Holmes v. Remsen

4 Johns. Ch. 460 | New York Court of Chancery | 1820

The Chancellor.

This is a bill filed by the trustees of Mullett, an absent English debtor, to compel payment of a debt due to him from the defendants, as executors of Clason. The defendants admit the original debt, and assets, and the character of the plaintiffs, as trustees, duly appointed under the act for relief against absconding and absent debtors. But they set up in their answer two grounds of defence : (1.) That assets of their testator, in the hands of Baring, Brothers, &/• Co. of London, to the amount of the debt, were attached in the Lord Mayor’s Court of London, at the suit of the assignees of Mullett, who had been declared a bankrupt; and that the debt was in that way recovered by judgment and execution, and paid. (2.) That Mullett was declared a bankrupt, under the bankrupt laws of England; and all his personal estate, and debts, vested in assignees, by assignment, prior to the institution of proceedings in this State, against Mullett, as an absent debtor, and that the right to the debt passed thereby to those assignees,

(!•) If the defendants are bound to account to'the plaintiffs, as trustees of Mullett, for the amount of the debt which ^leir testator, at the time of his death, owed Mullett, they have paid the debt twice. The debt has already been Pa'^ to the assignees of Mullett, under the process of fore*Sn attachment, and it certainly cannot be recovered back. ^ was a compulsory payment, under a regular judgment ani^ execut"10ni and to the legally constituted assignees of Mullett. There is nothing in the pleadings, or proofs, to support the allegation of the plaintiffs3 counsel, that the recovery in London was fraudulent and collusive between the defendants and the assignees. The assets were not placed in the hands of the garnishees for any such purpose. It appears from the facts admitted, that the defendants’ testator had, in his life-time, a ship libelled and condemned, at Halifax, and that he had appealed to the High Court of Admiralty, in England, and appointed the house of Baring, Brothers, 8f Co. his agents, in relation to that appeal. This appeal was pending at his death, and his executors continued the agency of it in the house where their testator had placed it. In May, 1818, the appeal was settled upon terms approved of by the defendants, and the money due from the captors of the ship paid to the agents; and in October following, a portion of this money was attached by the assignees of Mullett, for the debt in question. There is no just colour or pretence, from these facts, for saying, that the moneys of the testator were placed in the hands of Baring, Brothers, §• Co. with any fraudulent views, in respect to the demand of the plaintiffs.

The question now is, whether that recovery of the debt is not a conclusive bar to the claim set up by the bill i In my opinion the question cannot admit of a moment’s doubt. The garnishees had no means of retaining the money, so attached, in their hands. The recovery is a good defence to them against any claim, on the part of the defendants. A garnishee can plead the recovery, even though the plaintiff did not prove his debt, and even though the original debtor had not notice, in fact, of the attachment. If the proceedings under the foreign attachment be not void, they constitute a good defence. (M'Daniel v. Hughes, 3 East, 367.) Nor could the defendants, by any means whatever, have repelled the suit in the Lord Mayor’s Court. The debt had been acknowledged by their testator, and the title of the assignees was indisputable; and to compel them to pay the debt out of their own monies, or to charge the debt a second time upon the assets of their testator, would, in either view, be an act of injustice not to be endured. If money be duly attached in the hands of a party, and he has paid it, pursuant to the judgment of a competent foreign Court, I am to presume omnia rite acta ; and it may be laid down as a clear principle of justice, that 'a person compelled, by a competent jurisdiction, to pay a debt once, shall not be compelled to pay it over again. The weighty observation of Lord Bacon, (De Aug. Sci. lib. S. c. 3. aph. 96.) is perfectly applicable; ut Curice, judicia utrobique reddita (quce nil ad jurisdictionem pertinent) libenter rescindant, intolerabile malum, et a regibus, aut senatu, aut politia, plane vindicandum. This doctrine was understood, and explicitly declared by the Supreme Court, in Embree & Collins, v. Hanna, (5 Johns. Rep. 101.) where it was stated, that, if a debt had once been recovered of the debtor abroad, under the process of foreign attachment, the recovery was a perfect protection against the original creditor. In the present case, the debtor has been compelled to pay the debt once to his creditor, who called upon him in the character and name of his English assignees; and now the debtor is called upon again for the same debt, by the same creditor, in the representative character of bis American trustees. Which of these representatives would have the better title to the debt, if it were still unpaid, may be one question; but certainly, when the title of the assignees, and of the trustees, is equally valid, under the laws of their respective countries, the debt is well paid to the party that uses the best diligence, and first recovers the debt. In the case of Embree Collins, v. Hanna, a prior pending- attachment of the debt, in another State, was held to be good, by way of plea, in abatement of a suit by the creditor; and a judgment upon a foreign attachment is held to be a good plea in bar. (Savage’s case, 1 Salk. 294. 5 Taunton, 558.)

(2.) That the English assignees had a good right to demand, sue for, and recover the debt from the defendants, in the manner they did, cannot be denied. But putting the proceeding under the foreign attachment out of view, the payment of the debt to the assignees of Mullett, considered as a voluntary payment, was good; for the entire and exclusive right to the debt, passed by assignment from Mullett to his assignees, prior to notice of the attachment issued under our statute. This brings me to consider the other point raised by the case, viz. — whether the plaintiffs have shown any right to the debt, considering that Mullett was duly declared a bankrupt, and his personal estate assigned, under the bankrupt law of England, prior to the time that proceedings were instituted against him, under our statute, as an absent or absconding debtor ? After the best consideration which I have been able to give to this question, it has appeared to me to be a rule of national law, that the proceeding which is prior in point of time, attaches to itself the distribution of the fund. We have no direct decision upon that point, in this State; though in the case of Bird, Savage 8f Bird, v. Cariiat, (2 Johns. Rep. 342.) it was assumed to be “ a principle of general practice among nations to admit and give effect to the title of foreign assignees. This was done on the ground, that the conveyance under the bankrupt laws of the country where the owner was 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.”

That the succession to, and disposition of personal property, is regulated by the law of the owner’s domicil, has become a settled principle of international jurisprudence, founded on public convenience and policy. This general principle is amply discussed and illustrated by Huber, under, the well known title, de conjlictu legum; and that essay is every where received as containing a doctrine of universal law. Heineccius (Be Testamenti factione Jure Germanicct s. 30. Opera, tom. 2. 972.) cites that treatise, and the same doctrine in Strykius, as the received law in Germany. The same general law' that governs the marriage contract, and testamentary dispositions, and the succession to intestates’ personal estates, applies with equal force and convenience to the disposition of bankrupts’ effects. This mutual respect of nations, as Huber terms it, or courtesy of international law, is founded on the credit which one country gives to the administration of justice in another, and the adoption of it wonderfully increases reciprocal confidence and credit. It would seem to be peculiarly beneficial in respect to the property of bankrupts; for the just and equal distribution of the funds of that class of debtors, becomes the common concern of the commercial world; and the decisions on that subject now form a code, of what Mr. Rose aptly terms “ international bankrupt law.” The presumption ought to be, that justice will be well administered in every civilized country; and in the application of the law to bankrupts, that the foreign creditor sent to the bankrupt’s domicil for his dividend, (and the inconvenience of such a resort is not very great, considering the facility and rapidity of commercial correspondence) will obtain the same measure of justice as the other suitors of the country. It is the presumed will of every person dying intestate, that his moveables, which by fiction of law have no locality independent of his person, should be brought home, and distributed according to the law of his own place. A different rule, says Lord Hardwicke, would be extremely mischievous, and' affect the commerce.of the country. ■ So, it is equally to be presumed to be the understanding of the commercial world, that the funds of the bankrupt should be distributed according to the law of the place where he resided, animo manendi, and where the credit was bestowed.

It is apprehended, that there would be great inconvenience (and it has been frequently detailed) in allowing coexisting commissions upon a bankrupt’s estate, to have coneuirent operation, simul et simul, in different countries; unless, as Lord Eldon observed, the one that is subsequent in point of time, be used merely as the means of assisting the distribution of the funds under the other. It would be in the power of the bankrupt to throw his property under the distribution of either commission, at his pleasure; audit would put creditors upon calculations of exclusive advantages, and of running a race of diligence against each other, and of resorting to the one fund or the other, as circumstances might dictate. The perplexities arising from the concurrent operation of distinct commissions would be increased, if the commercial house had establishments in different countries, with joint and separate debts belonging to each firm, to be distributed. Such a state of things, and such conflicting systems, would lead to great inconvenience and confusion, and be the source of fraud and injustice, and disturb the equality and equity of any bankrupt system.

The principle of international law, in reference to this subject, which appears to be now incorporated into the jurisprudence of every part of the united kingdom of Great Britain and Ireland, and which is there uniformly asserted (and I presume, upon good authority) to be a reciprocal rule of practice among the other nations of Europe, is certainly calculated to remove all collision and discord, and to promote general confidence, harmony and justice. It is a rule of decision, and not a question of jurisdiction, and has no alarming effect whatever upon the rights of territorial sovereignty and independence. It is admitted, in all the cases, that every country may, by positive law, regulate as it pleases, the disposition of personal property found within it, and may prefer its own attaching creditor to any foreign assignee, and no other authority has a right to question the determination, though, as Lord Loughborough said, they “ must suppose that determination wrong.” This was so ruled, also, by Lord Mansfield, in Le Chevalier v. Lynch, (Doug. 170.) The true question is, whether it be not wise, and politic, and just, (where no positive law intervenes, and where it is net repugnant to the essential policy and institutions of the country,) to adopt the rule of international law which other nations apply to us, and which impairs no right, but promotes general justice, and is founded on the mutual respect, comity and convenience of commercial nations. Huber has placed this subject on proper grounds, when speaking of the effect of the law of the foreign domicil, operating upon property within another jurisdiction: JVon vi legis. alienee, immediata, sed accedente consensu potestatis summee in altera civitate, qua legibus alienis in loco súo exercitis preebet effectum; sine suo suorumque preejudicio, mutuos, populorum utilitatis respectu, quod est fundamentum omnis hujus doctrinos. (Lib. 1. tit. 3. de conjlidu legum, s. 9.)

Marriage contracts, says Sir Wm. Scott, in Gordon v. Dalrymple, must, in an English Court, be adjudicated according to the principles of English law ; and what are the principles of English law applicable to such a case ? They are, that marriage rights must be tried by a reference to the law of the country where they had their origin. “ Having furnished this principle, the law of England withdraws altogether, and leaves the legal question to the exclusive judgment of the foreign law.”

The decisions of Lord Hardwiclce have applied the rule, that mobilia non habent situm, and that they are to be distributed according to the law of the owner’s domicil, not only to the case of intestates’ estates, but to the case of bankrupts’ effects. In Pipon v. Pipon, (Amb. 25.) and in Thorne v. Watkins, (2 Ves. 35.) the rule was applied to the distribution of intestates’ estates. Lord H. observed, that taking a oreign probate or letters of administration in the country where the property was situated, was but “ for form,” and to enable the party to sue; and that all debts followed the person, not of the debtor, but of the creditor to wlpm due; and that it would be most mischievous, if they were to follow the person of the debtor. He said, the same doctrine had been applied, in the House of Lords, in Morrison’s case, which was a case of lunacy, and the rule would ^ be the same on a question between a Court of France and a Court of England. The case of Captain Wilson, an English bankrupt, which is cited by Lord Mansfield, in Le Chevalier v. Lynch, but cited and more fully explained by Lord Loughborough, in giving his opinion in Sill v. Worswick, (L. H. Bl. 691.) is the one in which the lex domicilii was applied by Lord Hardwicke, to the distribution of a bankrupt’s estate. He said, that the Court of Session in Scotland, entirely concurred with Lord Hardwicke in that case. There were three sets of Scotch creditors who put forward their claims in opposition to the title of the English assignees.— Some of the creditors of Wilson had an assignment of specific debts, with intimation or notice to the debtor, so as to create, under the Scotch law, a'specific lien, quoad that debt. Other creditors had assignments, without any such intimation prior to the bankruptcy, and which, by the Scotch law, gave the assignee a right inferior to that of the creditor who had obtained his assignment and intimated it. A third class of creditors had arrested or attached the debts, subsequent to the bankruptcy. Lord H. and the Court of Session agreed, that the first class of creditors were to be considered as claiming by mortgage, before bankruptcy, and if they came in under the English commission, they must come in on the footing of other creditors, and were first to account for what they had received; and they further agreed, that the title of the second class by assigument, was preferable to the title by arrestment; and that the arrestments, (which is a Scotch process for the recovery of debts,) being subsequent to bankruptcy, were of no avail, the property being, by assignment, vested in the assignees under the commission.

I should presume we might rely upon the entire accuracy of Lord Loughborough’s report of the case of Wilson. The state of this case, which is loosely given in Cleve v. Mills, (Cooke's B. Law, 243.) decided by Lord Mansfield, at the Cockpit, in 1764, is manifestly incorrect ; and it further shows, that the short note of the case of Cleve v. Mills, is not sufficiently authentic to be regarded. This case of Wilson is also cited by counsel in Selkrig v. Davis, under the title of Assignees of Wilson v. Fairholme, as being decided in 1755, and the account of it coincides with Lord Loughborough's report. The case of Morrison, mentioned by Lord Hardwicke, is more fully stated by Serjeant Hill, in his very elaborate argument in the case of Sill v. Worswick. From these cases, we have full evidence that in the time of Lord Hardwicke, it was understood and settled, as the rule of international law, that the effects of intestates, of lunatics, and of bankrupts, were to be distributed, not according to the less rei sitce, but according to the law of the owner’s domicil. It was also settled, that in the latter case, an attachment by a Scotch creditor, under the Scotch law, subsequent to bankruptcy, would not avail against the right of the English assignees; and that in the second case, the committee appointed under a commission of lunacy, had a right to sue for and recover his property in Scotland, equally as if they held under his voluntary assignment..

If we follow the cases down from that period, we shall find the same principle equally recognized, but with the advantage of being more matured, more fully developed, and better understood.

In Solomons v. Ross, (1 H. Bl. 131. note,) which, in 1764, Came before Mr. Justice Bathurst, sitting for Lord Northington, the parties were merchants in London, and Messrs. Deneufvilles, of Amsterdam, corresponded with them. In 1759, Messrs. D. stopped payment, and in 1760, the chamber of desolate estates, in Amsterdam, took cognizance thereof, and they were declared bankrupts, and curators or assignees of their effects appointed. Ross was a creditor of theirs, and two days after they had stopped payment, and a few days before the curators were appointed, he attached, in the Mayor’s Court, in London, their money in the hands of their debtor, M. Solomons. In 1760, Ross obtained judgment by default, and execution issued against S. the gar- " nishee, who gave Ross his note for the debt. After this, I. Solomons, as attorney for the curators, filed a bill in chancery on their behalf, praying that the garnishee might account as debtor to them, and be restrained from paying Ross. S., the garnishee, filed a bill of interpleader, and brought the money into Court; and it was decreed, that the money be paid to I. Solomons, the complainant, for the creditors of the bankrupts, and that Ross deliver up the note, to be cancelled.

This is a strong and interesting decision, applying, in favour of other nations, the rule which England, asks for herself. There can be no doubt of the general authenticity and accuracy of the report. Lord Loughborough said, he was counsel in the cause, and that it was decided solely upon the principle that the assignment of the bankrupt’s effects to the curators of desolate estates, was an assignment for a valuable consideration, and therefore acknowledged in England, agreeable to Captain Wilson’s case in the House of Lords. The principle of the case is valuable and imposing ; but I think the application was pushed too far, if the dates are given correctly; for the attaching creditor had commenced his suit, and so gained a priority in time, before the curators were appointed in Holland. Perhaps, however, the Court may have considered the title of the curators, as relating to the time when the bankrupt stopped payment, and on that ground, the decree was correct; though it would seem, from proof taken some years afterwards, in the case next to be cited, that a bankrupt’s effects in Holland vested only from the appointment of the curators. An error on this matter of fact, does not in the least impair the value and authority of the case, as to the principle it contains.

Again, in Jollet v, Deponthieu and Baril, which arose before Lord Ch. Camden, in 1769, (1 H. Bl. 132. note,) the Deneufiilles, (but not those in the former case,) merchants at Amsterdam, stopped payment on the 30th of July, 1763. On the 8th of October following, the plaintiffs were appointed curators of their effects, and the bankrupts owed the defendant D., of London- On the 5th of Jan. 1764, the defendant D., attached the money of the bankrupts, in the hands of B., one of the defendants, and a debtor of the bankrupt. Pending the attachment, the curators filed their bill for an account between the bankrupt B., and 'that the balance might be paid to them, and the defendant, B., restrained from proceeding on the attachment. The decree was, that the plaintiffs recover the balance due, and that a perpetual injunction issue against proceeding on the foreign attachment.

• Lord Kenyon, in Hunter v. Potts, (4 Term Rep. 182.) speaks of this and the preceding decision as correct; and he says, that Lord Camden thought this last a very clear case; and it establishes this great doctrine, that the title of the foreign assignee of a bankrupt’s estate, under the law of the bankrupt’s domicil, was to be preferred to the subsequent attachment of the domestic creditor, made here under our own attachment law.

The case of Neale v. Cottingham and Houghton, (1 H. Bl. 132. note,) arose in Ireland before Lord Ch. Lifford; and Lord Kenyon, in reference to this very decision, speaks of that Chancellor, as a very respectable authority. (?., a merchant in London, was indebted to the defendant CL a merchant in Dublin, and the defendant II. was indebted to 6r., and on the 27th of October, 1763, C. attached the debt due from II. to G., for his debt. On this attachment, judgment was rendered, in 1764, and H, the garnishee, was taken in execution, and then paid the debt. On the 28th of October, 1763, a commission of bankruptcy issued in England, against (?., and he was on that day declared a bank» rupt. On the 10th of Nov. 1763, his effects were assigned to the plaintiffs, who, in Nov. 1764, filed their bill in the Court of Chancery in Ireland, against C. and H., praying for an account of the monies received by C. from if., for the debt due G. before his bankruptcy, and that C. might be decreed to pay it. The Lord Chancellor, (as the case was new,) called in the assistance of the judges, and after great consultation, he, with their approbation, decreed in favour of the plaintiffs, and ordered C. to pay the money he recovered of II.

This case went farther than, I apprehend, the doctrine on the subject requires, for it gave effect to the title of the assignees, by relation back, beyond the time of their appointment, to the time of the act of bankruptcy committed, and so overreached the time of the attachment. This doctrine of relation, is a positive rule of mere municipal policy, which no other country is bound to adopt, as it would lead to great inconvenience; and it is sufficient upon the rule of the international law, as now declared and understoqd, to give effect to the title of the assignees, from the time the assignment to them was actually made, as being a substitute for the voluntary assignment of the bankrupt himself; and, perhaps, we may say that no concession is to be made to foreign interests, which would materially disturb the whole order and policy of our internal arrangements. The rule is, that comitas is to be observed, quatenus sine prcejudicio indulgentium fieri potest.

The recognition of the title of foreign assignees had now become so well settled, and was so generally received, as a rule of public law, that when Lord Thurlow was told, Nov. 1787.) in the case ex parte Blakes, (1 Cox, 398.) that in America, the interest of the assignees, under the English bankrupt laws, was not noticed, he observed, with surprise, that “ he had no idea of any country refusing to take notice of the rights of the assignees,' under their laws, and he believed every country on earth would do it, besides,”

In Hunter v. Potts, (4 Term Rep. 182.) it was decided, that if, after assignment of a bankrupt’s estate, a creditor, know- . .T .1-171 mg of it, and residing m England, attaches the money of tjie bankrupt abroad, the assignees may compel him to refund it. As this case was decided between subjects of the same government, and equally owing obedience to the bankrupt laws, and on the ground that they must do no act to contravene them, it does not directly apply to the question before me. But it is a case well worthy of attention, as it treated, largely and liberally, the general subject under discussion ; and I think it may be considered as the acknowledged law of that case, that the representative character of the assignees of a bankrupt, is recognized by the general law of nations, which adopts the lex domicilii as the rule, in respect to personal property. It was held by the Court, that the personal property of the bankrupt, wherever situated, passed by the assignment in the same manner as if the owner had assigned it by his own voluntary act, unless there was a positive law of the foreign country, where the property was situated, directing a particular mode of conveyance; and Lord Kenyon took occasion to observe, that an assignment, under the bankrupt acts, might be taken to be an assignment for a valuable consideration.

The case of Sill v. Worswick, (I H. Black. 665.) was decided shortly after in the C. B. upon the same ground; that an English creditor, after an act of bankruptcy, cannot attach, in a foreign country, money due to the bankrupt, without being liable to refund it to the assignees. This case is distinguished for the precision, perspicuity, and force with which Lord Loughborough, in behalf of the Court, declared the general doctrines of international law, on the subject of the operation of bankrupt laws, extra territorium. He observed, that it was a clear proposition, not only of the law of England, but of every country in the world, where law had the semblance of science, that personal property had no locality, and was subject to the law which governed the person, both with respect to the disposition of it, and to the transmission of it, either by succession, or the act of the party — that there was no difference in the cases on this subject, if they were rightly understood, and rightly applied— that if the English bankrupt had personal property out of the jurisdiction of the law of England, and which by the law of England, was, upon the bankruptcy, vested in his assignees, if the country where it lies proceeds according to the principles of well regulated justice, there is.no doubt but that it will give effect to the title of the assignees — that the determination of the Courts of England had been uniform to admit the title of the foreign assignees: he referred to the cases of Solomons v. Ross, and of Joliet v. Euponthieu, (which have been already cited,) as founded on general law, preferring the title of the assignees to the title of the arresting creditor, and declared that the principle he had stated, had a very universal observance among nations.

He held, that an assignment, under a commission of bankruptcy, was for a just consideration, and was to be preferred to the claim of all creditors, wheresoever, who had not acquired a specific lien prior to the act of bankruptcy committed, though he admitted that, if by the law of a foreign country, a foreign creditor had been preferred, it could not be helped; and such preference, however repugnant to principle, could not be disturbed.

The same question decided in the two preceding cases, came before all the judges, in the Exchequer Chamber, on error from the K. B. in Philips v. Hunter. (2 H. Blacks. 402.) All the judges who expressed any opinion, except one, concurred in the judgment of the K. B., and gave their sanction to the general doctrine contained in these cases. It was admitted, that, before bankruptcy, the bankrupt might assign his property abroad as absolutely as if it had been in his own tangible possession; and the assignees were entitled, by operation of law, to deal as he might have done with his property. The whole property of the bankrupt must be under their control, without regard to it!s locality, except in cases which militated against the particular laws of the foreign country. If the bankrupt laws were circumscribed by the local situation of the property, a door would be opened to all the partiality and undue preference which they were framed to prevent, and property would be sent abroad, with unjust views, by the bankrupt, immediately previous to his failure. It was, therefore, on wise principles, that foreign States acknowledged and acted according to the different civil relations which subsist between men in their own country.

But why need we go further with English cases on this subject ? To recognize the laws of foreign countries as binding on personal property, in a variety of cases, has been so long settled in principle, that according to Lord Ellen-b'orough’s expression, (5 East, 131.) it is now laid up among our acknowledged rules of jurisprudence.

We have two recent decisions in the Court of Session in Scotland, (and one of them affirmed, in the House of Lords,) in which this great doctrine of national law has been profoundly discussed, and laid down and vindicated with distinguished learning and ability.

Stein’s case (1 Rose’s Cases in Bankruptcy, App. p. 462.) was decided in 1813, and it declared the law to be, that an English commission of bankruptcy vested in the assignees all the property of the bankrupt, wherever situated, precluding creditors in Scotland from subsequently attaching, by sequestration, their debtor’s property in Scotland, and from administering it in a course of distribution under such process of sequestration. It further declared, that a sequestration in Scotland, would preclude English creditors from suing, or sustaining a commission against a debtor who was the subject of the prior sequestration ; and that, whether the English commission, or the Scotch sequestration, was to be preferred, as to the mode of administering the debtor’s effects, depended upon their priority.

Lord Robertson, in giving his opinion, observed, that it was a question of great importance, what was to be the effect in Scotland, of an English commission of bankrupt; that they had clear principles of international law to govern them, and to which they ought to adhere, unless they were to throw into confusion the whole system of bankrupt law. That the effect to be given to such a commission in every country where the true principles of international law were understood, was, that it must carry the whole effects belonging to the bankrupt, and that the subsequent Scotch sequestration could not be permitted to control the commission. That moveables followed the person of the owner, and their condition was governed by the law of his domicil, a fiction introduced upon the soundest principles ofjustice; and, in practice, attended with the most beneficial consequences. Lord MeadowbanJc, who, also, gave his reasons at large, concurred in the same doctrine, and declared, that after a commission, nothing remained of the personal estate, on which a sequestration could operate, any more than under a voluntary conveyance by the bankrupt. He admitted it was formerly a principle, that a judicial transfer only operated intra territorium, and had no binding influence abroad; but the new rule had now been so long recognized, that it might be considered a principle of the law of nations. A marriage operated as a legal assignment of the property of the wife to the husband, without regard to territory, all the world over, and he perceived the predominant, the irresistible necessity, in point of expediency, of adopting the rule that Lord HardwicJce adopted in one of the cases, when a departure from it would be attended with inextricable confusion.

All the other Judges of the Court of Session were of the same opinion, and expressed themselves to the same effect One of them (Lord Bannatyne) observed, that a prior English commission did not, ipso jure, prevent the award of a sequestration, though the effect of it would be an after question, depending on circumstances which might, perhaps, justly destroy the effect of the commission. But the Court reserved themselves upon the point, whether, in case they were satisfied, the party subjected to the commission was domiciled in S., and had not been duly domiciled in E., where the commission issued, they were bound to give effect to it. The Lord Justice Cleric held, that they were bound to watch, lest any such proceedings should be carried on by persons domiciled in Scotland, which might interfere with the application of their own rules of law.

This decision of the highest Court of law and equity in Scotland, upon a point of public law, comes with much authority, after so full and elaborate an investigation of the question. Nor are we permitted to presume that it proceeded from, a principle of mere deference to the English law, or system, of jurisprudence. We have several decrees of that sam,e Court, and by the same Judges, supporting Scotch decrees of English marriages between English subjects, (see Ferguson’s Reports, of some repent decisions by the Consis-, torial Courts of Scotland, passim,,) in-which the independent spirit of their administration of the law, in. opposition to English law and policy, and in opposition to what was deemed by the Consistorial Court, international law, is sufficiently demonstrated. They feel perfectly free, whenever they deem it proper, to vindicate the supremacy of the law of Scotland-within its own territory.

The other case to which 1 alluded, is that of Seller ice v. ' ° Davis and Salt, (2 Dow. 230. 2 Rose, 291. S. C.) decided the House of Lords in 1814, on appeal, and in affirm-ance 0f die decree of the Court of Session. The case Was discussed very much at large upon the appeal, and a history given of the Scottish decisions on the question, from, the year 1747 ; and I believe it is understood, that on such appeals the municipal law of Scotland is carefully observed'. By the decree, it was declared to be the settled law in Scotland, founded on a principle of international law, that the assignment under an English commission of bankruptcy, vests in the assignees, without the necessity of intimation, the whole personal estate of the bankrupt in Scotland, or wherever situated, and that the effect of all subsequent diligence by any Scotch, or other creditor, was thereby precluded. In this case, a commission issued in England against a debtor, part of whose property consisted of shares of Carrón stock, and a creditor in Scotland afterwards arrested those shares, and it was held by the Court of Session, and, on appeal, by the House of Lords, that the title of the assignees was preferable. It was, likewise, held, that the commission did not affect real property in Scotland, nor impose any legal (though Lord Eldon thought it did, also, a moral) obligation on the bankrupt to convey to his assignees ; but the creditors had it in their power to enforce a proper conveyance of the real estate, by giving, or withholding the bankrupt’s certificate.

The counsel for the respondents observed, (and their doctrine may well be assumed to be the doctrine of the House of Lords, which affirmed the decree,) that it had been repeatedly decided, that a foreign commission passed the effects in England to the foreign commission, and the presumption was, that such was the law of all the world. That when it was said, that the property of the bankrupt abroad might be attached, notwithstanding the commission, it meant only, that the law of England could not be administered in foreign countries, and that the law of a particular state might form an exception to the general rtile among civilized nations. That if two nations were at war, it might be doubted whether a commission in one country, could prevent the effect of an attachment in the other, where the attaching creditor could have no remedy under the commission, and that the only distinction was, whether the creditor could have his remedy. That this rule was not the result of domicil, but of the courtesy of international law. Lord Eldon, in giving his reasons in the House of Lords, -n favour 0f dje <jecreej said, that Stein’s case involved the general principle; and he agreed that the Scotch cases, prior to that of Sroothers v. Reid, in 1803, exhibited a very distressing versatility of opinion. But it was clear, that the English commission passed the personal property in Scotland, and in all other parts of the world; and there was no authority or dictum to' the contrary. A general assignment by a bankrupt, of all his effects, for the benefit of all his creditors, operated like a transfer by marriage, in England, which rendered the Scotch property of the wife her husband’s, without the necessity of notice; and the Scotch law, as to intimation or notice, did not, and could not apply, without cutting up by the roots the use of an English commission in relation to Scotch property.

We have now shown that the rule in question is firmly settled, and recognized as a rule of-national law, by all the Courts in England; by the Court of Chancery in Ireland, and by the Court of Session in Scotland. The opinion of so many'tribunals, of such high character,and great learning, is certainly to he considered as very strong evidence of the existence of the rule, to the extent, and with the pretensions under which it has been announced.

I entertain no doubt that the same rule is known and observed among the other nations of Europe. It is embraced by the general principle, so universally recognized by the civilians, that the distribution and disposition of personal property, are governed by the law of the owner’s domicil.

■ Hut in the appendix to Cooper’s Bankrupt Law, p. 27. we .}]aye a rep0rt 0f the-case of Parish v. Sevon, decided in the French Court, at Dunkirk, in 1780, which is perfectly in accordance with the preceding cases. The defendant, a merchant at Paris, and a creditor of C. C., English bank.zupts, had attached, at Dunkirk, a debt in the hands of Be Gravier, due to the bankrupts before their failure. The attachment was laid subsequently to the issuing of the English commission; and the question arose in the city Court at Dunkirk, between the English assignees of the and the French attaching creditor, which had the better title to the money in the hands of De Gravier, the garnishee. The cause was heard, and received mature deliberation ; it was declared that the assignees were entitled to the money, and that the attachment be dissolved, and the French creditor was even condemned to pay the costs. The opinions of two advocates of the Parliament of Paris, had been previously taken by the English assignees, which opinions are subjoined to the case; and they agreed that the French creditor was not entitled, in consequence of his attachment, to any privilege or preference over the general creditors, but must take his rateable dividend under the English commission. In one of these opinions, dated at Paris, 4th December, 1778, and given by M. Babille, it was observed, that the laws of commerce were a branch of the law of nations, and that the property of an insolvent debtor, where-ever it may be found, was the common pledge of all his creditors, whether natives or aliens; and that personal property followed the person of the owner, and was governed by the laws of the place where he resided. Commercial contracts were to be governed by the universal law of nations; non erit lex alia Romee, alia Athcenis.

•It is admitted in every case, that foreign assignees, duly appointed under foreign ordinances, are entitled, as such, to sue for debts due to the bankrupt’s estate. So far, says Lord Kenyon, in Smith v. Buchanan, (1 East, 6.) we give effect to foreign laws of bankruptcy, on the ground, that personal property must be governed by the laws of the country where the owner was domiciled. This is a recognition of their title, and an admission of the substitution, as made by the lex loci; and it seems difficult to make a distinction between its validity for this purpose, and riot for every other reasonable purpose of securing the bankrupt’s effects. Bat there is an inconsistency, as it has been alleged, in the practice on this subject, which gives effect to the assignment, and will not give effect to the bankrupt’s certificate of discharge. Lord Talbot, as long as á century ago, (Cooke’s B. Laws, 347 — Beawes’ Lex Mer. 6th ed. 516.) complained of this inconsistency; and while he admitted that the assignment carried with it the bankrupt’s effects abroad* he thought it would be reasonable that the certificate should be co-extensive in its operation with the assignment. The Court of Session, in Stein’s case, went the whole length of declaring that a certificate obtained under an English commission, operated as a discharge of the debts of the Scotch creditors, proveable under the commission. Admitting that there is a want of harmony between the parts of the system of rules on this subject, it will not affect the binding force of the rules, taken separately, that the assignment does carry all the personal property of the bankrupt, wherever situated-; and that the certificate is no bar to a foreign creditor, who does not come in under the commission. Suppose the debtor, independent of the statutes of bankruptcy, or in a case were they did not apply, or in a place where they did not exist, had made a general assignment of all his effects to trustees, for the benefit of all his creditors, it would, no doubt, have been a good and valid assignment, and. have carried all his effects; but it would not have been a bar to the suits of those creditors who did not come in and take their share of the property upon his terms. The assignment, however, would have carried, in equity, all his foreign debts, and prevented a subsequent attachment of them» In Lewis v. Wallis, (Sir T. Jones, 223.) the K. B. held, that after the assignment by A. to B., of a debt due to A-. from C., it became the right of property of B., and A. had no interest in it, but as a trustee for B., and the debt was no longer liable to a foreign attachment, as the debt of A. It is a very clear proposition, that a voluntary assignment, made bona fide, by a debtor for the payment of his debts, is valid, and founded on a valuable consideration, and will operate upon his foreign debts, and preclude a subsequent attachment of them. These rules, which may be apparently conflicting, rest on very different principles, and which are sufficient to sanction each of them, in their diversity. We are bound to give effect to the assignment, because it is equivalent to a voluntary act of the party over his own property, or because the property is supposed, by a fiction of law, to be attached to his person, and to be within his domicil, or because we are bound to do so by the comity of nations. Bankruptcy, said Lord Mansfield, in Wadham v. Marlow, (1 H. Blacks. 437. note. 8 Bast, 314.) is an act done by the bankrupt himself, and he is liable, on his covenant, for rent, equally, as if the assignment was voluntary, in contradistinction to its being required by law. Every man’s assent is to be presumed to a statute. The same principle was advanced by Ch. J. Parsons, in Goodwin v. Jones, (3 Tyng, 517.) when he considered the assignment under the bankrupt laws, as the party’s own act, since it was in execution of laws by which he was bound, and since he voluntarily committed the act which authorized the making of it. Foei (Com. ad Pand. 38. 17. 34.) states either of two grounds as sufficient for the rule of distributiop of the intes-. tate’s effects, according to the law of his domicil; vel quia, semper domino prasentía esse finguntur, vel de comitate, passim usu inter gentes recepta. It is immaterial, for the present purpose, on which principle we give effect to the title of the foreign assignee. Either is a stable and sufficient ground, and has no application to the other question, whether the foreign certificate should cancel the debt of a credit tor who is not a subject of the foreign government, and has given no assent to the proceeding.

The attachment act under which the plaintiffs derive their character as trustees of the English bankrupt, reaches to all the estate, real and personal, of the bankrupt; and creditors residing out of the state are specially declared to be creditors within the act. The provisions1 of it are very comprehensive; and I entertain no doubt, that if the attachment and appointment of trustees under this act, had been first in time, and the proceedings had been consummated, without any interruption or supersedeas on the part of the debtor, the title of the trustees would have been recognized in all the English Courts, as controling the personal property there. In that case, the place of distribution of the funds'would have been here, and not in London.

During the examination of this question, I have not been inattentive to the case of Milne v. Moreton, (6 Binney, 353.) decided in the Supreme Court of Pennsylvania, in 1814, • and which gave to their own attaching creditor, a preference over the title of the English assignees, under a prior assignment. I have examined that case with great care, as well from respect to the character of the Court, as for the able discussion which it contains; and I can only be permitted to saj', that from the view which I have taken, and the im- . pressions which I have received of the law on the subject, it is not in my power to follow the conclusion of the majority of that Court. Considerable reliance seems to have been placed, in that case, upon the decision of the Supreme Court of the United States, in Harrison v. Sterry ; (5 Cranch, 289.) and I am not disposed to controvert the position, that in the distribution of bankrupts’ effects in this country, the ' United States are entitled to a preference; because, this preference is given by a positive law, and the attaching creditors were likewise entitled to a preference, if their attachment was prior to the assignment under the British commission. But the latter part of the decree touching the distribution 6f the surplus fund wants explanation; and we do not know the grounds of the decision. It is never, however, to be presumed, that any Court intends either to establish, or reject a litigated point of law, of great importance, merely by a dry decision, unaccompanied with argument or illustration.

The case before me has one strong and peculiar feature, There was not only the ordinary and regular assignment by law under the British bankrupt system, but there was also a concurrent and separate assignment by the bankrupt to the same assignees, upon the like trust, of all his personal property “ not being, arising, or growing in England and we have, therefore, the benefit of a voluntary assignment (as contradistinguished from that under the statute, and which operates in invitum) by the act of the bankrupt himself. This seems to have been done for greater caution, and to meet the difficulty that might arise as to the reception of the statute assignment, on this side of the Atlantic, ° 3 This would seem to have removed every obstacle in the ° case. But I do not place much reliance on the distinction, . and it does not appear to me to make any difference in the application of the principle, whether he made the transfer himself, or the law of his domicil for him. It is, in either case, in contemplation of law, his act. The act of bankruptcy was his act, and the law of his land, by which he was bound, operating upon that act, worked the transfer. There was, therefore, no longer any debt due to him in this state, upon which the subsequent title of the plaintiffs could attach.

I am, accordingly, of opinion, that whether we consider the recovery of the debt in question under the foreign attachment, or the prior assignment of it with the property of the bankrupt under the English commission, the plaintiffs have no equitable claim to it, and the bill must, consequently, be dismissed. As the parties are all before the Court in a representative character, and have been litigating serious and important questions, without any imputation of misconduct, I shall dismiss the bill without costs.

Decree accordingly.

+ it

the garnishee, ment and exeforeign atachdon' of a debt teen bof iVewdHor’hi Sng" hf/to* an °acd against roufhe fríte,’under reHef^alab"! though the0»?issíed^before the m°debtor £nds'of the leforeAtheafod reign attach-England.

The title of the foreign assignees, and of the American trustees, being equally valid under the laws of their respective countries, the debt is well paid to the party who hasused the greatest legal diligence to recover it.

The succession to, and the distribution of, personal property, is regulated the lex do. micilii, not by the lex loci rei sitae.

Opinion of Huber on this question.

The same principle of general law that governs marriage contracts, testamentary dispositions, and the succession to the personal estate of intestates, applies to the distribution of the estate of a bankrupt.

Inconvenience of coexisting commissionson the estate of a bankrupt, in concurrent operation ir different coup tries.

The principle of national law on this subject, is a rule of decision, not a question of jurisdiction ; and does not affect the _ rights of territorial so* vereignty.

mmf'ofStathe doctrine.

. Sir William ScoWs opinion.

Lord Hard• niche's opinion.

Justice" °B^r' thurst.

í>ée¡s¡on by the Chancel-gas of Ireland,

But the title of the foreign assignees,’ takes effectonlyfrom the date of the assignment to them, and has no relation to the time of the act of bankruptcy committed.

For the doctrine of relation, in regard to bankrupts,is a positive rule of mere municipal policy; and the rule of cozniiybetvveen nations does not require its adoption.

(in timS¡ni787Va'

Lord Lough-borough's exposition of the law on this subject.

Adopted by the common law judges, in England.

Lord Elleniorough's opinion, 5 East, 131.

Opinions of the Judges of the Court of Session in Scotland, in 1813.

. . The opinion, of the Court of uffirmedmthe House of Lords,

Lora Eldon’s plmÓn‘

Law of France on this subject.

Lord ¿Tea-yon s opmiolt'

Opinion as to the extent of the operation of the certificate of the bankrupt’s discharge.

A voluntary assignment made bonajide by a debtor* of all his property* for the benefit of all his creditors,is valid, and will pass debts due to him in foreign countries.

So will an assignment under the bankrvpilaw of his country; either because it is equivalent to a voluntary assignment by the debtor; or because thedomicil of the owner draws to ⁺ his personal property; or because it is an established rule of comity among nations.

Every man is presumed to. beassentingto* anda party to, the laws of his own country.

Observations on the case of Milne v. More-ion, decided by the Supreme Court of Pennsylva-

And on the case of Harrison v. Sterry, in the Supreme Courtof the United States.

^/““parai-e h¡^assignee? “Pu°” 3a,^° ¡£edebankrupt pe"ty°f outPTf ^ough"ft may casTInhe fot herenasSmakes ¡1,° tke'genTrai

the same, whother the tvansfer is made kr himself, or by the law of his domicil, fpr him.

Case Details

Case Name: Holmes v. Remsen

Court Name: New York Court of Chancery

Date Published: Jul 17, 1820

Citation: 4 Johns. Ch. 460