The Fourteenth Amendment, to be sure, furnishes a limitation as to the jurisdiction of State courts in personal actions, but, as I shall point out later, does not undertake to limit the power of the States in proceedings in rem.

Before proceeding to any analysis of the principles which enter into the question of the power of a State court to grant a discharge, I invite attention to a brief review of some of the cases in a few of the different State courts, for the purpose of showing, first that the courts in nearly every State were, at the outset, disposed to give full effect to the doctrine that a discharge granted at the place, i. e., in the State or country, where the contract was made, should be given effect everywhere, as well against creditors who were non-residents as against those who were residents of the State granting the discharge; and second, that this disposition of the State courts was changed after the case of Ogden v. Saunders, because it was supposed by many of the judges that the United States Supreme Court had decided on some constitutional ground that a discharge in insolvency could have no extra-territorial effect. I take the States in geographical order.

Maine.

The question in every case except the two latest ones was a purely international one: namely, what effect the court in Maine should give by way of comity to discharges obtained in other States or countries.

Among the early cases we find that of Very v. McHenry. In this case a discharge obtained in New Brunswick was held good in Maine against a citizen of Maine, the contract sued on having been made in New Brunswick. The decision is based on the English doctrine that the lex loci contractus as a matter of comity should be allowed to govern.

Three years later, in Palmer v. Goodwin,2 and Bancher v. Fisk, the same court held discharges obtained in Massachusetts of no effect in Maine against non-residents. In the last of these cases, it is stated that the United States Supreme Court in Ogden v. Saunders decided as a matter of constitutional law that a discharge has no effect on a contract made with a citizen of another State.

Four years later, in Long v. Hammond, and Mansfield v. Andrews discharges in New Brunswick were again held good in Maine. In Felch v. Bugbee, and Chase v. Flagg, the court again

648 Me. 9 (1859). 748 Me. 182 (1859).

refused to give effect to discharges obtained in Massachusetts as against non-resident creditors, though the note sued on was in one instance made in Massachusetts, and by its terms was payable there.

In Hills v. Carlton,1 we have a case of the kind above referred to: namely, of a discharge obtained in Maine, and pleaded in a Maine Court against a non-resident creditor. The court, on the doctrine of a want of jurisdiction as laid down in Baldwin v. Hale, held the discharge no bar. Nothing is said about the Maine statute being unconstitutional, and no notice is taken of the fact that the court is disregarding an express statutory enactment of its own State.

In the case of Pullen v. Hillman, 2 we have one of the latest decisions on the subject under consideration. The suit was a note made in Maine and expressly payable in Maine, the maker and payee at the time the note was given being both citizens of Maine. After the note was given, the payee moved to New York, and the maker, becoming insolvent, obtained a discharge in Maine. It was held that according to the doctrine of Baldwin v. Hale3 and Pennoyer v. Neff, the court granting the discharge had no jurisdiction over the creditor, and that hence the discharge was no bar. The case of Stoddard v. Harrington, where the same question was decided in the opposite way, is noticed and disapproved. No notice is taken of the fact that the court is nullifying a statute of Maine without declaring it unconstitutional, and no attention is given to the language of the United States Supreme Court in Cole v. Cunningham, according to which the citizenship of the debtor and creditor at the time the debt was contracted is what will govern.

It is interesting to compare this case with Lowenberg v. Levine,7 where the court held that even though the creditor was a resident of the State during the insolvency proceedings, the discharge was no bar, since he was a non-resident when the contract was made. New Hampshire. None of the cases in New Hampshire, save the two latest, have involved anything more than an international question. In all the earlier cases the discharges under consideration had been obtained in some other State or country. In Stevens v. Norris, which was the case of a discharge obtained in Massachusetts, the court, after a careful consideration, fully adopted and approved the doctrine that the lex loci contractus ought to

govern, without reference to the residence or citizenship of the parties.

Two years later, in Whitney v. Whiting, the court felt constrained by Ogden v. Saunders to hold a discharge no bar, it being supposed that the United States Supreme Court had decided that where the contract was made with a non-resident, a State insolvent law granting a discharge was unconstitutional, as impairing the obligation of the contract.

Three years later, in Brown v. Collins,2 the court held that where a note was made in Massachusetts, and by its terms was expressly made payable there, a discharge in Massachusetts could and should be held good in New Hampshire.

Four years later, Brown v. Collins was overruled by New Market Bank v. Butler,3 where on the same state of facts it was held that a discharge in Massachusetts was no bar in New Hampshire. The decision is based on Baldwin v. Hale, which the court supposed to be decided on constitutional grounds under the section of the United States Constitution forbidding States to pass laws impairing the obligation of contracts. In Stirn v. McQuade, the court again nullified a New Hampshire statute, and held a discharge granted in New Hampshire no bar as against a non-resident, the reason for the decision being a supposed want of jurisdiction.

Vermont. In Herring v. Selden, the court held that under Sturges v. Crowninshield it must be held that all State insolvent laws are unconstitutional. In Peck v. Hibbard, the court held a discharge in Canada good in Vermont, and fully approved the doctrine that the lex loci contractus ought to govern.

In Bedell et al. v. Scruton, a discharge in Vermont was held no bar as against a non-resident. The Vermont insolvent law was not expressly declared unconstitutional, but it was held to be inoperative.

In McDougall v. Page, the case was twice argued, and the court was divided; but it was decided that a discharge under the United States bankrupt law was no bar against an alien non-resident where the contract was made and was to be performed in Canada. The language of the United States Bankrupt Act was held to be so far uncertain as to allow the court to construe it not to apply to nonresident aliens, the contract being a foreign one. The court, as

it would seem, admitted that if the language of the United States Bankrupt Act had been peremptory, it would have been binding upon the court.

In the latest case in Vermont, Roberts v. Atherton,1 a discharge in Vermont was held void as against a non-resident, because the creditor was outside the jurisdiction of the court at the time the petition in insolvency was filed. The case is decided on jurisdictional, and not on constitutional, grounds.

Massachusetts. The following are the leading cases: Blanchard v. Russell,2 in which the doctrine that the lex loci contractus ought to govern was fully indorsed; May v. Breed, in which a discharge in England of a contract made there was held good in Massachusetts; Scribner v. Fisher, in which it was held that a discharge in Massachusetts of a contract made and by its terms to be performed there should be held good in Massachusetts, even against a non-resident creditor; Kelley v. Drury," in which, on account of Baldwin v. Hale, Scribner v. Fisher was overruled; Stoddard v. Harrington, in which it was held that if the debtor and creditor were both residents of Massachusetts when the contract was made, a discharge in Massachusetts would be a bar even if the creditor moved out of the State before the insolvency proceedings were instituted; Phenix Bank v. Batcheller, in which Kelley v. Drury was followed, if not approved.

8

Rhode Island. In Pattison v. Wilbur, a discharge under the United States bankrupt law was held good against an alien nonresident, the contract having been made in the United States, and the creditor having moved to Scotland before the bankruptcy.

New York. It was early held that if according to the provisions of a New York insolvent law or the United States bankrupt law a discharge was expressly declared to be a bar, the courts of New York must give it that effect.9

In Mather v. Bush,10 the doctrine that the lex loci contractus ought to govern was fully approved; but later, in Donnelly v. Corbett," and Soule v. Chase,12 the court, on supposed constitutional grounds, followed the United States cases, and held a discharge ob

9 Penniman v. Meigs, 9 Johns. 325 (1812); Murray v. De Rottenham, 6 Johns. Ch.

52 (1822).

10 16 Johns. 233 (1812).

117 N. Y. 500 (1852).

12 39 N. Y. 342 (1868).

tained under a State insolvent law to be no bar against a non-resident, even in the State where the discharge was granted. In Pratt v. Chase1 the same result was reached, but more was said about want of jurisdiction than about unconstitutionality. In Phelps v. Borland, a discharge in England of a contract made there was held no bar in New York against a citizen of New York.

Maryland. There is one point which is peculiar to Maryland. It was early held, in the case of Larrabee v. Talbott, that inasmuch as it must be held under the United States cases that all State insolvent laws are unconstitutional as against non-residents, it must also be held that a non-resident creditor can come into the State courts of Maryland and take from the assignee in insolvency any assets in his hands. This apparently continued to be the law in Maryland down to 1884, when, in the case of Pinckney v. Lanahan, the court held, on the strength of Crapo v. Kelly, that the statutory title of the assignee was good within the State, even as against non-resident creditors.

The necessary limits of this article prevent anything more than a cursory reference to a few of the cases in some of the States. For the convenience of those desiring to make a study of the subject, a list of cases, which is believed to be quite complete, is given in a note printed at the end of this article.

SUMMARY. The foregoing examination of the cases shows that the doctrine has become very generally accepted that a discharge will be of no effect (even in the courts of the State where the discharge is granted) against a non-resident creditor, unless he becomes a party to the insolvency proceedings by voluntary appearance and participation in the same, or is made a party by a legal service of process, - by which is meant personal service, and not merely a publication of notice.

First Objection to this Doctrine. It is to be noticed, first, that it has not usually been considered necessary, in order to give jurisdiction to a bankruptcy court, to require any service of process, so far as creditors are concerned, except a publication of notice and a sending of notice by mail to those of the, creditors resident and non-resident whose address is ascertained. Under the English Bankruptcy Acts and the several United States Bankrupt Acts, and under the Massachusetts insolvent law, and I think under the

5 16 Wall. 610.