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tendence of the court from which the receiver procured the order of sale; and, although the rights of the purchaser at such a sale are subject to the action of the court, yet it has been justly said that such action must depend upon the general principles and usages of law. But where the receiver, having made a sale, petitioned the court for an order to set it aside after it had been confirmed, and showed to the court that he had received a subsequent offer of an advance over the bid of the owner to whom it had been struck off, and a previous sale had been set aside for inadequacy of price, - it was held that the court ought not to set the sale aside.
8 7327. Replevin of Property in Custody of Receiver., The party claiming title to property in possession of a receiver of an insolvent national bank, which has come into the possession of such receiver, with other property of the bank, may, on the retusal of the receiver to deliver the same, maintain an action of replevin to determine his title and right of possession thereto. Such an action is not prohibited by section 5242 of the Revised Statutes of the United States, because the word "attachment,” as everywhere used, implies that the title is in the person against whom the suit by attachment proceeds. But the action of replevin is exactly the reverse. It proceeds
Re Third Nat. Bank, 4 Fed. Rep. ties come forward with an assurance 775. In giving his advice to the Dis- that, if they bid in good faith for trict Judge against setting the sale property offered at a judicial sale, aside, Mr. Circuit Judge Drummond they will be protected in their rights; said: “Let us see in what position nor will it cause property to bring this places the court. After the what it is actually worth. The very court has ordered a sale, and it is fact that people believe that a sale made, and the purchaser asks that it amounts to nothing, or that the shall be confirmed, and the court has court will, of course, set it aside, decided that a certain advance is not prevents property from bringing its sufficient, they then bid upon the true value; and nothing, it seems to action of the court. In other words, me, can more effectually destroy the it becomes a sort of auction in the sanctity, so to speak, of a judicial court as to the price at which the sale - nothing more injuriously afproperty should sell. I do not think fects such a sale-than to allow a this is a proper way to make judicial practice of this kind.” sales; nor will it tend to make par- ? Ante, 8 7271.
apon an assertion of the fact that the title is in the plaintiff in the action, and not in the defendant who holds possession of the property. Such an action is not a disturbance of the rightful custody of the receiver, because he has no rightful custody of property except such as belonged to the bank, and “no law makes him the inevitable stake-holder, pending the litigation.”1
§ 7328. Effect of Appointment upon the Statute of Limitations. — The appointment of a receiver does not start the running of the statute of limitations against the claim of one who holds a certificate of deposit of the bank. The reason is that a certificate of deposit, from its very nature, being payable to the order of the depositor, on its return to the bank, is not due or suable until demand made on the bank and refusal to comply with the same. Besides, there was a statute of Pennsylvania excluding insolvent corporations from the operation of the statute of limitations..
1 Corn Exch. Bank v. Blye, 101 N. Y. 303; 8. C. 3 Nat. Bank Cas. 634; affirming 8. C. 37 Hun (N. Y.), 473.
• Riddle 0. First Nat. Bank, 27 Fed. Rep. 503.
• See McGough v. Jamison, 107 Pa. St. 336. That the statute of limitations does not run against the holder
of a certificate of deposit until a demand has been made, - see Smiley v. Fry, 100 N. Y. 262; 8. c. 3 N. E. Rep. 186; Branch v. Dawson, 33 Minn. 399; 8. c. 23 N. W. Rep. 552. Compare Tripp v. Curtenius, 36 Mich. 494; 8. c. 24 Am. Rep. 610.
• 2 Purd. Pa. Stat. 1067, pl. 24.
CHAPTER CLXXVI. .
FOREIGN RECEIVERS. SECTION
SECTION 7334. Receivers have no extra-terri- 7344. Cases refusing to extend this torial power.
comity. 7335. Cannot sue in a foreign juris• 7345. Foreign receivers preferred in diction except by comity.
contest with the debtor and 7336. This comity generally recog
his privies. nized except as against do- 7346. Foreign receiver preferred in mestic citizens.
contest with foreign creditor. 7337. This comity does not extend to 7347. Distinction between voluntary the prejudice of the State's
assignments and assignments own citizens.
in invitum by operation of law. 7338. Foreign judicial assignments 7348. Where the receiver adopts and invalid as against domestic
carries out the contract of the creditors.
corporation. 7339. Actions permitted when not in 7349. Not chargeable as garnishee or derogation of domestic rights.
with trustee process. 7340. For what purposes non-resident 7350. Attachment in foreign jurisdicreceivers permitted to sue.
tion a contempt of court. 7341. May sue to repossess himself of 7351. Appointing a receiver of propproperty removed into the
erty situated in a foreign judomestic jurisdiction.
risdiction. 7342. Illustrations of this principle. 7352, Auxiliary receivers appointed 7343. Real property situate in the for
as a matter of comity. eign jurisdiction does not vest 7353. Receiver cannot transfer jurisin receiver.
diction to foreign court.
8 7334. Receivers have No Extra-territorial Power. receiver “has no extra-territorial power of official action; none which the court appointing him can confer, with authority to enable him to go into a foreign jurisdiction to take possession of the debtor's property; none which can give him, upon the principle of comity, a privilege to sue in a foreign court or another jurisdiction, as the judgment creditor himself might have done, where his debtor may be amenable to the tribunal which the creditor may seek.” 1 Another
1 Booth v. Clark, 17 How. (U. S.) 322, 338.
court has said that “a receiver is but an officer of the court which appoints him, and it would follow upon principle, and which is abundantly sustained by authority, that he cannot act in his official capacity outside the jurisdiction of the court by which he was appointed.”)
87335. Cannot Sue in a Foreign Jurisdiction except by Comity. — It follows that "outside of the jurisdiction which appoints him, a receiver is not ordinarily entitled to maintain suits except by comity.”
8 7336. This Comity Generally Recognized except as aganist Domestic Citizens. Most of the American courts extend this comity so far as to give validity to foreign assignments and to foreign transfers of property, in invitum, in judicial proceedings, especially where the assignment or transfer takes place in another State of the American Union, when to do so will not operate to the prejudice of any rights secured by the local law to their own citizens.
§ 7337. This Comity does not Extend to the Prejudice of the State's Own Citizens. This comity does not extend
· Moseby o. Burrow, 52 Tex. 396, Olney o. Tanner, 21 Blatchf. (U. S.) 403. Other cases affirming this doc- 540; Brigham 0. Luddington, 12 trine are: Farmers' &c. Ins. Co. o. Blatchf. (U.S.) 237; Warren v. Union Needles, 52 Mo. 17; Tully v. Herrin, National Bank, 7 Phila. (Pa.) 156; 44 Miss. 626; Catlin v. Wilcox Silver. Hope &c. Ing. Co. v. Taylor, 2 Rob. Plate Co., 123 Ind. 477; 8. c. 18 Am. (N. Y.) 278; Willitts v. Waite, 25 St. Rep. 338; Sercomb v. Catlin, 128 N. Y.577; Kronberg v. Elder, 18 Kan. Ill. 556; 8. C. 15 Am. St. Rep. 147; 150, 152; Bartlett v. Wilbur, 53 Md. Hunt v. Columbian Ins. Co., 55 Me. 485; Day v. Postal Telegraph Co., 66 290; 8. c. 92 Am. Dec. 592; Chicago &c. Md. 354. R. Co. v. Keokuk &c. Packet Co., 108 • Olney v. Tanner, 10 Fed. Rep. Ill. 317; 8.c. 48 Am. Rep. 557; Wilkin 101, 104; Humphreys v. Hopkins, 81 son v. Culver, 23 Blatchf. (U. S.) Cal. 551; 8. c. 15 Am. St. Rep. 76; 416; Reynolds 0. Stockton, 43 N. J. Sercomb v. Catlin, 128 nl. 556; 8. C. Eq. 211; 8. c. 3 Am. St. Rep. 305; 15 Am. St. Rep. 147; Hunt u. ColumState v.Jacksonville &c. R. Co., 15 Fla. bian Ins. Co., 55 Me. 290; 8. c. 92 am. 201 ; Holmes v. Sherwood, 3 McCrary Dec. 592; Hoyt v. Thompson, 5 N. Y. (U. S.), 405; Kain v. Smith, 80 N. Y. 320; 8. c. 19 N. Y. 207. 458; 8. C. 8 Abb. N. Cas. (N. Y.) 426; • Mowry v. Crocker, 6 Wie. 326; Kilmer v. Hobart, 58 How. Pr. (N. Y.) Cook v. Van Horn, 81 Wis. 291; 452; Moseby v. Burrow, 52 Tex. 396; Iglehart v. Bierce, 36 Ill. 133.
80 far as to require one State to give effect to the laws and judicial proceedings of another State, when to do so will contravene its own public policy or its own laws, or be in dero. gation of the rights of its own citizens vested thereunder.' This principle is constantly applied in determining whether a foreign receiver will be permitted to bring actions, or other. wise to possess himself of, or deal with, the property of the debtor situated within the domestic jurisdiction. At an early period of our American jurisprudence, when the tribal theory
- the theory of a mere league of independent sovereign States, - was uppermost in the minds of judges as the theory
of the relation of the American States inter sese, - it was seldom, if ever, that a receiver appointed in one State was permitted to maintain an action in the courts of another State. In a leading case upon this subject, the court say: "Our industry has been tasked unsuccessfully to find a case in which a receiver has been permitted to sue in a foreign jurisdiction for the property of the debtor. So far as we can find, it has not been allowed in an English tribunal.”: But, it having been settled amid the thunder of cannon, — so far as force can settle any legal proposition or question of interpretation, that the American States, in their relations among themselves, do not constitute a mere league of independent sovereignties, but rather present the case of a collection of quasi-sovereign communities in a close political union, - the
· McLean v. Hardin, 3 Jones Eq. Bush (Ky.), 149; Saunders v. Will. (N. C.) 294; 8. C. 69 Am. Dec. 740; iams, 5 N. H. 213; Bagby v. Atlantic Mahorner 1. Hove, 9 Smedes & M. &c. R. Co., 86 Pa. St. 291; Pierce v. (Miss.) 247; 8. C. 48 Am. Dec. 706; O'Brien, 129 Masg. 314, 315; Taylor v. Humphreys v. Hopkins, 81 Cal. 551; Columbian Ins. Co., 14 Allen (Mass.), 8. C. 15 Am. St. Rep. 76; Wells v. 353; Boulware v. Davis, 90 Ala. 207; Wells, 35 Miss. 638; Smith v. Godfrey, Chandler v. Siddle, 3 Dill. (U. S.) 28 N. H. 379; 8. c. 61 Am. Dec. 617; 477; Pugh v. Hurtt, 52 How. Pr. Kanaga v. Taylor, 7 Ohio St. 134; 8. C. (N. Y.) 22; Thurston v. Rosenfield, 70 Am. Dec, 62; Bank v. McLeod, 38 42 Mo. 474; Runk v. St. John, 29 Ohio St. 174, 180; Walters v. Whit- Barb. (N. Y.) 585, 587; Palmer v. lock, 9 Fla. 86; 8. c. 76 Am. Dec. 607; Mason, 42 Mich. 146, 152; Booth v. Roche v. Washington, 19 Ind. 53; 8. C. Clark, 17 How. (U. S.) 322. 81 Am. Dec. 376; Hurd v. Elizabeth, • Booth v. Clark, 17 How. (U. 8.) 41 N, J.L. 1; Johnson v. Parker, 4 322, 334.