receiver to whom a mortgage has been assigned may foreclose as such assignee.51

801. Foreign receiver claiming as legally entitled.

If the obligation is really due to the receiver personally and not to the corporation the receiver will be allowed to sue to enforce it. Thus in Cooke v. Town of Orange, 52 the plaintiff was the receiver of a New Jersey corporation which had an unfulfilled contract with defendant. This contract, in accordance with an understanding with the town the receiver performed. In an action for the contract price the court held that he was entitled to recover, and that a prior judgment by the town in favor of the attaching creditor of the corporation was no defense. So a mortgage executed to secure a debt to a foreign bank after its insolvency may be foreclosed by a foreign receiver.53 So where the receiver of a foreign corporation himself bought material to finish work on which the corporation was engaged, and brought these materials into Connecticut, creditors of the corporation, even though domiciled in Connecticut, could not attach such property there, as it was the individual property of the receiver.54

Upon the same principle where a receiver sues and obtains judgment, he may sue on the judgment in any State, even in competition with a creditor of that State. He sues not as receiver, but as judgment creditor. 55

51 Hale v. Harris, 112 Ia. 372, 83 N. W. 1046.

52 Cooke v. Orange, 48 Conn. 401; acc. Blake Crusher Co. v. New Haven, 46 Conn. 473. A fortiori he may sue in a similar case where he made the contract himself. Merchants' Nat. Bank v. Pa. Steel Co., 57 N. J. L. 336, 30 Atl. 545.

53 Inglehart v. Bierce, 36 Ill. 133.

54 Pond v. Cooke, 45 Conn. 126. See also Merchants Nat. Bank v. Pa. Steel Co., 57 N. J. L. 336, 30 Atl. 545.

55 Wilkinson v. Culver, 25 Fed. 639. The court said: "The action is on the judgment. He is not required to prove his title as receiver; that was done in the action in New Jersey upon the note. It was necessary there, in order to obtain the judgment, but having obtained it, the plaintiff, as an individual, can maintain the present suit.”

The court said: The action is on the judgment. He is not required to prove his title as receiver; that was done in the action in New Jersey upon the note. It was necessary there, in order to obtain the judgment; but having obtained it, the plaintiff, as an individual, can maintain the present suit."

And whenever a receiver gets actual possession of assets by order of court, the possession will not be divested in another jurisdiction.56

§ 802. Suit against foreign receiver.

A receiver can generally be sued only by order of the court; and to bring suit against him without such permission is contempt of court. But in a foreign jurisdiction a receiver who has come under a liability by reason of an act there done may be sued like any individual.57

§ 803. Remedy where receiver not allowed to sue.

If a receiver is not allowed to sue in a foreign State, he may have an ancillary receiver appointed,58 or the corporation may sue in its own name.59 If however the officers of the corporation have in their own State been enjoined from bringing suit for the corporation, it would seem that they should not be recognized elsewhere as having authority to bring suit for the corporation, and in that case it would seem that the receiver might bring suit in the name of the corporation. And when not prevented by the competition of creditors he is in fact permitted so to sue; his position, as that of one as

56 Chicago, M. & S. P. Ry. v. Keokuk N. L. P. Co., 108 Ill. 317; Robertson v. Staed, 135 Mo. 135, 36 S. W. 610; Osgood v. Maguire, 61 N. Y. 524; Cagill v. Wooldridge, 8 Baxt. (Tenn.) 580. Contra, Humphreys v. Hopkins, 81 Cal. 551, 22 Pac. 892, 15 A. S. R. 76.

57 Phelan v. Ganebin, 5 Colo. 14; Paige v. Smith, 99 Mass. 395; Kain v. Smith, 80 N. Y. 458; Hill v. Baltimore & O. R. R., 7 Pa. Dist. R. 473. 58 See § 791.

59 Hayward v. Leeson, 176 Mass. 310, 57 N. E. 656 (semble).

60 Rust v. United Waterworks Co., 70 Fed. 129.

entitled to manage the affairs of the corporation, being to that extent recognized.61

§ 804. Administration of assets by ancillary receiver.

The ancillary receiver has power to take only such property as is within the jurisdiction of the court that appointed him.62 He may, however, like any receiver, do acts in connection. with the estate outside the jurisdiction, and in so acting is still within the control of the court which appointed him.63

When the assets have all been collected, the creditors within the jurisdiction, at least, may be paid the proper proportionate part of their debts.64 Or in its discretion the court may order the assets transmitted to the principal receiver, to be administered along with the principal estate; but this will not be done until the court is sure that the creditors within its jurisdiction will share proportionately with all other creditors.65

61 Lycoming F. I. Co. v. Langley, 62 Md. 196; Hope M. L. I. Co. v. Taylor, 2 Robt. (N. Y.) 278; Yeager v. Wallace, 44 Pa. 294.

62 Reynolds v. Stockton, 140 U. S. 254, 35 L. ed. 464; Holbrook v. Ford, 153 Ill. 633, 39 N. E. 1091.

63 Guarantee T. & S. D. Co. v. Philadelphia, R. & N. E. R. R., 69 Conn. 709, 38 Atl. 792.

64 Fawcett v. Order of Iron Hall, 64 Conn. 170, 29 Atl. 614; Failey v. Fee, 83 Md. 83, 34 Atl. 839. In the Southern District of New York the Federal courts pay resident creditors in full, or to the extent of the assets. Sands v. E. S. Greeley & Co., 83 Fed. 772.

65 Buswell v. Order of Iron Hall, 161 Mass. 224, 36 N. E. 1065; Baldwin v. Hosmer, 101 Mich. 119, 59 N. W. 432; People v. Granite State Provident Ass., 161 N. Y. 492, 55 N. E. 1053.

CHAPTER XXXIII.

THE INSOLVENCY OF A FOREIGN CORPORATION.

§ 811. Assignments for benefit of § 814. Preferring domestic creditors. 815. Fund to secure domestic

creditors.

812. Assignments by authority of

statute.

813. Member of corporation bound

by law of State of charter.

creditors.

816. Marshalling assets.

§ 811. Assignments for benefit of creditors.

If an assignment for the benefit of creditors which is valid at common law is made by a corporation, it will be given full effect in every State where there are assets, provided it is not against the law or policy of such State. If however the local law forbids such an assignment, it will be invalid, though upheld by the law of the State of charter as to all tangible property within the jurisdiction. A chose in action, having

1 Barnett v. Kinney, 147 U. S. 476, 37 L. ed. 247; J. M. Atherton Co. v. Ives, 20 Fed. 894; Schroder v. Tompkins, 58 Fed. 672; Campbell v. Colorado C. & I. Co., 9 Colo. 60, 10 Pac. 248; First Nat. Bank v. Walker, 61 Conn. 154, 23 Atl. 696; Walters v. Whitlock, 9 Fla. 86; Princeton Mfg. Co. v. White, 68 Ga. 96; Coflin v. Kelling, 83 Ky. 649; May v. Wannemacher, 111 Mass. 202; In re Paige & Sexsmith Lumber Co., 31 Minn. 136, 16 N. W. 700; Toof v. Miller, 73 Miss. 756, 19 So. 577; Askew v. La Cygne Bank, 83 Mo. 366; Frazier v. Fredericks, 24 N. J. L. 162; Ockerman v. Cross, 54 N. Y. 29; Johnson v. Sharp, 31 Oh. St. 611; Smith's Appeal, 104 Pa. 381; Noble v. Smith, 6 R. I. 446; Weider v. Maddox, 66 Tex. 372, 1 S. W. 168; Gregg v. Sloan, 76 Va. 497; Harrison v. Farmers' Bank, 9 W. Va. 424; Cook v. Van Horn, 81 Wis. 291, 50 N. W. 893.

2 Richmondville Mfg. Co. v. Prall, 9 Conn. 487; King v. Johnson, 5 Harr. (Del.) 31; Kansas City Packing Co. v. Hoover, 1 Dist. Col. App. 268; Stricker v. Tinkham, 35 Ga. 176; Woolson v. Pipher, 100 Ind. 306; Franzen v. Hutchinson, 94 Ia. 95; 62 N. W. 690; Pierce v. O'Brien, 129 Mass. 314; In re Dalpay, 41 Minn. 532, 43 N. W. 564; Brown v. Knox, 6 Mo. 302;

no actual situs, is effectually assigned and will be so recognized in every jurisdiction, when it is validly assigned by the law of the State of charter.3

§ 812. Assignments by authority of statute.

An assignment made by the courts of a State or otherwise by virtue of statutory authority will not generally be recognized in another State; and this is true even though the assignment is made in the charter State. As to the distinction between a voluntary and a statutory assignment, the best view is that any State law upon the subject of assignments, which limits the distribution of the debtor's property to such of his creditors as shall file releases of their demands, is to all intents and purposes an insolvent law; and that a title to personal property acquired under such laws will not be recognized in another State, when it comes in conflict with the rights of creditors pursuing their remedy there against the property of the debtor, though the proceedings were instituted subsequent to and with notice of the assignment in insolvency.5

Varnum v. Camp, 13 N. J. L. 326; Guillander v. Howell, 35 N. Y. 657; Rice v. Courtis, 32 Vt. 460. But see Livermore v. Jenckes, 21 How. 126, 16 L. ed. 55; Speed v. May, 17 Pa. 91; Crampton v. Valido Marble Co., 60 Vt. 291.

3 Caskie v. Webster, 2 Wall. Jr. 131, Fed. Cas. No. 2500; Egbert v. Baker, 58 Conn. 319, 20 Atl. 466; Birdseye v. Underhill, 82 Ga. 142, 7 S. E. 863; In re Dalpay, 41 Minn. 532, 43 N. W. 564; Guillander v. Howell, 35 N. Y. 657 (semble). Contra, Kimball v. Plant, 14 La. 10; Zipcey v. Thompson, 1 Gray (Mass.), 243; Martin v. Potter, 34 Vt. 87.

4 Security Trust Co. v. Dodd, Mead & Co., 173 U. S. 624, 43 L. ed. 835; Paine v. Lester, 44 Conn. 196, 26 A. R. 442; Rhawn v. Pearce, 110 Ill. 350; Johnson v. Parker, 4 Bush (Ky.), 149 (semble); Metcalf v. Yeaton, 51 Me. 198; Taylor v. Columbian Ins. Co., 14 All. (Mass.) 353; Wood v. Parsons 27 Mich. 159; Beer v. Hooper, 32 Miss. 246; Hoyt v. Thompson, 19 N. Y. 207; Bizzel v. Bedient, 2 Car. L. Rep. (N. Car.) 254; Milne v. Moreton, 6 Binn. (Pa.) 353; Goodsell v. Benson, 13 R. I. 225 (semble); McClure v. Campbell, 71 Wis. 350, 37 N. W. 343. Contra, Long v. Girdwood, 150 Pa. 413, 24 Atl. 711.

5 Brown, J., in Security Trust Co. v. Dodd, Mead & Co., supra. To the same effect, Townsend v. Coxe, 151 Ill. 62, 37 N. E. 689; Franzen v. Hutchinson, 94 Ia. 95, 62 N. W. 698; Barth v. Backus, 140 N. Y. 230, 35 N. E. 425. Contra, Whitman v. Mast, Buford & Burwell Co., 11 Wash. 318, 39 Pac. 649.