting, in the Constitution applies only to U. S. courts, 19 JUSTICES OF THE PEACE, suits in other States on judgments of, 92. proof of proceedings of, 122. in Iowa, 122. See JUDGMENTS. K. KING, Vice-President of U. S., oath of office administered to, in Cuba, 170. L. LABORER'S LIEN, on Inter-State rafts law of, 70, 71. LANDS. See REAL PROPERTY. LARCENY, in another State, 229. whether bringing stolen property into the State is, 228, 229. the rule in England, 229. in some of the American States, 229. in others, 229. the true common law rule, 229, 230. to make it a crime, statute must so declare, 230. cannot punish the, committed in another State, 230. the reason of the rule, 230. the rule in Alabama, 232. 25 386 INDEX. LARCENY Continued. the rule in Connecticut, 238. Illinois, 232. Iowa, 831. Massachusetts, 234, 230. Michigan, 231. Missouri, 237. New York, 232, 233. Ohio, 237, 238. the law of the trial, 232. trial for abroad, as a plea to second trial, 233. comity cannot punish, 233. the Massachusetts cases discussed, 236. LEASEHOLDS, are personal property, and follow the owner, 197. LEGAL OWNER, suit in name of, in U. S. Circuit Court, 29. LETTERS, contracts made by, governed by what law, 59. LEVY, by State officer on property in hands of U. S. officer, 12, 13. by U. S. officer on property in hands of State officer, 13. the remedy for the above, 12, 14. on exempt property, 14. on land, no defense to suit on the judgment in another State, 100. binds what, in proceedings in rem, 101. See EXECUTION ; ATTACHMENT. LEX FORI, the rule of, 52, 53. what included under, 52. exemption laws part of, 53, 54. as to foreign assignments, 139. as to statutes of limitations, 171-176. See CONTRACTS; REMEDY. LEX LOCI CONTRACTUS, law of, 45-50. See CONTRACTS. LEX LOCI SOLUTIONIS, the rule of, 50, 51. when the contract has reference to two States, 51, 52. See CONTRACTS. LIENS. See MARITIME LIENS. LIMITATIONS. See STATUTE OF LIMITATIONS. LUNATICS. See GUARDIANS. INDEX. 387 M. MAIL, contracts made by, governed by what law, 59. MANDAMUS, cannot issue by either State or U. S. courts against each other's officers, 15. MARITAL RIGHTS, governed by husband's domicile, 188. MARITIME CAUSES, admiralty jurisdiction of, 301, 802. in U. S. courts, 301. extends to what places, 302, 336. navigable waters, 302. covers what causes, 303. when the proceeding is in rem, is exclusive to the U. S. courts, 303, 305. where action is personal, State courts have jurisdiction, 303. common law jurisdiction of States, 306. extent of, 306, 307. covers contracts to build ships, 308. to furnish material with which to build, 308. See MARITIME LIENS ; MARITIME TORTS. MARITIME LIENS, State cannot give, 304. nor enforce, 304. U. S. courts exclusive jurisdiction of, 304. do not arise out of contracts to furnish materials in home port, 305. contracts to build ships or for materials for ship building do not create, 305. MARITIME TORTS, where must occur, 305. what necessary to render such, 305. MARRIAGE INTER-STATE LAW OF, nature of the contract, 177. its validity, 7, 177. valid where made, valid everywhere, 7, 177, 178. exceptions, 178, 192. may be dissolved, 178. invalid where made, invalid everywhere, 178. capacity for, governed by what law, 192. contracts for, in evasion of the law of the domicile, 102. See DIVORCE. MECHANIC'S LIEN. See LABORER'S LIEN. MINORS. domicile of, 188. born abroad, 188. See INFANTS. 388 INDEX. MORTGAGES, of chattels follow the property, 68, 203. may be enforced in other States, 68, 203. on vessels, not subject to State laws, 68. made in one State, while property is in another, 69. validity of, 69. of lands in another State, 70. made under assignment for the benefit of creditors, 70. effect of, 70. of railroads, 7,0. See CORPORATIONS. N. NATIONAL BANKS, taxation of, 822, 323. See TAXATION. NATIONAL BONDS, taxation of, 324. See TAXATION. NATIONAL POWERS, cannot be curtailed or affected by State laws, 37, 38. NATIONAL PRIORITY, in payment of debts, 136, 137. See DISTRIBUTION. NATIONAL SOVEREIGNTY, purport of, 9, 11. NATURALIZATION, jurisdiction of, 32. who has authority to provide for, 32. NATURAL RIGHTS, defined, 5. force of, 167. NAVIGABLE WATERS, right of common in, 334, 835. are free, 351. See MARITIME CAUSES. NEGOTIABLE INSTRUMENTS, law of place of payment governs, 60. endorsement of governed by law of place where made and delivered, 60, fll, 62. delivery as completing the endorsement, 62. place of making endorsement not necessarily place of deliv- ery, 62. acceptor of, what law governs, 63. notice of dishonor, must conform to what law, 64 protest of, must conform to what law, 64. interest on, governed by what law, 64. INDEX. 389 NEGOTIABLE INSTRUMENTS Continued. usury, governed by what law, 65. defenses to, regulated by what law, 66. foreign bills of exchange subject to U. S. court jurisdiction, when, 66, 67. NON-RESIDENTS, jurisdiction of, how obtained, 23, 25. whether obtainable by publication, 23. in proceedings in rem, 23. when suable, 25, 26. in what causes, 26. service on non-resident witness present in the State, 26. members of partnership not served by service on the resident mem- ber, 27. suit on judgment rendered against, 88. whether may be garnished, 128, 129. not subject to tax on bond of a local corporation, 202. committing crimes outside the State, 240-243. Se.e CRIMES. States cannot discriminate against, 313. See ATTACHMENT; GARNISHMENT. NOTARIES PUBLIC, whether judicial notice is taken of, who are, 119. NOTICE, of dishonor of note must conform to what law, 63, 64. See JUDICIAL NOTICE. NUL TIEL RECORD, when proper plea, 106. O. OBLIGATIONS. See STATUTORY OBLIGATIONS. OBLIGATIONS OF CONTRACT, no State can pass any law impairing, 75. what amounts to, 75. applies to both State legislatures and State constitutions, 75. remedy may be changed, 76. rebellious States are within the prohibition, 76. law releasing personal liability for corporate debts is such an impairment, 76. where bank bills are made receivable for taxes by the bank's charter, this cannot be impaired, 76. charter giving exclusive privileges, 77. purchases made under State exemption from taxes, 77. curative laws do not impair, 77, 78. exemption from taxation in consideration of a bonus paid in advance, 77. legal dissolution of private corporations, 78. 390 INDKX. OBLIGATIONS OF CONTRACT Continued. existing laws enter into contracts, 78, 79. abolition of imprisonment for debt, 79, 80. State insolvent laws, 80. taxing city's own indebtedness, 80. See INSOLVENT LAWS. OFFICE BOOKS, proof of in tViter-State proceedings, 123. OFFICERS, U. 8., not subject to State courts, 15. See OFFICIAL BONDS. OFFICIAL BONDS, are local to the States where entered into, 55. cannot be sued on in other States, 55, 56. of U. S. officers, where may be sued on, 56, 57. ORDERS, sent from one State into another, 59 what law governs, 59. P. PARTNERSHIP, service on member of, not good against, non-resident member of, 27. PAYMENT, pleaded to suit on judgment rendered in another State, 106. PENAL ACTIONS, are local, 148, 149. for bastardy, 150-154. are local, 150-154. See BASTARDY ; STATUTORY ACTIONS. PENAL BONDS, actions on judgments rendered thereon in other States, 95, 96, 97. See STATUTORY OBLIGATIONS. PENDENCY OF ANOTHER ACTION. See ABATEMENT; BAR. PERFORMANCE, of contracts, what law governs, 45-50. See CONTRACTS. PERSONAL PROPERTY, capacity to contract in reference to, governed by what law, 190, 191. it has no fixed situs, 194. follows the owner, 194. governed by the law of the place of the owner, 8, 194, 195. is subject to local liabilities before following the owner. 195. to creditors, 195. to taxes, 196. sale of, valid where owner lives, is valid where property is, 196,197, 199. but is deferred to prior local claims, 196. in case of intestacy distributable by law of domicile, subject first to local claims, 196, 198. INDEX. 391 PERSONAL PROPERTY Continued. bequest valid where made, valid everywhere, 196. subject to local claims, 196. if sale of violates a law of the place where property is. the latter governs, 197. when it has a fixed locality, may pass with the real estate, 197. leaseholds follow the owner, 197. sales of, invalid for illegal intent, 198, 199. if intent of sale is to evade the laws of other State is invalid, 198. distribution of deceased person's movables, 200-202. See DISTIBUTION. money obligations and debts, 202. See MONEY OBLIGATIONS; DEBTS. mortgages of, 203. See MORTGAGES. subscription to capital stock, 203. See SUBSCRIPTIONS. voluntary assignments, 204. See INSOLVENCY. where taxable, 204. See TAXATION. P11X)TAGE, may be regulated by Congress, 320. in the absence of, States may regulate, 320. U. S. courts have jurisdiction of suits for, 320. PLEADING, in mter-State suits by executors and administrators, 272. in suits upon judgments, 272. POLICE POWER, belongs to the States, 246, 247. extent of, 246, 247. foreign corporations subject to, 293, 294. over Inter-State commerce, 314. POLITICAL QUESTIONS, do not corne within the jurisdiction of courts, 1, 2, 3. POWERS. See JUDICIAL POWERS ; NATIONAL POWERS ; RELATIVE POWERS. PRESUMPTIONS, as to laws of other States, 33, 34, 122, 198. as to common law existing, 33, 34. See JUDICIAL NOTICE. of regularity of judgment records, 98. PRINTED VOLUMES, to prove statutes of other States, 121. PRIORITY, national, in payment of debts, 136, 137. See DISTRIBUTION. PRIVATE LAWS, how proven, 121. PROCESS, from State and U. S. courts, 12. See LEVY. INI) IX. PROCESS Continued. against witness non-resident, who is attending in the State, 20. PROMISSORY NOTES. See NEGOTIABLE INSTRUMENTS. PROOF, of records, of laws, See EVIDENCE. PROTEST, what law governs, 64. PUBLIC ADMINISTRATOR, power of, is local, 256. PUBLIC LANDINGS, are free, 851. See FERRIES. PUBLIC LAWS, how proven, 121. See EVIDENCE. Q QUO WARRANTO, against a corporation lies only in the home State, 284. R. RAILROADS. See CORPORATIONS AND CONSOLIDATION. REAL ACTIONS, where should be brought, 32. See REAL PROPERTY. REAL PROPERTY, given as security for a contract made in another State than where situated, 47. how affects law governing the contract, 47. foreign assignments of, 139. capacity to contract in reference to, governed by what law, 190, 191. descends according to the law where situated, 201. jurisdiction as to, is local, 207. courts cannot confer title to, nor decree sale of, in a different State, 207. the same rule applies to U. S. courts, 207. administrator cannot convey, if situated in another State, 208, 212. title to, passes only by lex loci rei sites, 208. instruments conveying must conform to law of situs, 208, 209. otherwise not notice, 209. foreign acknowledgments, 210, 211. wills of, must conform to law of situs, 210. INDEX. 393 REAL PROPERTY Continued. some States allow instruments conveying, to conform to place of execution, 210. executory contracts for the purchase of, governed by what law, 211. powers to take acknowledgments is local, 211. courts of a State may act upon person of the owner, if property is situated beyond, 211. in such case the court does not convey, 212. its action is against the person only, 212. U. S. courts act where property lies in two States, 212. such personal order entitled to full faith and credit in other States, 213. State owning, in another State, 213. not different from private ownership, 213. government lands, 213. See GOVERNMENT LANDS. power of foreign corporation to hold, 290. REBELLIOUS STATES, cannot impair the obligation of contracts, 76. RECEIVERS, have no extra territorial authority, 295. powers are co-extensive with the courts making the appointment, 295. whether, may sue in other States, 295, 297. See, also, Hurd v. City of Elizabeth, 8 Cent. Law Jour. 493. (This case was reported too late to be placed in the text.) if appointed by U. S. court, State court cannot control, nor the effects, 296. not suable in court other than one appointing, 296. funds in hands of, not subject to levy by other court, 297, 298. suits by, to enforce liens on property in other States, 297. RECORDS, of judgments, competency as evidence, 98. presumption of regularity of, 98. See JUDGMENTS. RELATIVE POWERS, belong to the States, under the constitution, 16. what included under, 16. what judicial powers, 16, 17. RELEASE, may be pleaded to a suit on a judgment of another State, 106. REMEDY, what law governs the, 45-50. without impairing the obligation of contracts, may be changed, 76. in suit under a foreign assignment, is governed by the lex for i, 139. foreign, are not enforced, 168. See LEX Foni REMOVAL OF CAUSES, who are citizens under act governing, 190. State's laws requiring corporations to dispense with, are void, 287, 354-356. 394 INDKX. REMOVAL OP CAUSES Continued. State laws requiring corporations, etc. Continued. but Slate may revoke license of, if cause is removed, 288. for causes arising under the authority of the United States, 852. under act of Congress of March 8, 1875, 353. removal, how effected, 353. when title to laud is concerned, 353. right to, cannot be limited or bargained away, 354-356. necessary citizenship, how disputed, 357. colorable change of residence, 357. bona fide change of, 357. citizenship, how stated by corporation, 357. of real party alone to be considered, 358. joinder of nominal parties has no effect, 358. right to, must be brought within the statute, 358. corporate residence, 358. U. S. court judge of cause of, 359. citizenship has reference to time of commencement of suit, 359. must be personal, 359. if State court refuses to allow, 359, 360. by national corporations, 360. REPORTS, used to prove unwritten law, 121. See EVIDENCE. RESIDENCE. of parties to a divorce, 179, 180, 181. want of, in divorce, open to inquiry, 182. definition of, 186. whether person can have two residences, 186. may have a domicile and a different residence, 186. difference between residence and domicile, 187. See DOMICILE. REVERSAL OF JUDGMENT, consequence of payment of a suit on, after, 89. statute of limitations runs from the date of, 89. REVOCATION, State may revoke permission given to foreign corporation to do business, 287. may revoke license of, for removing cause to U. S. court, /)y RIVERS. See BOUNDARY RIVERS ; NAVIGABLE RIVERS. RULES OF CONSTRUCTION. See CONSTRUCTION. RULES OF EVIDENCE. See EVIDENCE. RULES OF PROPERTY AND RIGHT, the same in State and Federal courts, 84. 85. when not, 85, 86. blind conformity to State rules not required, 86. application of this rule, 86. See DECISIONS; CONSTRUCTION. INDEX. 395 s. SALE, of personal property, governed by what law, 194, 195, 196. when it violates law of the place where the property is, 197. when the property has a fixed locality, 197. sales of, valid where made, valid elsewhere, 197, 199. sales of, invalid for illegal intent, 198, 199. when there is an intent to evade the laws of another State in selling, 198. See PERSONAL PROPERTY; REAL PROPERTY. SATISFACTION, of part of judgment, suit brought for the unpaid part, 100. SCHOOLS, to be entitled to benefit of, what residence is necessary, 189. SEALS, what law governs as to the necessity of, 24, 25. concerning the kind of remedy, 25. SECURITY, when it consists of real estate and is situated in another State than the contract, 47. SERVICE, on non-resident witness, 26. on member of partnership as against a non-resident member, 27. in the absence of, personal judgment cannot be rendered, 101. want of, must be pleaded to avail against judgment, 103. made in a different State, 126. on garnishee, out of the State, 129, 130. See CORPORATIONS; JUDGMENTS; NON-RESIDENTS. SEVERAL STATES, contract having reference to, how governed, 48, 49, 50. of common carriers, 59. SHIFTS, resorted to in making contracts, what law governs, 49. See FRAUD. SITUS, of personal property, 194. of real property, 207, 209. See PERSONAL PROPERTY, and REAL PROPERTY. SLANDER, actions for, are transitory, 144. See TORTS. SLOUGHS, subject to State control, 321. SOVEREIGNTY, of States, 9, 11. of the national government, 9, 11. STATE, sovereignty of, 9, 11. owning land in another State, 213. 396 INDEX. STATE Continued. stockholder in a corporation which is sued, 284. STATE BOUNDARY RIVERS. See BOUNDARY RIVERS. STATE COURTS, cannot punish offenses against United States, 215. 244. See BOUNDARY RIVERS ; CONCURRENT JURISDICTION; CRIMINAL JURISDICTION ; JURISDICTION. STATUTE OF FRAUDS, what law is applicable to, 60. STATUTE OF LIMITATIONS, when runs if judgment is reversed, 89. may be pleaded to suit on judgment of another State. 106, 107, 171, 172. goes to the remedy, 171. governed by the lex fort, 171, 172. runs against original as well as actions on judgments, 171. governs U. S. courts sitting within the State, 171. State may limit time for bringing actions on judgments of other States. 173. runs against judgments from their date, 173. if it amounts to a total denial of the remedy, is void, 173 does not affect suits of State or United States, 174. must operate prospectively, 174. whether if action is barred in original State will be a bar, 174, 175. requisite of plea to constitute the same a bar in other State, 175. whether corporation of another State can plead the statute, 175, 176. STATUTORY ACTIONS, are local, 145. only enforced in the State where enacted, 148. not outside of the State, 148. penalty for usury, 148, 165, 166. penal statutes and punishments always local, 149. not enforced against acts committed in another State, 149. penalty for bastardy, 150-154. See BASTARDY. difference between and common law transitory actions, 154. for the death of a person, 155. are not transitory, 155. are of a penal nature, 156. what included under, 156. were unknown to the common law, 156, 157. the purport and terms of, 157. to whom such actions are given, 157. rules of different States, 157, 158. the remedy is local, 158-163. not enforced through comity, 160. the right of action is not a right of property, 163. if the laws of the places are the same yet will not be enforced, 163. INDEX. 397 STATUTORY ACTIONS Continued. For the death of a person Continued. when caused by a company incorporated in both States, 163. or doing business in both, 163. when the remedy is by indictment, 164. it is local, 164, 165. STATUTORY OBLIGATIONS, are local, 54, 55. cannot be sued on in other States, 54, 55, 56. official bonds are local, 55. given in Federal proceedings where may be sued on, 56, 57. attachment bonds given to U. S. Marshal, where may be sued on, 57. STOCKHOLDER, State being, in a corporation which is being sued, 284. inter-State suit against to enforce liability of, 290. cannot be enforced, 290, 291. liability being statutory is local, 291. See SUBSCRIPTION. STOPPAGE IN TRANSITU, the law of, in inter-State assignments, 73. as against intervening purchasers, 73. how enforced, 73, 74. by replevin, 74. carrier should interplead, 74, 75. SUBSCRIPTION, to capital stock, 203. governed by law of company's residence, 203. See STOCKHOLDER. SUITS, between two or more States, 20. who has jurisdiction of, 20. State must be a party on the record, 20, note, between a State and a citizen of another. 21. whether possible, 21. right to bring, a constitutional right, 22. allowed also by comity, 22. See CORPORATIONS, and REMOVAL OF CAUSES. T. TAXATION, of bonds held by non-residents, 202. visible and tangible property, where taxable, 204, 205, 206. if in transit, 205. if only temporarily within the State, 205. intangible property taxable at the owner's residence, 205. debts, 205. of bonds of corporations existing in two or more States, 275. See COMMERCE. 398 1NDKX. TA X ATION Continued. national banks- States cannot tax stock of, 822. lands of, may be taxed, 322. shares of may be taxed, 322. and collected through the bank, 323. must be uniform with that on local bank shares, 323. national bonds States cannot tax, 324. of permanent erections in boundary rivers, 345. TERRITORIAL GOVERNMENT. See GOVERNMENT. TERRITORIAL STATE BOUNDARY. See BOUNDARY RIVERS. TIDE WATERS, right of common in, 334. is in the people of a State, 334, 335. TORT, damages in, governed by what law, 58. trespass quare dausumfregit is local, 140. committed in one State against land in another, 140, 242, 243. transitory actions will lie in other States, 141. what are transitory, 141. analogous to actions ex contractu, 141. common law personal, 142. actions for, lie in other States, 142, 144. trespass on the case lies in any State, 143. how, in U. S. courts, 143, 144. slander, 144. malicious prosecution, 144. statutory actions for, are local, 145. committed in one State against person or property in another, 242, 243. See MARITIME TORTS. TRANSITORY ACTIONS, what are, 141. See TORTS; CONTRACTS. TREASON, committed in another State, 242. TRESPASS ON THE CASE, lies in any State, 143. how,' in U. S. courts, 143, 144. TRESPASS QUARE CLAUSUM FREGIT, is local, 140. TRUST FUNDS, will be followed into other States, 297. and there applied, 299. whether trust has been abused, depends upon the law local to the trust, 300. INDEX. 399 u. UNITED STATES, judicial power of, extends to what, 17. UNITED STATES COURTS, paramount authority of, 9, 10, 11, 15. jurisdiction of, over executors and administrators, 41, 262, 270, 271. have jurisdiction of foreign bills of exchange, 66, 67. actions in, on judgments of State courts, 94. take notice of State laws, 121, 210. follow State statutes of limitations, 171. actions in, on judgments of State courts, 94. cannot punish offenses against the States, 215, 245. See CIRCUIT COURTS OP UNITED STATES; CONSTRUCTION; CRIMINAL JURIS- DICTION ; INJUNCTIONS ; RULES OF PROPERTY AND RIGHT. UNITY, of State and federal governments, 9, 10, 11. UNIVERSAL LAW, defined, 6. binding force of, 6, 7, 167. UNWRITTEN LAW, how proven, 121 USURY, governed by what law, 65, 80-83. See INTEREST. when, by the lex loci contractus, 81, 82. when, by the lex loci solutionis, 81. forfeitures for, bear relation to the remedy, 83. statutory actions for, are local, 148, 165, 166. penalties are local, 148, 165, 166. See RECEIVERS. V. VALIDITY, of contracts, 45-50. marriages, 178. divorce, 179, 182. See JUDGMENTS. VESSELS, mortgages of, not subject to State law, 63. VIOLATION, contracts made in, of laws of other States, 58. the illegal intent, 58. See CONTRACTS. VOID CONTRACTS, void everywhere, 47, 48, 49. VOLUNTARY ASSIGNMENTS See ASSIGNMENTS ; INSOLVENCY. 400 INDEX. W. WARDS. See GUARDIANS. WAREHOUSE, subject to State control, 821. WAREHOUSE RECEIPTS, transferred in States other than where property is stored, 72. what law governs, 72. WITNESS, non-resident, service on, 26. WILLS, of real property, 210. must conform to law of the situs, 210, 206. probate of, how far binding in other States, 264. federal courts cannot take proof of, 264. are bound by State courts, 265. when probated in other States, are evidence, 265. devising foreign lands to minors, how administered, 265. to pass land in another State, 266. See EXECUTORS and ADMINISTRATORS. A 000 673 636 7 University of California SOUTHERN REGIONAL LIBRARY FACILITY 305 De Neve Drive - Parking Lot 17 Box 951388 LOS ANGELES, CALIFORNIA 90095-1388 Return this material to the library from which it was borrowed. Uni