Melville Fuller

“ And the court proceeded: 'This is manifestly contrary to equity. The defendants, being citizens of this state, are bound by its laws. They cannot be permitted to do any acts, to evade or counteract their operation, the effect of which is to deprive other citizens of rights which those laws are intended to secure. Certain it is that they could not in any manner of by any process take from the assignees of an insolvent debtor property belonging to him within this state, and appropriate it to the payment of their debt in full. ”

“ Van Buskirk. The only difference between that case and the one now under consideration is that at the time the court in Massachusetts intervened and undertook to prevent Butler, Hayden & Co. from pursuing their case in the courts of New York there had been no judgment in favor of that company. But I am at a loss to see why the right established by Butler, Hayden & Co. in the courts of New York is not as much to be respected, and the same effect given to it, according to its nature, as if the judicial proceeding had ripened into a judgment. ”

“ Again, although, in some of the states, the fact that the assignee claims under a decree of a court or by virtue of the law of the state of the domicile of the debtor and the attaching creditor, and not under a conveyance by the insolvent, is regarded as immaterial, yet, in most, the distinction between involuntary transfers of property, such as work by operation of law, as foreign bankrupt and insolvent laws, and a voluntary conveyance, is recognized. ”

“ Whether the law of the common domicile of two or more litigants determines their title to property in another territory, so that an attaching creditor, whose domicile is the same as that of the assignor, cannot set up against an assignment the law of a foreign country where the property is actually situated, has been much discussed. It is certain that the law of the common domicile cannot overcome such registry and other positive laws of the other country as are distinctly politic and coercive. ”

“ The court of appeals of Maryland declared the power of the state to compel its own citizens to respect its laws, even beyond its own territorial limits, to be supported by the great preponderance of precedent and authority, and sustained an injunction to restrain the further prosecution in another state of an attachment, by which the defendant sought to recover wages due the complainant in Maryland, and there exempt from attachment. ”

“ If a judgment for the plaintiff is obtained, the lien becomes perfected, and the property is applied to satisfy the judgment. If plaintiff fails in his action, the lien falls with it; and he may so fail by reason of the discharge of the defendant in insolvency, when he is a citizen of the same state, or has made himself a party to the proceedings in insolvency, or by the action of other courts of the state where the suit is pending, or elsewhere, if jurisdiction in personam be obtained. ”

“ If a state provides that no title shall pass to property within its borders, except on certain conditions, such provision cannot be overridden by the law of any other state which parties domiciled there may be held to have adopted. ”

“ An attachment is in the nature of, but not, strictly speaking, a proceeding in rem, since that only is a proceeding in rem in which the process is to be served on the thing itself. If, in an attachment suit, 'the defendant appears, the cause becomes mainly a suit in personam, with the added incident that the property attached remains liable, under the control of the court, to answer to any demand which may be established against the defendant by the final judgment of the court. ”

“ If there was any error in the proceedings in the court of New York, that error was subject to correction, in due course of law, in courts of justice of the state of New York, and Butler, Hayden & Co. had a right to insist on the validity of their proceedings being tested by the courts, and governed by the laws, of the state of New York, and not by those of Massachusetts. It is no answer to this to say that Butler, Hayden & Co. were citizens of Massachusetts, and were found within its jurisdiction. ”

“ The jurisdiction of the English court of chancery to restrain persons within its territorial limits and under its jurisdiction from doing anything abroad, whether the thing forbidden be a conveyance or other act, in pais, or the institution or the prosecution of an action in a foreign court, is well settled. ”

“ The rule in that state is that by the comity of nations the statutory title of foreign assignees in bankruptcy is recognized and enforced, when it can be done without injustice to the citizens of the state, and without prejudice to creditors pursuing their remedies under the New York statutes, provided, also, that such title is not in conflict with the laws or public policy of the state, and that the foreign court had jurisdiction of the bankrupt. ”

“ Sr. 444, Lord HARDWICKE recognized the principle that equity, as it acts primarily in personam, and not merely in rem, may, where a person against whom relief is sought is within the jurisdiction, make a decree, upon the ground of a contract, or any equity subsisting between the parties, respecting property situated out of the jurisdiction. ”

“ Lester, 44 Conn. 196, where a citizen of Rhode Island attached in Connecticut a debt due from a citizen of Connecticut to a corporation of Pennsylvania, which had made an assignment for the benefit of creditors, the lien of the attachment was held valid against the claim of the trustee in the assignment, because the right of the trustee in insolvency in Connecticut rested only on the comity which the court there could exercise or refuse to exercise at its discretion, while the plaintiff had a legal right, under the laws of Connecticut, to prosecute his suit. ”

“ But as, by the law of Illinois, Bates was the owner of the iron safes when the writ of attachment was levied, and as Green could and did lawfully attach them to satisfy his debt in a court which had jurisdiction to render the judgment, and as the safes were lawfully sold to satisfy that judgment, it follows that when thus sold the right of property in them was changed, and the title to them became vested in the purchasers at the sale. ”

“ Pearce, 12 N. Y. 156, the plaintiff in a judgment, recovered in New York, brought an action upon it in the superior court of Connecticut, whereupon the defendant in the judgment filed a bill against the plaintiff on the equity side of the same court, alleging that the judgment was procured by fraud, and praying relief. The plaintiff in the judgment appeared in and litigated the equity suit, and the court adjudged that the allegations of fraud in obtaining the judgment were true, and enjoined him from prosecuting an action upon it. ”

“ It left them entirely free to act. They could utterly refuse to have anything to do with it, and retain their claims, and enforce them in their own time, as best they could, against their debtor. The assignee became a trustee for such creditors of the assignor only as chose to accept him as such; and without their assent the assignment did not bring the creditors into any relation with the assignee, or with each other. The law did not take this insolvent's property for distribution among his creditors, butits distribution was his own act. ”

“ And it may be considered as settled that state insolvent laws are not only binding upon such persons as were citizens of the state at the time the debt was contracted, but also upon foreign creditors, if they make themselves parties to proceedings under these insolvent laws by accepting dividends, becoming petitioning creditors, or in some other way appearing and assenting to the jurisdiction. ”