But a discharge in bankruptcy resembles other discharges by operation of law in that its effect is a part of the obligation of the contract alleged to be thereby discharged, and therefore (subject to the qualification above mentioned) its effect must depend upon the intention or understanding of the parties in entering into the contract, or, in the absence of any expression by them, upon the law with reference to which they must be presumed to have contracted (lex solutionis).

Two conditions then must concur in order to give such a discharge any exterritorial effect. The first is that the tribunal whose duty it is to grant the certificate of discharge should have control and jurisdiction over the creditor. The second is that the "proper law" governing the obligation of the contract should recognize such a discharge as a valid release of the debtor from further obligation to perform it.

In regard to the first of these conditions (supposing the second complied with), it has been held repeatedly by the Supreme Court of the United States that a discharge in bankruptcy or insolvency granted in one State will be of no effect in another State of the Union, if the creditor is a citizen of another State than that of the discharge, unless by voluntarily taking part in the insolvency proceedings, or otherwise, he has come personally under the control and jurisdiction of the court. For "when in the exercise of that power [to discharge a debtor] the States pass beyond their own limits and the rights of their own citizens, and act upon the rights of citizens of other States, there arises a conflict of sovereign power and a collision with the judicial powers granted to the United States, which renders the exercise of such a power incompatible with the rights of other States and with the constitution of the United States."

It will be observed that this doctrine rests upon the theory that the federal constitution forbids an interference by one

2 Sturges v. Crowninshield, 4 Wheat. 122; Ogden v. Saunders, 12 Wheat. 213; Cook v. Moffat, 5 How. 295; Baldwin v. Hale, 1 Wall. 223; Gilman v. Lockwood, 4 Wall. 409; Denny v. Bennett, 128 U. S. 489, 497. See Pullen v. Hillman, 84 Me. 129, 24 Atl. 795; Rosenheim v. Morrow, 37 Fla. 183, 20 So. 243.

Baldwin v. Hale, 1 Wall. 223, 231.

State, having no jurisdiction, with the rights of citizens of another State. Under this theory, not only has the insolvency court of the first State no jurisdiction to grant the debtor a discharge which will be effective in other States as against a non-resident creditor not within its control, but it is without jurisdiction for any purpose in such case. The discharge will be as ineffectual in the State of the discharge as in other States.

A question has been made whether the principles thus laid down by the Supreme Court are applicable to the case of a creditor who was a citizen of the State of discharge when the contract was made, but who has subsequently and before the insolvency proceedings commenced removed out of the jurisdiction into another State, and has never returned thither, nor taken part in the insolvency proceedings. But it now seems to be settled that such a creditor is not ipso facto subject to the insolvent laws of his former domicil. The discharge is of no effect against him, unless he in some way comes personally within the jurisdiction of the insolvency court."

The

In Chase v. Henry, an action was brought in Massachusetts by a firm consisting of three partners, two of whom were residents of Massachusetts and one of New Hampshire. defendant pleaded a discharge in insolvency under the Massachusetts law, which the plaintiffs contended was of no effect as to any of them because it was a debt due to them jointly, and one of them being a non-resident of Massachusetts the discharge could not be pleaded as against him. And the court (divided four to three) so held.

Although under the decisions of the Supreme Court this result is attributed to the operation of the federal constitution, and hence those decisions cannot, in strictness, be said neces

4 Denny v. Bennett, 128 U. S. 489; Pullen v. Hillman, 84 Me. 129, 24 Atl. 795; Silverman v. Lessor, 88 Me. 599, 34 Atl. 526; Stoddard v. Harrington, 100 Mass. 87, 88.

5 Pullen v. Hillman, 84 Me. 129, 24 Atl. 795; Roberts v. Atherton, 60 Vt. 563, 15 Atl. 159, 160; Norris v. Atkinson, 64 N. H. 87, 5 Atl. 710. But see Stoddard v. Harrington, 100 Mass. 87, 88.

6166 Mass. 577.

7

sarily to apply to cases where the creditors affected are citizens of foreign countries, yet when it is remembered that one great purpose of the constitution was to recognize, as between the States, an even more enlightened comity than that prevailing between States wholly foreign to one another, and to enforce in each a more than ordinary respect for the laws and judicial proceedings of the others, it will be seen that, when the Supreme Court holds that a discharge in insolvency granted in one State shall have no effect in another as against residents of other States, a fortiori should the same reasoning prevent foreign States from recognizing such a discharge, or a State of this Union from recognizing such a discharge in a foreign country, as against creditors not resident in the State of discharge and taking no part in the insolvency proceedings.

But so far as concerns the intra-territorial effect of the discharge in the State where it is granted, there may be a decided difference between cases, all the elements of which have their situs within the United States, and those in which some of the elements are foreign, for example, in case of an English contract or an English creditor. It is believed that it is impossible for any court in this Union constitutionally to grant a discharge in bankruptcy, if either the situs of the contract discharged thereby or the situs of the creditor is in another State of the Union, the creditor taking no part in the proceeding. But the federal constitution does not extend in like manner to protect foreign contracts and foreign creditors. Their rights are to be regulated in each State by its own law.

We have heretofore presumed that the contract alleged to have been discharged is to be performed in the State of the discharge, so that the parties must be held to have contemplated the contingency of such a discharge as a part of the obligation of the contract; and we have seen that, regardless of the "proper law," at least as between these States, unless the creditor is subject by residence or otherwise to the jurisdiction of the in

7 Judge Story seems to take this view. See Story, Confl. L. § 341. see Story, Confi. L. §§ 349 et seq.

But

Cook v. Moffat, 5 How. 295, 308, 312; Baldwin v. Hale, 1 Wall. 223,

solvency court, it has no power to grant the discharge. The fact that the situs of the contract is elsewhere than in the State of discharge, and that the law of that situs does not recognize such discharges, but serves to emphasize its invalidity. In such case the situs of the contract is immaterial.

But if we suppose the insolvency court to have jurisdiction of the creditor, while the contract itself is to be performed in another State whose law does not recognize a discharge in bankruptcy or insolvency, the question is squarely presented whether the effect of the discharge shall be held to depend wholly upon the jurisdiction of the insolvency court, or in part also upon the law governing the obligation of the contract (lex solutionis). It is believed that both must concur.

• See Baldwin v. Hale, 1 Wall. 223, 232; Cook v. Moffat, 5 How. 295, 308, 312,

PART VI.

SITUS OF TORTS AND CRIMES.

CHAPTER XX.

SITUS OF TORTS.

§ 192. Local and Transitory Actions. A tortious liability may be briefly described as any private liability that is not contractual.1 It may consist of an injury done to the person or to property, either real or personal.

If an injury be done to the person or to the personalty of another, it is at common law said to be "transitory; "' that is, the liability therefor is deemed to be personal to the perpetrator of the wrong, following him whithersoever he may go, so that compensation may be exacted from him in any proper tribunal which may obtain jurisdiction of the defendant's person, the right to sue not being confined to the place where the cause of action arises.2

1 Special statutory liabilities, such as those sometimes imposed by law upon the stockholders of a corporation for its debts, are remedial and con. tractual in their nature, not tortious. They have been discussed elsewhere. See ante, § 10.

2 See Dennick v. R. R. Co., 103 U. S. 11; Stewart v. R. R. Co., 168 U. S. 445, 448; Evey v. R. R. Co., 52 U. S. App. 118, 81 Fed. 294; Helton v. R. R. Co., 97 Ala. 275, 12 So. 276, 282; Herrick v. R. R. Co., 31 Minn. 11, 47 Am. Rep. 771; Nelson v. R. R. Co., 88 Va. 971, 14 S. E. 839; De Witt v. Buchanan, 54 Barb. (N. Y.) 31; Machado v. Fontes, 2 L. R. Q. B. D. 231. With re spect to torts to personal property, see Southern Pac. Co. v. Graham, 12 Tex. Civ. App. 565, 34 S. W. 135; Belknap Sav. Bank v. Robinson, 66 Conn. 542, 34 Atl. 495. It is to be observed however that when the purpose of the suit is not to recover damages, but a specific chattel tortiously taken or detained, and that alone (not the alternative value), the action is in rem, and like all such proceedings is strictly local, since in a proceeding of that character the