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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."
8 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 judi. cial 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 fol. lowing 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
| Ante, $ 3570, la note.
• Booth v. Clark, 17 How. (U. 8.) 322, 336; Biake 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; Williits 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."
8 7339. 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 o. Columbian Ing. Co., 14 Lycoming Fire Ins. Co. 0. Langley, Allen (Mass.), 353, 354, 355.
62 Md. 196; Boulware v. Davis, 90 • Metzner v. Bauer, 98 Ind. 425; Ala. 207; Lycoming Fire Ins. Co. v. Ronk v. St. John, 29 Barb. (N. Y.) Wright, 55 Vt. 526; Chicago &c. R. 585; Hoyt v. Thompson, 5 N. Y. 320; Co. v. Keokuk &c. Co., 108 Ill. 317; Bag by v. Atlantic &c. R. Co., 86 Pa. 8. C. 48 Am. Rep. 557; Graydon v. St. 291; Hurd v. Elizabeth, 41 N. J. Church, 7 Mich. 36; Pugh v. Hurtt, L. 1; Bidlack v. Mason, 26 N. J. Eq. 52 How. Pr. (N. Y.) 22; Iglebart v. 230; Bank v. McLeod, 38 Ohio St. 174; Bierce, 36 Ill. 133; Ex parte Norwood, Toronto General Trust Co. v. Chicago 3 Biss. (U. 8.) 504; National Trust &c. R. Co., 123 N. Y. 37 (trustee ap- Co. v. Miller, 33 N. J. Eq. 155; Parapointed in Canada); Re Waite, 99 dise v. Farmers' &c. Bank, 5 La, An. N. Y. 433; McAlpin v. Jones, 10 La. 710; Cagill v. Wooldridge, 8 Baxt. An. 552; Comstock v. Frederickson, (Tenn.) 580, 583; 8. C. 35 Am. Rep. 61 Minn. 350; 8. C. 63 N. W. Rep. 713; 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 cu proprio vigore.'
" As to the distinction, in this re- ees in bankruptcy took title to all the spect, between voluntary and involun- property of the bankrupt wherever tary assignments, see post, 7347. situated, with the same force and efWith reference to the question, so fect as if the bankrupt had made a far as it relates to the right of action voluntary assignment of his property, of the assignees of bankrupts ap- and that such a title was good, even pointed by a foreign tribunal, it may against subsequent attaching creditbe worth while to note that the liberal
ors, in a country other than that genius of Chancellor Kent conceded where the bankruptcy adjudication to such trustees an unqualified right had taken place, and where the statof action in the courts of New York. utory transfer had been made. He In Bird v. Caritat, 2 Johns. (N. Y.) said: “It is admitted in every case, 342, 8. c. 3 Am. Dec. 433, it was held that foreign assignees, duly appointed that a suit could be brought in that under foreign ordinances, are entitled, State, in the name of a foreign bank- as such, to sue for debts due to the rupt, by his assignees, for their ben- bankrupt's estate.” Ibid. 485. In efit as such, using the name of the Raymond v. Johnson, 11 Johns. bankrupt according to the principles (N. Y.) 488, it was held that, alof common-law pleading, since abro- though the court would recognize and gated in the code States. “ This,” protect the rights of an assignee, said he, “is more a question concern- under the insolvent laws of another ing form than substance; for there State, yet an action brought in New can be no doubt of the right of the York must be in the name of the inassignees to collect the debts due to solvent. But that rule of pleading is the bankrupt, either by a suit directly now abolished by the code, which rein their own names, or as trustees, quires every action to be brought in using the name of the bankrupt. It the name of the real party in interis a principle of general practice est. Another controversy came before among nations to admit and give ef- the courts of New York between fect to the title of foreign assignees. Holmes and Remsen (Holmes v. RemThis is done on the ground that the 20 Johns. (N. Y.) 229; 8. c. 11 conveyance, under the bankrupt laws Am. Dec. 269), where Plati, J., exof the country where the owner is pressed views upon the question domiciled, is equivalent to a voluntary somewhat different from those of conveyonce by the bankrupt." In Chancellor Kent. In an opinion of Holmes v. Remsen, 4 Johns. Ch. exceptional learning and strength, (N. Y.) 460, 8. C. 8 Am. Dec. 581, he, in substance, annexed to those Chancellor Kent wrote an elaborate views the following qualification, opinion, holding that foreign assign- 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 sen v. Chemical Bank, 32 N. Y. 21, attaching creditors, and which is 8. C. 88 Am. Dec, 298, said is a part of now generally accepted by all Amer- the common law,- allows a certain ican tribunals: “We admit that the effect here to titles derived under, and bankrupt assignment passes all the power created by the laws of other property of the bankrupt, here and countries; and from such comity the everywhere, provided always that there titles of foreign statutory assignees are are no creditors here having claims recognized and enforced here, when on that property. We admit the right they can be without injustice to our of the assignees of the bankrupt to own citizens, and without prejudice to collect his property here and take it the rights of creditors pursuing their to England, if there are no creditors remedies here, under our statutes; of the bankrupt here, but not other provided also, that such titles are not wise. If there are creditors attaching in conflict with the laws or the public here, there is a conflictus legum, and policy of our State. 3. Such foreign the foreign law must yield.” Ibid. assignees can appear, and, subject 254. Subsequently it was held by to the conditions above mentioned, Chancellor Walworth that an assign- maintain suits in our courts against ment in bankruptcy, made in Eng- debtors of the bankrupt whom they land, was good to pass personal prop- represent, and against others who erty situated in New York, as against have interfered with, or withhold the bankrupt himself and his creditors the property of the bankrupt." Re residing in England (Plestoro v. Abra- Waite, 99 N. Y. 433, 448. The court bam, 1 Paige (N. Y.), 236); and such, regard these propositions as a legitwe shall see, is the generally conceded imate deduction from the followlaw: Póst, 97345. In 1885 the Court ing decisions: Petersen v. Chemical of Appeals of New York, in a learned Bank, 32 N. Y. 21; 8. C. 88 Am. Dec. and laborious opinion by Earl, J., 298; Kelly v. Crapo, 45 N. Y. 86; went over the decisions of that State 8. C. 6 Am. Rep. 35; Osgood v. Marelating to this question, and analyzed guire, 61 N. Y. 524; Hibernia Nat. them with care, and the court an- Bank v. Lacombe, 84 N. Y. 367; 8. C. nounced the following doctrine:“1. 38 Am. Rep. 518; Re Bristol, 16 Abb. The statutes of foreign States can, in Pr. (N. Y.) 184; Runk v. St. John, 29 no case, have any force or effect in Barb. (N. Y.) 585; Barclay v. Quickthis state, ex proprio vigore; and hence silver Min. Co., 6 Lans. (N. Y.) 25; the statutory title of foreign assignees Hooper v. Tuckerman, 3 Sandf. (N. Y.) in bankruptcy can have no recogni- 311; Olyphant v. Atwood, 4 Bosw. tion here solely by virtue of the for- (N. Y.) 459; Hunt 0. Jackson, 5 eign statute. 2. But the comity of Blatchf. (U. S.) 349. nations, which Judge Denio, in Peter
creditors whose rights,—that is to say, whose preferences,- are to be protected. So, where, on the dissolution of an insurance company domiciled in Pennsylvania, a receiver was appointed in that State, under a statute thereof, which clothed him “with power to prosecute and defend suits in the name of the corporation," — it was held that an action might be maintained by him in Maryland in the name of the corporation, for his use, against a policy-holder, to recover assessments due by him. So, it has been held that the courts of Alabama may properly take jurisdiction of an action by the receiver of an insolvent foreign corporation, brought for the purpose of gathering in its assets for an equal distribution amongst its creditors, where only the parties litigant appear to be interested, and where no domestic creditor appears to assert rights adverse to those of the receiver, - and this, although eight years have elapsed since the appointment of a receiver. So, it has been held in Vermont that a foreign receiver of an insolvent insurance company may sustain an action to recover assessments on premium notes, no creditor having intervened to prevent the prosecution of the suit.' Where a receiver had been appointed under a creditors' bill by a court in New York, and the debtor, in pursuance of the order of the court, made a general deed of assignment of all his property to the receiver, reciting therein the proceedings had in the cause, which assignment was in due form to transfer his interest in land under the statutes of Michigan, - it was held that the receiver might file a bill in chancery in Michigan to foreclose the mortgage interest, or to enforce the right of redemption held by the debtor at the time of the assignment, in lands in Michigan. The court proceeded upon a view elsewhere explained, that the receiver in such a case