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chancery court in Mississippi, brought an action in Louisiana to recover four negroes, which, he averred, had been stolen from his possession as receiver, —it was held, on exceptions to his petition, which admitted the truth of the facts alleged, that he was entitled to recover. Spofford, J., said: “Property under the control of the courts of our sister States, when feloniously or fraudulently removed from their jurisdiction, and brought within ours, must, on proof of the facts, be instantly remitted, by the order of our courts; and the person who, under the law of the foreign forum, is the custodian of the property, is the proper person to sue for it here."1

§ 7343. Real Property Situate in the Foreign Jurisdiction does not Vest in Receiver. - It has been held that the real property of a corporation, situated wholly within a foreign jurisdiction, does not vest in a receiver of its assets, and that the appointment of such receiver does not disable the corporation from dealing with it in the jurisdiction in which it is situated. But where the insolvent, in compliance with an order

Mr. Justice Hunt read the opinion of the court; Mr. Justice Clifford read an opinion, concurring in the judgment for special reasons; and Justices Bradley and Field dissented.

1 McAlpin v. Jones, 10 La. An. 552; citing Johnson v. Imboden, 4 La. An. 178; Myers v. Myers, 8 La. An. 369; s. c. 58 Am. Dec. 689; Wingate v. Wheat, 6 La. An. 238, 241; Paradise v. Farmers' &c. Bank, 5 La. An. 711; Planters' Bank v. Bass, 2 La. An. 430, 436; M'Grew v. Browder, 2 Mart. (N.s.) (La.) 17. A decision somewhat analogous to the foregoing was rendered in Massachusetts at an early date, in a case where a citizen of New York executed in New York an assignment of his goods there situated, to a citizen of Massachusetts, in trust for the payment of his creditors, the most of whom lived in New York. The assignment was valid, and vested title in the assignee for the purposes of the trust, under the laws of New York. It was held that the assignee was not

liable to be charged in Massachusetts by trustee process, that is to say, by garnishment,-in respect of the goods by a creditor of the assignor residing in Massachusetts. Shaw, C. J., said: "The trustee took the goods for a lawful purpose, and by a title indefeasible where the transaction took place, and under the laws of New York, to which he was amenable. He was bound, as well in conscience as by law, to execute the trust according to the terms of the conveyance under which he took the property. His coming into this Commonwealth ought not to defeat such a conveyance and discharge him from his legal and conscientious obligations, even though it should be held that, if such an assignment had been made here, it could not hold against attaching creditors, a point which it is not necessary to decide." Wales v. Alden, 22 Pick. (Mass.) 245, 247.

2 Simpkins v. Smith &c. Gold Co., 50 How. Pr. (N. Y.) 56.

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.1

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 a decision makes one's blood tingle, and almost forces the wish

1 Graydon v. Church, 7 Mich. 36; post, § 7349.

Ayres v. 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.""

§ 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

1 Metzner v. Bauer, 98 Ind. 425.

Catlin v. Wilcox Silver-Plate Co., 123 Ind. 477; s. c. 18 Am. St. Rep. 338. Mitchell, C. J., who wrote the opinion of the court, concluded thus:

The rule which commends itself to our judgment is thus declared: 'Once properly in court and accepted as a suitor, neither the law nor the court administering the law, will admit any distinction between the citizen of its own State and that of another. Before the law and in its tribunals there can be no preference of one over the other.'" Catlin v. Wilcox Silver-Plate Co., 123 Ind. 477; 8. c. 18 Am. St. Rep. 338, 344,-citing the following cases: Hibernia Nat. Bank v. Lacombe, 84 N. Y. 367; 8. c. 38 Am. Rep. 518;

Rhawn v. Pearce, 110 Ill. 350; s. c. 51 Am. Rep. 691; Warner v. Jaffray, 96 N. Y. 248; s. c. 48 Am. Rep. 616; Paine v. Lester, 44 Conn. 196; s. c. 26 Am. Rep. 442. This specious reasoning overlooks the plain fact that, while advancing to citizens of Connecticut remedies possessed by citizens of Indiana, the court denies to creditors in Illinois, represented by the receiver, as they alone can be represented, the remedies given by the laws of Illinois, and pays the Connecticut creditor in full out of the pockets of the Illinois creditors. This is narrow and semi-barbarous technicality, and not that reciprocal justice which should prevail among the courts of our American communities.

where the proceeding takes place, will estop him everywhere.1 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."

87346. 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 withdraw 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

1 Hoyt v. Thompson, 5 N. Y. 320; Plestoro v. Abraham, 1 Paige (N. Y.),

236.

Matter of Waite, 99 N. Y. 433.

Bidlack v. 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.2 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 plaintiffs, 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.

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

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