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ous, that unless there be some mode of prevention, this period gives the debtor ample time to make such a disposition of his effects, that when the execution comes, he may spurn it as brutum fulmen. And it unfortunately happens, that our law furnishes no mode of prevention. All its provisions are made upon the principle, that before judgment, the property of a debtor is not to be touched, if his body can be found. Accordingly the only case in which you can attach his property, in the first instance, is where you will make oath that he is absent from the State or absconds; and even then he has the space of about a year, within which he may appear, and by putting in bail, release his property, from attachment. If then the debtor remains at his post, all you can do is to arrest him. And what then? If he concludes to go to prison, he may take the privilege of the limits, and these extend throughout the county; so that he may still have every facility for turning his property into money. The same would be true should he put in appearance bail. But suppose he should take the benefit of the insolvent act. Why then he would be obliged to make an assignment of bis property for the benefit of his creditors; and for this very reason he will not take this course, so long as he has property or credit enough to procure bail. If he be at all cunning, he will either take the limits or give bail, and thus procure time to settle his affairs, as it is called ; that is, to put every particle of his property beyond the reach of execution. And then, if the creditor should be fool enough to take his body on execution, he is ready to take the benefit of the insolvent act, having now no property to assign. This act does not, like a bankrupt act, discharge his debts absolutely ; but it exempts his body forever after from arrest on account of them; and this, as we have seen, is all he has to fear in Ohio.
interior What we have now stated as hypothetical picture of fancy, but a sad reality occurring alimate any wayWe speak from dismal experience. We have town suits commenced, against merchants who had at the fine in Lier stores goods amounting to fifty or sixty thousand dollars. W e have heard them declare, that those creditors who were sangentlemanly as to sue should never receive one dent. We have besought a court of chancery to interfere by junction, compel ang assignment for the benefit of all the creditors; alleging among
VOL. XI. NO. XXI.
other facts, that these merchants were then forcing off their goods at auction, at forty per cent. less than the first cost; but chancery has told us it could not interfere. We have pursued the case to judgment, and our execution has been returned no property. All has been disposed of, we know not how. Nay, more, we have heard such men, when examined on application for the benefit of the insolvent act, admit, that for the purpose of arranging their affairs, they have been paying one quarter per cent. a day for money, and that at the same time they were selling off their goods at forty and fifty per cent. loss; and yet, after making these disclosures, we have known them to be permitted to take the benefit of the act, on the ground that such was the custom here! It is high time, that this enormous system of fraud was broken up, either by enacting a genuine bankrupt law, which should take from a debtor all control of his property after the first act of bankruptcy ; or by giving a creditor the power of attaching his property, in the first instance, instead of arresting his body. Unless some remedy like this be interposed, our law of debtor and creditor should be entitled ' a law for the encouragement of fraud.'
Having spoken thus severely of this part of our law, it is but fair to mention one instance in which the law extends more favor to the creditor than is usual. By our statute of limitations, actions upon all written contracts for the payment of money, including of course commercial paper, may be brought at any time within fifteen years. It is only actions upon parol contracts, which are limited to six years.
We had noted several other provisions for remark, but we fear to spin out an article of this kind any further. We close, therefore, with the observation, that if our legislation has been excessively variable and fluctuating, as the facts mentioned in the beginning of this article sufficiently evince, it has at least the merit of doing away many of the abuses which have come down to us with the common law, by introducing simplicity in the place of technicality.”,
ART. VIII.-LEX LOCI. - Can the assignee of a Scotch bond maintain an action in his
own name in the courts of this country? By the Scotch law, bonds are assignable, and the assignee may sue on them in his own name. Can he thus sue in Massachusetts ? A learned writer in the Jurist for January, 1833, (vol. ix. p. 42,) has laid it down, as appearing, both upon principle and authority, that the assignee can so sue. The principle is expressed in his opinion, I presume, in the following proposition, which seems to savor a little of a petitio principii. "The legal effect of the bond and assignment made in Scotland is to vest a legal interest and right of action in the assignee.' The authorities cited are, Stuart v. Greenleaf, 3 Day, 311; O’Callaghan v. Thomond, 3 Taunt. 82; Hammond on Parties 101, (Am. ed.); Le Chevalier v. Lynch, Doug. 170; 3 Mass. 517, per Parsons, C. J.; 1 East, 11, per Lord Kenyon.
It appears to me, upon both principle and authority, that the assignee can only sue, in our courts of law, in the name of his assignor.
It is a familiar doctrine, governing the tribunals of all civilized nations, that the lex loci contractus controls the nature, construction and validity of a contract, while the ler fori determines the remedy. Is the question, Who shall be plaintiff
to be regarded as a matter of legal effect, or of remedy? . It is very difficult to run an exact line, between the lex loci
and the lex fori, which shall leave all points clearly on one side or the other; though it is universally conceded that the latter must govern the remedy. (4 Cowen, 528, note.) But the remedy is frequently confounded with the right. Most cases, however, where these seem to run into each other, may be determined by observing accurately, whether the real liability of the party, or only the shape or manner in which he shall be held liable, is affected by the foreign law sought to be applied. If there be with us a prescribed form, by which the debt can be recovered, that form should be chosen, and by no means supplanted by one imported from another jurisprudence.
In accordance with the above is the established doctrine, that assumpsit does not lie on a single bill, which is a specialty by the laws of the State where it is made, in a State where it is not a specialty, (Trasher v. Everhart, 3 Gill & Johns. 234); and the reverse case, that covenant does not lie on a contract, with a scrawl and the word seal, which by the laws of the State where it is made, amounts to a seal, in a State where such a mode of execution has no such high import. (Andrews and Jerome v. Herrot, 4 Cowen, 508, overruling Meredith v. Hinsdale, 2 Cain, 362.) It must always be immaterial to the creditor in what manner his claim is enforced, whether as a simple contract, or as a specialty, so that his essential rights are protected. Besides, it would be a great inconvenience to fashion the remedy according to the character impressed upon the contract in the foreign country where it was made, or was to be performed. Inquiries into foreign laws would in all cases have to be instituted, before a suit could be commenced, to determine the nature of the remedy to be pursued; which, in many cases where evidence might not be at hand, would be attended with great delay and difficulty and consequent loss of the debt.
With these considerations in our minds, which have been drawn from the opinion of Archer, J. in Trasher v. Everhart, let us see if the assignee of the Scotch bond has not a perfect remedy by our law, without resorting to the Scotch privilege of suing in his own name. It should be added here, that even with us, in equity, he may sue in his own pame ; of which hereafter.
An assignee may always sue in the name of his assignor, and, provided the obligor had due notice of the assignment, recover the full amount of his claim, as much as is the action stood in his own name. The adyances towards this doctrine were taken at an early period. The only strict common law right, possessed by the assignee of an obligation, was, by virtue of the assignment, to retain the parchment or paper upon which the bond was written, and to cancel and to use the same at his pleasure. Co. Lit. 232, a. 1 Rep. 1. Here a right of pro, perty was recognized in the assignee, though, for the avoidance of maintenance and litigation, the means were denied of assert, ing that right by action. If the assignment to a stranger of & right pot reduced into possession were permitted, under
color thereof, says Lord Coke, pretended titles might be granted to great men, whereby right might be trodden down, and the weak oppressed, which the common law forbiddeth. (Co. Lit. 214, a.) This right, however, became gradually to be regarded with more attention by courts of law. In Kingdom v. Jones, 2 Skin. 6. 2 T. Jones, 150, it was said, if an assignee have an equity, that equity shall be no exile to the courts of common law. These courts continued to entertain this, for a long time, homeless right, till the original rule itself, that a chose in action could not be assigned, was virtually made an exile. That this has been so explained away, as to be at most only an objection to the form of action, was said by Buller, J. (Master v. Miller, 4 T. R. 340). And a learned lawyer of our country has said that bonds were assignable in every thing except in remedy. (1 Dane Dig. 285. 5 Dane Dig. 174.)
The decisions of late years move on the principle that the assignee is the real creditor, except for the purpose of recovering in his own name upon the original security. (Gould, J. Colburn v. Rosseter, 2 Conn. R. 513.) The old form of bringing the suit in the name of the obligee is indeed continued; but it is now mere form; and whenever any collateral injury is done to the claim, such as by obliterating or destroying the instrument, or converting it wrongfully to the use of another; or any injury to process upon it, such as rescous or escape, the action may and ought to be brought in the name of the assignee. (Smith, J. Colburn v. Rosseter.) The gradual steps by which the courts came to their present position may be seen by reference to Anonymous, 1 Salk. 260; Payne v. Rogers, Doug. 407; Bauerman v. Radenius, 7 T. R. 670; Craib v. D’Aeth, 7 T. R. 670, note ; Legh v. Legh, 1 B. & P. 447; Wardell v. Eden, 1 Johns. 532; Littlefield v. Storey, 3 Johns. 425; and Colburn v. Rosseter, 2 Conn. R. 505. In this last case Swift, C. J. enumerates the rights of the assignee and the various guards thrown around him by courts of law, as he does also in his valuable Digest. (1 Swift's Dig. 434.) Sanborn v. Little, 3 N. H. 539; Sampson v. Fletcher, 1 Verst. 168; Strong v. Strong, 2 Aik. 373; Lyon v. Summers, 7 Conn. R. 399; and Ward v. Bokkelin, 2 Paige, 289, are late American cases, recognizing a full proprietorship in the assignee.