so 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 derogation 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 otherwise 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, 1 McLean v. Hardin, 3 Jones Eq. (N. C.) 294; s. c. 69 Am. Dec. 740; Mahorner v. Hove, 9 Smedes & M. (Miss.) 247; 8. c. 48 Am. Dec. 706; Humphreys v. Hopkins, 81 Cal. 551; 8. c. 15 Am. St. Rep. 76; Wells v. Wells, 35 Miss. 638; Smith v. Godfrey, 28 N. H. 379; 8. c. 61 Am. Dec. 617; Kanaga v. Taylor, 7 Ohio St. 134; 8. c. 70 Am. Dec. 62; Bank v. McLeod, 38 Ohio St. 174, 180; Walters v. Whitlock, 9 Fla. 86; s. c. 76 Am. Dec. 607; Roche v. Washington, 19 Ind. 53; 8. c. 81 Am. Dec. 376; Hurd v. Elizabeth, 41 N. J. L. 1; Johnson v. Parker, 4 - the Bush (Ky.), 149; Saunders v. Williams, 5 N. H. 213; Bagby v. Atlantic &c. R. Co., 86 Pa. St. 291; Pierce v. O'Brien, 129 Mass. 314, 315; Taylor v. Columbian Ins. Co., 14 Allen (Mass.), 353; Boulware v. Davis, 90 Ala. 207; Chandler v. Siddle, 3 Dill. (U. S.) 477; Pugh v. Hurtt, 52 How. Pr. (N. Y.) 22; Thurston v. Rosenfield, 42 Mo. 474; Runk v. St. John, 29 Barb. (N. Y.) 585, 587; Palmer v. Mason, 42 Mich. 146, 152; Booth v. Clark, 17 How. (U. S.) 322. 322, 334. Booth v. Clark, 17 How. (U. 8.) tendency is more and more to respect each other's laws and judicial proceedings, and to enlarge the principle of comity, which gives effect to them. A most conspicuous modern illustration, or class of illustrations, of the extension of this principle of comity, is found in the so-called Glenn cases, where a trustee, in substance a receiver, of an insolvent corporation, appointed by a court in Virginia, successfully maintained actions to recover assessments from its stockholders, both in the Federal and State courts, in many other States of the Union, and where the propriety of so doing was upheld by the Supreme Court of the United States.1 § 7338. Foreign Judicial Assignments Invalid as against Domestic Creditors. — In conformity with this principle, the rule now universally admitted and acted upon is, that assignments of the property of an insolvent, made, in invitum, by a court in a foreign jurisdiction, for the purposes of judicial administration, to a receiver, assignee, trustee, or other functionary, by whatever name called, are not permitted so to operate as to deprive domestic creditors of any remedy given them by the domestic law. The principle has been stated with great clearness by Mr. Justice Gray in the following language: "This question is conclusively settled by authority. The effect of foreign laws beyond their own jurisdiction depends wholly upon the comity of the State in which their application is invoked. The general rule is everywhere admitted that the transfer of personal property, wherever situated, is to be governed by the law of the domicile of the owner. But the exception is equally well established in this country that when, upon the insolvency of a debtor, the law of the State in which he resides assumes to take his 1 Ante, § 3570, last note. Booth v. Clark, 17 How. (U. S.) 322, 336; Blake v. Williams, 6 Pick. (Mass.) 286; 8. c. 17 Am. Dec. 372; May v. Breed, 7 Cush. (Mass.) 15, 41, 42; Taylor v. Columbian Ins. Co., 14 Allen (Mass.), 353; Willits v. Waite, 25 N. Y. 577; Catlin v. Wilcox SilverPlate Co., 123 Ind. 477; 8. c. 18 Am. St. Rep. 338; 24 N. E. Rep. 250; Pugh v. Hurtt, 52 How. Pr. (N. Y.) 22; Humphreys v. Hopkins, 81 Cal. 551; 8. c. 15 Am. St. Rep. 76. property out of his control, and to assign it, by judicial proceedings, without his assent, to trustees for distribution among his creditors, such an assignment will not be allowed by the courts of another State to prevail against any remedy which the laws of the latter afford to its own citizens against property within its jurisdiction. It can make no difference whether the persons to whom the involuntary assignment is made are called assignees, trustees, or receivers, or whether the debtor is an individual or a corporation, provided either remains in existence and liable to be sued. An assignment under the laws of another State of the Union stands upon the same ground as one made under the laws of a foreign country; for the States are in this respect independent of one another, and subject to no common control, so long as there is no national bankrupt law." - 87339. Actions Permitted when not in Derogation of Domestic Rights. As between sister States of the American Union, the principle now generally acted upon is, that a receiver, appointed in another State, will be permitted, on the principle of comity, to bring an action in the domestic forum, for the purpose of collecting the assets of the insolvent, for distribution in accordance with the law of the foreign jurisdiction, when so to do will not contravene the rights of citizens of the domestic State. This principle applies, not only Taylor v. Columbian Ins. Co., 14 Lycoming Fire Ins. Co. v. Langley, Allen (Mass.), 353, 354, 355. 'Metzner v. Bauer, 98 Ind. 425; Runk v. St. John, 29 Barb. (N. Y.) 585; Hoyt v. Thompson, 5 N. Y. 320; Bagby v. Atlantic &c. R. Co., 86 Pa. St. 291; Hurd v. Elizabeth, 41 N. J. L. 1; Bidlack v. Mason, 26 N. J. Eq. 230; Bank v. McLeod, 38 Ohio St. 174; Toronto General Trust Co. v. Chicago &c. R. Co., 123 N. Y. 37 (trustee appointed in Canada); Re Waite, 99 N. Y. 433; McAlpin v. Jones, 10 La. An. 552; Comstock v. Frederickson, 51 Minn. 350; s. c. 53 N. W. Rep. 713; 62 Md. 196; Boulware v. Davis, 90 Ala. 207; Lycoming Fire Ins. Co. v. Wright, 55 Vt. 526; Chicago &c. R. Co. v. Keokuk &c. Co., 108 Ill. 317; 8. c. 48 Am. Rep. 557; Graydon v. Church, 7 Mich. 36; Pugh v. Hurtt, 52 How. Pr. (N. Y.) 22; Iglehart v. Bierce, 36 Ill. 133; Ex parte Norwood, 3 Biss. (U. S.) 504; National Trust Co. v. Miller, 33 N. J. Eq. 155; Paradise v. Farmers' &c. Bank, 5 La. An. 710; Cagill v. Wooldridge, 8 Baxt. (Tenn.) 580, 583; s. c. 35 Am. Rep. 716. in the case of receivers, but in the case of every other kind of statutory assignee or trustee, acquiring, by operation of the law of the State or country wherein he is appointed, dominion over the property of an insolvent, for the purpose of administration for the benefit of his creditors, -as distinguished from a voluntary assignee who holds the legal title, which carries with it a right of action ex proprio vigore.' As to the distinction, in this respect, between voluntary and involuntary assignments, see post, § 7347. With reference to the question, so far as it relates to the right of action of the assignees of bankrupts appointed by a foreign tribunal, it may be worth while to note that the liberal genius of Chancellor Kent conceded to such trustees an unqualified right of action in the courts of New York. In Bird v. Caritat, 2 Johns. (N. Y.) 342, 8. c. 3 Am. Dec. 433, it was held that a suit could be brought in that State, in the name of a foreign bankrupt, by his assignees, for their benefit as such, using the name of the bankrupt according to the principles of common-law pleading, since abrogated in the code States. "This," said he, "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 of the country where the owner is domiciled, is equivalent to a voluntary conveyance by the bankrupt." In Holmes v. Remsen, 4 Johns. Ch. (N. Y.) 460, s. c. 8 Am. Dec. 581, Chancellor Kent wrote an elaborate opinion, holding that foreign assign ees in bankruptcy took title to all the property of the bankrupt wherever situated, with the same force and effect as if the bankrupt had made a voluntary assignment of his property, and that such a title was good, even against subsequent attaching creditors, in a country other than that where the bankruptcy adjudication had taken place, and where the statutory transfer had been made. He said: "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." Ibid. 485. In Raymond v. Johnson, 11 Johns. (N. Y.) 488, it was held that, although the court would recognize and protect the rights of an assignee, under the insolvent laws of another State, yet an action brought in New York must be in the name of the insolvent. But that rule of pleading is now abolished by the code, which requires every action to be brought in the name of the real party in interest. Another controversy came before the courts of New York between Holmes and Remsen (Holmes v. Remsen, 20 Johns. (N. Y.) 229; s. c. 11 Am. Dec. 269), where Platt, J., expressed views upon the question somewhat different from those of Chancellor Kent. In an opinion of exceptional learning and strength, he, in substance, annexed to those views the following qualification, which is quoted from the conclud 87340. For What Purposes Non-resident Receiver Permitted to Sue. Giving effect to this principle of comity, it has been held that a non-resident receiver will be permitted to sue in a domestic tribunal, or to move therein to set aside a judgment on the ground of its being fraudulent as against the creditors represented by him, when there are no domestic ing argument of Mr. Caines for the attaching creditors, and which is now generally accepted by all American tribunals: "We admit that the bankrupt assignment passes all the property of the bankrupt, here and everywhere, provided always that there are no creditors here having claims on that property. We admit the right of the assignees of the bankrupt to collect his property here and take it to England, if there are no creditors of the bankrupt here, but not other wise. If there are creditors attaching here, there is a conflictus legum, and the foreign law must yield." Ibid. 254. Subsequently it was held by Chancellor Walworth that an assignment in bankruptcy, made in England, was good to pass personal property situated in New York, as against the bankrupt himself and his creditors residing in England (Plestoro v. Abraham, 1 Paige (N. Y.), 236); and such, we shall see, is the generally conceded law: Post, § 7345. In 1885 the Court of Appeals of New York, in a learned and laborious opinion by Earl, J., went over the decisions of that State relating to this question, and analyzed them with care, and the court announced the following doctrine: "1. The statutes of foreign States can, in no case, have any force or effect in this State, ex proprio vigore; and hence the statutory title of foreign assignees in bankruptcy can have no recognition here solely by virtue of the foreign statute. 2. But the comity of nations, which Judge Denio, in Peter sen v. Chemical Bank, 32 N. Y. 21, 8. c. 88 Am. Dec. 298, said is a part of the common law, - allows a certain effect here to titles derived under, and power created by the laws of other countries; and from such comity the titles of foreign statutory assignees are recognized and enforced here, when they can be without injustice to our own citizens, and without prejudice to the rights of creditors pursuing their remedies here, under our statutes; provided also, that such titles are not in conflict with the laws or the public policy of our State. 3. Such foreign assignees can appear, and, subject to the conditions above mentioned, maintain suits in our courts against debtors of the bankrupt whom they represent, and against others who have interfered with, or withhold the property of the bankrupt." Re Waite, 99 N. Y. 433, 448. The court regard these propositions as a legitimate deduction from the following decisions: Petersen v. Chemical Bank, 32 N. Y. 21; s. c. 88 Am. Dec. 298; Kelly v. Crapo, 45 N. Y. 86; 8. c. 6 Am. Rep. 35; Osgood v. Maguire, 61 N. Y. 524; Hibernia Nat. Bank v. Lacombe, 84 N. Y. 367; 8. c. 38 Am. Rep. 518; Re Bristol, 16 Abb. Pr. (N. Y.) 184; Runk v. St. John, 29 Barb. (N. Y.) 585; Barclay v. Quicksilver Min. Co., 6 Lans. (N. Y.) 25; Hooper v. Tuckerman, 3 Sandf. (N. Y.) 311; Olyphant v. Atwood, 4 Bosw. (N. Y.) 459; Hunt v. Jackson, 5 Blatchf. (U. S.) 349. |