TRADEMARK.

Name of a person cannot be made a trademark by him, even with the addition of the word "improved," when he has used his name as a description of an article of his own manufacture and has sold the trademark with the business of such manufacture: Adams v. Messenger, S. Jud. Ct. Mass., June 19, 1888.

Title to a trademark does not arise from adopting some mark, not in use to distinguish goods of the same class or kind already on the market, and the public declaration that such mark would be applied to goods to be put on the market in the future; the goods must be actually on the market marked with the particular mark: Schneider v. Williams, Ct. Chan. N. J., July 24, 1888.

U. S. COURTS.

Jurisdiction of cases involving less than $500, wherein the U. S. are plaintiffs, was not vested in the U. S. Circuit Courts by Rev. Stat. § 629, giving them original jurisdiction, "of all suits at common law, where the U. S. or any officer thereof, suing under the authority of any Act of Congress, are parties," and any uncertainty was removed by § 1 of the Act of 1875, substantially continued in the Amendatory Act, March 3, 1887 (24 Stat. U. S. 552); the U. S. must go into the State Courts if such small amounts are to be litigated: U. S. v. Huffmaster, U. S. Circ. Ct. N. D. Cal., May 21, 1888, 35 Fed. Rep. 81, 83.

Removal of a cause from a State Court, on the ground of prejudice or local influence, since the Act of 1887, cannot be made by filing an affidavit of belief of such prejudice: the fact of inability to obtain justice in the State Court must be established by an affidavit or otherwise: Short v. C. M. & St. P. R. R. Co., U. S. Circ. Ct. Dist. Minn. March 12, 1888, 34 Fed. Rep. 225.

Removal may take place where a citizen of Massachusetts files a bill in a State Court of New York against a Connecticut corporation and a New York corporation, praying for damages and an accounting by the Connecticut corporation only. There is a separable controversy, which the Connecticut corporation might remove to the U. S. Circ. Ct. under the provisions of the Act of 1887: Vinal v. Continental Construc. and Imp. Co., U. S. Circ. Ct. N. Dist. N. Y. March 19, 1888, 34 Fed. Rep. 228.

WILLS.

Charity, such as the Courts will recognize, cannot be created by a devise of the rest and residue of the testator's estate to Henry George, for the free distribution of such of his works as he may think proper; the Court, considering that certain passages in such works to be a denunciation of secure title to land in private individuals, held this clause of the will to be void: Hutchins' Exr. v. George, Ct. Chan. N. J., May 21, 1888.

JOHN B. UHLE.

THE

AMERICAN LAW REGISTER.

OCTOBER, 1888.

OGDEN v. SAUNDERS REVIEWED.

I.

66 DUE PROCESS OF LAW."

THE only point necessarily decided in the great case of Ogden v. Saunders, 12 Wheaton, 213-369, was, that a debtor's discharge under the insolvent laws of one State, is not a valid defence to an action brought in the Federal Courts by a creditor who is a citizen of another State, and has not voluntarily made himself a party to the insolvency proceedings: Clay v. Smith, 3 Peters, 411; although the contract in suit was made and to be performed in the debtor's State after the insolvent laws were passed and while they were in force: Baldwin v. Hale, 1 Wall. 223; Gilman v. Lockwood, 4 Id. 409.

The chief object of this article is to state and briefly explain a principle which, it is believed, will reconcile the conflicting decisions of the Federal Courts on the one hand, and the State Courts on the other hand, respecting the rights of non-resident creditors; or, more accurately, to state a principle which seems to reconcile the reasoning of the State Courts with the decisions of the Federal Courts on this question, in which contrary decisions have been rendered.

An attempt will be made to show, in the light of subsequent and analogous decisions, that the true ground of the Federal decisions is, not that prior insolvent laws impair the obligation of contracts of non-resident creditors, but that such

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laws as applied to such creditors are unconstitutional, because they deprive such persons of their property "without due process of law," in violation of the 14th Amendment to the National Constitution; namely, by judicial proceedings in a court of insolvency without legal notice of those proceedings. The decree of discharge is therefore void for want of jurisdiction, as against such creditors.

The reasoning of the State Courts in which decisions conflicting with those of the Federal Courts have been made, proceeds on the ground that prior State insolvent laws do not impair the obligation of contracts, if the contract was made and to be performed within the State where such laws exist at the time of the contract's making, although the creditor be a citizen of another State: Scribner v. Fisher, 2 Gray, 43; Parkinson v. Scoville, 19 Wend. 150.

It is believed that this reasoning is sound, but that the decisions are erroneous on the ground of due process of law.

Insolvency proceedings, like every other kind of judicial proceedings, require legal notice to be given to every party whose rights may be injuriously affected. But the laws of a State have no extra-territorial operation except by comity, and therefore a State cannot constitutionally and effectively send its process for imparting notice beyond its own limits, so as to compel a non-resident to appear in the insolvency proceedings, and to be bound by them.

This is substantially the reasoning of the Federal Supreme Court in Baldwin v. Hale, 1 Wall. 223, 233-234; and Gilman v. Lockarood, 4 Id. 409, 411, which were cases involving insolvent laws, but in which the ground of being contrary to due process of law was not expressly mentioned. In Gilman v. Lockwood, supra, Mr. Justice CLIFFORD, who delivered the unanimous opinion of the Court, used this language: "Insolvent laws of one State cannot discharge the contracts of citizens of other States; because such laws have no extraterritorial 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 of the case (page 411), citing Baldwin v. Hale, supra, and Baldwin v. Bank of Newbury, 1 Wall. 334.

In Baldwin v. Hale, supra, the Court said, on page 233: "Insolvent systems of every kind partake of the character of a judicial investigation. Parties whose rights are to be affected are entitled to be heard; and in order that they may enjoy that right they must first be notified. Common justice requires that no man shall be condemned in his person or property without notice and an opportunity to make his defence." Cung, Nations v. Johnson, 24 How. 203; Boswell's Lessee v. Otis, 9 Id. 350; Oakley v. Aspinwall, 4 Comst. 514. And on page 234, the Court also stated that "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 proceeding, has no jurisdiction in the case. Legal notice cannot be given, and consequently there can be no obligation to appear, and of course there can be no legal default."

Again in the recent case of Sloane v. Chiniquy, U. S. Circ. Ct. Dist. Minn. July 3, 1884, 22 Fed. Rep. 213, 215, Mr. Justice MILLER used this language: "No State insolvent law, as has been repeatedly decided, can discharge or release the debtor from his obligation to pay, under that contract, where the creditor is a citizen of another State; because the law cannot operate upon a citizen not within its jurisdiction. The theory of that is, that the judgment of a Court discharging a debtor from his obligations is, as to the creditor residing in another State, an ex parte judgment; but if he comes within the State and submits himself to the jurisdiction of the Court, it has never been held that the contract may not be discharged."

An examination of these cases will show that these quotations embody the true ground of the decisions. They do not contain one word about impairing the obligation of contracts, and they all express the idea that the insolvent laws of one State are unconstitutional and void as against non-resident creditors, on the single ground that they purport to allow a valid judgment of discharge of contracts to be rendered against the claims of non-resident creditors, who have received no แ "legal notice" of the insolvency proceedings. Although the

insolvency court had jurisdiction of the general subject of insolvency and of the person of the debtor, yet as it had not jurisdiction of the person of the non-resident creditor, the discharge was not valid as against such creditor (Pratt v. Chase, 44 N. Y. 597, 599–600) because the debt follows the person of the creditor: Bedell v. Scruton, 54 Vt. 493, 494; Newton v. Hagerman, U. S. Circ. Ct. Dist. Nevada, Nov. 26, 1884, 22 Fed. Rep. 524, 527. (See, also, State Tax on ForeignHeld Bonds, 15 Wallace, 300, 320–326.)

This course of reasoning brings the principle underlying these insolvency cases of non-resident creditors directly within the principle of Pennoyer v. Neff, 95 U. S. 714; Harkness v. Hyde, 98 Id. 476; St. Clair v. Cox, 106 Id. 350; Freeman v. Alderson, 119 Id. 185. These were cases of State statutes purporting to allow valid judgments in personam to be rendered against non-residents by publication of notice, or some other mode of substituted service of process short of personal service within the State, or a voluntary general appearance in the action. It was held that such notice was not "legal notice," and that the statutes were unconstitutional, and the judgments rendered by the State Courts in accordance with them were void, on the sole ground that they were contrary to due process of law, and violated the 14th Amendment to the National Constitution, which ordains that no State shall "deprive any person of life, liberty, or property without due process of law. It would be but a repetition of the reasoning above employed, with respect to the insolvency cases, to state the reasoning of Pennoyer v. Neff and other cases, and but a single extract will be made.

In Freeman v. Alderson, 119 U. S. 185, 188, Mr. Justice FIELD, in delivering the unanimous opinion of the Court, said: "The laws of the State have no operation outside of its territory, except so far as may be allowed by comity; its tribunals cannot send their citations beyond its limits and require parties there domiciled to respond to proceedings against them, and publication of citation within the State cannot create any greater obligation upon them to appear." (See, also, Pennoyer v. Neff, 95 U. S. 714, 727.)

All these cases show clearly that the constitutional question