publication and the mailing of notice, for we have seen1 that it is the citizenship and personal jurisdiction of the parties to be affected that gives the court power to discharge, and that such proceeding has no validity as against a creditor, or his debt, who is resident or citizen, at the time, of another State, and is not an actual party to the proceedings, by his own consent, or by personal service made within the State. The laws of the forum can have no force or effect beyond the confines of the State.

Suretyship and Indemnity. Contracts of suretyship and of indemnity against the same, entered into in one State to release the property of a non-resident held under judicial proceedings in the State where such contracts are made, are governed by the law of the State where made, and performance is there contemplated, if no other place of performance be mentioned, although the owner of the property resides in a different State.

Such being the rule of the contract, a discharge of such owner under insolvent proceedings in the State where he so resides, will not relieve him from liability on his contract of indemnity in the State where the same was made, as against those same sureties there resident, in whose behalf the indemnity contract was made.3

II. DISTRIBUTION OF INSOLVENT ASSETS.

National Priority. In the distribution of proceeds of sales, in cases of insolvent debtors, the United States have priority of all other creditors, and are entitled, except as against prior and valid liens, to be first paid.4

The fact that this priority is conferred by statute renders it unnecessary to enquire how far such preference exists upon general principles. It was first conferred by act of Congress of March 3, 1797, and by the collection laws of the United States, and is construed to apply only to cases of legal insolvency, as assignments by insolvent debtors, or to persons declared bankrupts. This priority is, also, applicable only to government debts accruing after the passage of the act of Congress. It is

1 Ante, note 1 to this chapter. Boyle v. Zacharie, 6 Pet. 635.

3 Ibid.

4 U. S. v. Fisher, 2 Cr. 358; Harrison v. Sterry, 5 Cr. 289.

Prince v. Bartlett, 8 r. 431, 433, 434; U. S. v. Howland, 4 Wheat. 108; Thelusson v. Smith, 2 Wheat. 396.

U. S. v. Bryan, 9 Cr. 374.

not such an insolvency, however, as is indicated by a mere inability to pay debts that will give rise to such a preference; but there must be an assignment, or proceeding in bankruptcy. But if such a case arises as gives vitality to the priority, then such priority overrides all other claims to payment, including judgment liens;1 for the judgment creditor takes his lien subject to this very condition of things, if occasion gives rise to them. In the case of Thelusson v. Smith, the Supreme Court of the United States, WASHINGTON, J., say, that such priority excludes "all debts due to individuals, whatever may be their dignity."

2

Limit of National Priority. But this first satisfaction must be out of the debtor's estate; and, therefore, if the debtor sell and convey all his property, bona fide, before the right of priority is brought into action or effect, or before that time he makes a mortgage thereof to secure a debt, or the property be levied and seized under a writ of fieri facias, if personal property, so that the property is divested out of the debtor, then the right of priority in the United States cannot arise as to such property, by reason of any subsequent act of assignment or bankruptcy; for the property is no longer in the debtor. Judgments give liens preference over other ordinary debts, on the lands of a debtor, but the act of Congress defeats this preference in favor of the United States. 3

Subrogation of Sureties Paying National Priorities. A surety of such debtor, who pays the debt to the United States, which is thus entitled to priority, has a right to be subrogated to the same priority of payment which previously inured to the government, for the reimbursement to him of the sum thus paid. In the case here cited, of Hunter v. The United States, this principle is asserted in the following language: "The same right of priority which belongs to the government attaches to the claims of an individual who, as surety, has paid money to the government."5 National Debts Not Matured. The priority of the United States, above referred to, applies to liabilities, although payable after proceedings had, if contracted prior thereto."

1 Thelusson v. Smith, 2 Wheat. 396. 22 Wheat. 425.

Thelusson v. Smith, 2 Wheat. 396, 426; 1 Stat. at Large, 676, § 65, Act of Cong. of 1799; R. S. of U. S., 1874, S

4 Hunter v. U. S., 5 Pet. 173, 182, 183.

55 Pet. 182, 183.

6 U. S. v. Bank of North Carolina, 6 Pet. 29.

Foreign Assignments. It is the prevailing doctrine of the American courts that an assignment voluntary, by a debtor, or by commissioners or officers of the law, of a debtor's personal property under a foreign bankrupt or insolvent law, will not operate as a legal transfer of that part of the property which is within another State or country, as against a creditor of the bankrupt or insolvent, who resides where such property is situated, and who interposes or asserts his claim against such property by attachment or other proper legal proceedings. The claims of assignees or commissioners cannot, in such cases, prevail as against creditors and property situated in another State.1

The Rule in Maryland. Yet the ruling in Maryland is that all the effects of an insolvent, wherever situated, whether in the State or out of the State, are, by the assignment, vested in the trustee; and that, without regard to what the courts of other States may hold in regard to it; and, although the courts of Maryland cannot reach it if in another State, yet, if brought within the jurisdiction of the Maryland court, it will be regarded and treated as a part of the trust fund, and the trustee will be entitled to it.2

That the trust fund will be administered in the Maryland courts according to Maryland law, and that when the doctrine of comity and such domestic law conflict, the positive local law will

control. 3

The effect of assignments, made in one State, of property situated in another State, for the benefit of creditors, has given rise to much and varied discussion, and the courts, it will be seen, are not at all a unity upon the question. Where the assignment contravenes a law or custom of the State where the property is situated, it can be safely stated that it will give way to the lex rei sita. But, where the assignment under an insolvent law does not conflict with the law of the State where the property is

1 Felch . Bugbee, 48 Maine, 9, 19; Blake . Williams, 6 Pick. 286; The Watchman, 1 Ware, 232; Towne v. Smith, 1 Woodb. & M. 137; Wharton's Conf. of Laws, § 392; Story's Conf. of Laws, 3 410 et seq.; 2 Kent, *405; Harrison v. Sterry, 5 Cr. 289; Ogden v. Saunders, 12 Wheat. 213; Plestoro v. Abraham, 1 Paige, 236; Holmes

v. Remsen, 20 John. 229; Osborn .
Adams, 18 Pick. 245.

2 Gardner v. Lewis, 7 Gill, 377.
8 Ibid.

42 Kent. *407; Green v. Van Buskirk, 5 Wall. 307; Burrill on Assign. ments, § 306 et seq.; Bishop on As signments, 261.

situated, and the rights of resident creditors do not intervene, the foreign assignment will be respected out of considerations of comity. Where the rights of creditors resident in the State have intervened, as by attachment, they will be entitled to priority as against the foreign assignee.

Real estate situated in another State can only be covered by a foreign assignment when it conforms to the lex loci rei sitæ.3 The remedies, and methods of enforcing them under foreign insolvent assignments, are governed by the lex fori.4

12 Kent. *407; Green v. Van Buskirk, 5 Wall. 307; Burrill on Assignments, 306 et seq.; Bishop on Assignments, § 261.

3 Osborn v. Adams, 18 Pick. 245; Dundas v. Bowler, 3 McLean, 399; Houston v. Nowland, 7 Gill & J. 480. Speed v. May, 17 Penn. St. 95;

* See the subject of foreign assign. Jones v. Taylor, 30 Vt. 48. ments discussed supra.

CHAPTER XIV.

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.

1

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 trespass 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. 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.

1 McKenna. Fiske, 1 How. 241, 248, 249; Livingston v. Jefferson, 1 Brock. 203; Gorman v. Marsteller, 2 Cr. C. C. 311; Smith v. Bull, 17 Wend. 323; Watts v. Kinney, 23 Wend. 484; Champion v. Doughty, 18 N. J. Law, 3; Doulson v. Matthews, 4 T. R. 503; Ham v. Rogers, 6 Blackf. 559.

Rundle v. Del. & Rar. Canal, 1

Wall. 275. See, also, Worster v. Winnipiseogee Lake Co., 25 N. H. 525, where most of the authorities are collected, and the court holds that the action is local and can be brought only where the land is situated. See further, Barden v. Crocker, 10 Pick. 383, and Angell on Water Courses, § 420, 7th ed.