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FOREIGN" RECEIVERS AND JUDICIAL ASSIGNEES. By Seymour D. Thompson. II. III. What Concessions have been made fo SUCH Receivers.
The principle now generally acted upon is that a receiver or other trustee, appointed in another state, will be permitted, on the principle of comity, to bring an action in the domestic forum, for the purpose of col lecting the assets of the insolvent, for dis tribution in accordance with the law of the jurisdiction within which the receiver has been appointed, when so to do will not contravene the rights of citizens of the state in which the action is brought.1 This principle applies, not only in the case of receivers, but in the case of every other kind of statutory assignee or trustee, acquiring, by operation of the law of the state or country wherein he is appointed, dominion over the property of an insolvent, for the purpose of administration for the benefit of his creditors, —- as distinguished from a voluntary assignee, who holds the legal title, which carries with it a right of action ex proprio vigorc. 2 1 Metzner v. Baucr, 98 Intl. 425; Runk v. St. John, 29 Barb. (X. Y.) 585; Hoyt v. Thompson, 5 N. Y. 320; Bagby v. Atlantic etc. R. Co. 86 Pa. St. 291; Hurd v. Elizabeth 41 N. J. L. I; Bidlack v. Mason, 26 N. J. Eq. 230; Bank v. McLeod, 38 Ohio St. 174; Toronto Gen'l Trust Co. v. Chicago etc. R. Co., 123 N.Y. 37 (trustee appointed in Canada); Ke Waite, 99 N. Y. 433; McAlpin v. Jones, 10 La. An. 552; Comstock v. Frederickson, 53 N. W. Rep. 713; Lycoming Fire Ins. Co. v. Langley, 62 Md. 196; Iioulware v. Davis, 90 Ala. 207; Lycoming Fire Ins. Co. v. Wright, 55 Vt. 526; Chicago etc. K. Co. v. Keokuk etc. Packet Co. 108 Ill. 317; s. c. 48 Am. Rep. 557; Graydon v. Church, 7 Mich.. 36; Pugh v. Hurtt, 52 How. Pr. (N.Y.) 22; Iglehart v. Bicrce, 36 Ill. 133; Ex parte Norwood, 3 Biss. (U. S.) 504; National Trust Co. v. Miller, 33. N. J. Eq. 155; Paradise v. Farmers etc. Bank, 5 La. An. 710; Cagill v. Wooldridge, 8 Baxt. (Tenn.) 580,583; s. c. 35 Am. Rep. 716. 2 With reference to the question, so far as it relates to the right of action of the assignees of bankrupts appointed by a foreign tribunal, it may be worth while to note that the liberal genius of Chancellor Kent conceded to such trustees an unqualified right of action in the courts of New
But it must not escape attention that the rights of citizens of the state of the forum, York. In Bird v. Caritat (2 Johns. [N. Y.] 342) it was held that a suit could be brought in that state, in the name of a foreign bankrupt, by his assignees, for their benefit as such, using the name of the bankrupt, according to the principles of common-law pleading, since abrogated in the code states. "This," said he, "is more a question con cerning form than substance; for there can be no doubt of the right of the assignees to collect all debts dae to the bankrupt, either by a suit directly in their own names, or as trustees, using the name of the bankrupt. It is a prin ciple of general practice among nations to admit and give effect to the title of foreign assignees. This is done on the ground that the conveyance, under the bankrupt laws of the country where the owner is domiciled, is equivalent to a voluntary conveyance by the bankrupt." In Holmes v. Rensen (4 Johns. [N. ] 460), Chancellor Kent wrote an elaborate opinion, holding that foreign assignees in bank ruptcy took title to all the property of the bankrupt whereever situated, with the same force and effect as if the bank rupt had made a voluntary assignment of his property, and that such a title was good, even against subsequent attach ing creditors, in a country other than that where the bank ruptcy adjudication had taken place, and where the statu tory transfer had been made. He said: "It is admitted in every case, that foreign assignees, duly appointed under foreign ordinances, are entitled, as such, to sue for debts due to the bankrupt's estate" (Ibid. 485). In Raymond v. Johnson (11 Johns. [N. Y.] 488), it was held that, although the court would recognize and protect the rights of an assignee, under the insolvent laws of another state, yet an action brought in New York must be in the name of the insolvent. But that rule of pleading is now abolished by the code, which requires every action to be brought in the name of the real party in interest. Another contro versy came before the courts of New York between Holmes and Remsen (Holmes v. Remsen, 20 Johns. [N. Y.] 229), where Piatt, J., expressed views upon the question some what different from those of Chancellor Kent. In an opinion of exceptional learning and strength, he, in sub stance, annexed to those views the following qualification, which is quoted from the concluding argument of Mr. Caines for the attaching creditors, and which is now gener ally accepted by American tribunals : " We admit that the bankrupt assignment passes all the property of the bankrupt, here and everywhere, provided always that there are no creditors here having claims on that property. We admit the right of the assignees of the bankrupt to collect his property here and take it to England, if there are no creditors of the bankrupt here, but not otherwise. If there are creditors attaching here, there is a conflictus legum, and the foreign law must yield" (Ibid. 254). Subsequently it was held by Chancellor Walworth that an assignment in
