Imágenes de páginas
PDF
EPUB

of the court appointing the receiver, has executed a deed of assignment, transferring all his property to the receiver, and the deed of assignment is so executed as to be otherwise valid and operative to transfer title to his real estate situated in another State, the courts of such other State will give effect to it, upon the ground that it has operated to transfer the legal title to the receiver, but not on the ground of any authority possessed by the receiver in virtue of his office, beyond the limits of his own State.

8 7344. Cases Refusing to Extend This Comity.- Cases are now rarely met with where the courts of a State have refused to extend this comity so as to entertain actions brought by foreign receivers to collect the assets due to the foreign insolvent, whether individual or corporate, where it does not appear that the removal of the assets will prejudice the rights of domestic creditors, – that is to say, will prevent them from getting a preference over the creditors domiciled in the State of the receiver. One recent case is found, where it was held that a trustee appointed in the State of Indiana, to wind up an insolvent corporation there domiciled, was properly repelled by a court of the State of Iowa, in which he had brought an action to recover the balance of an account due by a contract for work and labor done and material furnished to residents of the State of Iowa by the corporation, prior to its insolvency, and where it did not appear that any creditors of the corporation resided in the State of Iowa, or that any citizen of Iowa would be prejudiced in any manner by allowing the receiver to recover. The case nakedly holds that the comity of the State ought not to be exercised, so as to allow a receiver, appointed in another State, to sue for the purpose of collecting an honest debt, although it does not appear that any domestic creditor of the insolvent, in the domestic State, desires to impound the debt. The reading of such & decision makes one's blood tingle, and almost forces the wish

· Graydon v. Church, 7 Mich. 36; post, 6 7349.

• Ayres o. Siebel, 82 Iowa, 347; 8. C 47 N. W. Rep. 989.

that the Civil War had resulted in sponging out State lines and abolishing the tribal theory of our government entirely. It is worthy of note that if a receiver, appointed in Iowa, had brought an action upon a like demand in Indiana, the decision would have been exactly the other way.' But later the Supreme Court of Indiana threw away one-half of the comity which courts generally exercise on this question, by holding that a receiver of a partnership firm, appointed in Illinois, could not hold a debt due to the firm by citizens of Indiana, as against creditors of the firm in Connecticut, who had attached by garnishment a debt owing by the citizens of Indiana. No better reason for this wretched decision was given than is found in the following clause of the opinion of the court: “Although non-residents, the attaching creditors are properly in our courts, pursuing a remedy which the State confers upon foreign as well as domestic creditors."?

[ocr errors]

§ 7345. Foreign Receivers Preferred in Contests with the Debtor and his Privies. — On the principle of the preceding section, a judicial transfer, in invitum, of the property of an insolvent debtor, such as will estop him in the jurisdiction

[ocr errors]

V.

· Metzner o. Bauer, 98 Ind. 425. Rhawn v. Pearce, 110 Ill. 350; 8. C. Catlin

Wilcox Silver-Plate Co., 51 Am. Rep. 691; Warner v. Jaffray, 123 Ind, 477 ; 8. C. 18 Am. St. Rep. 96 N. Y. 248; 8. C. 48 Am. Rep. 616; 338. Mitchell, C. J., who wrote the Paine v. Lester, 44 Conn. 196; 8. C. opinion of the court, concluded thus: 26 Am. Rep. 442. This specious rea“The rule which commends itself to soning overlooks the plain fact that, our judgment is thus declared: 'Once while advancing to citizens of Conproperly in court and accepted as a necticut remedies possessed by citisuitor, neither the law nor the court zens of Indiana, the court denies to administering the law, will admit any creditors in Illinois, represented by distinction between the citizen of its the receiver, as they alone can be own State and that of another. Be- represented, the remedies given by fore the law and in its tribunals there the laws of Illinois, and pays the can be no preference of one over the Connecticut creditor in full out of the other.'” Catlin v. Wilcox Silver-Plate pockets of the Illinois creditors. This Co., 123 Ind. 477; 8. c. 18 Am. St. Rep. is narrow and semi-barbarous tech338, 344,-citing the following cases : nicality, and not that reciprocal jusHibernia Nat. Bank v. Lacombe, 84 tice which should prevail among the N. Y. 367; 8. c. 38 Am. Rep. 518; courts of our American communities.

.

where the proceeding takes place, will estop him everywhere. Thus, an assignment under the English bankrupt law was held to estop the bankrupt in respect of personal property situated in New York, though emphasis was laid on the fact that the bankrupt had appeared in England and voluntarily assented to the proceedings. So, it has been held in the Chancery Court of New Jersey, that that court will, on principles of comity, extend its aid to a receiver of a foreign corporation seeking to obtain the possession of the property of the corporation situated in New Jersey, as against the officers of the corporation, who are endeavoring, by fraud or subterfuge, to withhold the possession of such property from the receiver, no claims of domestic creditors being involved; and that, to that end, it will set aside a judgment at law rendered in a court of New Jersey, fraudulently and collusively concocted by such officers, for the purpose of protecting them in the possession of the property as against the receiver, the creditors, and the stockholders, of the foreign corporation.

§ 7346. Foreign Receiver Preferred in Contest with Foreign Creditor. - That the refusal of the comity of allowing a foreign receiver to maintain an action to recover and with. draw assets belonging to the corporation or other insolvent debtor, rests on the principle of protecting domestic creditors, is strikingly illustrated by a series of cases, applied alike to foreign receivers and foreign assignees for creditors, which hold that, as between a foreign receiver, assignee, or other representative of creditors, suing in his representative character, and a particular creditor of the same State as the foreign receiver or assignee, the domestic tribunals will give preference to the foreign receiver or assignee. In other words, as between two citizens of the same foreign State, one of them entitled to the assets under the laws of that State, and another citizen of the same State, struggling to get a preference not

· Hoyt v. Thompson, 5 N. Y. 320; Plestoro v. Abraham, 1 Paige (N. Y.), 236. • Matter of Waite, 99 N. Y. 433.

• Bidlack o. Mason, 26 N. J. Eq. 230; cited with approval in National Trust Co. v. Miller, 33 N. J. Eq. 155, 159.

allowed by the laws of that State, the domestic tribunal will extend its comity so far as to give effect to the laws of that State. One of the theories which support this conclusion is that an assignment made by operation of law, in invitum, of the property of an insolvent debtor, operates as an estoppel upon the citizens of the State wherein the assignment has been made. Thus, it has been held that a creditor, who is a citizen and resident of the same State with his debtor, against whom insolvent proceedings have been instituted in such State, is bound by the assignment of his debtor's property made in such proceedings; and that, if he attempts to attach or seize the personal property of his debtor situated in another State, and embraced in the assignment, he may be restrained by injunction by the courts of the State in which he and his debtor reside; and that such an injunction is not a violation of that provision of the constitution of the United States which requires that full faith and credit shall be given in each State to the judicial proceedings of every other State.? Upon the same ground, where a receiver of a corporation had been appointed by a court of competent jurisdiction in Virginia, a creditor of the corporation, residing in Virginia, could not, by a subsequent attachment-execution, recover assets of the corporation situated in Pennsylvania, and claimed by the receiver appointed in Virginia. The reason was thus stated by Agnew, J.: “Now, it is clear that, as to these plain. tiffs, who were citizens of Virginia, the appointment of a receiver was not extra-territorial, but was an act binding on them, which the Virginia court would enforce as to them, had their action been brought in Virginia. Then certainly they have no right, after the appointment of a receiver by a court within their own State, binding on them there, to attempt to avoid its effect by escaping from its jurisdiction and coming here to ask us to infringe the comity we owe to the acts of

1 Gilman v. Ketcham, 84 Wis. 60; 8. C. 36 Am. St. Rep. 899; 54 N. W. Rep. 395; Cole v. Cunningham, 133 U.S. 107; Reynolds v. Adden, 136 U.S. 348, 353 (doctrine recognized); Bagby

v. Atlantic &c. R. Co., 86 Pa. St. 291; Bacon v. Horne, 123 Pa. St. 452.

? Cole v. Cunningham, 133 U, S. 107.

their own courts within their jurisdiction. Instead of comity, this would be unfriendliness; for they ask us to aid them in a violation of their own law. Our own citizens would be protected against the extra-territorial act, in a proper case, because they are not bound by it, and our assistance given to the extra-territorial act, resting only in comity, would not be given at the expense of injustice to them. The case does not fall within the first clause, second section, of the fourth article of the constitution of the United States, that the citizens of each State shall be entitled to all privileges and immunities of citizens of the several States. As to a citizen of Virginia, the appointment of a receiver in Virginia, binding on him there, is not set aside by this clause of the constitution. The equitable transfer of the debt there is binding on him here."! So, it has been lately held in Wisconsin that where, under voluntary proceedings for the dissolution of a corporation in another State, a receiver is appointed by a court of that State, and the creditors are enjoined from prosecuting actions against the corporation, the courts of Wisconsin will recognize the right of the receiver to collect debts due to the corporation by residents of Wisconsin, in preference to creditors of the corporation residing in the same State as the State of the receiver, who are seeking, in Wisconsin, to get a preference over other creditors. The court reasoned, as in the preceding case, that while the judicial transfer of the property of the corporation to the receiver in a foreign State, was not binding upon the citizens of Wisconsin, yet it was binding upon the citizens of the foreign State. “The question,” said the court, “is one wholly between parties residing in New York, and bound by the proceedings in question, neither of whom is in any position to invoke the assistance of the courts of this State to defeat or deny full effect to the proceeding in New York, or the title resulting from it. It is clear that the adjudication of dissolution and the appointment of the receiver vesting in him the title to the chose in action in question, were binding on these parties, and the courts of New York would have en

1 Bagby v. Atlantic &c. R. Co., 86 Pa. St. 291, 294.

« AnteriorContinuar »