Bacon, Baldwin & Co. v. Jos. Horne & Co.

123 Pa. 452 | Pa. | 1889

Ouimox,

Mr. Justice Paxson :

We do not think the property in qiiestion was liable to the foreign attachment. Both the plaintiffs and the defendant in that writ resided in the city of New York. Before it issued the defendant had made an assignment for the benefit of his creditors. The assignment was made in New York and was in conformity to the laws of that state. Under all the authorities it passed the title to the property in this state. It is sufficient to refer to our last case, Smith’s App., 117 Pa. 30.

It was said, however, that inasmuch as the assignment was not recorded in this state, in accordance with the act of May 8, 1855, P. L. 415, relating to foreign assignments, and the attaching creditor had no notice of the assignment, the property was liable to the attachmeut. The first section of the act of 1855 isas follows: “That whenever any person making an assignment of bis or her estate, situate within this commonwealth, for the benefit of creditors, shall be resident out of this state, such assignment may be recorded within any county wherein such estate, real or personal, may be and take effect from its date; Provided, that no bona fide purchaser, mortgagee, or creditor, having a lien therefor before the recording in the same county, and not having had previous actual notice thereof, shall be affected or prejudiced, and the Courts of Common Pleas may dismiss or appoint trustees under such assignment, as in other cases.”

The manifest object of this act was to protect our own citizens. Hence it was held in Steel v. Goodwin, 113 Pa. 288, that • where a foreign attachment had issued after an assignment in another state, but before it was recorded here, and the attaching creditor had no actual notice of such assignment, the attachment was good as against such assignment. To same effect, see also Philson v. Barnes, 50 Pa. 230. These cases were well decided, but they do not rule this one. The act of 1855 is not invoked by any Pennsylvania creditor seeking its protection. As before observed both these parties, plaintiffs and defendant, are residents of New York. The plaintiffs come into this state to obtain an advantage by our law which they could not obtain by their own. They are seeking to nullify the law of their own state and ask the aid of our court to do so. This they cannot have. If for no other reason, it is forbidden by public policy and the comity which exists between the states. This comity will always be enforced when it does not conflict with the rights of our own citizens: Bagby v. Railroad Company, 86 Pa. 291. The same principle is recognized to a greater or less extent by many-other authorities. It is sufficient to refer to Mulliken v. Aughinbaugh, 1 P. & W. 117; Speed v. May, 17 Pa. 91; Law v. Mills, 18 Pa. 185; Moore v. Bonnell, 2 Vroom, 97. The case of the Chemical National Bank v. Tuttle, 17 W. N. 415, was cited as authority on the other side. We do not so regard it. While the facts of that case are upon all fours with this, the point now under consideration was not raised, and of course not decided. The case turned upon the question whether the attaching creditor had actual notice of the assignment. It was assumed that it came within the act of 1855, and this court decided only wbat was then before it. The question of comity was left untouched.

The learned judge below entered judgment upon the reserved point in favor of the garnishees, non obstante veredicto. In this there was no error.

Judgment affirmed.