These doctrines are so familiar to the profession that it will, perhaps, seem unnecessary to have recited them so fully. I trust, however, that they will illustrate the present inquiry. I now ask again, is the question, whether an assignee should sue in his own name, a part of the legal effect or of the remedy?

The form, in which a right should be asserted or defended, belongs to the remedy. When a debt is disputed, every legal step taken to recover it belongs to the remedy. The party then becomes, in the language of the Scotch law, a pursuer; and he must pursue according to the laws of the place where he brings his action. The action itself is the pursuit. And this idea runs through all the definitions of action, from that of Justinian, to that of our own common law. Justinian's is very simple. Actio nihil aliud est, quam jus perseuendi in judicio, quod sibi debetur. Inst. de Act. lib. 4, t. 6. The two following are from different French writers. Action est le droit de poursuivre en jugement ce qui nous est dû, ou ce qui nous appartient. Ferriere, Dict. de Droit verb. Action. - Action est un demande judiciare fondeè sur un titre ou sur un loi par laquelle on requiert, &c. Merlin Rep. de Jur. verb. Action. In the Scotch law an action is defined to be, a demand regularly made and insisted before the proper judge, for the attaining or recovery of a right. He who makes the demand is called the pursuer, and he who is subject to it, against whom the action is brought, the defender. Ersk. Inst. 743. The definition of the common law is short; and recognizes the action as part of the remedy. It styles it 'the form of a suit given by the law to recover a thing,' (Termes de la Ley, Action,) or otherwise as the means given by the law for the recovery of a right.' (Cunningham's Law Dict. Remedy. Jac. Law Dict.. Remedy.)

The civilians, as is well known, have treated the general subject of the conflict of laws, with exceeding particularity and' acuteness. It could hardly be expected that any thing could be drawn from them, to affect a common law question of pleading, like the present. The language of the following rule laid down by Strykius may bring home to us some of the distinctions on this subject, and also the principle upon which to settle the present inquiry. Quoties cunque circa Judicii ordina

tionem controvertitur. Statuta Loci Judicii, omnibus cæteris posthabitis, introspiciantur. In modo procedendi consuetudo judicii attendenda, ubi lis agitatur; in modo vero decidendi, seu in ipsa causæ decisione, consuetudo litigantium, seu ubi actus est gestus, attendendus. Strykius, Dissert. Jurid. vol. 2d, p. 29. De jure Principis extra territ. cap. 3, n. 34.

Whatever, therefore, enters into the action or the modus procedendi is a part of the remedy. The kind of action to be brought, the court in which it shall be brought, and the parties in whose names it shall be brought, are all questions of remedy. The lawyer first asks himself, when about to commence a suit, in whose name shall the action be brought. The first chapter in our works on Pleading is employed in discussing this subject, under the title of Parties to Actions.' If the party be a minor the action must be brought in the name of his guardian or next friend; if a lunatic, in the name of his guardian or committee; if a feme covert, in the name of her husband or those of her husband and herself joined; if the contract be made by an agent, the action is in the name of his principal; if by a bankrupt, the action in his own country is in the name of his assignees; if the party be an ousted tenant, an ejectment is brought in the name of John Doe; and, if an assignee be the real party, the action is in the name of his assignor. Such would be the case where the parties were citizens; and because they are foreigners, there could be no difference. The comity of nations, says Chancellor Kent, 2 Kent's Com. 462, is sufficiently satisfied, in allowing to foreigners the use of the same remedies and to the same extent that they are afforded to the citizens of the state. This principle is correct; though the use of the word comity may be of questionable propriety. (See Livermore's Dissert. on Contrariety of Laws.) Lord Tenterden has laid down the same principle in bolder language. His language is, that a person suing in this country must take the law, as he finds it. He cannot, by virtue of any regulation in his own country, enjoy greater advantages than other suitors here. (De la Vega v. Vianna. 1 B. & Adol. 274.) He should not press upon our courts the strange and novel forms of his own country, because ours happen to be less pliable and expansive. But he, no less than our own citizens, should commence his action and prosecute it, according to the manner prescribed in the forum, where he appears.

Let us see how the courts have decided in cases like the present; and whether the authorities do not support the above reasoning and result in the doctrine opposed to the right of the assignee to sue in his own name. In Lodge v. Phelps. (1 Johns. Cas. 140 S. C. 2 Cain's Cases, 321,) it was decided that the indorsee of a promissory note, given in Connecticut (where notes at that time were not negotiable') may maintain an action in his own name, in N. York, against the maker, thus recognizing the principle I would apply to the case of the Scotch bond. In Nash v. Tupper (1 Cain's Rep. 412.) Lewis, C. J. cited the above case with approbation, and also another, Pagev. Cable, unreported, turning on similar facts and which supports the same point. In Massachusetts the Supreme Court have decided in the same way, upon a similar state of facts, arising out of the non-negotiability of notes in Connecticut, as appears by an unreported case cited by counsel in Pearsall v. Dwight, (2 Mass. 86.) Lord Loughborough (Folliot v. Ogden, 1 H. Black. 135,) considers it as law, and he has been followed by Parsons, C. J. citing his words in Pearsall v. Dwight, that when a bond made in a foreign state, by whose laws it is assignable, is sued at law in England, the suit must be according to the laws of England, in the name of the obligee, and not of the assignee, although it be for his use, because, there, bonds are not assignable at law. This principle has been further recognized by Wilde, J. (McRay v. Mattoon, 10 Pick. 52,) where he says, 'if bail-bonds are not assignable by our laws, it would seem that the action cannot be maintained in the name of the assignee, but should have been brought in the name of the obligee.' Wilkinson v. Wright, (Taylor's Rep. 227,) in N. Carolina, Craig v. Craig, (1 Call, 484,) and Meredith v. Duval, (1 Munford, 75.) in Virginia, are cases, arising under the legislation of their respective States, in which the assignment of a bond is treated as affecting the remedy.

Harper v. Butler, is a case in point, decided in our highest court (2 Peters S. C. R. 239.) An executor having proved the will of his testator, in Kentucky, assigned a promissory note due to

1 As early, or perhaps we should say, as late, as 1815, a statute was passed in Connecticut declaring that all promissory notes duly executed to the amount of thirty five dollars or more, should be negotiable. See 1 Swift's Dig. 429.

the estate by a citizen of Mississippi, in which State the assignee of a chose in action may institute a suit in his own name. Held, that the suit was well brought by the assignee, without any probate of the will in that State. Marshall, C. J. delivering the opinion of the court, said, 'the assignment in Kentucky could not enable the assignee to sue in the courts of Mississippi, unless the law of the court authorized an assignee to sue in his own name.'

In Tilne v. Graham, (1 B. & C. 192.) where an indorsee sued the maker of a note made in Scotland, and it was contended that it was not within the statute, the Court of King's Bench decided without difficulty, that the act of Anne made foreign as well as inland bills negotiable, and this, without regard to the fact, whether they were negotiable in the country where made or not. In Bentley v. Northouse, (1 Moody and Malkin, 66,) the circumstances of which were the same as in the last case, Lord Tenterden laid down the same doctrine at nisi prius and refused to save the point. (See London Law Mag. vol. 3d p. 122.)

There are some settled doctrines in our law decided on grounds analogous to those on which I would put the present question, a reference to which may give us additional help. An executor or administrator, appointed in a neighboring state, cannot sue or be sued, as such, here. Some ancient cases in New England, the reasons of which, being drawn from the early political relations of this part of the country, are local, hold otherwise. (See 2 Hazard's Collection, 124-135.) But the current of authorities to the contrary leaves it no longer an open point. Selectmen of Boston v. Boylston, (2 Mass. 384.) Trecothick v. Austin, (4 Mason, 33,) Campbell v. Tonsey, (7 Conn. 67,) and the numerous cases cited in Mr. Cowen's learned note. 4 Cow. 529.

More akin to the present inquiry is the question whether assignees, appointed under foreign bankrupt laws, must sue, in our courts of law, in their own names or in the name of the bankrupt. According to the description given of bankrupt laws by Blackstone, (2 Com. 477.) to wit, that they create no new debts, but only give a speedier and more effective remedy for recovering such as were before due, it may be inferred how he would have decided this question, Lord Kenyon, (Darby v. Baughn, 5 T. R. 210.) styles commissioners of bankrupts

a court of justice; and a commission of bankruptcy is said (Ryall v. Roll, 1 Atk. 164.) to be in nature of an execution in favor of all the creditors. But in Smith v. Buchanan, (1 East, 11,) there is a dictum of Lord Kenyon, so much in favor of the right of the assignees of a foreign bankrupt to sue in their own names, as to be cited by the former writer in the Jurist on the question now under discussion. Lord Kenyon says, 'it is true that we so far give effect to foreign laws of bankruptcy, as that assignees of bankrupts deriving titles under foreign ordinances are permitted to sue here for debts due to the bankrupt's estate.' Whatever meaning this may have, the case did not call for any such position. But its words hardly authorize the belief that Lord Kenyon intended to lay it down, that foreign assignees of a bankrupt could sue in our courts of law, in their own names. They are permitted to sue here, as he says; but the suit must be in the name of the bankrupt, if in a court of law, or, indeed, in their own names if in a court of equity. Le Chevalier v. Lynch, Doug. 170, was also cited in the Jurist, though it does not appear to touch the question. Whatever doubt, however, the above dictum may have cast over the subject, is completely scattered by two late decisions, which it may be supposed close the question in England against further examination. In Jeffrey v. McTaggart, 6 M. & S. 126, the King's Bench decided that a trustee under the 54 G. 3 c. 137, (the Scotch bankrupt act) cannot sue in England, in his own name, for a chose in action. In Wolff v. Oxholm, 6 M. & S. 99, the same court decided that the assignee of a debt, in Denmark, where the assignee might sue upon it in his own name, could not so sue in England. The action must be brought in the names of the original creditors, even if they had assigned the debt for a valuable consideration. This last decision might have been more properly referred to in a former part of this discussion.

The decisions in New York and Pennsylvania appear to be irreconcileable; or at least they are in such a state that it would be difficult to imagine how the right of the assignees of a foreign bankrupt to sue in their own names would be treated, were it fairly to arise in their courts. In Milne v. Moreton, 6 Bin. 374, Yates, J. admits, though the case called for no such admission, that the American as well as British decisions assert,