Judgment Lien. The effect of the judgment lien, or other operation 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 conflicts of jurisdiction would be liable to arise. 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. In the same case, the Supreme Court referring to their ruling in Swift v. Tyson,3 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 dependent upon local statutes, or local usages of a fixed and permanent operation; as for example, to the construction of ordinary contracts or other written instruments, and especially to questions of general commercial law." 4

'Union Bank of Tennessee v. Jolly, 18 How. 503, 507; Williams v. Benedict, 8 How. 107: McGill v. Armour, 11 How. 142.

521.

Watson v. Tarpley, 18 How. 517,

3 16 Pet. 1.

18 How. 520.

XI. PLEADINGS IN INTER-STATE SUITS IN ADMINISTRATION MATTERS.

Suit on Judgment of other State. Ne 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 sne 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 descriptive. 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 judgment 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 unques 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 obtained 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.3

1 Biddle v. Wilkins, 1 Pet. 686; Talmage v. Chapel, 16 Mass. 71.

21 Pet. 693.

CHAPTER XXV.

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 jurisdiction 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 corporation 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 execution emanating from State courts of either of said States, if it is to be considered as savoring of the realty in reference to execution, levy and sale.1

Savoring of the Realty. 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 . The Dismal Swamp Canal Co., 2 Murph. L. & Eq. (N. C.)

195; Rorer on Jud. & Ex. Sales, 2d Ed. § 1325.

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 purchaser 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. But the supreme court of North Carolina seem disposed to regard the statutes declaring the capital real estate, as intended to give it an inheritable character rather than to influence its liability to sale on execution, maintaining, however, as herein stated, that if it is to be considered as in that respect affecting its liability to levy and sale, then such disposition 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.

1 Cooper v. The Dismal Swamp Canal Co., 2 Murph. L. & Eq. (N. C.) 195; Rorer on Jud. & Ex. Sales, 2d Ed. § 1325.

Cooper v. Dismal Swamp Canal Co., 2 Murph. L. & Eq. 195. HALL, J.: "The last question submitted to this court should be first considered. Have the courts of North Carolina jurisdiction of the present suit? It is to be observed that the canal lies partly in Virginia and partly in this State, and that the acts of assembly incorporating the company give no preference to the courts of either State. And it is to be further observed that the office

of president and directors of the company has by these acts been located. It therefore follows that the courts of each State have equal jurisdiction; but the court in either State in which a suit shall be first properly instituted does, by such priority, oust all other courts of the jurisdiction during the pendency of such suit and while any judgment which may be regularly given in such suit remains in force.

"But the complainant has not ap plied to the proper jurisdiction. He ought to have applied to a court of common law for a mandamus to compel the officers of the company to

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 different 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, cannot be subjected to taxation in and by either of said States.1