195, 197, 35 N. E. Rep. 460. In Flight v. Gray, Willes, J., seems to have doubted; and, where there is no fraud other than that of relying upon the principles of law, we see no satisfactory ground for allowing the engagement in a note to be varied in this way in equity any more than at law, at least on behalf of a plaintiff seeking specific performance of the oral agreement. Dwight v. Pomeroy, 17 Mass. 303; Woollam v. Hearn, 7 Ves. 211. 219; 2 White & T. Lead. Cas. Eq. (6th Ed.), 513, and see note page 525; Omerod v. Hardman, 5 Ves. 722, 730, 731; 2 Pom. Eq. Jur. (2d Ed.) § 854. note. See Goode v. Riley, 153 Mass. 585, 587, 28 N. E. Rep. 228; Quinn v. Roath, 37 Conn. 16, 30."

ASSIGNMENT OF CHOSES IN ACTION-PRIORITIES-NOTICE TO DEBTOR.-In Graham Paper Co. v. Pembroke, it is held by the Supreme Court of California that a subsequent assignee of book accounts and bills receivable who gives notice of the assignment to the debtors, has a title superior to that of the first assignee, who has failed to give such notice, especially where the first assignee left the accounts and choses in action in the hands of the assignor, as its agent, for collection, and the second assignee took actual possession thereof without notice of the first assignment. The court says in part: "To complete the assignment of an account as against the debtor, it is universally conceded that the debtor must have notice, as otherwise his debt will be discharged by payment to the assignor; but whether the prior assignee must give notice to the debtor in order to protect himself against a subsequent assignee is a question upon which there is a conflict in the authorities. It is a well-established rule in England that, as between successive assignees of a chose in action, he will have the preference who first gives notice to the debtor, even if he be a subsequent assignee, provided at the time of taking it he had no notice of the prior assignment.' 2 Am. & Eng. Enc. Law (2d Ed.), p. 1077. The reason of this rule is stated by Sir Thomas Plumer, M. R., in Dearle v. Hall, 3 Russ. 1, thus: 'In Ryall v. Rolles, 1 Ves. Sr. 348, the judges held that in the case of a chose in action you must do everything toward having possession which the subject admits. You must do that which is tantamount to obtaining possession, by placing every person who has an equitable or legal interest in the matter under an obligation to treat it as your property. For this purpose you must give notice to the legal holder of the fund. In the case of a debt, for instance, notice to the debtor is, for many purposes, tantamount to possession. If you omit to give that notice, you are guilty of the same degree and species of neglect as he who leaves a personal chattel, to which he has acquired title, in the actual possession and under the absolute control of another person.' The English rule has been followed by the federal courts in this country. See Judson v. Corcoran, 17 How. 612; Spain v. Hamilton's Admr., 1 Wall. 604, 624; Bank v.

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Schuler, 120 U. S. 511, 7 Sup. Ct. Rep. 644. In Methven v. Power Co., 13 C. C. A. 362, 66 Fed. Rep. 113, it was held that, where two assignments of a chose in action, for valuable consideration, are made to different persons, the assignee who first gives notice of his claim to the debtor has the prior right, though the assignment to him is later in date than that to the other assignee, if taken without notice. This proposition is also sustained in 2 Story, Eq. Jur. § 1035a; and in note 4, p. 339, Foster v. Cockerell, 9 Bligh, 332, 375, 376, is quoted at considerable length, stating what appears to us satisfactory reasons in its support. In 2 Pom. Eq. Jur. § 695, the same doctrine is stated, and at section 698 the learned author added: 'Even where the rule concerning notice to the debtor or trustee has not been adopted, an assignee who had otherwise the priority may lose it through his laches, as against a subsequent purchaser in good faith and for value who has been injured by the negligence. * The questions as to priority of right may arise between the assignee and a judgment creditor of the assignor or a subsequent purchaser from the assignor. There is a clear distinction between these two claimants, since a judgment creditor only succeeds to the rights of his debtor, while a purchaser may acquire higher rights.' See also Id. § 707. In 2 Am. & Eng. Enc. Law, p. 1077, notes 3, 4, Iowa, Missouri, Vermont and Virginia are mentioned as supporting the English rule, and New Jersey, New York and Texas as rejecting it. To the former list may be added Connecticut. See Bishop v. Holcomb, 10 Conn. 444, and Foster v. Mix, 20 Conn. 395. Appellant cites a large number of the New York cases in support of its contention, and it must be conceded that they sustain the general proposition that the prior assignee has the better right, though he has not notified the debtor. We think, however, that the doctrine announced by the English courts, and followed by our federal courts and the State courts above mentioned, is based upon the better reason, and sustained by the weight of authority. Notice to the debtor not only protects the assignee against payment to the assignor, but against payment to the subsequent assignee; since the debtor, with notice of the prior assignment, would be no more protected by a payment to a subsequent assignee than he would by payment to the assignor; and, besides, an intending purchaser of the accounts from the assignor would have it in his power to ascertain from the debtors, by inquiry, whether any prior assignment existed, and would thus be furnished with the only reasonable protection possible against fraud on the part of the assignor. There are, however, some special features which strengthen the case of defendant Pembroke, the second assignee. The plaintiff was a creditor of the assignor, endeavoring to obtain some security for its claim against the Pacific Roll Paper Company. It left the accounts and choses in action in the hands and under the control of the assignor, as its agent, for collection. The defendant, Pem

broke, is a purchaser, who not only took an assignment of the accounts and other choses in action, but obtained actual possession of them and immediately notified the debtors, and therefore obtained a perfect legal title, without notice of the prior, assignment, and with no means of obtaining information of it otherwise than from the fraudulent assignor, who, by the sale and assignment, represented that it had good right to make the sale and assignment. The case of Kirk v. Roberts (Cal.), 31 Pac. Rep. 620, is not in point. There the defendant was the assignee in insolvency, and therefore stood in the shoes of the insolvent; while here the defendant is a purchaser in good faith and for value, without notice, and therefore stands in a better position than her assignor."

CRIMINAL LAW FALSE PRETENSES WHAT CONSTITUTES.-A somewhat novel question in the law as to false pretenses, came before the Supreme Court of Oregon, in State v. Renick, 56 Pac. Rep. 275. It was held that where defendant, a married man, pretended under a fictitious name, to an unmarried woman, that he was single, and by this means, together with his promise to marry her, obtained money from her, he was not a false token, and hence was not guilty of obtaining money by false pretenses by means of a false token. The court, after discussing the elements of the crime at common law, says: "But, whatever may be the rule and definition touching the commonlaw cheat, the statutes of England early began to distinguish between the different species of cheat, and to carve out a distinct offense for obtaining money or property by falsely personating another. Such an offense has been widely adopted in the American States, and our own statute has made the act punishable. Hill's Ann. Laws Oreg. § 1776. The statute has also made it an offense for any person to obtain, or attempt to obtain, with intent to defraud, any money or property whatever, by any false pretense, or by any privy or false token. Id. § 1777. The evidentiary matter necessary to support a charge under the latter section must consist of a false token or writing accompanying the pretense. Id. § 1372. Construing the two sections together, the crime known to our statute is much the same as that constituted by 33 Hen. VIII., which extended the commonlaw cheat so as to include one accomplished through the use of a false privy token or counterfeit letter. The two offenses are defined, however, and made separate and distinct, by statute, so that there need be no longer a question, as under the common law, as to whether, in the false personation of another, the person engaging in the deceit is himself a false token. It is made a crime to so act, and a case coming fairly within the statute, it is thought, could not be prosecuted under the section for obtaining money under false pretenses. The case at bar, however, is probably not a false personation, by reason of the fact that the defendant did not assume to represent a real

personage, but only made use of a fictitious name, having no application to any one.

"But it is contended that he is guilty of a false pretense by the use of himself as a token. If that were so, he must be regarded as a privy token, as his personation was not calculated, nor was it his purpose, to deceive or impose upon the public in general; the fraud being an imposition upon an individual only, and not extending to the injury of the public, in the sense of a public cheat. In the Jones case, supra, the personation was of a class capable of enlistment in the public service, and the act operated as a fraud in the procurement of public moneys. So, in Rex v. Hanson, supra, the woman obtained general credit by pretending to be unmarried, thus affecting the public. Mr. Wharton puts a case: 'If a pretender (e. g. Perkin Warbeck or the Tichborne claimant) palm himself off on a community as another person, and, under the guise of his assumed character, obtain credit from the public at large, he is indictable as a cheat, assuming that he imposes upon persons who have no notice that his claims are disputed, and also addresses his imposture to the public at large. The offense is aimed at the public generally, and is, supposing there is no notice to put the others on their guard, aimed as much at the careful as the careless. Hence it is a cheat at common law.' 'But suppose,' says the learned author, a little further on, the pretender goes simply to an individual, and with that individual uses his pretended character as a basis for getting money, while there is nothing about the pretender's appearance or general reputation to sustain such character. In such case, there being no latency, since there is a direct subject tendered to the prosecutor on which to make inquiry, and the fraud being pointed at a single individual, it is not a cheat at common law.' 2 Whart. Cr. Law, § 1124. Thus is charácterized the distinguishing feature between a token of public import and a privy token or symbol, and the effect of their use in the consummation of the common-law cheat, and it serves as an admirable aid in determining the nature of the supposed token used in the consummation of the offense charged. If, therefore, in the case at bar, the supposed token is a token at all, it should be termed a privy token. But is the defendant himself even so much as a privy token? Within St. 33 Hen. VIII., such a token was taken to denote a false mark or sign, forged object, counterfeit letter, key, ring, etc., used to deceive persons, and thereby fraudulently get possession of property.' Black, Law Dict. See, also, note to Com. v. Speer, 2 Va. Cas. 67. Mere words are neither symbols nor tokens. Hence it has been held that one who obtains a credit by falsely representing himself to be in trade, and keeping a grocery, utters a mere falsehood. Com. v. Warren, 6 Mass. 72. So, if one falsely pretends to another that he has been sent by a third per son for money, and obtains it (Reg. v. Grantham, 11 Mod. 222); or, in selling a horse he knows to be blind, willfully represents him to be sound

(State v. Delyon, 1 Bay, 353); or if he knowingly disposes of wrought gold under the sterling alloy for gold of standard weight. Rex v. Bower, 1 Cowp. 323. In these and like cases the defendant but utters a naked falsehood, unconfirmed by symbol or token, and was not within St. 33 Hen. VIII. In the case of Com. v. Warren, supra, the defendant represented his name to be William Waterman, and that he lived in Salem; and the court said respecting it that, if a man will give credit to the false affirmation of another, and thereby suffer himself to be cheated, he may pursue a civil remedy for the injury, but he cannot prosecute by indictment.'

"Now, were the representations which the defondant made to the prosecutrix more than wicked falsehoods, under our statute? or may it be affirmed that his presence when uttering the falsehoods was the exhibition of a false privy token, which induced her to part with her money and assisted him in consummating the fraud? It was a matter susceptible of proof and demonstration, upon inquiry, for she was not bound to take his word touching his assertions that he was an unmarried man or that his name was Smith. His physical presence had no tendency to establish the one fact or the other, and was therefore not an agent, in the sense of a token or symbol, in consummating the deception and accomplishing the fraud. He may have been both a liar, and the symbol of a liar, but he himself, considered as a token, did not contribute, by reason of his personal appearance, to the deception. By the statutes of England and many States of the Union, the element of a false token or symbol is eliminated, and the law is broadly cast that whoever, by any false pretense, obtains money, etc., with intent to defraud, shall be guilty of the offense.

his name is Charles Smith, a fictitious character, and that he was unmarried, when he had a wife living, this is a mere descriptio personœ, and an inspection of the person will neither corroborate nor detract from the statement. If he be denominated a ‘token,' and that token is false, it is only made so by the lie he has uttered; his physical existence does not help to establish it. In other words, he has not assimilated anything of real existence whereby the unwary have been deceived. He did utter a wicked falsehood, and this a false pretense, but the false token is wanting, and therefore the indictment does not charge a crime."

"TRAMP CORPORATIONS."

This opprobrious epithet has been unkindly applied to a class of corporations transacting their business outside the State of their domicile. The epithet is not intended to convey the idea that they are vagrants, or beggars, or thieves, but simply that they are voluntary Josephs, who, engaged in abundant labors, though absent from home, assert the patriotic right of citizenship in the State of their nativity. The wide prevalence of this class of corporations, in connection with the animadversion of Judge Thompson, suggests the timeliness of a careful consideration of the pertinent American authorities relating to the subject. On the one hand it may be premised as settled law that a corporation created and doing business in one State may transact its

is cited, wherein it appears that the defendant was indicted for having obtained money from an unmarried woman on the false representation that he was a single man, that he would furnish a house with the money, and would then marry her, and it was held that the false representation that he was not a married man was sufficient to support a conviction for false pretenses. But the authority is not in point, as the decision was made under the enlarged English statutes, and the question of a token did not enter into the controversy. Under our statute, the pretense must be accompanied with a false token, and the question presented here is whether defendant was himself a false privy token. We think he was not. He did not attempt to assimilate anything in existence. There are no personal or physical characteristics known to social science whereby an unmarried man may be distinguished from one that is married. So that if a man presents his physical self to another person, and says nothing of his marital state, no one can say whether he at that instant is married or single, from the inspection alone. Testimony must be produced dehors the person from which to determine the fact. If he says that

comity. "But, at least as among the States of the American Union, this comity is so freely exercised that, for practical purposes, it may be said that such a power exists in the United States as a matter of law, except where prohibited by the positive local law." On the other hand the weight of authority supports the proposition that constituent corporate acts, such as accepting the charter, must be performed within the limits of the State granting the charter.2 Though it seems that even these acts are valid if all the stockholders consent, and, at all events, binding upon those participating. We may take it

16 Thompson Corp., sec. 7882 and citations; 1 Morawetz Corp., sec. 513; Bank of Augusta v. Earle, 13 Pet. 519; R. R. Co. v. Harris, 12 Wall. 82.

21 Thompson Corp., secs. 694, 696, and citations; Freeman v. Machias, 38 Me. 343; Smith v. Silver Valley Mining Co., 64 Md. 86, 54 Am. Rep. 760; Duke v. Taylor, 37 Fla. 64, 53 Am. St. Rep. 232; Taylor v. Branham, 35 Fla. 297, 48 Am. St. Rep. 249; Taft v. Ward, 106 Mass. 58.

3 Mo. Lead Co. v. Reinhard, 114 Mo. 218; Handley

(1)

II. The following authorities deny the right of such corporations to so transact business Perhaps the leading argument denying the right is contained in sec. 7895 of Thompson's text. The author very strongly states two arguments in support of his position: (1) "In such a case is the law to be corrupted and perverted in favor of such manipulation, so far as to hold that the citizens of a State can be allowed to acquire a corporate existence, within that State, under, subject to, and governed by, the laws of another State? To put it another way, can the citizens of New York be allowed to import the laws of West Virginia governing private corporations, into the State of New York, and make those laws the rules of their own government in dealing with other citizens of New York; and will the courts of New York gravely sanction such frauds upon its own laws?" (2) "When it is considered that a corporation is, for the purposes of federal jurisdiction, conclusively presumed to be a 'citizen' of the State under whose laws it is created,-will the citizens of one State be permitted, by becoming thus incorporated under the laws of another State, to defraud the courts of their own State out of their rightful jurisdiction? These questions, to the mind of the writer, answer themselves. The conclusion is that the "Tramp Corporation' should not be judicially recognized, but that its members should be held liable upon their contracts as partners, and upon their torts as joint tort-feasors." The opinion of the court in Merrick v. Brainard also contains a strong statement of the

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v. Stuty, 139 U. S. 417: O. & M. Ry. Co. v. McPherson, 35 Mo. 13.

46 Thomp. Corp., sec. 7895; Merrick v. Brainard, 38 Barb. 574; Hill v. Beach, 12 N. J. Eq. 31; State v. Milwaukee Ry. Co., 45 Wis. 579.

5 38 Barb. 574.

argument against this class of corporations. The court say that if such corporations are recognized "then, not only is our own legislature rendered useless and unnecessary, at least so far as the creation of corporations are concerned, but all the States in the Union and all the legislatures in Christendom can let loose upon us a multitude of these corporations, more destructive and pernicious than the frogs and lice let loose upon the Egyptians." In passing, it may be appropriate to observe that the doctrine announced in Merrick v. Brainard has since been overruled in New York, and that the inquiries suggested by Thompson which, to his mind, answer themselves in the affirmative, were suggested by the later cases in New York, which answer those same inquiries with an elaborate negative. In Hill v. Beach,' the New Jersey court held that parties who organized a corporation under the laws of New York for the purpose of transacting their entire business in New Jersey would not be recognized as a corporation because their organization was fraudulent. The company was not a domestic corporation, and, it was held, it was not a foreign corporation, for the reason that its organization was a fraud on the laws of New York.

In view of the fact that in later years New Jersey has become the home of a large number of this class of corporations, and that her legislative policy has encouraged their formation, doubt has been expressed whether her courts would now follow the earlier doctrine. In a quo warranto proceeding the court of Wisconsin has held that a corporation organized under her laws, but which kept its principal and general office, its books and records, and all its general officers in New York, thereby defeating the visitorial powers of Wisconsin and destroying the effectiveness of her legislation governing the attachment of stock, etc., had, by so doing, forfeited its charter, notwithstanding the continued transaction of some business in the State.9

III. The following authorities are cited as denying the validity of the tramp corporation, but, if closely examined, they will be found distinguishable.10 Forbes, a citizen of

6 Merrick v. Van Santvoord, 34 N. Y. 208; Demarest v. Flack, 128 N. Y. 205.

7 12 N. J. Eq. 31.

81 Cook, Stock and Stockholders, sec. 238 (3d Ed.) 9 State v. Milwaukee Ry. Co., 45 Wis. 579. 10 Montgomery v. Forbes, 148 Mass. 249; Land Grant

Massachusetts and there engaged in business, attempted to incorporate under the laws of New Hampshire for the purpose of continuing his business in Massachusetts. In a suit against him individually on a contract made by him as a corporation, it developed that his attempt to incorporate was abortive, as he was the sole stockholder of his company, and the laws of New Hampshire required at least five associates. It was also established that his purpose was to evade the taxes and personal liability imposed by the laws of Massachusetts. The court held that there was no corporation at all and that he was personally liable. The laws of New Hampshire not having been complied with there was no corporation, and hence this is not a decision on the subject of tramp corporations." The case from Kansas (Land Grant Ry. Co. v. Coffee County, 6 Kan. 245), frequently cited as condemning this class of corporations, was one in which the foreign corporation was chartered by Pennsylvania, and, by express terms of its charter, prohibited from transacting business in its own State. It was also · authorized to discharge its constituent corporate acts at the place where its business was transacted. It was held that this was no corporation, and that, as Pennsylvania herself refused to recognize it, no other State was, under the law of comity, under obligation so to do. The distinguishing features of that case are (1) that it was expressly excluded from its own State and (2) inferentially it was required to perform constituent corporate acts in some other State. Duke v. Taylor12 and Taylor v. Branham, 13 were cases in which Taylor et al. were sued in Florida as partners doing business under the firm name of the Florida Hedge Fence Co. The defense was that the company was a duly created Tennessee corporation and that the contract sued on was a corporate and not a partnership liability. The proof showed that all meetings of the company, whether for organization or otherwise, had been held in Florida. It failed to show the Tennessee law authorizRy. Co. v. Coffee County, 6 Kan. 245; Taylor v. Branham, 35 Fla. 297; Duke v. Taylor, 37 Fla. 64; Miller v. Ewer, 27 Me. 509; Freeman v. Machias, 38 Me. 343; Smith v. Silver Valley Mining Co., 64 Md. 85; Owen v. Shepard, 19 U. S. A. 336; Empire Mills v. Alston Grocery Co. (Tex.), 15 S. W. Rep. 200, 505. 11 Montgomery v. Forbes, 148 Mass. 249. 12 37 Fla. 64, 53 Am. St. Rep. 232.

13 35 Fla. 297, 48 Am. St. Rep. 249.

ing the incorporation of such a company, and, of course, failed to show compliance with that law. The court found that the evidence failed to sustain the plea of corporate existence and held the defendants liable as partners.. The cases of Miller v. Ewer,14 Freeman v. Machias Water Co., and Smith v. Silver Valley Co.,16 while cited as condemning tramp corporations, are simply holdings of the courts that meetings held beyond the limits of the State granting the charter are invalid and confer no corporate power or authority. In Owen v. Shepard," the facts were as follows: Suit was brought in the Indian Territory by Shepard against Owen and Reynolds as partners. The defense was that the cause of action was based upon services rendered, not to them as partners, but to a corporation in which they were stockholders, said corporation being organized under the laws of Illinois. On the trial they did not introduce the charter of the company or the certificate of the secretary of State of Illinois (the legal proof of incorporation) but simply stated that they went into Illinois and secured a charter. The court held that this was insufficient evidence of corporate existence, and that, as the burden of proof was on them to sustain their defense, they were liable as partners. Empire Mills v. Alston Grocery Co.,18 is a Texas case. The grocery company was a mercantile corporation chartered in Iowa, authorized to transact a general mercantile business in Texas, and doing business at Dallas. Under the laws of Texas corporations could not be organized for such purposes. Such being the case the court held that the charter was void in so far as it attempted to confer authority to operate in Texas, and that the stockholders were liable as partners. This holding is in harmony with the general rule of law excluding corporations which transact business violative of the public policy of a State, and the holding would have been the same if the grocery company had been actively engaged in business in Iowa.. IV. The cases hereto cited inferentially sustain the lawfulness of the tramp corporation. 19 The South Tredegar Iron Co. was

14 27 Me. 509, 46 Am. Dec. 619. 16 38 Me. 343.

16 64 Md. 85, 54 Am. Rep. 760.

17 19 U. S. A. 336.

18 15 S. W. Rep. 200, 505.

19 Young v. South Tredegar Iron Co., 85 Tenn. 189