that the assignees under a foreign commission of bankruptcy are considered as the substitutes of the bankrupt, and may support suits in their own names. He does not add that they may support suits in their own names in a court of law; though, probably, he so understood. In Bird et al. v. Pierpont, 1 Johns. R. 118, Thompson, J. thought we ought to recognize the right of the assignees, so as to allow them to prosecute in their own names if they pleased. But in Bird et al. v. Caritat, 2 Johns. R. 345, Kent, C. J. says that this is a question as to the mode of proceeding, and consequently depends upon the forms of proceeding in the country and in the forum where the suit is instituted. No instance has been shown, he says, in which the English courts of law have allowed the foreign. assignee to prosecute in his own name, and he presumes no such instance exists. In Raymond v. Johnson, 11 Johns. 488, it was said that, although the court will recognize and protect the right of an assignee under the insolvent law of another State, yet an action brought in this State must be in the name of the insolvent. Thompson, C. J. whose dictum is cited above, in giving the opinion of the court, recognized the law as laid down by Kent, C. J. in Bird et al. v. Caritat. But the great case of Holmes v. Remsen, 4 Johns. Ch. Rep. 460, 485, a striking monument of the ingenuity and enlightened liberality of Chancellor Kent, has thrown a doubt over these decisions, which is best removed by the candid acknowledgment of this great mind, in his invaluable commentaries, (2 Kent's Com. 406.) that the weight of American authority is decidedly against some of the leading positions there taken. The case of Abraham v. Plestoro, 3 Wend. 550, in the court of errors, however, has come in, like high arbiter chance,' to continue the doubt, and by the opinions of a multitude of judges, more embroiled the discus

sion.

In Massachusetts the law was for a time as unsettled as in any of her sister States,, and the authority of Chief Justice Parsons has often been invoked in these States in favor of the right of the assignees to sue in their own names. In Goodwin v. Jones, 3 Mass. 517, he admitted, and his dictum is cited by the former writer in the Jurist, that the assignee of a bankrupt, duly appointed pursuant to the laws where the bankrupt dwells, may maintain an action in that character in another State, the

laws of which are not repugnant to his recovery. It may be doubted if the condition, with which this dictum is burthened, does not completely neutralize its force. In Ingraham v. Geyer, 13 Mass. 147, Parker, C. J. gratuitously observes that the court might give effect to an assignment by an insolvent creditor in Pennsylvania, so far as to permit the assignees to recover the debt in their own names, as would be done, he adds, in the case of assignees under the bankrupt or insolvent laws of foreign countries. The law was laid down deliberately, and in accordance with sound doctrine, in the case of Dawes v. Boylston, 9 Mass. 357. The court there say that choses in action have been considered for a long time as assignable as to the beneficial interest and property. The remedy is still subject to some restriction, not affecting the contract of assignment, but requisite to the security of the party liable by the contract assigned, where the transfer has no aid from statute provision or particular usage, as in bills, and assignments under statutes of bankruptcy. In this last case, however, an assignment by commissioners, if effectual after notice to the debtor of the bankrupt, so as to vest in the assignees the beneficial interest and property, would not be allowed with us the operation, which such an assignment has in England, of giving to the assignees a remedy in their own names upon the debt assigned. Respecting debts, therefore, recoverable in this jurisdiction, an assignment under a commission is not more effectual than it would be if obtained from the bankrupt by an instrument to which he should be a party in fact. Afterwards in Orr v. Amory, 11 Mass. 25, the court said that it had been settled that the assignees of bankrupts, duly appointed under the laws of a foreign country, cannot maintain actions in their own names in our courts, for demands due to such bankrupts, a chose in action not being assignable at common law, nor by any statute provision recognized in this State where the remedy is sought to be maintained. The attention of the profession in Massachusetts was particularly called to this subject some years ago, by the bankruptcy of a distinguished banker of London, extensively concerned in business with our merchants; and their practice has affirmed these last decisions.

The case of Brush v. Curtis, 4 Conn. R. 316, adds weight to the views already taken. In that case, Hosmer, C. J. says that

the holder of a negotiable note, payable to a third person, deriving his title, not by indorsement, but by assignment under the insolvent laws of another State, cannot maintain an action in Connecticut, in his own name, on such note. The title of the plaintiff is equitable only, notwithstanding, by express statute, so far as the laws of New York by proper force can act, he is authorized to sue in his own name.

Such are some of the principles, cases and analogies to be urged against the right of the assignee of a Scotch bond to sue in his own name. Some of the cases cited by the former writer in the Jurist have already been noticed. The rest I shall now consider.

Stuart v. Greenleaf, 3 Day. 311, is the only direct authority relied on. This was a case in the Circuit Court of the United States, before Livingston, J. where a promissory note was made and indorsed in the State of New York, and sued in Connecticut, where such note was not at that time negotiable. The indorsee was allowed, without question, to maintain a suit against the maker. I need hardly add how slender authority this case affords. In Bentley v. Northouse, 1 Moody & M. 66, Mr. Chitty observes, as counsel, that cases are of little importance unless the objection appears to have been made on their trial. And this stands with reason. For, to say nothing of the liability of the counsel entirely to overlook through forgetfulness or mistake, facts bearing upon a case, it is often a chosen course to omit certain exceptions that might be taken, in order to have a trial upon the merits, and also to omit them at one stage of the proceedings, intending to move them at a later stage. In Stuart v. Greenleaf, an important question was raised, in the consideration of which the counsel might be excused for passing by, at least, for a time, any other point.

O'Callaghan v. Thomond, 3 Taunt. 82, is perhaps as slight an authority as the case just considered: Certain judgments in Ireland upon cognovit are by two Irish statutes (9 Geo. 2. cap. 5, and 25 Geo. 2, cap. 14,) made assignable, and the assignee, upon the assignment being enrolled in pursuance of those statutes, may sue on them in his own name. An as

signee brought an action upon one of these judgments in the Common Pleas of England. It was objected by Peckwell, Serg❜t. that, though the law of one country would recognize

and enforce obligations raised by the law of another country, the rule extended only to the substance of the contract, but could not transfer to another country the form of recovering, nor contravene the general principle of the English law, that choses in action were not assignable; consequently that no action could be sustained in this court on the judgment, otherwise than in the name of the original conusees. But the court intimating a strong opinion against him on this ground, says the reporter, he took another ground in which he was sustained by them. The assignment, it will be seen, was made parcel of the record, by express statute declaring that after due memorial enrolled, the assignee or assignees, and no others, may, in their own names, revive such judgment, &c. and take out execution, discharge the same and enter satisfaction on the record, and be considered to all intents and purposes in the place, stead and condition, either in law or equity, of the assignor or assignors. Now, though it has been decided, since the Union by which the two kingdoms were made into one kingdom,' that a judgment in a court of record in Ireland is to be considered in the courts of England as a foreign judgment, (Harris v. Saunders, 4 B. & C. 411; but see Collins v. Matthews, 5 East, 473,) still there is an importance attached to every record, whether foreign or native, which might justly influence the court in allowing an action in the name of that party in whom, by the record itself, the interest appeared vested. It is submitted, therefore, that O'Callaghan v. Thomond, both from the slight attention which it received from the court, so far as the present question is concerned, and from this last consideration offered, is but a slender authority.

To back these cases, the former writer in the Jurist cites the opinion of Mr. Hammond, in his work on Parties to Actions, (p. 101. Amer. ed.) unsupported by a single authority and very loosely thrown out. Mr. Hammond, after giving and discussing the rule that at common law, simple contracts cannot be transferred by the owner, says: Nor is that case any exception, in which the assignee of a contract, made and assigned in a foreign country, by the laws of which he becomes proprietor, is allowed to sue here in his own name, the law of the country where a contract is concluded being incident to it. It is only indirectly implied here that any such ease exists.

None such will be found in the English books, from the earliest black-letter down to the latest pamphlet report. Mr. Hammond, though very learned, is one of the most speculative and fanciful writers in the English law, and appears in the above sentence to have drawn upon his imagination rather than upon the books.

The principles, the analogies, and the cases, whether you weigh them or number them, seem to me fully to support the doctrine that the assignee of a Scotch bond cannot sue in our courts of law in his own name.

There is another consideration on this question, at which I have hinted already. Time will not allow me to discuss it as it deserves. Were all that has been now offered removed, that consideration alone would seem to me sufficient to authorize the conclusion above drawn. I allude to the remedy which the assignee may have, in his own name, in our courts of equity.

It is probable that this question could not have arisen during the early stages of English jurisprudence; for equally in England and Scotland, obligations were not assignable, or, as it is expressed by Erskine in his Institutes (p. 579,) were 'intransmissible.' Lord Coke supposed the common law of both countries to be the same, (4 Inst. 345,) and Sir M. Hale devotes a chapter of his history (cap. 10,) to pointing out, as to the particular municipal laws of Scotland, what he calls a resemblance, parity and identity, with the laws of England, anciently in use. (See also Barring. Obs. on Stat. 111. 1 Bl. Com. 95.) The Scotch law, perhaps, through the constant intercourse kept up with France, so unfortunate for the nation in other respects, at an early period came under the influence of the civil law, and acquired a pliability to which the English common law was a stranger. The modes and forms, shaped out in the very beginning of the English law, still continued, as they now continue, defying all changes. Thus, the rules which exercised the carping refinement and acuteness of Thorpe and Catesby and Slingsby and that goodly fellowship of wranglers who throng the year-books, still hold their place, and challenge the politer attention of the jurists of our day. Eminent among these, is the rule that the assignee of a chose in action cannot maintain a suit in his own name in the only courts known to the common law.