There was a judgment recovered in the supreme court of New York,
upon which a
fieri facias was issued, the return to which
was, "no goods, chattels, or real estate of the defendant to be
levied upon"
The creditor then filed a creditor's bill before the chancellor
of the First Circuit in the State of New York to subject the
equitable assets and choses in action of the debtor to his
judgment. The bill was taken
pro confesso, and in 1842 a
receiver was appointed. The debtor was also enjoined from making
any disposition of his estate, legal or equitable; but the court
had not been applied to, either by the creditor or the receiver,
for any order upon the debtor
in personam to coerce his
compliance with the injunction or decree.
In 1843 the debtor went into another state and took the benefit
of the bankrupt law of the United States. An assignee was
appointed, and after his death another person to succeed him.
In 1851, a sum of money was awarded to the debtor for a claim
accruing anterior to the judgment, by the commissioners under the
Mexican treaty, which was claimed by the receiver and also by the
assignee in bankruptcy, both prosecuting their claims in the
Circuit Court of the United States for the District of
Columbia.
The assignee in bankruptcy has the best right to the fund.
A receiver is an officer of the court which appoints him, but
cannot sue in a foreign jurisdiction for the property of the
debtor.
The proper course would be to compel obedience to the injunction
by a coercion of the person of the debtor, obliging him either to
bring the property in dispute within the jurisdiction of the court
or to execute such a conveyance or transfer thereof as will be
sufficient to vest the legal title as well as the possession of the
property according to the
lex loci rei sitae.
The New York and English cases upon this subject examined.
The distinction between a receiver in chancery under a
creditor's bill and an assignee in bankruptcy explained.
In England, an assignee in bankruptcy is held to be vested with
the personal property of the bankrupt which is in foreign
countries, and her courts acknowledge the validity of the title of
a foreign assignee to property in England when such title emanates
from a country which has a bankrupt law similar to her own.
But this rule does not prevail in the United States, either as
regards a foreign assignee or an assignee under the laws of another
state in the Union. The reason is
Page 58 U. S. 323
stronger for declining to give such efficacy to a receiver under
a creditor's bill. And moreover, there was in this case a want of
vigilance in the creditor and receiver by their omitting to proceed
in the regular chancery practice against the person of the debtor,
as above stated.
The dispute was about the same sum of money which was in
controversy in the preceding case of
Clark v. Clark.
Booth filed his bill in the circuit court, claiming the money in
virtue of his character of receiver, appointed by the chancellor of
the First Circuit in the State of New York. All the circumstances
of the case are recited in the opinion of the Court.
On the 29th of March, 1853, the circuit court dismissed the
bill, and Booth appealed to this Court.
Page 58 U. S. 327
MR. JUSTICE WAYNE delivered the opinion of the Court.
We learn from the record of this case that Juan de la Camara
recovered a judgment in the supreme court of New York, against
Ferdinand Clark, for $4,688 49/100, with interest at 7 percent;
that a
fieri facias was issued upon the judgment, and that
there was a return upon it of "no goods, chattels, or real estate
of the defendant
Page 58 U. S. 328
to be levied upon." Upon this return, Camara filed a creditor's
bill, before the chancellor of the First Circuit in the State of
New York, setting out his judgment and the return upon the
fieri facias, in which he seeks, under the laws of that
state, to subject the equitable assets and choses in action of
Clark to his judgment, and he asks for a discovery of them from
Clark, for an injunction, and the appointment of a receiver. Notice
of this proceeding and of the action upon it were served upon the
solicitor of Clark, and the bill of complaint was taken as
confessed upon the defendant's default in not answering. Booth, the
present complainant, was appointed receiver on the 3d August, 1842.
Clark had been previously enjoined under the proceeding from making
any disposition of any part of his estate, legal or equitable. Thus
matters stood from the time of the receiver's appointment in 1842
until June, 1851. Then Booth, as receiver, reports that no effects
of Clark had come to his knowledge except a claim upon Mexico which
had been adjudged to Clark by the United States commissioners under
the treaty with Mexico, and that as receiver he was contesting it,
and he asks from the court authority to proceed for that purpose,
which was granted. Such is an outline of the case in New York,
containing every substantial part of it.
We will now state the proceedings of this suit at the instance
of the receiver in the Circuit Court of the United States for the
District of Columbia, from the decision of which dismissing the
receiver's bill it has been brought to this Court for revision.
On the 29th May, 1851, Booth, the receiver, filed his bill in
the Circuit Court for the District of Columbia, reciting so much of
the proceedings of the New York courts as was deemed necessary to
support his suit. He declares that Clark, when the original suit
was instituted against him by Camara, and from that time until
after he had been appointed receiver, had resided in New York. That
his effects consisted principally, if not wholly, of the claim upon
Mexico, and that he claimed that fund as receiver for the purposes
of that appointment. Clark answered the bill. He denies that the
proceedings against him in the courts of the State of New York
created any lien in behalf of Camara or the receiver upon the fund
in controversy. He admits that no part of his property ever came
into receiver's hands under those proceedings, and that he had the
claim upon Mexico whilst the suits were pending against him and
when the receiver was appointed under Camara's creditor's bill, but
that all the evidences and papers in support of his Mexican claim
were then in the public archives at Washington. He also states that
the board of commissioners under the act of Congress of March 3,
1849, entitled "An act to carry into effect certain
Page 58 U. S. 329
stipulations of the Treaty between the United States and the
Republic of Mexico of the 2d February, 1848," had made an award in
his favor for the sum of $86,786 29/100, which sum was then in the
hands of the Secretary of the Treasury of the United States. He
then alleges that, being a resident of the State of New Hampshire,
he filed in the clerk's office of that district, on the 28th
January, 1843, his petition to be declared a bankrupt. That he had
been declared a bankrupt on the 22d March following, pursuant to
the "act to establish an uniform system of bankruptcy throughout
the United States," passed August 19, 1841. He then recites that
there had been attached to his petition in the bankrupt's court, a
schedule of his property, rights, and credits of every kind and
description, in which his Mexican claim had been stated, and that
it was upon that claim the commissioners had awarded to him the sum
before mentioned. He declares that under the decree of the court in
bankruptcy, one John Palmer had been appointed assignee, and that,
having given his bond in compliance with the order of the court, he
was vested as assignee, in virtue of the operation of the bankrupt
law, of all the defendant's property, for the benefit of his
creditors, including the Mexican claim. It is also stated in his
answer that notice of all the proceedings in his matter of
bankruptcy had been published in the leading newspapers of New
Hampshire and that the name of Juan de la Camara, and his
residence, were placed among the list of his creditors attached to
his petition to be declared a bankrupt. And he avers that all of
his creditors had had notice of the proceedings in bankruptcy. That
neither Camara nor any other creditor had filed or made any
objections to those proceedings or to the action of the assignee
until after the award had been made upon the Mexican claim.
It is not necessary for the purposes of this opinion to state
the defendant's recital of the sale of his effects by Palmer, the
assignee; his purchase of them, including the Mexican claim, or the
rights claimed by the defendant under his purchase, all relating to
the same having been fully acted upon by this Court at this term,
in the case of
Clark v.
Clark. We state, however, that Palmer, the original
assignee in Clark's bankruptcy, having died, he had been succeeded
by the appointment of Hackett as assignee. This suit, then, is
substantially between Hackett, as the assignee of Clark in
bankruptcy, and Booth, the receiver under Camara's creditor's bill;
that it may be determined by this Court which of them has the
official right to the Mexican fund, for the distribution of it
between the creditors of Clark, or whether Booth, as receiver,
shall have from that fund a sufficient sum to pay
Page 58 U. S. 330
Camara's entire debt, leaving the residue of it for distribution
between Clark's other creditors.
It appears also from the record that Booth, the receiver, took
no steps to execute his official trust from the time of his
appointment in 1842 until 1851, after the award of the Mexican
claim had been made in Clark's favor. And also that the court of
chancery, acting upon the creditor's bill brought by Camara, had
not been applied to, either by Camara or by the receiver for any
order upon Clark
in personam to coerce his compliance with
its injunction and decree.
Upon this statement of the case we will now consider it.
There is no dispute concerning the regularity or binding
operation of the judgment obtained by Camara against Clark. None in
respect to the proceedings under the creditor's bill. The leading
point in the case is the effect of the proceedings under the last,
to give a right to the receiver, in virtue of a lien which he
claims upon the property of the debtor, to sue for and to recover
any part of it, legal or equitable, without the jurisdiction of the
State of New York. In other words, as an officer of a court of
chancery for a particular purpose, will he be recognized as such by
a foreign judicial tribunal, and be allowed to take from the latter
a fund belonging to a debtor, for its application to the payment of
a particular creditor within the jurisdiction of the receiver's
appointment, there being other creditors in the jurisdiction in
which he now sues contesting his right to do so. Or can he, as
receiver, claim, in virtue of a decree upon a creditor's bill given
in one jurisdiction, a right to have the judgment upon which the
creditor's bill was brought paid out of a fund of a bankrupt debtor
in a foreign jurisdiction because his appointment preceded the
bankrupt's petition.
It is urged that the receiver in this case, by the decree of the
court in New York, was entitled officially to the entire property
of Clark -- real, personal, or equitable -- both within and without
the State of New York. That he could, as receiver, maintain any
action for the property and rights of property of the debtor which
the latter could have done. That the fund now in controversy was a
chose in action belonging to the debtor when the receiver was
appointed, and, though not within the State of New York, that it
followed the person of the owner and passed to the receiver,
because the owner was domiciled in New York. And it was also said
that, having such official rights or liens upon the property of the
debtor, the comity of nations would aid him in the assertion of
them in a foreign tribunal. The counsel for the receiver cited from
the reports of the State of New York several cases in support of
the foregoing propositions. We have perused all of them carefully
without having been
Page 58 U. S. 331
able to view them altogether as the learned counsel does.
Whatever may be the operation of the decree in respect to the
receiver's powers over the property of the debtor within the State
of New York and his right to sue for them there, we do not find
anything in the cases in the New York reports showing the
receiver's right to represent the creditor or creditors of the
debtor in a foreign jurisdiction. It is true that the receiver in
this case is appointed under a statute of the State of New York,
but that only makes him an officer of the court for that state. He
is a representative of the court, and may by its direction take
into his possession every kind of property which may be taken in
execution and also that which is equitable, if of a nature to be
reduced into possession. But it is not considered in every case
that the right to the possession is transferred by his appointment,
for where the property is real, and there are tenants, the court is
virtually the landlord, though the tenants may be compelled to
attorn to the receiver. Jeremy's Equity Jurisprudence 249. When
appointed, very little discretion is allowed to him, for he must
apply to the court for liberty to bring or defend actions, to let
the estate, and in most cases to lay out money on repairs, and he
may without leave distrain only for rent in arrear short of a year.
6 Vesey 802; 15
id. 26; 3 Bro.C.C. 88; 9 Ves. 335; 1 Jac.
& W. 178;
Morris v. Elme, 1 Ves.Jr. 139; 1
id. 165;
Blunt v. Clithero, 6 Ves. 799;
Hughes v. Hughes, 3 Bro.C.C. 87; 5 Madd. 473.
A receiver is an indifferent person between parties, appointed
by the court to receive the rents, issues, or profits of land, or
other thing in question in this Court pending the suit where it
does not seem reasonable to the Court that either party should do
it. Wyatt's Prac.Reg. 355. He is an officer of the Court; his
appointment is provisional. He is appointed in behalf of all
parties, and not of the complainant or of the defendant only. He is
appointed for the benefit of all parties who may establish rights
in the cause. The money in his hands is
in custodia legis
for whoever can make out a title to it.
Delany v.
Mansfield, 1 Hogan 234. It is the court itself which has the
care of the property in dispute. The receiver is but the creature
of the court; he has no powers except such as are conferred upon
him by the order of his appointment and the course and practice of
the court;
Verplanck v. Mercantile Insurance Company, 2
Paige 452. Unless where he is appointed under the statute of New
York directing proceedings against corporations, 2 R.S. 438, and
then he is a standing assignee, vested with nearly all the powers
and authority of the assignee of an insolvent debtor.
Attorney
General v. Life and Fire Insurance Co., 4 Paige 224. In the
case just cited, Chancellor Walworth says that
Page 58 U. S. 332
the receiver has "no powers except such as are conferred upon
him by the order of his appointment and the course and practice of
the court." In the statement which has been made of the restraints
upon a receiver, we are aware that they have been measurably
qualified by rules and by the practice of the courts in the State
of New York, as may be seen in Hoffman's Practice, but none of them
alters his official relation to the court, and so far as we have
investigated the subject, we have not found another instance of an
order in the courts of the State of New York or in the courts of
any other state empowering a receiver to sue in his own name
officially in another jurisdiction for the property or choses in
action of a judgment debtor. Indeed, whatever may be the receiver's
rights under a creditor's bill to the possession of the property of
the debtor in the State of New York or the permissions which may be
given to him to sue for such property, we understand the decisions
of that state as confining his action to the State of New York.
Such an inference may be made from several decisions. It may be
inferred from what was said by Chancellor Walworth in
Mitchell
v. Bunch, 2 Paige 615. Speaking of the property which might be
put into the possession of a receiver and of the power of a court
of chancery to reach property out of the state, he declares the
manner in which it may be done, thus:
"The original and primary jurisdiction of that court was
in
personam merely. The writ of assistance to deliver possession,
and even the sequestration of property to compel the performance of
a decree, are comparatively of recent origin. The jurisdiction of
the court was exercised for several centuries by the simple
proceeding of attachment against the bodies of the parties to
compel obedience to its orders and decrees. Although the property
of a defendant is beyond the reach of the court, so that it can
neither be sequestered nor taken in execution, the court does not
lose its jurisdiction in relation to that property, provided the
person of the defendant is within the jurisdiction. By the ordinary
course of proceeding, the defendant may be compelled either to
bring the property in dispute, or to which the defendant claims an
equitable title, within the jurisdiction of the court, or to
execute such a conveyance or transfer thereof as will be sufficient
to vest the legal title, as well as the possession of the property,
according to the
lex loci rei sitae."
It is very obvious, from the foregoing extract, that up to the
time when
Mitchell v. Bunch was decided, in the year 1831,
it had not been thought that a court of chancery in the State of
New York could act upon the property of a judgment debtor in a
creditor's bill which was not within the State of New York, but by
the coercion of his person when he was within the jurisdiction of
the state,
Page 58 U. S. 333
and that it had not been contemplated then to add to the means
used by chancery to enforce its sentences, in respect to property
out of the State of New York, the power to a receiver to sue in a
foreign jurisdiction for the same. It is true that the jurisdiction
of a court of chancery in England and the United States, to enforce
equitable rights, is not confined to cases where the property is
claimed in either country, but the primary movement in the chancery
courts of both countries to enforce an injunction is the attachment
of the person of the debtor, where he is amenable to the
jurisdiction of the court.
We find in the 2d volume of Spence on the Jurisdiction of the
Court of Chancery in England, 6, 7, this language:
"When, therefore, a case is made out against a person resident
within the jurisdiction of the court in respect to property out of
it, but within the empire or its dependencies, which would call for
the interference of the court of chancery if the property were
situate in the country, the court, as it had the power, has assumed
the jurisdiction when such an interference is necessary to the ends
of justice, of enforcing the equitable rights of the parties to or
over property out of its jurisdiction by the coercion of the person
and sequestration of his property here in the same manner as it
would have done had the property been situate in this country."
And Sir John Leach said:
"When parties defendants are resident in England and are brought
upon subpoena here, the court has full authority to act upon them
personally, with respect to the subject of the suit, as the ends of
justice require, and with that view to order them to take or to
omit to take any steps or proceedings in any other court of
justice, whether in this or in a foreign country. This Court does
not pretend to any interference with the other courts."
It acts upon the defendant by punishment for his contempt, for
his disobedience of the court. The court of chancery has no power
directly to affect property out of the bounds of its jurisdiction.
Roberdeau v. Rous, 1 Atk. 544; 2 Spence. We believe such
to be the proper course in chancery in cases of injunction, and
that its jurisdiction by injunction rests entirely on the coercion
of the person. Such, however, was not the course pursued in this
case, though the debtor was then a resident of the State of New
York and amenable to the jurisdiction of the court. No motion was
made to force Clarke to comply with the injunction which Camara had
obtained under the creditor's bill. The matter was allowed to rest
for seven years, Camara being aware that Clarke had a pecuniary
claim upon the Republic of Mexico at least as early as in the year
1843. The receiver during all that time took no action. His first
movement is an application to be permitted to sue for the fund in
the hands of the government, which had been awarded to Clarke by
the commissioners under the treaty
Page 58 U. S. 334
with Mexico. Permission was given to sue. He has brought his
bill accordingly, and it directly raises the question whether he
can, as an officer of the court of chancery in New York and in his
relation of receiver to Camara, be permitted to sue in another
political jurisdiction.
We have already cited Chancellor Walworth's opinion as to the
course which is to be pursued in New York upon an injunction in a
creditor's bill. Mr. Edwards, in his excellent work on receivers in
chancery, after citing the language used in
Mitchell v.
Bunch, says:
"Still the difficulty remains as to a recognition of the powers
or officers of the court by persons holding a lease upon the
property, especially realty, out of the jurisdiction. Then in
Malcolm v. Montgomery, 1 Hogan 93, the Master of the Rolls
observed that a receiver could not be effectually appointed over
estates in Ireland by the English court of chancery in any direct
proceeding for the purpose, and that attempts had often been made
to do so by serving orders made by the English Court of Chancery,
but that they had failed, because the English Court of Chancery has
no direct means of enforcing payment of rent to its receiver by
tenants whoreside in Ireland. The Attorney General and another
counselor also said that to their knowledge such attempts had been
frequently made, but had been uniformly given up as impracticable.
A conflict might also arise between the receiver out of the
jurisdiction and creditors, and also other persons out of the
jurisdiction. The comity of nations and different tribunals would
hardly a receiver."
We also infer from the case of
Storm v. Waddell in 2
Sandford 494, that the receiver's right to the possession of the
property of a debtor in the State of New York and his right to sue
for property there is limited to that jurisdiction. The chancellor,
in the last case mentioned, after having given an epitome of the
cause of proceeding in a creditor's bill and speaking of equitable
interests and things in action belonging to the debtor, without
regard to the injunction, says:
"The property of the defendant is subjected to the suit wherever
it may be, if the receiver can lay hold of it or the complainant
can reach it by the decree. The injunction, when served, prevents
the debtor from putting it away or squandering it."
This language indicates the receiver's locality of action. Taken
in connection with that of Chancellor Walworth in
Mitchell v.
Bunch, it shows that the receiver's right to the possession of
the debtor's property is limited to the jurisdiction of his
appointment, and that he has no lien upon the property of the
debtor except for that which he may get the possession of without
suit or for that which, after having been permitted to sue for, he
may reduce into possession in that way. Our industry has been
tasked unsuccessfully
Page 58 U. S. 335
to find a case in which a receiver has been permitted to sue in
a foreign jurisdiction for the property of the debtor. So far as we
can find, it has not been allowed in an English tribunal; orders
have been given in the English chancery for receivers to proceed to
execute their functions in another jurisdiction, but we are not
aware of its ever having been permitted by the tribunals of the
last.
We think that a receiver has never been recognized by a foreign
tribunal as an actor in a suit. He is not within that comity which
nations have permitted, after the manner of such nations as
practice it, in respect to the judgments and decrees of foreign
tribunals, for all of them do not permit it in the same manner and
to the same extent, to make such comity international or a part of
the laws of nations. But it was said that receivers in New York are
statutory officers, as assignees in bankruptcy are. That being so,
he had, as assignees in bankruptcy have upon the property of the
bankrupt, a lien upon the property of a judgment debtor under an
appointment in a creditor's bill. But that cannot be so. An
assignee in bankruptcy in England, and in this country when it had
a bankrupt law, is an officer made by the statute of bankruptcy,
with powers, privileges, and duties prescribed by the statute for
the collection of the bankrupt's estate for an equal distribution
of it among all of his creditors.
In England the property of the bankrupt is vested in the
assignees in bankruptcy by legislative enactment. Where
commissioners have been appointed, it is imperative upon them to
convey to the assignees the property of the bankrupt, wherever it
may be or whatever it may be, and it is done by deed of bargain and
sale, which is afterwards enrolled. It vests the assignees with the
title to the property from the date of the conveyance, it having
been previously vested in the commissioners for conveyance by them
to the assignees. As to the bankrupt's personal estate, the statute
looks beyond the debts and effects of a trader within the Kingdom
and vests them in the commissioners in every part of the world. The
last is done in England upon the principle that personal property
has no locality, and is subject to the law which governs the person
of the owner. As by that law the property of a bankrupt becomes
vested in the assignee for the purposes of the assignment, his
title to such property out of England is as good as that which the
owner had, except where some positive law of the country, in which
the personal property is, forbids it. Cullen 244.
In claiming such a recognition of assignees in bankruptcy from
foreign courts, England does no more than is permitted in her
courts, for they give effect to foreign assignments made
Page 58 U. S. 336
under laws analogous to the English bankrupt laws.
Solomons
v. Ross, 1 H.B. 131, n.;
Jollet v. Deponthieu, id.
132, n. But such comity between nations has not become
international or universal. It was not admitted in England until
the middle of the last century in favor of assignees in bankruptcy.
Lord Raymond decreed it in 1811 in the case of a commission of
bankruptcy from Holland. Sir Joseph Jekyll, in 1715, said the law
of England takes no notice of a commission in Holland, and
therefore a creditor here may attach the effects in the City of
London and proceed to condemnation. 3 Burge 907. Lord Mansfield, in
Warring v. Knight, sittings in Guildhall after Hilary
term, Geo. III, Cooke's Bank.Laws 300, 3 Burge 907, ruled that
where an English creditor proceeded, subsequent to an act of
bankruptcy, by attachment in a foreign country and obtained
judgment there and satisfaction by the sale of the debtor's
personal property, the assignees in an action in England could not
recover from such creditor the amount of the debt which had been
remitted to him. Again, his Lordship ruled that the statutes of
bankrupts do not extend to the colonies or any of the King's
dominions out of England, but the assignments under such
commissions are, in the courts abroad, considered as voluntary, and
as such take place between the assignee and the bankrupt, but do
not affect the rights of any other creditors.
So the law stood in England until the case of
Folliott v.
Ogden, 1 H.Bl. 123, when Chancellor Northington stimulated it
into a larger comity by giving effect to a claim to the creditors
of a bankrupt in Amsterdam over an attaching creditor in England,
who had proceeded after the bankrupt had been declared to be so by
the proper tribunal in Amsterdam. England had just then become the
great creditor nation of Europe and of her provinces in North
America. Her interest prompted a change of the rule, and her courts
have ever since led the way in extending a comity which had before
been denied by them. The judicial history of the change, until the
comity in favor of assignees became in England what it now is, is
given in 3 Burge, ch. 22; Bankrupt Laws, 886, 906-912, inclusive,
and from 912-929. It may now be said to be the rule of comity
between the nations of Europe, but it has never been sanctioned in
the courts of the United States nor in the judicial tribunals of
the states of our nation, so far as we know, and we know that it
has been repeatedly refused in the latter. Our courts, when the
states were colonies, had been schooled, before the Revolution, in
the earlier doctrines of the English courts upon the subject. The
change in England took place but a few years before the separation
of the two countries.
Page 58 U. S. 337
That comity has not yet reached our courts. We do not know why
it should do so so long as we have no national bankrupt laws. The
rule which prevailed whilst these states were colonies still
continues to be the rule in the courts of the United States, and it
is not otherwise between the courts of the states. It was the rule
in Maryland before the Revolution. It is the rule still, as may be
seen in
Birch v. McLean, 1 H. & McHenry 286;
Wallace v. Patterson, 2 H. & McHenry 463. An
assignment abroad by act of law has no legal operation in
Pennsylvania. We find from
McNeil v. Colquhoon, 2 Haywood
24, that it has been the rule in North Carolina for sixty years.
South Carolina has no other. 3 Const.Rep.S.C. 283; 4 McCord 519;
Taylor v. Geary, Kirby 313. In Massachusetts, the courts
will not permit an assignment in one of the states, whether it be
voluntary or under an insolvent law, to control an attachment in
that state of the property of an insolvent which was laid after the
assignment, and before payment to the assignees. The point occurred
recently in the circuit court of the United States for that
district in the case of
Betton v. Valentine, 1 Curtis 168,
and it was ruled that the assignee of an insolvent debtor,
appointed under the law of Massachusetts, does not so far represent
creditors in the State of Rhode Island as to be able to avoid a
conveyance of personal property in the latter state good as against
the insolvent but invalid as against creditors by the law of Rhode
Island.
In New York, the "ubiquity of the operation of the bankrupt law
as respects personal property" was denied in
Abraham v.
Plestoro, 3 Wend. 538. Chancellor Kent considers it to be a
settled part of the jurisprudence of the United States that a prior
assignment under a foreign law will not be permitted to prevail
against a subsequent attachment of the bankrupt's effects found in
the United States. The courts of the United States will not subject
their citizens to the inconvenience of seeking their dividends
abroad when they have the means to satisfy them under their own
control. We think that it would prejudice the rights of the
citizens of the states to admit a contrary rule. The rule as it is
with us affords an admitted exception to the universality of the
rule that personal property has no locality and follows the
domicile of the owner. This Court, in
Ogden v.
Saunders, 12 Wheat. 213, disclaimed the English
doctrine upon this subject, and in
Harrison v.
Sterry, 5 Cranch 289,
9 U. S. 302,
this Court declared that the bankrupt law of a foreign country is
incapable of operating a legal transfer of property in the United
States.
Such being the rule in the American courts in respect to
Page 58 U. S. 338
foreign assignments in bankruptcy and in respect to such
assignments as may be made under the insolvent laws of the states
of the United States, there can be no good reason for giving to a
receiver appointed in one of the states under a creditor's bill a
larger comity in the courts of the United States or in those of the
states or territories. On the contrary, strong reasons may be urged
against it. A receiver is appointed under a creditor's bill for one
or more creditors, as the case may be, for their benefit to the
exclusion of all other creditors of the debtor, if there be any
such, as there are in this case. Whether appointed as this receiver
was under the statute of New York, or under the rules and practice
of chancery as they may be, his official relations to the court are
the same. A statute appointment neither enlarges nor diminishes the
limitation upon his action. His responsibilities are unaltered.
Under either kind of appointment, he has, at most, only a passive
capacity in the most important part of what it may be necessary for
him to do until it has been called by the direction of the court
into ability to act. He has no extra territorial power of official
action; none which the court appointing him can confer, with
authority to enable him to go into a foreign jurisdiction to take
possession of the debtor's property; none which can give him, upon
the principle of comity, a privilege to sue in a foreign court or
another jurisdiction, as the judgment creditor himself might have
done, where his debtor may be amenable to the tribunal which the
creditor may seek.
In those countries of Europe in which foreign judgments are
regarded as a foundation for an action, whether it be allowed by
treaty stipulations or by comity, it has not as yet been extended
to a receiver in chancery. In the United States, where the same
rule prevails between the states as to judgments and decrees, aided
as it is by the first section of the 4th article of the
Constitution and by the Act of Congress of 26th May, 1790, by which
full faith and credit are to be given in all of the courts of the
United States to the judicial sentences of the different states, a
receiver under a creditor's bill has not as yet been an actor as
such in a suit out of the state in which he was appointed. This
Court considered the effect of that section of the Constitution,
and of the act just mentioned in
McElmoyle v.
Cohen, 13 Pet. 324-327. But apart from the absence
of any such case, we think that a receiver could not be admitted to
the comity extended to judgment creditors, without an entire
departure from chancery proceedings, as to the manner of his
appointment, the securities which are taken from him for the
performance of his duties, and the direction which the court has
over him in the collection of the estate of the debtor, and the
application
Page 58 U. S. 339
and distribution of them. If he seeks to be recognized in
another jurisdiction, it is to take the fund there out of it
without such court having any control of his subsequent action in
respect to it and without his having even official power to give
security to the court, the aid of which he seeks, for his faithful
conduct and official accountability. All that could be done upon
such an application from a receiver, according to chancery
practice, would be to transfer him from the locality of his
appointment to that where he asks to be recognized, for the
execution of his trust in the last, under the coercive ability of
that court, and that it would be difficult to do, where it may be
asked to be done, without the court's exercising its province to
determine whether the suitor or another person within its
jurisdiction was the proper person to act as receiver.
Besides, there is much less reason for allowing the complainant
in this case to be recognized as receiver for the fund out of the
State of New York, and in this jurisdiction, even if the practice
in chancery in respect to receivers was different from what we have
said it was. The remedies which the judgment creditor in New York
had under his creditor's bill against his debtor were not applied
as they might have been in that state according to the practice in
chancery in such cases. When Clark had been enjoined under the
creditor's bill, and the receiver had been appointed, both judgment
creditor and receiver knew at the time -- certainly, as the record
shows, in a short time afterwards -- that Clark had a pecuniary
claim upon the Republic of Mexico. No attempt was made, according
to chancery practice, to coerce Clark by the attachment of his
person under the injunction to make an assignment of that claim for
the payment of Camara's judgment. It cannot be said that Clark had
not property to assign and that it was therefore unnecessary to
attach him. That would make no difference, for whether with or
without property, he might have been compelled to make a formal
assignment, even though he had sworn that he had none. It was so
ruled in
Chipman v. Sabbaton, 7 Paige C. 47, and in
Fitzburgh v. Everingham, 6 Paige 29.
There was a want of vigilance in this matter which does not make
any equity which he may have in New York upon Clark's property
superior to that of Clark's creditors, who are pursuing the funds
in this district. Nor, according to the rule prescribed in the
United States that personal property has no locality on account of
the domicile of the owner to transfer it under a foreign
assignment, can the receiver have in this case anything in the
nature of a lien to bind the property of Clark not within the State
of New York. When we take into consideration also the origin of the
fund in controversy, the manner of its
Page 58 U. S. 340
ultimate recovery from Mexico, the congressional action upon it
in every particular to secure it after the awards were made to
those who might be entitled to receive it, the jurisdiction given
to the circuit court of this district, with an appeal from its
decision to this Court, upon the principles which govern courts of
equity to adjudge disputes concerning it, and that such cases were
to be conducted and governed in all respects as in other cases in
equity, we must conclude that the complainant in this case, as
receiver, cannot be brought under the rule prescribed for our
decision. We concur with the court below in the
Dismission of the bill.
Order
This cause came on to be heard on the transcript of the record
from the Circuit Court of the United States for the District of
Columbia, holden in and for the County of Washington, and was
argued by counsel. On consideration whereof it is now here ordered,
adjudged, and decreed by this Court, that the decree of the said
circuit court in this cause be and the same is hereby affirmed with
costs.