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in justice and policy, and the comity of nations. It rested on the principle of general jurisprudence that personal property was deemed by fiction of law to be situated in the country in which the bankrupt bad his domicil, and to follow the person of the owner; and it was to be administered in bankruptcy according to the rule of the law of that country, as if it was locally placed within it. No doubt was entertained, that if the appointment of trustees, under the New York act, had been the first in point of time, the title of the trustees would have been recognized in the English courts as controlling the personal property in England. By the same rule, the English assignees, being first in time, were held entitled to control the personal property of the debtor existing in New York.

But whatever consideration might otherwise have been due to the opinion in that case, and to the reasons and decisions on which it rested, the weight of American authority is decidedly the other way; and it may now be considered as part of the settled jurisprudence of this country, that personal property, as against creditors, has locality, and the lex loci rei sitæ prevails over the law of the domicil with regard to the rule of preferences in the case of insolvent's estates. The laws of other governments have no force beyond their territorial limits; and if permitted to operate in other states, it is upon a principle of comity, and only when neither the state nor its citizens would suffer any inconvenience from the application of the foreign law. (a) A prior assignment in bankruptcy, under a foreign law, will not be permitted to prevail against a subsequent attachment by an American creditor of the bankrupt's effects found here; and our courts will not subject our citizens to the inconvenience

of seeking their dividends abroad when they have the *407 means to satisfy them under their own control. This

was the rule in Maryland prior to our Revolution, according to the opinion of Mr. Dulany, reported in Burk v.

intestates by will, and under the law of distribution. The cases all rest on the same general principle giving a universal operation to transfer, or the disposition of personal property, made or existing at the owner's domicil, wherever that property may be situated, and when not bound by any local lien at the time.

(a) Parsons, Ch. J., in Greenwood v. Curtis, 6 Mass. Rep. 378. Porter, J., in Olivier v. Townes, 14 Martin's Louis. Rep. 99-101.

M' Clain; (a) and afterwards, in 1790, it was decided, in Wallace v. Patterson, (b) that property of the bankrupt could be attached here, notwithstanding a prior assignment in bankruptcy in England. The same doctrine was declared in Pennsylvania, (c) after an elaborate discussion of the question. The court in that state considered that an assignment abroad, by act of law, had no legal operation extra territorium, as against the claims of their own citizens. But the foreign assignee in bankruptcy may sue in Pennsylvania in the name of the bankrupt, for the assets of the estate, and recover them, except as against the rights of the American creditor. (d) The same doctrine was declared in North Carolina as early as 1797. (e) In South Carolina the question arose in the case of the Assignees of Topham v. Chapman, in 1817; (f) and the court in that case followed some prior decisions of their own, and the case of Taylor v. Geary, decided in Connecticut as early as 1787; (g) and they held that law, justice, and public policy all combined to give a preference to their own attaching creditors. So, in Virginia and Kentucky, under their statute laws, all real and personal property within the state, even debts and choses in action, are held to be bound. by the attachment laws of the state, though the owner should execute an instrument in control of it at his domicil abroad. The rule of courtesy is held to be overruled by positive law. The law of the locus rei sita overrules the law of the domicil in this case, and debts due to absentees have so far locality, and are subject to attachment by the creditors of such absentees.

(a) 1 Harr. & M'Henry, 236.

(b) 2 ibid. 463.

(c) Milne v. Moreton, 6 Binney's Rep. 353. See Mulliken v. Aughinbaugh, 1 Penn. Rep. 117, to the same point. See, also, Ogden v. Gillingham, Baldw. Rep. C. C. U. S. 38. Lowry v. Hall, 2 Watts & Serg. 129.

(d) Merrick's Estate, 2 Ashmead, 485. S. C. 5 Watts & Serg. 20. This is the scope of the American cases; and the New York case of Abraham v. Plestoro, 3 Wendell, 538, went further when it ruled the foreign assignment in bankruptcy void, even as against a British creditor, not domiciled here. They do not go so far in Pennsylvania. Lowry v. Hall, supra. Mulliken v. Aughinbaugh, 1 Penn. Rep. 117. (e) M'Neil v. Colquhoon, 2 Haywood's Rep. 24.

(f) Const. Rep. S. C. 283. See, also, Robinson v. Crowder, 4 M'Cord's Rep. 519, to the same point.

(g) Kirby's Rep. 313.

But the rule is not carried so far as to apply to absolute sales, bona fide for a valuable consideration, of choses in action, accompanied with assignment and delivery of the evidences of the debt. (a) The point arose in the Supreme Court of Massachusetts, in Ingraham v. Geyer, in 1816; (b) and they would not allow even a voluntary assignment by an insolvent debtor in another state, to control an attachment in that state, of the property of the insolvent, made subsequently to the assignment, and before payment to the assignees; and the court denied that any such indulgence was required by the practice or comity of nations. (c) The opinion in the case of Holmes v. Remsen was also questioned by one of the judges of the * 408 *Supreme Court of New York, in a suit at law between the same parties. (d) And still more recently, in the Supreme Court of the United States, (e) the English doctrine (for it is there admitted to be the established English doctrine) was

(a) Huth v. Bank of United States in Chan., Louisville, Kentucky, August, 1843. (b) 13 Mass. Rep. 146.

(c) See, also, to the same point, Borden v. Sumner, 4 Pick. 265. Blake v. Williams, 6 id. 286. Fall River Iron Works v. Croade, 15 id. 11. Fox v. Adams, 5 Greenleaf's Rep. 245. Olivier v. Townes, 14 Martin's Louis. Rep. 93. Norris v. Mumford, 4 id. 20. The Brig Watchman, in the district court of Maine, Ware's Rep. 232. Saunders v. Williams, 5 N. H. Rep. 213. Mitchel v. M'Millan, 3 Martin's Louis. Rep. 676, to the same point. But in Goodwin v. Jones, 3 Mass. Rep. 517, Ch. J. Parsons held to the English doctrine; and in Bholen v. Cleveland, 5 Mason's Rep. 174, an assignment was held to prevail over a trustee or attachment process, as against creditors living in the same state with the debtor. It is likewise held, in Rogers v. Allen, 3 Ohio Rep. 488, that an assignment by an insolvent debtor in one state will not affect the title to lands in another state in derogation of the lex rei sita. In South Carolina, a bona fide foreign assignment in trust for creditors, takes precedence of a subsequent attachment levied within the state, but not if executed under the operation of a statute of bankruptcy. Green v. Mowry, 2 Bailey's Rep. 163.1 (d) Platt, J., in 20 Johns. Rep. 254.

(e) Ogden v. Saunders, 12 Wheaton, 213. In Harrison v. Sterry, 5 Cranch's Rep. 289, the Supreme Court of the United States had long previously held that the bankrupt law of a foreign country could not operate a legal transfer of property in this country. The doctrine rests on the same footing between one state and another. An assignment in invitum under the law of one state or nation, has no operation in another, even with respect to its own citizens. Abraham v. Plestoro, 3 Wendell, 538. Johnson v. Hunt, 23 id. 90, 91.

1 See Larrabee v. Talbott, 5 Gill, R. 426. M'Carty v. Gibson, 5 Gratt. 307.

peremptorily disclaimed, in the opinion delivered on behalf of the majority of the court. (a)1

IV. By intestacy.

The last instance which was mentioned of acquiring title to goods and chattels by act of law, was the case of intestacy. This is when a person dies," leaving personal property undisposed of by will; and in such case, the personal estate, after the debts are paid, is distributed to the widow, and among the next of kin. To avoid repetition and confusion, I shall be

(a) It was the received doctrine in England, according to the opinion of counsel, as early as 1715, that the English creditors of an insolvent debtor residing in Holland, could attach and recover by execution levied on his effects in England, without being responsible to the curator in Holland, who had entered upon his trust, prior to the attachment in England. See opinions of R. Raymond, J. Jekyll, and others in the Appendix, 254-256, of Mr. Henry's Treatise on Foreign Law. In Blake v. Williams, 6 Pick. Rep. 286, Lord v. The Brig Watchman, in the district court of Maine, Ware's Rep. 232, Abraham v. Plestoro, 3 Wendell, 538, and Johnson v. Hunt, 23 ibid. 87, the question was again discussed, and the decisions made in entire conformity with the general doctrine now prevalent in the United States. The authorities for the contrary and more liberal doctrine in the English, Scottish, and Irish courts, are collected in Bell's Commentaries, vol. ii. pp. 683-687, as well as in the case of Holmes v. Remsen, supra, 405. Mr. Bell says that the rule giving effect to conveyances, made for the purpose of collecting and distributing among creditors the funds and estate of the debtor, according to the law of his residence and seat of trade, does not rest in any legislative enactment, but upon those principles of international law which guide the connection between states, and prescribe the authority which is to be allowed by each to the institution and laws of another. The whole doctrine of the international effect of bankruptcy is a consequence of the general principle of universal jurispru dence, that personal property, wherever situated, is regulated by the law of the bankrupt's domicil; while, on the other hand, real property is governed by the law of the territory in which it is situated. The law on this vexed subject of the effect to be given to foreign assignments is examined, and all the authorities and arguments pro and con. collected and reviewed in Story's Commentaries on the Conflict of Laws, pp. 336-357.

In Canada, an English commission of bankruptcy operates as a voluntary assignment by the bankrupt, but rights and privileges acquired by the provincial creditors are not affected by the commission or assignment. Bruce v. Anderson, Stuart's Lower Canada Rep. 127.

'As the effect of foreign bankrupt laws is admitted only from a principle of comity, they can be allowed no operation with us, where they were intended to be local, or where they secure privileges to local over foreign creditors. Very v. McHenry, 29 Maine R. 206.

2 A person sentenced to imprisonment for life is declared civilly dead in New York. 2 R. S. (3d edit.) sec. 23. In Ohio, it has been held that letters of administration cannot be granted on the estate of such a person. Frazer v. Fulcher, 17 Ohio R. 260.

obliged to confine myself essentially to the discussion of

* 409 the *leading principies of the English law, and assume them to be the law of the several states, in all those cases in which some material departure from them in essential points cannot be clearly ascertained.

This title will be best explained by examining-1. To whom the administration of such property belongs, and to whom granted: 2. The power and duty of the administration: and 3. The persons who succeed to the personal estate by right of

succession.

(1.) Of granting administration.

When a person died intestate, in the early periods of the English history, his goods went to the king as the general trustee or guardian of the state. This right was afterwards transferred by the crown to the popish clergy; and, we are told, it was so flagrantly abused that parliament was obliged to interfere and take the power of administration entirely from the church, and confer it upon those who were more disposed to a faithful execution of the trust. This produced the statutes of 31 Edw. IIL ch. 11, and 21 Hen. VIII. ch. 5, from which we have copied the law of granting administrations in this country. (1) The power of granting administration, and of superintending the conduct of the administration, was still left in the hands of the bishop or ordinary, in each diocese. In our American law we have assigned this, as well as other secular matters, to the courts and magistrates of civil jurisdiction. (b) Before the

Hensice's case, 9 Co. 38 b. 2 Blacks. Ccm. 494–496.

(5 In some of the states the jurisdiction concerning the probate of wills and the administration of testators' and intestates estates is vested in the county courts. In others it is confided to courts of special jurisdiction, under the various names of the court of probates, the registers court, the orphans' court, the court of the ordinary, and the surrogates' court. The county courts of Alabama, when sitting as courts of procates, are denominated Orphans' Courts, and they have a very extensive jurisdie tion over the estates of deceased persons. In Indians, by act of February 17th, 1838, the court of probates in each county consists of one judge, elected by the people septennially, and the court has exclusive jurisdiction in matters of probate of wills, and administration, and guardianship, and the settlement of decedent's estates, and concurrent jurisdiction in all suits at law and in equity in favor of and against heirs, executors, administrators, and guardians, where the amount in controversy exceeds $50,

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