that the petitioner was in the United States atthe date of the treaty, and that he left the United States before the passage of the law whioh enabled or required Chinese laborers to procure oustom·house certificates. He is therefore, in my judgment, entitled to be discharged.
MISSISSIPPI MILLS Co. v. RANLETT and others. 1
(Cirouit Uowrt, E. D· .LouiBiana.
The insolvent laws of Louisiana do not, by their declatory force 80lely, without any other investiture of title, the possession remaining in the debtor, reo move the property of the debtor beyond the reach of a creditor who is a resident another state, and who proceeds in the circuit court. Ogden v. f:Jaunders, 12 Wheat. 213, followed. Bank of Tennessee v. Horn, 17 How. 159. distingnished.
On Rule to Dissolve Attachment. E. H. Farrar, for p l a i n t i f f . ' The court is asked to let go its jurisdiction over and its possession of thedefendant's property, and to su.rrender the same to the state court and its appointed officer, to be there and by him administered under the state insolvent laws. Neither the state court nor its officer, the syndic, ever had any actual custody of the property. It was seized by the marshal in the hands of the defendants. It is contended by the syndic that the cession made by the debtor and accepted by the state court ipso facto vested the creditors and the court with the title and the constructive possession of the property, so as to place it from that moment in gremio legis, and beyond the jurisdiction and control of this court. The plaintiff contends(1) That the insolvent laws of Louisiana are not operative against the plaintiff, who is a citizen of another state, either in whole or in part; in other words, that those laws are to be considered as not written, either in a state or in a federal court. The syndic admits that they are inoperative in part, but not as a whole. For instance, he admits that they are powerless to stay proceedings in this court. He admits that a discharge of the debtor is inoperative here. But he contends that in one respect they are operati,-,'e, and that one respect is that they have the effect proprio vig01'e to transfer to the state tribunals sole jurisdiction over the property of the insolvent, with the sole power to sell and distribute the same among his creditors. The authorities repudiate specifically such a distinction. 5 Gill, 426; 4 Gill & J. 509; 2 Md. 457; 5 Md. 1 j Poe v. Suck, quoted by the
JRep.orted by Joseph P. Hornor, Esq., of the New Orleans bar.
supreme court of the United States in 1 Wall. 234; Judge TANEY'S opin. ion, 8. Gill. 499; 1 Wall. 234; 4 Wall. 409; 5 La. Ann. 271; 10 La Ann. 145; 14 La. Ann. 261; 1 Bald. 301; 14 Pet. 67; 5 Blatchf. 279; 3 N. Y. 500. 'fhe effect of such a construction of the law would be to compel foreign creditors to subject themselves voluntarily to the jurisdiction of the state courts, and thus be bound by the insolvent's discharge. The state courts would thus hold all the insolvent's property in constructive possession and say to the foreign creditors: "Come in and take your dividend and have yowr debt discharged or get noth. ing." (2) If the insolvent laws, qua laws, are inoperative in all respects as against foreign creditors, this case presents nothing but a question of the conflict of jurisdiction between two tribunals of concurrent jurisdiction, each having power to bind the goods of the defendant by its process. The rule in such cases is that where the parties are not the same, nor the cattse of action the same in both counts, i. e., to the extent of constituting lis pendens, that court holds the property which first obtained physical custody of it. In other words, in such cases there is no such thing as a constructive possession of property which is capable of actual possession-of physical prehension. The term in gremio legis is then, and under such circumstances, equivalent to in manu minist'res curice. Payne v. Dreu'e, 4 East, 523; Taylor v. Car. ryl, 20 How. 594; Freeman v. Howe, 24 How. 450; Wilmer v. Atlantic, etc., Air-line R. R. 2 Woods, 409, opinion of Judges BRADLEY and ERSKINE. It is clear that this court will not surrender its possession of and jurisdiction over the property of the defendant to a syndic, or officer of a state court, who had no legal existence when the jurisdiction of this court attached. That the property seized belongs to the defendant, notwithstanding the cession, is incontestable. The Code so declares in the most emphatic terms. Articles 2171,2178, 2180,2182. These articles of the Code, and the apparently conflicting section of the subordinate Revised Statutes, which declares that the cession "fully vests the property in the creditors," have been interpl'at6d authoritatively. Smalley v. Creditors, 3 Ija. Ann. 387; Nouvet v. Bollinger, 15 La. Ann.2g3. The contrary decision-the mere dictum of Judge PORTER, unbacked by the quotation of authority-in Schroeder's Syndics v. Nicholson, 2 La. 354, is directly in the teeth of the law. The decision of Bank of Tenn. v. Horn, 17 How. 517, is equally without foundation. The authority of that case is further weakened by the fact that the seizure was made after the appointment and confirmation of the syndic, and after his actual custody of the property had begun. The case of Crapo v. Kelly, 16 Wall. 610, does not apply to this case, because the assignment made by the court under the Massachusetts insolvent law transferred the absolute title of the property to the assignee, and also operated as a tradition and delivery of the property to such assignee. Under the la w of Louisiana the cessio bonorum
MISSISSIPPI MILLS 00. V. RANLETT.
erty of the insolvent debtor mentioned in the schedule shall be fully vested in his creditors."
leaves the title in the insolvent, and simply transfers to the creditors a right to administer and sell the property ceded under the orders of this court; and it is admitted that if, under the insolvent law of Louisiana, the cessio bonorum divested the title of the insolvent, vested such title ipso facto in the syndic, and operated a tradition and delivery of the property into the possession of such officer, then there would be an end of their attachment. But, inasmuch as sucb cessio bonorum is simply equivalent to an application to appoint a receiver to administer the property of the insolvent under the orders of the court for the benefit of his creditors,-the absolute title remaining all the time in the insolvent, coupled with the express right to terminate the whole proceeding at any time by coming forward and paying the debts and costs of administration,-this court's rights to lay its hands on the property of the debtor cannot be ousted, unless by the previous actual possession of such property by a state court through its duly-appointed officer. Thomas L. Bayne and George Denegre, for provisional syndic. The surrender made by the insolvents under the laws of the state of Louisiana, and the acceptance of the same by the court under a judgment duly signed, vested the property in the creditors, and- gave to the state court and the creditors complete control of said assets, and they were not subject to seizure by process from any other court, state or federal. Such is the language of the law: Rev. St. § 1791. "From and a,fter slwh cession and acceptance all the prop-
No other conveyance is ever made by the insolvents than that which is made at the time of the cession and acceptance as above. The decisions of the supreme court of the state of Louisiana are uniform in declaring that all of the property of the insolvents passes to the creditors for the payment of their debts, at the moment of the oession and acceptance by the court, by mere operation of the law, proprio vigore. Schroeder's Syndics v. Nicholson, 2 La. 350. "By the laws of Louisiana, when an insolvent debtor makes a cession of his goods and they accept it, there is a tral1sfer of his property, -it ceases to be his and becomes theirs;" or, as stated in Orrv. Lisso, 33 La. Ann. 478, "the final surrender of the property and the regular acceptance of the cession vested the title in the creditors." This is reiterated in all of the intervening cases. 4 La. 83; 7 La. 62; 12 La. Ann. 182; 4 La. Ann. 493; 19 La. Ann. 497; 23 La. Ann. 478; 6 La. Ann. 391. The acceptance of the cession by the judge is "a judgment which can only be set aside by an action of nullity." Sterling v. Sterling, 34 La. Ann. 1029; 14 La. Ann. 424; 17 La. Ann. 88; 7 How. 624; 16 N. B. R. 303. The law of Louisiana thus providing for the cession of the property by insolvents to all of their creditors, has been declared by the v.19,no.3-13
supreme court of the United St&tes to be constitutional, and this law,. by the is declared to be a rule of and its property, effectual against all parties and in every forum. Bank of Tennessee v. Horn, 17 How. 159. And in this case it is said "that the gurrender in the Second district. court of New Orleans divested Conrey of all his rights of property and vested these in the creditors ; '" '" '" . the right and title had, by, operation of the law of the. state, vested in the creditors." In Crapo v. Kelly, 16 Wall. 610, this is declared to be the effect of the insolvent law ofMaasachusetts, and Mr. Justic,e BRADLEY, who dissents on the ground that the property referred.. to. was not within the limits of the state, says, (page 643:)
"In; the case now decided the force lind effect of the jUdicial assignment would have been regarded as cQnclusive in Massachusetts, llad. theship, the sUbject of it, returned there, and become subjected to its local jurisdiction: *' '" '" ;r do not deny'that,if the property had been within Massachusetts jurisdiction when the assignment paased; property would have been ipso. facto transferred to the assignee by the laws of ]l.1assachusetts proprio vigore,. and, being actually transferred and.vested, wO,uldhave been respected the world over." Yonley v. Lavender, 21 Wall. 279; 14; How. 34, 394; 8 How. 107; 3 Pet.'303; 10 Wheat. 165; 5 18 IIow, 502,507; 2 Wall. 216; 91 U: s. 497; 3 Woods, U. S. 207; Levi v. Columbia Ins. Co. 1 FED. REP. 209; 1!or'·ensv. Hammond, 10 FltJ). REP. 900.
Under the state insolvent la'WsaUW'ritsof attachmeritare dissolved by the cession made by' the deMor. Hennen, Dig.verbo, "Attachment, XL" p. 148, No. 1; 12 Martin, 32; 7 La. Ann. 39; 3 Rob. 457; 6 La. Arm. 444. Section 933 of the Revised Statutes declares:
"An attachment of property upon process instituted in any court of the United States to satisfysucq judgment as may be recovered by the plaintiff thereon, except in the cases mentioned in the preceding nine sections, shall be dissolved when any contingency occurs by which, according to the law of the state where said court is held, such attachment would be dissolved in the court of said state." Mather v. Nesbit, 13 FED. REP. 872.
The cession was ma4e by the insQlvents and accepted by the court on the twenty-seventh of Novemqer; the attachment issued and seizure was made next day. had vested in the creditors and was not subject to seizure, and possession should be given to the synshould be dissolved, dic, their legal representative, and the as provided by section 933 of the Revised Statutes. The attachment issued by virtue of a state law, and falls under the above section of the law of the United States. BILLINGS, J. The facts necessary to be considered are these: Messrs. Ranlett &. Co., the defendants, had made a cessio bonorum under the insolvent law of the state of Louisiana, which had been aG,. oepted by the oourt before which the proceeding was pending, but no 'syndic had 1;>eenappoiutedand no possession taken in behalf of the, creditors, At this stage of the proceeding the plaintiff, who is a citizen of the state of Mississippi, sued out a writ of attacbmentin the .circuit court of the United States in this state, and under his writ the marshal.seized the property, the same being in the possess,ion of.
MISSISSIPPI: MILUl .00; V.RANLETT.
the defendants. The matter comes ,up 6n a motion of the syndic te release the on the ground that, inasmuch as the cession haft been accepted by the court, according to the provisions of theinsolY' ent law of the state, the property had vested in the creditors. Those provisions are as follows: "From and after such cession and-ae-ceptance all the property of the insolvent debtor mentioned in theschedule shall fully vest in his creditors." Rev. St. La. § 1791; So far as actual possession affects the question, the facts are with the plaintiff, for the marshal found the property in the possession of the defendant, seized it and holds it. The case is, therefore, fz:ee from any embarrassment arising from any possible disputed possession between the officers of this court and the court in ,which the insolvent case is pending. It is to be further observed that the law of the state of Louisiana, exclusive 6£ the insolvent law of the state,reqnires tradition or delivery of personal property in order to transfer title. So that the sole point to be decided is whether the insolvent law, in and of itself, without any other investiture of title, the posses" sian remaining in the debtor,removes the property beyond the reach of a creditor who is a citizen of state. If that law operates upon such a creditor, the property, by the court's mere acceptance of the cession, was completely vested, though no possession had been taken, and must be surrendered to the syndic now appointed; to be administered under the insolvent lawj if, on the other hand, thatclaw is not operative upon such a creditor, there is nothing to prevent, and it becomes a manifest duty that this court should hold the property seized, and subject it to the payment of the debt of the attaching creditor. · The cases upon the general subject are numerous, but for the most part they deal with questions remote from the one before the court. The solution of this question stands with but little advance since the decision of Ogden v. Saunders, 12 Wheat. 213, which, as late as Bald; win v. Hale, 1 Wall. 223, after an elaborate discussion, was,s6 'far as relates to this matter, reiterated without qualification. The prin. ciple stated in both these eases, and· in the last recognized as unqualified and unquestioned law, is: "When, in the exercise of their power to enact insolvent laws, states pass beyond their own limits and the rights of their own citizE:lns, and act upon the rightsof,citi. zens of other states, there arises a conflict of sovereign power and" a collision with the judicial powers granted to the United States, which render the exercise of such a power incompatible with the rights of other states and with the constitution of the United States." 1 am unable to perceive how there should be doubt or hesitation in deduc.; ing the law of this case from the principle thus enunciated a.nd adhered to. If any attempt on the part of a. state "to act upon the rights of a foreign citizen be so opposed to the sovereign and thej'l'; dicial powers of the United Stlttes as to be incompatihle with the rights of other states and with-the constitution o( the UnitedStafes,"
then it must follow that, so long as the insolvent court relies exclusively upon the words of the insolvent law, at any stage of its procedure, short of actual, physical possession, or such a state of facts as by the geueral law of the sta.te are tantamount to physical possession, as against the proceSd of the United States court, issued at the instance of a foreign creditor, the title of the syndic must be nugatory. Mr. Justice WOODBURY, in Towne v. Smith, 1 Wood. & M. 136, with reference to this very question, says: "The actual seizure of the property of the bankrupt in another government or country, before his assignees take possession of it, creates a lien upon it in favor of a foreign creditor, which will be sustained;" and again upon the same says: The circuit court of the United States, sitting in Massachusetts, "is as different a tribunal from those belonging to Massachusetts alone as the court of any other state." Nor do we obtain any qualification of this rigid doctrine from the federal statute, that the rules of property in the several states control the courts of the United States sitting therein, for that statute contains an exception whioh removes this wh,ole question from its dominion. That statute is as follows: "The laws of the several states, except when the constitution, treaties, or statutes of the United States otherwise require or provide, shall be regarded as rules of decision in trials at common law in the courts of the United States where they apply." Rev. St. § 721. Indeed, the statute, by its exception, declares that all state laws-be they insolvent laws, or laws prescribing rules of property, or of any other character-cease to be binding upon the federal courts whenever the constitution of the United States otherwise requires or provides. The leading cases have arisen where only the validity of the debtor's discharge was involved. But the conclusion that until the state insolvent court has possession, its proceedings cannot aftect the nonresident creditor, follows as conclusively with respect to exemption from process, or respite, or stay, or any intermediate action. In Haydel v. Girod, 10 Pet. 283, where the plaintiff, a. resident creditor, had not been notified, and a respite and stay had been granted and were pleaded, the court say: "The plaintiff was in no sense made a party to the proceedings, and, consequently, his rights are in no respect affected by them." A fortiori must this be true where, as here, with reference to a party, the court had no authority to deoree or proceed; for in Gilman v. Lockwood, 4 Wall. 4.11, the oourt say, "unless in casell where a citizen of another state voluntarily becomes a party to the prooeedings, the state tribunal has no jurisdiction of the case." Many cases have been cited by the counsel for the defendant, but they cannot avail to shake the settled law as thus explicitly declared by the supreme tribunal of the land. There are numerous cases where the settlement of the estates of i.nsolvent deceased persons has, by the same tribunal, been declared
MISSISSIPPI MILLS CO. V. BANLETT.
to be exclusively vested in the appropriate state courtS. It seems to me this large class of cases only affirm what is the universal law, and necessarily so, that the estates of the dead must be settled by the local mortuary courts, and that this is equally true whether they be solvent or insolvent. The jurisdiction in thes. cases springs not from the insolvency, but from the death, and the law which regulates is not an insolvent law, but a law controlling the administration of successions. The case of Bank of Tennessee v. Horn, 17 How. 159, I have care· fully considered. The point presented and decided seems to have been that a misdescription of real estate in the schedule of the insolv· ent debtor did not prevent its passing to the creditors by the cession. The contest was between a purchaser from the syndic under a sale ordered by the court of insolvency and those claiming title by a purchase under a judgment rendered in the United States circuit court after the cession. When we observe that the chief justice in giving the opinion of the court says, "the validity of the insolvent law of Louisiana has been fully recognized in the case of Peale v. Phipps, 14 How. 368," and further, that that case is placed upon the ground (page 374) that "while the property remained in the custody and possession of one court no other court had the right to interfere with it," it seems that it should be inferred that in the case of Bank v. Horn the syndic had possession at the time of the rendition of the judgment in the circuit court, and prior to any attempt to seize under it. In. the case presented here the plaintiff is in possession, and both as respects title and possession his right is absolute but for a right which, if it exists at all, comes from the inherent force of a state insolvent law, whillh, unaccompanied by possession, is, as to this plaintiff, like an extraterritorial bankrupt or insolvent law, and according to the summary of authorities in Booth v. Clark, 17 How. 322, (decided at the same term with the case of Horn v. Bank, supra,) gives to the foreign assignee no title as against local creditors who attach. The constitution of the United States operates within as well as without the state which enacts insolvent laws. No state laws in conflict with it can be rules of property. The doctrine of comity between the federal and state courts has been constantly extending in recognition and clear and rigid enforcement; but the rules of law as expounded in Ogden v. Saunders, supra, are, as it seems to me, changed. In accordance with that case, in this forum at least, the possession of a foreign citizen under an atttachment must prevail against the syndic who claims merely by the declaratory force of a state insolvent law. A mere declaration in a statute, which is by the settled adjudications inoperative again!!t a party domiciled as is the plaintiff, cannot oust this court of administration of the property, which is, consistently with all the rules of judicial comity, in its possession. The rule must be denied.
KUFEKE V ·
(Oircuit (Jourt. E.
December 3; 1883.)
of LADING-INSURANCE. The consignee of goods, who advances on the faith of the bill of lading insurance certificate attached, can recover from the shipper an amount sufficient to reimburse him for the advance, if lhere should be an error in the bill of lading and insurance certificate, by which the insurance could not be recov. ered for goods lost in transit.
At Law. Motion for judgment non obstante. This is a suit for a balance due plaintiff on account of a bill of exchange drawn on him by defendant and duly paid at maturity. The case was tried before a jury. 'rrhefactsappeared from the evidence to be substantially as follows: On the twenty-eighth of November, 1879, in compliance with a promise previously made to an agent of plaintiff, the defendant consigned to plaintiff at Glasgow, Scotland, for sale on commission, 750 barrels of fiour,-500 branded "Yours, Truly," and 250 "Olive Branch." The carrier from St. Louis to Glasgow was the Merchants' Dispatch Transportation Oompany, which, on the twenty-sixth of November, 1879, issued its bill of lading, agree· ing to carry the flour from St. Louis to New York by rail, and from New York to Glasgow by sailing vessel. At the time the bill of lading was issued, the n,ame of the particular sailing vessel which was to carry the flour from New York was not known to the of the Merchants' Dispatch Transportation Oompany in St. Louis, and it was accordingly agreed between it and the defendant that the carrier should notify the defendant, through its agent at St. Louis, by wire from New York, of the name of the vessel, so that the consignor could insure the flour on board such vessel. The bill of lading required that the flour be delivered to the defendant in good order, and also contained the words, "Notify Anton Kufeke." Accordingly, on -the second day of December, 1879, the consignor was notified by the ageut of the carrier at St. Louis that the flour would go from New York to Glasgow by the bark Oypres, a sailing vessel, aud that on the strength of that information the consignor on that day insured the flour for the voyage as on board that vessel. The defendant thereupon advised the plaintiff by letter, dated Decem,ber 5, 1878, of this consignment, and of the name of the vessel by which the flour would be shipped from New York to Glasgow, and that he had drawn on him at 60 days' sight, with bill of lading and insurance certificate attached, for £600. The defendant did draw as stated, the draft be· ing dated November 28, 1878, indorsing the bill of lading and insur. ance certificate. The letter of advice, and also the draft and at. tached documents, reached Glasgow in due time, 80 that on the
lReported by Benj, F. Rex, Esq., of the St. Louis bar. ,