arty. lie refused to take an oath to testify under said order, whereand committed for by the circuit upon he was court. He thereupon filed in the supreme court of the United States a petition for a writ of habeas corpus, which, upon a very full consideration of the case, was denied. examination The following extract from the opiu.ion shows that of a debtor with the view to the discovery of assets is not a novel or unusual, nor necessarily an equitable,
"There is certainly nothing in the.Dliture of an examination of a judgment debtor, upon the quesHon as to his to and possession of property applicable to the payment of a judgment against him, and of the fact and particulars of any disposition he may have made of it, which would render it inappropriate as a proceeding at law, under the orders of the court, where the record of the jUdgment remains, and from which the execution issues. Such examinations are familiar features of every system of insolvent and bankrupt laws, the administral;ionof whiCh belongs to special tribunals, and forms no necessary, part of the jllrisdiction in eq\lity. It is a ml:ire matter of procedure, not involving the substance of any equitable right, and may be located by legislative authority to meet the requirements of judicial convenience. Whatever logical or historical distinctiotls separate the jurisdictions of equity and law, and with whatever effect these distinctions may be supposed to be recogniied in the constitution, w:e are not of opinion that the proceeding in question partakes IJO. exclusively of the nature of that it may not be authorized, indifferently, as an instrument of justice in the hands of court,s of whatever description." ' '.
An order will be the to, pay into the registry of the court, within 10 days after service of the order, the $800 cash which he admits he has in his p6ssessionand control, to abide, the furth,er order of the court in the pre.t;nises
PEQUIGNOT 'b. CITY OF DETROIT.
(Oircuit Oourt, E. D. Michigrm. May 21, 1883.)
OROSSWALK "_" SIDEWALK."
A walk crossing a public alley
'8 a "crosswalk," as distinguished from 'a . ,
An allen woman who has once become an American citizen by operation of by a'marriage,which may resume her ,by a marriage to an unnaturalized,';l,ative Of her own.country.
3. CITIZENfoB'lP...,REsIDENCE PRIMA FACIE EVIDENCE OF.
Resi(fenceilt only prima facie evidenc.e of Citizenship,Helice, where
tiff, A native of 'France, came to lhla country in her childhood
married to an American citizen; this marriage was di·solved, and she was again married to a native-born French citizen, it was held that she was an alien and competent to sue in the federal court, notwithstanding she and her husband continued to reside in this country.
On Motion for a New Trial. The plaintiff brought suit against the city of Detroit to recover damages for personal injuries sustained by her, by reason of a defective walk across an alley which intersects Twenty-third street, between Fort and Lafayette. The plaintiff recovered a verdict, and defendant moved tor a new trial upon the grounds stated in the opinion of the court. John D. Oonely, for plaintiff. Henry M. Duffield, City Counselor, for defendant. BROWN, J. The first error assigned by the defendanUs based upon the ruling of the court, that the wa.lk j upon which the plaintiff met her fall, was a crosswalk and n\lt. a sidewalk, within the meaning of the state act of 1879, No. 244. This act, which is entitled "An act for the collection of damages sustained by reason of defective public highways, streets, bridges, crosswalks, and culverts," creates a liability in favor of persons "sustaining bodily injury upon any of the public highways or streets' in this state, by reason of neglect to keep such public highways or streets,and all bridges, crosswalks, and culverts in good repair." We acquiesce in the opinion of the supreme court in Oity aiDet·roitv. Putnam,' 45 Mich. 263, [S.. C. 7N. W. Rep. 815,J that this act does not include sidewalks. But we cannot perceive that this case has any bearing upon the question under consideration. We think the statute of 1879 was intended to distinguish between those portions of the streets which the city itself constructs and keeps in repair, and that other portion, viz., sidewalks, which it compels propin repair, the city liable in erty-owners to build and one case and not in the other. Defendant's theory is that the alley begins at the outside of the sidewalk. But it seems quite clear that an alley, to be serviceable for the passage of teams, must begin at the curbstone, between the sidewalk and the street. Suppose, for instance, that the property-owners upon the sid,e!3 of an alley flhQuld extend fences across the·intervening space.,n. is too plain for'argument ,that th'ey wortldbe'liable for obstructing the alley. Every crosswalk is, ill one sense, a sidewalk, because it is an extension of the sidewalk proper across an intervening space; but. it seems to us to make no difference whether. it crosses a street or an alley. In
PEQUIGNOT V. CITY OF DETROIT.
each case it crosses a highway for the passage of teams, and is a part of the street which the city itself builds and keeps in repair. The main question in this case, however, relates to the alienage of the plaintiff, upon which new affidavits were offered upon this motion. The court charged upon the trial that as the plaintiff was a native of France, it did not sufficiently appear that she had ever become a citizen of the United States. The new affidavits show unequivocally that she at one time did become a citizen by marriage, but the question still remains to be determined whether at the time she brought this suit she was an alien or a citizen. Plaintiff was born in France, of French parents, who emigrated to this country when she was six or seven years old, but were never naturalized. In 1863 she was married to James Partridge, who was a native-born American citizen, and thereby under the act of February 10; 1855, (reproduced in the Revised Statutes, § 1994,) became a citiz'en:'ofthe United States. She lived with Partridge some 13 or 14 and was then divorced from him. Shortly thereafter she was married to Augustine Pequignot, who was himself· born in France in 1835', has never become an American citizen,or even declared his intention to do so. The plaintiff is still living in this state with him as his wife. The case raises a novel and interesting question: whether an alien womall,who has once became an American citizen by operation of law, can resUine her alienage by marriage to an alien husband. If we are bound by the case of Shanks v. Dupont, 3 Pet. 242, in its literalisms, then the plaintiff did not lose her citizenship by marrying a native of her own country, analien. In that case, it was held that a native of Charleston, who married a British officer in 1781,during.a temporary and hostile occupation of the city bythe British, and subsequently went to England with him and remained there until her death, did not by sueh marriQgecease to' be a citizen of South Carolina, but that her withdrawal to and her permanent allegiance to the side of' the enemie!! of the state down to the time of the treaty of -peace in 1783, operated as a virtual dissolutioIl ·of ,her allegiance.. On page 246, the COUrt bi'ielly observes that the marriagewiththe British officer did not produce effect; beeau'se: the marriage with an alien, whether a friend or an enemy, produces UG dissolutil:lll of the native allegiance of the wife; giving s,s'its reasons for this ruling: (1) That no persons can, by any act ofthettown, without the consent of the government, put off their allegiance; and become aliens; (2) if it were otherwise, then a feme alien wduld
214 marriage becomp., ipso facto, a citizen, and would be dowable of the estate of her husband, which are clearly contrary to law. Now, the general doctrine above stated, that no person can put off his allegianee without the consent of the government, is no longer the law in this country, since it is expressly declared by Rev. St. § 1999"That the right of expatriation is a natural and inherent right of all people, indispensable to the enjoyment of the rights of life, liberty, and the pursuit of happiness; and whereas, in the recognition of tllis principle, this government has freely received emigrants from all nations, and invested them with the rights of citizenship; and whereas, it is claimed that such American citizens, with their descendants, are sUbjects of foreign states, owing allegiance to the government thereof; and whereas, it is necessary to the maintenance of public peace that this claim of foreign allegiance should be promptly and finally disavowed: therefore, any declaration, instruction, opinion, o.rder, or decision of any officer of the United States which denies, restricts, impairs. or questions the right of expatriation, is declared inconsistent with the fundam.ental rules of the republic."
The second reason, too, is no longer law, since, by the act of February 10, 1855, (Rev. St. § 1994,) "any woman who is now or may hereafter be married to adtizen of the United and who might herself be naturalized, shall be deemed a citizen." It seems to me, therefore, that; we ought to apply the maxim "cessante ratione, cessat lex" to this case, and are not bound to treat it as controlling authority. It seems to me, too, that we should regard the sections above quoted as announcing the views of congress upon this branch of international law, and ought to apply the same rule of decision to a case where a feqlale American citizen marries an alien husband, that we should to a case where an alien woman marries an American citizen. It is satisfactory, though perhaps not important, to know that the French law upon this subject is the same as ours. In the Civil Code of France, book 1, tit. 1, § 12, it is declared that "a foreign woman who shall have married a Frenehnlan shall follow the condition of her husband;" !lnd in England it is enacted by the sixteenth section of 7 & 8 Viet. c. 66, (18H,) "that any woman married, or who shall be married, to a natural-born subject or a person naturalized, shall deemed and taken to be herself naturalized, and. have all the rights andpl1vileges of a natural-born subject." While I am unable tQse,ehow the law of France c.au. fix the 8tatus of the plaintiff in this concurring in this respect with the opinion of Atty. Gen. Hear, (13 Op. Atty. Gen. 91,) I see no reason why we should not apply the same law to wives of alien husbands in this country that
we data American women marrying. abroad. The fact that the law corresponds with our own upon this subject, however, is an additional argument for the same application of the statute tacitizens of both powers. Tbe only complication in this case is that the marriage took place and the parties reside in this country; but, while residence undoubtedly creates a presumption of citizenship, (State v. Beackmo, 6 Blackf. 488,) it is merely prima facie evidence, and may easily be rebutted. Suppose, for example, that an American citizen residing in France should marry a. French woman, would· she not thereby become an American citizen, and remain so though they continued t.o reside in France? There is no exception in the statute of marrying foreign women and residing abroad, and I know of no authority for interpolating one. It is true that section 1994 limits the right of any woman, marrying a citizen of the United States, to be deemed a citizen, to one "who might herself be lawfully naturalized," and it was at one time an open question whether the woman must not herself have resided within the United States for five years before she could be deemed an American citizen. In Burton v. Burton, 1 Keyes, 359, the judges of the court of appeals of the court of New York seemed to be divided in opinion upon this point. Mr. Justice MULLEN(p. 362) says that "if a residence for·five years was not a condition precedent to citizenship, residence for some length of time was most obviously contemIHated." "Without residence she could not be naturalized, and It is the most essen'tial of all the requirements for naturalization, and cailllot be dispensed with, unless the intention to dispense with it is most clearly manifested by the legislature." Upon the other hand, Mr. Justice WRIGHT (p. 374) thought claiming its benefits should that the act did not. require that the have resided within the United States; and. if it did, he thought the residence of the plaintiff was, by construction of law, the same as that of her husband; All doubt upon the construction to ,be placed upon the words, "who might herself be naturalized," was put at rest by the case of Kellyv. Owen, 7 Wall. 496, in which it was held that these terms only limited the application of the law to "free white time only women, "inasmuch as the naturalization act requir.ed.that a person applying for its benefits should :b6a "free white person," and not an alien enemy. Since this case was decided the provision has be.en still further restricted by sec'tion 2169, which admits aliens of African nativity and persons of African desoent to
naturalization. This opinion, however, does not cover the case ot residence abroad. In an opinion of Atty. Gen. Williams, (14 Gp. Atty. Gen. 402,) he held directly that an alien woman who has intermarried with a citizen of the United States residing abroad, the marriage having been solemnized abroad, and the parties after the marriage continuing to reside abroad, is to be regarded as a citizen of the United States within the meaning of said act, though she may not have resided within the United States. So, also, in an opinion delivered in 1869, AttJl" Gen. Hoar decided that a woman born in the United States, but married to a citizen of France and domiciled there, was not "a citizen of the United States residing abroad," within the meaning of the internalrevenue law. It seems from th.e opinion that prior to this Atty. Gen. Stanbery had made a. similar decision. Upon the contrary, Atty. Gen. Bates decided in 1862, (10 Gp. Atty. Gen. 321,) that a woman born in this country, who married a Spanish subject residing here and then removed to Spain with her husband and child, and subsequently died there, was still an American citizen at her death. He held that the removal of the lady and her daughter to Spain, and their residence there, were no evidence of an attempt to expatriate themB lves. I think it would be difficult to give any Bound reason for this sion. Another case, almost precisely'like the one under consideration, was decided by Atty. Gen. Taft (15 Gp. Atty. Gen. 599) in favor of plaintiff's citizenship, upon the single authority of Shanks v. Dupont, 3 Pet. 342. These two eases are irreconcilable with the others, and are unsatisfactory to my mind. In Kane v. McCarthy, 63 N. C. 299, it was held that a woman who in 1857 had married in Ireland a naturalized citizen of the United States, could inherit property, although she had always resided in Ireland, and continued to do so until after descent cast. It will be noticed that legislation upon the subject of naturalization is constantly advancing towards the idea that the husband, as the head of the family, is to be considered its political representative, at least for the purposes of citizenship, and that the wife and minor children owe their allegiance to the same sovereign power. The act of April, 1802, Rev. St. 2172, has declared that the minor children of naturalized persons should be considered as citizens of the United States. Then in 1804 (section 2168) it was enacted that if any alien has declared his intention of becoming a citizen, and dies before he is actually naturalized, his widow and children shall be considered
V. CITY OF DETROIT.
as citizens, upon taking the oath prescribed by law; and finally, by the act of 1855, Rev. St. § 1994, that an alien woman married to a citizen shall herself be deemed a citizen. Now, if we concede that a French woman marrying an American citizen abroad thereby becames an American citizen, I see no reason why the same law should not be administered here; and whenover an American citizen, especially if she be originally l\ native citizen of France, marries a French citizen here, she should not be deemed and taken to be a citizen of the French republio. If she be an American citizen, it must be upon the theory, either that the residence of the wife is essential to citizenship, or that we should apply a different interpretation when an alien woman claims citizenship by operation of law from that applied where a native-born one olaims expatriation by operation of the same law. Putting the converse of the oase under consideration, suppose a native American woman were to go to Paris and marry a Frenohman. By the statutes of both countries she would thereby become a French citizen. But subsequently. her husband dies, and she is married again to a native-born citizen of the· United States residing in Paris. I think there would be little hesitation in holding that she was reinstated in her allegiance to her native land. It is true that the law of Franoe upon this subject has not been proved before us as a fact, but a oopyof the Code Napoleon, purport. ing to issue from the publishing house of the council of state, at Paris, and bearing all the marks of authenticity, was produced and commented upon by counsel, without objection upon the hearing of this motion, and I think it is too late now to object to this evidence, although upon a trial before a jury it could not be received. The granting of new trials being largely matter of discretion, I would not decline to receive as the law of a foreign country that whiQh could be proved as such by the mere authentication of a book. Upon the whole case, then, I have oome to the conclusion that plaintiff, being a native of France, and becoming a citizen of the United States by her first marriage, resumed her allegiance to her native country by marrying a French citizen" and is therefore an alien, entitled to bring this suit. The motion for a new trial must be denied.
BARNES, as Assignee, etc., v. VETTERLEIN and others.
(DiMrict Oourt, S. D. New York.
Where a policy of insurance, obtained by a debtor ('In his own life, was assigned to one of a firm consisting of four members, in trust, as securit.r foJ' a debt due to the firm, and two members of the firm subsequently retired, and the firm assets passed 'to the remaining members, one of whom was the trustee of the policy, and, the last-named firm having become embarrassed and procured an extensio ll o'f credit from their creditors, the trustee of the policy two Inonths afterwards assigned the policy to his sons in trust' for their mother . WIthout consideration, aud six· months afterwards made 8 general assignment, and shortly was thrown into bankruptcy, held, that the assignment of the policy in trust for the mother must be deemed invalid as to creditors. and that the assignee in bankruptcy was entitled to the proceeds.
In Bankruptcy. James K. Hill, for plaintiff. T. M. 7.'yng, for Etna Ins. Co. B. E. Valentine, for defendant Vetterlein. BROWN, J. This is an action to set aside a vOluntary conveyance or assignment made by Theodore H. Vetterlein, one of the bankrupts, to Bernard T. Vetterlein, the other bankrupt, and to one Theodl?re J. Vetterlien, in trust for· the benefit of the wife and children of Theodore H. Vetterlein. Bernard T. Vetterlein and Theodore J. Vetter· lein are both sons of Theodore H. Vetterlein. The assignment is dated the eighteenth day of, July, 1870, and the petition under which Theodore H. and Bernard T. Vetterlein were adjudged bankrupts was filed Decl'lmber.28, 1870. The assignment sought to be set aside is of two policies of insurance on the life of one J. Kinsey Taylor for the aggregate sum of $10,000, which had been assigned to Theodore H. Vetterlein by Taylor, in trust for the firm of Vetterlein & Co., to whom Taylor was indebted, and as COllateral security for their claim. In July, 1869, Mr. Meurer,one of the firm, withdrew from the firm of Vetterlein & Co., and on December 31, 1869, Theodore J. Vetterlein withdrew from the firm, and the business was continued by Theodore H. Vetterlein and Bernard 'r. Vetterlien, in the same firm name, up to the time of the bankruptcy proceedings. From all the evidence in the case I am satisfied that neither Mr. Meurer nor Theodore J. Vetterlein had, at the time of the last assign. ment of the policies, any valuable pecuniary interest in the assets of the two former firms; and that the last firm, consisting of Theodore H. and Bernhard T. Vetterlein, became legally vested with all the re-