the value of the property. The laws of the State of Missouri regulating voluntary assignments by insolvent debtors for the benefit of their creditors is fully pleaded in the petition, and the assignment seems to have been made in conformity thereto. The petition alleges that the assignee qualified by giving bond and doing such things as were required by the laws of Missouri to authorize him to administer the estate, and that he had so qualified and was in possession of the goods, through agents, at the time the sheriff made the seizure. It is also alleged that the sheriff was notified of the right of the assignee at the time he made the seizure, and further that Spiro did not owe and was not indebted to any citizen of Texas.

The defendants filed general demurrers to the plaintiff's petition, which were sustained and the cause dismissed. The grounds, on which the court based its judgment, do not appear in the record, but the brief of counsel for appellees submits propositions in support of the ruling, which we may regard as the grounds upon which the court below acted. These propositions are as follows:

First. "An assignment to be valid in Texas must be filed and recorded as other instruments."

Second. "The assignee, before taking possession of the property, shall give bond payable to the State of Texas which shall be deposited with the county clerk."

Third. "The laws of a State have no force beyond its territorial limits, and if permitted to operate in another State it is only when neither the State nor any citizen thereof would suffer an inconvenience from the application or enforcement of such law."

Fourth. "The rule that the law of the domicil of the person making the transfer of personal property will control, is subject to many exceptions, and the law of the place where the property is situated will be looked to, and control when the ends of justice require it."

Fifth. "It would only be on a principal of comity that the courts in Texas would enforce an assignment made in Missouri under the laws of said State, and not then when it would thereby prejudice any citizen of this State."

Sixth. "An assignment of property for the benefit of creditors made under the insolvent debtor's law of a particular State, which law also makes provision for the administration of the estate assigned according to its own law and in one of its own courts, and places the assignee under the control of said court, is inoperative to vest in the assignee the title to property situated beyond the limits of the State in whose courts said estate is to be administered. In such case the assignee is virtually a receiver, and cannot act beyond the jurisdiction of the court under the control of which he acts."

The assignment in question is what is properly termed a voluntary assignment. It was not made

in obedience to a law which compelled the assignor to make it, or which exacted from the creditor a surrender of any demand against the debtor in consequence of it, or as a condition to be allowed to take benefits under it. The right to make such assignments, if made bona fide, is not derived from statutes, but existed at common law, and now, in most of the States of the Union, laws have been enacted to regulate, control and secure the faithful execution of the trust by the named assignee. The assignee acquired title and authority through the assignor whose act is in the nature of a contract, and the acceptance of it by the assignee imposes upon him a relation of trust and confidence as to creditors and the assignor. Such assignments are termed voluntary assignments from the fact that they are the products of a will acting without legal compulsion, and to distinguish them from such transfers as are made solely by operation of law, or by an assignor under legal compulsion. The one has effect as other contracts, while the other has effect solely by force of the law which makes or compels the assignor to make the assignment. The difference it is important to observe when considering the effect to be given to an assignment in a State other than that in which it is made. If it be an assignment under a compulsory statute, it exists alone by force of the law which cannot operate extra-territorially.

The law is compulsory if it required the assignment to be made even at the request of creditors, or if it provides for the discharge of the claims of creditors, without their consent, upon the voluntary surrender by the debtor, under the terms of the law, of all his property for the benefit of creditors. State insolvent laws which compel the insolvent debtor to surrender his property to an assignee to be administered under the direction of a court for the benefit of creditors, and which compel the creditor to release the debtor on such full surrender, are instances of these classes.

In America such assignments are held inoperative upon property, real or personal, not situated within the territory over which the laws that make or compel the debtor to make them, have dominion, as are discharges of the debtor attempted to be made under them, inoperative as to persons not resident of the State under whose laws they are made. Wharton on Conflict of Laws, 390, 390a; Story's Conflict of Laws, 410-416;: Burrill on Assignments, 303; United States v. The Bank, 4 Robertson, 414; Hutchinson v. Peshine, 16 N. J. Eq., 170; Felch v. Bugbee, 48 Maine, 9; Walters v. Whillock, 9 Fla., 95; Ogden v. Saunders, 12 Wheaton 213; Harrison v. Sterry, 5 Cranch, 302; Willets v. Waite, 25 N. Y., 583; Holmes v. Remsen, 20 Johns. 265; Abraham v. Plestero, 3 Wendells, 538; Dalton v. Currier, 40 N. H. 247; Saunders v. Williams, 5 M. H., 214; Black v. Williams, 6 Pick., 285.

It seems, however, to be everywhere admitted that a general voluntary assignment for the benefit of creditors, made by an insolvent debtor in

accordance with the laws of the place of his domicil, will pass all his personal property wherever situated, unless the operation of such assignments is limited or restrained by some law of the State in which the property is situated. Hawford v. Paine, 32 Vt., 442; The United States v. The Bank of the United States, 8 Robinson, 414; Rosenthal v. The Mastin Bank. 17 Blatchford, 323; Law v. Mills, 18 Pa. St., 185; Whipple v. Thayer, 16 Pick., 25; Black v. Zacharie, 3 Howard, 514; Green v. Van Bushkirk, 7 Wall., 150; Story's Conflict of Laws, 383-390, 410–416; Burrill on Assignments, 301, 302, 306, 307; Walters v. Whitlock, 9 Fla., 86; Holmes v. Remsen, 20 Johns. 265; Saunders v. Williams, 5 N. H., 214.

That a voluntary conveyance of personal property made in accordance with the law of the domicil of the assignor is valid elsewhere is the general rule, cannot be denied, and when it is claimed not to be so in a given case, the law of the situs must be looked to; for it is the right of every sovereignty to determine what shall be requisite to the transfer of the property, real or personal, situated within its territory, and what remedial rights in reference to it shall exist. The laws of a State which will control such questions are ordinarily those made for the government of its own citizens in making contracts and asserting rights.

This is well illustrated in cases in which a controlling effect was given to the law of the place where the property was situated. The following are cases of that character: Green v. Van Buskirk, 5 Wall., 307; S. C., 7 Wall., 141 Guillander v. Howell, 35 N. Y., 657; Oliver v. Towns, 2 Martin, (U. S.) 93; Rice & Danbaum v. Curtis, 32 Vt. 460.

There are expressions to be found in many opinions from which the inference may be drawn that effect is to be given to such voluntary assignments by courts in States other than that in which they are made, only as a matter of comity; that it rests in the discretion of such courts to give or deny effect to such assignments as they may or not appear injurious to the rights of citizens of the State whose laws the court administers, and within whose limits the property may be situated. This seems to us to confer upon courts a power too little restricted, undefined and unlimited to be tolerated in any country governed by laws. What upon such a matter is to be deemed injurious to the rights of citizens of the State in which the property is situated should be the subject of legislation, and not of judicial discretion. Story's Conflict, 390; Guillander v. Howell, 35 N. Y., 659.

That the assignment was made in the State of Missouri is a matter of no importance, as its validity does not depend upon any local law of that State, but is based upon the common law right of an insolvent debtor to make an assignment of all his property subject to the payment of his debts, for the benefit of his creditors. It is not denied that the assignment is valid in the State of Missouri, and its form and manner are such as to

make it valid here even under statutes in this State regulating such assignments, unless invalidated by the fact that it makes the kind of property and its value which is reserved from the operation of the deed, to depend upon the laws of Missouri regulating exemptions. The laws of this State provide that an assignment of this character shall "provide for a distribution of all his (the assignor's) real and personal estate other than that which is exempted from execution," but it does not provide thet the measure of the exemption shall be furnished by the laws of this State. The same general policy of permitting insolvent debtors who make such assignments, to except from their operation such property as is exempted from execution, prevails in this State and in the State of Missouri.

It cannot be said that the reservation made in the deed of assignment under consideration, is in violation of the laws of this State, nor that it could prejudice the right of any citizen of this State who may be a creditor. Such a reservation would neither enlarge nor diminish the general fund to which creditors might resort through the ordinary process of the law, to collect their debts, and were those creditors here, they would have no superior right to be paid out of the proceeds of the property here situated had there been no assignment made, unless they had acquired liens. All creditors, wherever resident, have equal rights in this respect.

Exemption laws have application to persons resident of the State in which they exist; and when an assignment conveys property in that and another State, it would seem that the exemption should be measured by the law of the domicil. If this were a compulsory assignment dependent upon a statute of the State of Missouri, it is evident that the courts of this State would not give effect to the law of Missouri regulating exemptions. Bryant v. Young, 21 Ala. 264; Newell v. Hayden, 8 Clark, (Iowa) 143; Helfernstion v. Cave, 3 Clark, (Iowa) 289.

Whether a deed of assignment made in another State by a person there domiciled, is sufficient to pass title to property here situated, must be determined by the same rules which relate to instruments transferring property for other purposes. If the instrument be such, in form and manner of execution, as is required by the law of this State to pass title thereon, the title to property here situated must be held to pass to the assignee by it in the absence of some law in force here prohibiting such transfers. When an assignee accepts the trust created by such an instrument, the title to the property passes to him for the purposes of the trust he becomes liable for it whether he has complied with the requirements of the laws of this State made to secure the due execution of the trust or not, and for an invasion of his right to the possession, he may have his action. This right is generally conceded to the person who has title. The recording of the deed of assignment is re

quired by the laws of this State for the purpose of giving notice to all persons of its existence, but there is no intimation in the statute that without such record the assignment, if made in this State, would be void.

An assignée is also required by the laws of the State to give a bond, but it has never been held that the giving of such a bond is necessary to the validity of the assignment. So far as we are advised, it has been very generally held in cases of voluntary assignments made by non-resident debtors, embracing property in a State or States other than that of the domicil, that the assignment will be deemed valid if it be sufficient under the law of the domicil, and under the law of the country in which the property is situated, to pass title, notwithstanding the law of the situs, intended to regulate the due administration of trust property, be not not complied with; that such laws are only intended to affect, and do only affect, assignments made by persons residents of the State in which they exist. Hanford v. Paine, 32 Vt. 443; Ockerman vs Cross, 52 N. Y. 32; Chaffe v. National Bank, 71 Me. 524.

The fact that the assignee is required by the laws of the State of Missouri to administer the estate in his hands under the direction of a court of that State, can have no bearing upon the question of the validity of the assignment.

As delivery is not necessary in this State to the transmission of title to personal property, we have not deemed it necessary to consider the right of the assignee growing out of the possession he is alleged to have had at the time the goods were seized, nor have we deemed it necessary in this opinion to consider the averment that the assignor was not indebted to any citizen of Texas; for if it should appear that he was so indebted, it would not change the result in the absence of some law of this State prohibiting the voluntary assignment of personal property here situated, by its owner resident elsewhere.

It is also unnecessary to consider what remedies creditors might have in this State to enforce the due execution of the trust in so far as it affects property here.

From the averments of the petition we are of the opinion that the property was not subject to the attachments levied upon it, and that the court below erred in sustaining the demurrer to the petition, and for this reason the judgment will be reversed, and the cause remanded.

Robertson, J., did not sit in this case.

a law of one State to be executed in another, when it would be against the public policy of the latter State or would be injurious to the best interests of its citi

zens.

2. Voluntary assignments in trust for creditors, the only consideration of which is the acceptance of the trust by the assignee, are invalid against attachments, except so far as assented to by creditors.

3. Such assent is not to be presumed, but must be shown by some affirmative act.

4. A voluntary assignment made in New York and valid there, is not valid in this State against an attachment, if such assignment is one which, if made between citizens of this State, would be inoperative for want of compliance with legal requisitions.

5. Where a partnership, having its usual and principal place of business in Boston and principally composed of citizens of this State, is the attaching creditor, the fact that some of its members are citizens of New York and that it has a place of business in that State, where the indebtedness was contracted, do not render such an assignment made in New York valid here, as against the attachment sued out here by the partnership.

Appeal from a judgment of the Superior Court of Suffolk County for plaintiffs, in an action of attachment. Affirmed.

In the Superior Court, plaintiffs demurred to the claimant's statement of his claim to the funds in the hands of a trustee. The demurrer was sustained and judgment ordered for plaintiffs as against claimant. The trustees were charged, and defendant defaulted, and judgment was entered on the default. The claimant appealed.

The facts are stated in the opinion.

DEVENS, J., delivered the opinion of the court: The plaintiffs, on December 24. attached as property of the principal defendants certain debts due to them from the persons in this commonwealth named in the writ as trustees. Prior to this attachment, which was on December 20, 1884, the defendants had assigned to the claimant all the property of their co-partnership, by a general description thereof, which would include these claims, in trust to pay certain preferred debts in full, and afterwards to pay their remaining debts proportionally to their respective amounts, so far as the residue should suffice for that purpose. The assignment was made in the City of New York, by the defendants, who were residents and carried on business there, to the claimant, also a resident there.

By the admission of the demurrer it is conceded that it was recorded there on December 22, 1884, and is in all respects valid by the laws of the State of New York.

It is to be observed that this assignment was not executed or assented to by any of the creditors named therein, or by other creditors of the defendants for whose benefit it purports to have been executed. It is the contention of the claimant that even if the plaintiffs could be deemed a Massachusetts partnership doing business solely in

this commonwealth, the assignment would be valid against them. The law of any State has no force or effect, proprio vigore, beyond its territorial limits. Whatever extra-territorial vitality it may have, is owing to the comity which should prevail between different States or nations. That comity does not require that it should be executed elsewhere when it would be against the public policy of the State where the remedy is sought, or would be injurious to the best interests of its citizens. It certainly would be unjust to creditors, residents of this State, if they were to be deprived of the benefit of an attachment they had lawfully made, or other lien they had lawfully acquired on the property of their debtors here situate, by an assignment which, if made here between citizens, would be inoperative for want of compliance with legal requisitions, even if such assignment was valid in the State where it was made, and sufficient to transfer property under its control. Green v. Van Buskirk, 5 Wall. 308 [72 U. S. bk. 18, L. ed. 599]; s. C., 7 Wall. 140 [74 U. S. bk. 19, L. ed. 109]; Cunningham v. Butler [post]; Dehon v. Foster, 4 Allen, 545.

It has repeatedly been held in this Commonwealth and by a long series of decisions, that voluntary assignments in trust for the benefit of creditors, the only consideration of which is the acceptance of the trust by the assignee, are invalid against attachments, except so far as assented to by creditors; in which case, being good at common law, they will protect the property from attachment to the extent of the amount due the creditors thus assenting. This for the reason that there is no adequate consideration, unless with the assent of creditors, without which no insolvent debtor should be allowed to so dispose of his property as to place it beyond their reach.

It has further been held that such assent is not to be presumed, but must be shown by some affirmative act, such as presenting claims, accepting a dividend, or distinctly becoming a party to the written assignment. Swan v. Crafts, 124 Mass. 453; Pierce v. O'Brien, 129 Mass. 314.

The rule in Massachusetts on this subject appears to us to rest upon a sound reason. The earliest case on the matter is that of Widgery v. Haskell, 5 Mass. 145.

That has been repeatedly affirmed, and we see no reason for changing it, in view of decisions made elsewhere, as we are urged to do by the claimant.

But if the assignment made in New York would be inoperative against the plaintiffs if they were residents of Massachusetts, it is urged that they must be dealt with as if they were all residents of New York. By the writ it appears that, of the nominal plaintiffs, four are citizens of Massachusetts, two of New Jersey, and one of New York, having their usual place of business in Boston.

The claimant alleges that "several" of the partners are residents of New York, but does not deny that several are citizens and residents of Massa

chusetts. Nor do his allegations deny that the usual place of business of the plaintiffs is in Boston, although it asserts that they have a place of business in New York, where the indebtedness was contracted.

A partnership is not a legal entity, having, as such, a domicil, although for purposes of taxation and for other purposes it may be treated by statute as having a locality. Ricker v. Am. Loan Co., 140 Mass. 346 [1 New Eng. Rep. 733].

Nor does the allegation of the claimant undertake to establish its situs in New York. The allegation that the firm has a place of business in New York is entirely consistent with its having its principal place of business in Boston. The right of the plaintiffs to recover cannot be defeated upon the ground that their firm, as such, is to be treated as if it had solely a residence in New York. It must be determined what the rights of the plaintiffs are, in view of the fact some of them are citizens of New York and others of Massachusetts and New Jersey. If some of the plaintiffs would be precluded from holding the assigned property by attachment as against the assignment, it is urged that all are necessarily so. If a suit were brought by New York plaintiffs alone, it may be that they could not be heard to deny the validity of the assignment, because as citizens of that State they would be bound by its laws, even here. May v. Wannemacher, 111 Mass. 202.

If brought by Massachusetts creditors alone, it is equally true, as the assignment is not valid by the law of this Commonwealth, that the attachment would prevail. All the parties are necessarily compelled to join in the action, and the New York plaintiffs are under no disability to sue here. The principle of comity cannot require us to enforce a foreign law, differing from our own, against the just rights of our own citizens and to their prejudice, because, if we fail so to do, the residents of another State would incidentally obtain a benefit which they could not otherwise. It cannot be required of us to deny our own citizens their lawful rights for the sake of denying to residents of New York that which we could not accord them only by reason of our respect to the legislation of another State of which they are residents, if they had brought suit alone. Considering the fact that the other plaintiffs are residents of Massachusetts, the fact that some are residents of New York, places us under no duty to enforce the New York law on the subject of assignments.

The view we have taken of the case renders it unnecessary to determine whether the right of the actual plaintiff in interest, is in any respect superior to that of the nominal plaintiffs.

Judgment for plaintiff affirmed, charging trus

tees.

Error from Nemaha county.

Stevenson and Murfin, for plaintiff. Marquette & Deweese, for defendant.

Cobb, J., delivered the opinion of the court.

This action was brought in the district court of Nemaha county, by the plaintiff in error against the defendant in error, for damages alleged to have accrued to the plaintiff in error, as administrator, for the negligence of the servants and employes of the defendant railroad company, by means of which the intestate of plaintiff in error was run over and killed by the cars of the defendant. There was a trial to a jury, which, by direction of the court, found a verdict for the defendant.

There is but one question presented by the record in this case, to which it is deemed necessary to direct our attention, and that is whether, under the law, and the facts as shown by the evidence preserved in the bill of exceptions, the defendant was responsible for the manner of running and operating the train at the time and place of the accident. It appears from the testimony of plaintiff's witnesses that the railroad was being built; that the plaintiff's intestate was run over and killed, or rather, in the language of the witness C. C. Donald, "while they were laying the iron or surfacing." This witness, as well as others, speaks of the train, by which Hitte was killed, as a construction train. I assume it, then, to have been clearly proved by the plaintiff's own witnesses, that the road was being constructed, and had not been finished or opened for business or traffic at the time of the injury. From the evidence of the defendant it appears that part of its road, lying between Nemaha City and Tecumseh, was built by John Fitzgerald under contract with the defendant company; that the said road was unfinished, and being constructed, at the time of the said injury; that the engine and cars by which said injury was inflicted were in the care and custody of, and were being run, operated, and managed by, the servants and hired men of the said John Fitzgerald, and not of the defendant. The following clauses of

the contract between defendant and the said John Fitzgerald are deemed material as showing the contractual relations between said company and said contractor, in reference to the responsible use of the engine and cars through which the injury in question occurred:

"This indenture and agreement made this first day of October, 1880, by and between the Republican Valley Railroad Company, party of the first part, and John Fitzgerald, party of the second part, witnesseth, that the party of the second part, in consideration of the covenants, promises, and agreements of and in behalf of the party of the first part, will, and hereby does agree, covenant, and promise, to and with said party of the first part, to construct—that is, to grade, bridge, and lay track over-that part of the Republican Valley Railroad as now located, from a part on the Nebraska Railway at our near Nemaha, in Nemaha county, Nebraska, to a point in the north-west quarter of section 59, 15 N. R. 14; and, provided said party shall desire it, from the latter point, on a line hereafter to be decided upon, to a point on the Atchinson & Nebraska Railway, at or near Tecumseh, a distance of 33 miles. * All

*

*

*

work must be done in strict accordance with the specifications hereto attached, which specifications are a part of this contract, and under the directions and to the satisfaction of the engineer in charge of said railroad to be constructed, whose orders in all matters relating to this contract the second party agrees implicity to obey. The party of the first part agrees to furnish the necessary cars. The party of the first part agrees to attend to the usual and common repairs of engine and cars necessary during their usage by the party of the second part, but party of the second part will be held responsible for any damages or breakage done to said trains through neglect or disobediance of established rules, by itself, agents or employes, or through defects in the road while constructing the same.

*99

The greater part of the brief of plaintiff in error is devoted to a discussion of alleged errors on the part of the court in refusing to instruct the jury upon the question of negligence, in its several respects and bearings, as applicable to the defendant, and of contributory negligence, as applicable to the plaintiff's decedent. I do not feel called upon to express any opinion as to whether there was any evidence of negligence in the running and management of the construction train which caused the injury, as the case turns upon the question of the responsibility of the defendant for the running and management of said train at the time of the injury.

The case of Hughes v. R. Co., 39 Ohio St. 461, cited from 15 Am. & Eng. R. Cas. 100, was brought by Hughes against the railway company "for that, in constructing its railroad through her lands, the defendant had wrongfully piled large quantities of waste dirt upon her arable lands, not embraced within the right of way, to her damage," etc.