2 Johns. 342 | N.Y. Sup. Ct. | 1807
The demurrer to the second plea raises the question, whether the assignees under a commission of bankruptcy, sued out in England, can maintain a suit at law here in their own names. This is more a question concerning form than substance, for there can be no doubt of the right of the assignees to collect the debts due to the bankrupt, either by a suit directly in their own names, or as trustees, using the name of the bankrupt- It is a principle of general practice among nations, to admit and give effect to the title of foreign assignees. This is done on the ground, that the conveyance under the bankrupt laws ofthe country where the. owner is domiciled, is equivalent to a voluntary conveyance by the bankrupt; and that the general disposition of personal property by the owner in one country, will affect it every where, because, in respect to the owner’s control over it, personal property has no locality. Rut the mode of recovering the debts of the bankrupt, will depend upon the forms of proceeding in the country, and in the forum in which the assignee institutes bis suit. In the court of chancery in England, the assignee files his bill in his own name, and states his title under the commission. This is also said to be the practice in Scotland, because, there is nothing in the forms of the Scotch proceedings to bar the assignee from bringing a direct action against the debtors of the bankrupt. (Kaim’s Equity,
The 3d and 4th pleas do not correspond with the precedent in 5 Term, 513.
As to the objections, then, to the pleas in point of form, I would observe, that the averment of a settlement and discharge, prior to the suing out of the writ, was sufficient; because the time of the suing out of the writ is the com-' mencement of the suit for the purpose averred in the plea. It was considered as the commencement of the suit in
Judgment for the plaintiffs.
Kearslake v. Morgan.