itor of the same state as the foreign receiver or assignee, the domestic tribunals will give preference to the foreign receiver or assignee. In other words, as betwedrt two citizens of the same foreign state, one of them entitled to the assets under the laws of that state, and the other struggling to get a preference not allowed by the laws of that state, the domestic tribunal will extend this comity so far as to give effect to the laws of that state.1 The theory of these decisions is that an assignment, made by operation of law, in invitum, of the property of an insolvent debtor, operates as an estoppel upon the citizens of the state wherein the assignment has been made, and that this estoppel will be allowed to operate in the state of the forum, where to give it scope will not prej udice the rights of domestic creditors. It is also to be noted that the refusal to extend comity to the representatives of foreign in solvents, as against the rights of domestic creditors, does not, according to the best view, extend to voluntary assignments to trustees or assignees for the benefit of cred itors. The distinction is clearly brought out by Mr. Justice Story in the following language : " It is therefore admitted that a voluntary assignment, by a party, made ac cording to the law of his domicile, will pass the personal estate, whatever may be its lo cality, abroad as well as at home. The law distinguishes that which results from the exercise of power under the law, from that which comes from the free will of the party; the former is limited in its effect to the country where the law is in force, whilst the latter is given universal and general opera tion, under the comity of nations,"3 '('*ilman v. Ketchan (Wis.) 54 N. V. Rep. 395; Cole v. Cunningham, 133 U. S. 107; Reynolds v. Adden, 136 U. S. 348, 353 (doctrine recognized); Bagby v. Atlantic etc. R. Co. 86 Pa. St. 291; Bacon v. Home, 123 Pa. St. 452. 2Story's Conflict of Laws, § III. The distinction is also clearly stated in Smith's Appeal, 104 I'a. St. 381, 389, where the above language is quoted. See also Lowry v. Hall, 2 Watts. & S. (Pa.) 129, 131; Speed v. May, 17 Pa. St. 91; Ilundas v. Bowler, 3 McLean (U. S.) 397; Livermore?-. Jenckes, 21 How. (U. S.) 126.
This principle rests upon the effect which is given to contracts made in foreign juris dictions. The jus disponendi is essential to the very idea of property, and every owner of property has a right to alien it at his mere pleasure for any lawful purpose; and his deed, or other act of alienation, will re ceive effect in foreign jurisdictions, not upon the mere principle of comity, as stated by Story, but rather on the theory of operating ex proprio vigore. IV. Observations on the State of the Law on this Subject. The fact remains that no state allows an assignment of property, in invitum, under the insolvent laws of another state or country, to operate to the prejudice of its own citizens and that such an assignment is deemed to operate to the prejudice of its own citizens whenever it prevents them from getting a preference over other cred itors of the insolvent, by seizing his assets within the local jurisdiction. The further fact remains, that some of the states refuse to allow such assignments to operate at all within their limits, without reference to the inquiry whether so to do will be prejudicial to their own citizens, or whether the foreign insolvent has any creditors within their own jurisdiction. The further fact remains that one hundred years of struggle in the Ameri can state courts have scarcely served to relieve this subject of the conflicts with which it was originally attended; that there is no uniform principle of American law upon the subject, but that every new deci sion, instead of tending to produce uni formity, adds to the confusion. In view of these facts, I ask whether the American state courts are giving " full faith and credit to the judicial proceedings" of other states, when they deny the operation of such pro ceedings entirely within their own limits, in so far as their operation is necessary to secure a ratable distribution of the assets of 1 First National Bank v. Hughes, 10 Mo. App. 7, 23.
