rate stock is bought and sold by the assignment and delivery of the certificate. Frequently, an assignment is indorsed with the name of the assignee blank, and the stock is then sold by the mere delivery of the certificate, the last holder having the right to fill up the blank. It is also the general custom of corporations not to make a transfer of stock on their books, or to issue a new certificate, without the presentation, and surrender, of the original. In view of this, reasonable care would undoubtedly require that, under any ordinary circumstances, a corporation should not issue a new certificate without the surrender of the original. It would also doubtless require that they should never do so without quite clear proof that the applicant is entitled to it, and that the original was actually lost or destroyed, of which facts lapse of time without the appearance of any rival claimant would be the most satisfactory evidence.

But if the corporation, in the exercise of proper care, does issue a new certificate, we do not see how it could suffer any loss, even 347 if the original certificate should afterward turn up. If there is any contest, it would be between the holders of the two certificates, as to which was the owner of the stock. Moreover, in this case, if the original certificate should ever appear in the hands of another claimant, it seems to us clear that he would be estopped from claiming any damages against the defendant by reason of his own laches in neglecting for over twelve years either to claim the dividends or to present his certificate and demand a transfer of the stock to himself on the books of the company.

The cause is remanded, with directions to the court below to modify its judgment in accordance with this opinion.

Gilfillan, C. J., absent on account of sickness, took no part.
Canty, J., took no part.

CORPORATIONS-FOREIGN-JURISDICTION OVER.-A foreign corporation doing business in another state, and having there business offices and agents, is subject to the jurisdiction of the courts of that state: Note to Reyer v. Odd Fellows' etc. Assn., 34 Am. St. Rep. 293. See, also, the notes to Aspinwall v. Ohio etc. R. R. Co., 83 Am. Dec. 334, and Molyneux v. Seymour, 76 Am. Dec. 670.

CORPORATIONS-FOREIGN-CONFLICT OF LAWS.-A corporation which performs corporate acts in a state other than its domicile, and seeks to enforce rights there, can exercise no exceptional rights and privileges which are conferred by the law of its creation, if such enforcement involves a breach of the public policy or statutory system of the state where such rights are sought to be enforced: Falls v. United States Sav. etc. Co., 97 Ala. 417; 38 Am. St. Rep. 194, and note; but see American Water Works Co. v. Farmers' Loan etc. Co.. 20 Col. 203; 46 Am. St. Rep. 285, and note.

ANCHOR INVESTMENT COMPANY V. KIRKPATRICK.

[59 MINNESOTA, 378.]

GUARANTY, ASSIGNMENT OF.-If a person guarantees the payment to a corporation of any and all indebtedness or liability then or thereafter owing to it from another designated person, and notes subsequently executed by the latter to the former are assigned by him, together with all securities he may hold securing any property or indebtedness, the assignee is entitled to the benefit of the guaranty and may maintain an action thereon against the guarantor. Young & Lightner, for the appellant.

S. M. Magoffin, for the respondent.

880 BUCK, J. In the month of April, 1892, the Columbia Electric Company executed and delivered to the Commercial Bank of St. Paul its four promissory notes, amounting to the sum of eleven thousand dollars and interest, each note payable fifteen days after its date. At the time said notes were given, the bank held a continuing guaranty in writing, signed by the defendants, whereby they guaranteed, unconditionally 881 and at all times, the payment to said Commercial Bank of St. Paul of any and all indebtedness or liability now or hereafter owing to said bank by the Columbia Electric Company, not to exceed the sum of ten thousand dollars, and waive any and all demands of payment and notice of protest or default.

On the twenty-eighth day of February, 1893, and after the maturity of these notes, the Commercial Bank of St. Paul assigned them in writing to this plaintiff, and the assignment, after describing the notes, contained these words: "Together with all securities which said bank may hold, securing any property or indebtedness."

The plaintiff brought this action against the defendants as guarantors of the payment of said notes. The defendants interposed an answer consisting of a general denial. There was no controversy as to the making and delivery of the notes, and, on the trial, it was admitted that they represented an indebtedness owing from the Columbia Electric Company to the Commercial Bank which had not been paid, and that the notes had been assigned to the plaintiff.

The only question raised upon the trial, as appears from the evidence, was as to the assignability of the guaranty. This question was raised when the plaintiff offered the guaranty in evidence, to which the defendant objected, upon the ground that it was immaterial, irrelevant, incompetent, and by its terms is a personal agreement, and is not assignable or negotiable, which

AM. ST. REP., VOL. L.-27

objection was sustained by the court, and the plaintiff duly excepted. On the trial, it was admitted that plaintiff was the holder of the notes, and that they had been assigned to it. On motion of the defendant, judgment was ordered by the court against the plaintiff. By the terms of the written guaranty, it was to remain in full force until revoked in writing. It was dated September 21, 1891, and expressed upon its face that it was given for a valuable consideration.

There can be no question but that the Commercial Bank could have brought suit directly in its own name upon this guaranty, as it was expressly given to secure to the bank any and all indebtedness or liability which then existed, or which should thereafter exist, on the part of the Columbia Electric Company to the bank, in whatever manner any such indebtedness or liability may have been, or might thereafter be, created. Here was a legal liability on the part of the guarantors which attached to any indebtedness which 382 the Columbia Electric Company owed the bank. It did owe the bank the indebtedness represented by these notes. There was a legal contract between the guarantors and the bank to pay a certain indebtedness held by the bank, to wit, these notes. There can be no question but that the notes could be transferred or assigned. But they represented the same indebtedness in the hands of the bank that the guaranty did, and which it also held. Why should they not be assignable together, in and as one transaction, and as a proper, legitimate mode of doing business?

The terms of the guaranty were unusually broad. The terms of the assignment were broad enough to include an assignment of this guaranty; and, unless forbidden by some rigid rules of law, the notes and the guaranty of their payment should pass together. The guaranty was executed for the benefit of the bank. That is too apparent to need discussion. It, however, guaranteed the payment to the bank of the indebtedness of only one party, viz., the Columbia Electric Company. If the guarantors had paid these notes of ten thousand dollars to the bank, they would have done just what they had agreed to do by the terms of their guaranty. If they paid the same amount to this plaintiff as the assignee of the notes and guaranty, they are in no way harmed or damaged. The change is as to the plaintiffs or parties in interest, not as to any greater or less liability upon the part of the guarantors. There are no restrictive terms in the guaranty as to its assignability; that is, there are no terms which make it a special guaranty, applicable only to the party to whom it was given, to wit, the Commercial Bank. But, even in

cases of ordinary special guaranty, the guaranty is assignable after default, and when a cause of action has arisen thereon: Evansville Nat. Bank v. Kaufmann, 93 N. Y. 273; 45 Am. Rep. 204.

Now, the Commercial Bank paid a valuable consideration for the benefit of this guaranty. It is so expressed in the instrument. Why should it not have the full benefit of what it paid for? The right of assignment was a valuable right to the bank. Its contract with the defendants should be construed as other contracts are construed; that is, to carry out the intention of the parties. Construing it as it appears upon its face, it was the intention of the parties that just such an indebtedness as this, owing the bank by the Columbia Electric Company, should be paid. That obligation can be discharged by paying it 383 to this plaintiff, as well as to the bank. The gist of the obligation is payment of one or more debts. The party to whom it is under obligation to pay is immaterial, providing it was a fair business transaction between the bank and the Columbia Electric Company, and came within the terms of the guaranty. The guaranty should therefore go with the debt it secures. The plaintiff is the owner of the notes, and is the real party in interest. This guaranty is a chose in action, and the party for whose benefit it was made should have the right to make it as effectual and beneficial as possible.

In the case of Thallhimer v. Brinckerhoff, 3 Cow. 645, 15 Am. Dec. 308, the chancellor, in giving his decision upon the general principles applicable to the transfer of causes of action, uses this very sensible language: "But the rule of the common law, that rights of action cannot be assigned, has in modern times been reversed; the apprehension that justice would be trodden down if property in action should be transferred is no longer entertained; and the ancient rule now serves only to give form to some legal proceedings. In courts of equity, this rule was never followed, and those courts have always considered and treated the rule as unjust, and have supported assignments of rights of action. Experience has fully shown, not only that no evil results from the assignments of rights of action, but that the public good is greatly promoted by the free commerce and circulation of property in actions, as well as of property in possession.'

In a general sense, this language is applicable to this case, and confirmatory of the views which we have endeavored to express. We are of the opinion that the instrument of guaranty was assignable, and that by such assignment the plaintiff became the

true owner thereof, and that it was entitled to bring this action for its use and benefit: See Schlieman v. Bowlin, 36 Minn. 198. It is contended by the respondent that the appellant failed to prove the making or delivery of the instrument of guaranty, and that the proof offered in respect to the guaranty was inadmissible under the allegations of the complaint. The record does not disclose the fact that any such objections were raised on the trial, but the fact does not distinctively appear that the only ground of objection was that the guaranty was not assignable. The defendant did not call the attention of the court to any other point, and no other was ruled upon by the court. Nor does the record show that any such points were raised 384 or ruled upon by the court on the motion for a new trial. Having stated his specific grounds of objections, he must be limited to them, and not be allowed now to shift his grounds of defense.

The order denying the motion for a new trial is reversed. Gilfillan, C. J., absent on account of sickness, took no part.

GUARANTY-ASSIGNMENT OF.-A valid contract of guaranty indorsed upon a writing obligatory passes by assignment to the assignee, and vests in him a right of action in his own name: Killian v. Ashley, 24 Ark. 511; 91 Am. Dec. 519. A guaranty is not negotiable, and an action thereon can be maintained only in the name of the guarantee: Ekel v. Snevily, 3 Watts & S. 272; 38 Am. Dec. 758, and note. A guaranty is not negotiable when written under a negotiable instrument, but made payable to no person: Smith v. Dickinson, 6 Humph. 261; 44 Am. Dec. 306, and note. A contract of guaranty will be strictly construed, and, if made with one person or corporation, it cannot be extended to another: Crane Co. v. Specht, 39 Neb. 123; 42 Am. St. Rep. 562.

COLBY V. COLBY.

[59 MINNESOTA, 432.]

DIVORCE PROCURED BY FRAUD, RELIEF AGAINST.If a husband, for the purpose of fraudulently procuring a divorce from his wife, and of preventing her from defending any action he may bring, persuades her to go to a foreign country for the benefit of her health, and, while she is in that country, without funds with which to return, serves a summons on her in a suit for divorce, in which her impotency is alleged as a cause for divorce, and knowing her to be unacquainted with the meaning of the word "Impotency," he writes to her by letter that the ground of the divorce is barrenness, and that such ground is sufficient to require the granting of divorce by the laws of the state, and he thereafter procures such divorce, upon her default, by fraudulently testifying that she had ever after her marriage been incapable of sexual intercourse, she is entitled to relief from such judgment of divorce, and it will be set aside in equity by the statutes of Minnesota.