Holmes v. Remsen , 20 Johns. 229 ( 1822 )

Platt, J.

Three points are presented in this case :

1st. Whether the assignment by the commissioners of bankrupt in England, (being prior in date,) transferred this chose in action to the assignees of the bankrupt, in opposition to the claim of the trustees under the attachment here ?

2d. Whether (if that statutory assignment was inoperative) the assignment made personally by Mullett to the same assignees, was effectual, in regard to the debt due from Clason ?

3d. Whether the payment to the assignees of the bank-rapt in England, under the circumstances of the case, is a good, defence to this action ?

I have read, and studied, with respectful attention, thev opinion of his Honour the Chancellor, in a case between the same parties, and involving the same questions; (4 Johns. Ch. Rep. 460.) and it presents a new occasion to admire the extent and accuracy of his researches, and the liberal principles of public policy which characterize his .decisions. After a luminous review of the cases, authorities, and learned dicta on this head, the Chancellor decreed in favour of the defendants, on all the points here stated.

I fully concur with him in opinion, that in respect to the owner’s control over it, (during peace,) personal property ought to have no locality: and my mind would most wilBtigly be led to the conclusion, that it would be a just and wise rule of international law, that the sequestration of personal property for the benefit of creditors, which is prior In point of time, should attach to itself the distribution of the whole funds, wherever situated. But however fit and convenient such a rule might be for the general interest and security of commerce ; yet, so long as the evil passions and infirmities of our nature remain, I fear it is rather to be desired than expected. To be practicable and just, the rule must not only be reciprocal and universal j but it must be administered every where, with a liberal equity and an enlightened impartiality, that would inspire universal confidence ; and which, I fear, cannot reasonably be expected, from the variously modified organs of judicial power in different countries.

It is admitted, " that every country may, by positive law, regulate, as it pleases, the disposition of personal property found within it j and may prefer its own attaching creditor to any foreign assignee ; and no other authority has' a right to question the determination.’' (4 Johns. Ch. Rep. 471.) This shows that the liberal rule so ably contended for by our learned Chancellor, and by Lord Hardwicke, Justice Bathurst, Lord Camden, Lord Thur-low, Lord Loughborough, Lord Kenyon and Lord Eldon, has -not yet ripened into a law, obligatory on the community of nations. (Sill v. Worswick, 1 H. Bl. 691. Solomons v. Ross, 1 H. Bl. 131. note. Jollett v. Deponthieu, &c. 1 H. Bl. 132. note. Hunter v. Potts, 4 Durn. and East, 182. Case ex parte Blakes, 1 Cox, 398. Philips v. Hunter, 2 H. Bl. 402. Stein’s case, 1 Rose’s Cases in Bankruptcy, App. p. 462. Selkrig v. Davis, 2 Dow, 230. 2 Rose, 291. Smith v. Buchanan, 1 East, 6. Neale v. Cottingham, 1 H. Bl. 132. note.) In this long list of cases, the English Judges have generally advanced gratuitous dicta, far beyond what was required to decide the cases before them ; and I therefore feel a strong impression, that his honour the Chancellor has allowed to some of them more weight pf authority than they merit.

In the case of Cleve v. Mills, (1 Cook. B. Laws, 303. 4 edit.) Lord Mansfield held, " That the statutes of bankrupts do not extend to the colonies; but the assignments under such commissions are considered as voluntary; and, as such, take place between the assignees and the bankrupt 5 kut do not affect the rights of any other creditors.”

In the case of Solomons v. Ross, (1 H. Bl. 131. note.) which came before Mr. Justice Bathurst, sitting for Lord JYor thing ton, in 1764, “ Messrs. Deneufmlles, merchants, at Amsterdam, corresponded with Michael Solomons and Hugh Ross, merchants, of London. On the 18th of December, 1759, the Deneufmlles stopped payment; on the 1st of January, 1760, the Chamber of Desolate Estates, in Amsterdam^ took cognizance thereof, and on the next day, they were declared bankrupts, and curators or assignees appointed of their estates and effects. On the 20th of December, 1759, Ross, who was a creditor of the bankrupts, to the amount of near £3000, made an affidavit of his debt in the Mayor’s Court of London, and attached their moneys in the hands of Michael Solomons, who was their debtor to the amount of £1200. On the 8th of March, 1760, Ross obtained judgment, by default, on the attachment, and, thereupon, a writ of execution issued against Michael Solomons, who was taken in execution, but being unable to pay the £1200, gave Ross his note, payable in a month ; on which Ross caused satisfaction to be entered on the record of the judgment.

“ A few days after, one Israel Solomons, who had a power of attorney from the curators to act for them in England, filed a bill, making himself and the curators plaintiffs, praying that the defendant, Michael Solomons, might account with them for the effects of the bankrupts, which were in his hands, might pay and deliver the same over to Israel Solomons, for the use of the curators, and be restrained from paying or delivering them over to Ross.

“ Michael Solomons then filed a bill, by way of inter-pleader, praying an injunction, and that he might be at liberty to bring the £1200 into Court. This money was •accordingly paid into the bank, in the name of the Accountant General, pursuant to an order of the Court.

“ The decree directed, inter alia, that the stock purchased with the money paid into the bank, should be transfer-led to Israel Solomons, for the benefit of the creditors of the bankrupts, and that Ross should deliver up the note given by Michael Solomons, for £1200, to be cancelled.5’

In Jollet, &c. v. Deponthieu and Baril, before Lord Camden, in 1769, (1 H. Bl. 132. note.) Deneufvilles, merchants, at Amsterdam, stopped payment on the 30th of July, 1763. On the 8th of October following, the plaintiffs were appointed curators of their effects; and the bankrupts owed the defendant, Deponthieu, of London. On the 5th of January, 1764, the defendant, Deponthieu, attached the money of the bankrupts in the hands of Baril, a debtor of the bankrupts. Pending the attachment, the curators filed their bill for an account between the bankrupts and Baril; and that the balance might be paid to them, and the defendant, Deponthieu, be restrained from proceeding on the attachment. The decree was, “ that the plaintiffs recover the balance due : and that a perpetual injunction issue against proceeding on the attachment.”

In the case of Mawdesley v. Parke and Beckwith, (Lincoln’s Inn Hall, 1779, before Lords Commissioners Smythe and Bathurst, 1 H. Bl. 680, as stated by Serjeant Hill, without contradiction, in Sill v. Worswick,) “ the defendants were assignees under a commission of bankrupt against Campbell and Hayes; and, after the assignment to them from the commissioners, several of the bankrupt’s creditors, in Rhode Island, attached a debt due from the plaintiff to the bankrupt, in pursuance of an act of Assembly there, authorizing such process. The plaintiff coming to England, the assignees brought an action at law against him, and the bill was filed for an injunction, the plaintiff offering to pay what (if any thing) should appear to be due to the assignees, after deducting what should be recovered against him by the plaintiffs in the foreign attachment. The assignees, by their answer, insisted, that the property of the bankrupts was vested in them before the writs were served on the plaintiff, and, therefore, that he had no money or effects belonging to the bankrupts in his hands, and, consequently, that the plaintiffs in those writs were not entitled to recover any thing. An injunction had been granted, and, on showing cause why it should not be dissolved, the Lords Coromis» sioners, Smythe and Bathurst, continued the injunction t# the hearing, and refused to order the plaintiff to bring the money into Court, but directed that he should give security,t0 be approved of by the master, to pay the defendants what (if any thing) should be decreed to be due; and they were of opinion, that the assignment did not devest the property out of the bankrupts, as the debt was due in the plantations, but only gave the assignees a right to sue for it; that the creditors there had also a right to sue for it, who, having commenced a suit first, and recovered judgment there, had gained a priority over the defendants; though it was admitted, that there had been two cases, one determined by Mr. Justice Bathurst, sitting for Lord Northington, the other by Lord Camden, where commissions of bankrupts were issued in Holland, and some of the bankrupt’s effects attached in London, and the attachments- were ordered to be discharged, and the money or effects paid to the assignees; and though it was argued by the counsel for the defendants, that the rule in that respect ought to be reciprocal, yet, it was answered, that the bankrupt laws were not received in the plantations, and, therefore, this case was not like those two which were mentioned, there being bankrupt laws in Holland.” ,

It is important to remark here, that as Mr. Justice Bathurst decided the case of Solomons v. Ross, in 1764, he must haye considered it inapplicable to the case of Mawdesley v. Parke, &c. which was also decided by him, in 1779. Perhaps, he may have been influenced by, the consideration, that between Holland and England there was a near vicinity ; and, what is of more importance, that a complete reciprocity existed as to the remedy; because, a bankrupt law existed in both countries.

Solomons v. Ross, and Jollett v. Deponthieu, are the only cases in which the English Courts have awarded the benefit of this rule to any other than British subjects; and it is to be lamented, that the meagre reports of those cases contain “ merely dry decisions, unaccompanied with argument or illustration.”

Lord Karnes, in his “ Principles of Equity,” written in 1766, (b. 3. c, 8. s. 6. p. 573. 4th edit.) discussing the very question, as to the extent and efiect of the English bankrupt laws, says, “ Law cannot force the will, nor compel any man to make a conveyance. In place of a voluntary conveyanee, when justice^ requires it to be granted, all that the Legislature can do, is to be themselves the disponers; and it is evident, that their deed of conveyance cannot reach any subject, real or personal, but what is within their territory. This makes a solid difference between a voluntary and a legal conveyance. The former has no relation to place ; the latter, on the contrary, has the strictest relation to place, and reaches not lands nor moveables extra territorium,. We may, then, with certainty, conclude, that the statutory transference of property from the bankrupt to the commissioners, cannot carry any effects in Scotland / these are subjected to our own laws, and our own Judges; and cannot be conveyed from one person to another, by the authosrity of any foreign statute. The English bankrupt statutes, however, are not disregarded by us.”

It seems to me, that the true principle is, that the assignees of a bankrupt are in the same, and no better situation, than the bankrupt himself, in regard to foreign debts. They take, subject to every equity, and subject to the remedies provided by the laws of the foreign country where the debt is due; and when permitted to sue in a foreign country, it Is not as assignees having an interest, but as representatives of the bankrupt. The law of the domicil having sequestered the bankrupt’s estate, so as to devest him of the control over it, and appointed them to administer it, they stand here on the footing of administrators, merely; with a right of suing, in common with other creditors $ but our law will not regard the chose in action as exclusively appropriated to their use; and the preference can only be gained by pursuing the remedies which our laws afford. This rule was exemplified in the case of Mawdesley v. Parke and Beckwith, before cited. The assignees of the English bankrupt are to be regarded as standing in the shoes of the bankrupt: and if Mullett had himself brought this suit, the attachment would certainly be a bar to his claim.

In the case of Bird, &c. v. Caritat, (2 Johns. Rep. 342.) it Was decided, that the assignees of an English bankrupt could maintain a suit here, in the name of the bankrupt & and that case did not require a decision on the point now before US.

It is a principle universally acknowledged, that a discharge of a bankrupt, or insolvent debtor, affords no relief from his foreign debts : It has no effect beyond the jurisdiction where it is granted. (Quin v. O’Keeff, 2 H. Bl. 553. Pedder v. M‘Master, 8 Term Rep. 609. Smith v. Buchanan, 1 East’s Rep. 6. Proctor v. Moor, 1 Mass. Rep. 198. Van Raugh v. Van Arsdaln, 3 Caines’ Rep. 154. Smith v. Smith, 2 Johns. Rep. 235.) It seems, therefore, unequal and inconsistent, to give such effect to .the bankrupt system of any country, as to strip the bankrupt of all his personal property and choses in action, in a"; foreign country, and yet leave him bound for all that he owes abroad.

The English bankrupt law is, in its nature and origin, penal: against every person who commits an act of bankruptcy, it denounces that he shall, ipso facto, be devested of all his estate; and, according to the genius of the system, and the practice under it, the proceedings are strictly in innitum. Our “ act for giving relief in cases of insolvency,” is entirely different in its character. In theory and practice, it is a remedy voluntarily resorted to by the debtor, to obtain a discharge, upon a cessio bonorum. His honour the .Chancellor, says, (Holmes v. Remsen,) “ we are bound to give effect to the assignment, because it is equivalent to a voluntary act of the party over his own property,” &c. “ Every man’s assent is to be presumed to a statute and he adopts the language of Chief Justice Parsons, (Goodwin v. Jones, 3 Mass. Rep. 517.) that “ he considered the assignment under the bankrupt laws as the party’s own act, since it was in execution of laws by which he was bound, and since he voluntarily committed the act which authorized the malting of it.” But, with great respect, it appears to me, that it would be unwise and unsafe to extend this doctrine so far. May it not, with equal justice, be said, that, if an Englishman commits an act of treason, the consequent forfeiture of his estate shall be deemed equivalent, here, to his own voluntary transfer; because he spontaneously did ■the act, which, according to the laws of his country, worked the forfeiture ?

As to the acts of governments, generally, throughout the world, such reasoning should be sparingly indulged. It may easily be pushed to an extreme that would be cruel and absurd.

The maxim that “ every man is presumed to be assenting, and a party to, the laws of his own country,” may be just, or unjust, according to its application. When applied to ■Mullet t, the English bankrupt, and to his English creditors, it is just and proper; but, in my judgment, it is not applicable to creditors who owe no allegiance to Great Britain; who have not, in any sense, actually or virtually assented to her laws; and who ask nothing of her tribunals. National comity requires no more, than that we should lend our aid in giving effect to such assignments, so far as may be done without impairing the remedies, or lessening the securities, which our laws have provided for our own citizens. “ Apices juris non sunt jura”

The point decided in the case of Sill v. Worswick, (1 H. Bl. 665.) extended no further than what I here concedej namely: That an English creditor, after an act.of bankruptcy, cannot attach, in a foreign country, money due to the bankrupt, without being liable to refund it to the assignees. It was a question between British subjects all round: and a British Court treated them as parties, who had virtually assented to, and were bound by the act of their own government. I admit, however, that the reasoning of Lord Loughborough in support of that decision, embraced a wider scope. Lord Loughborough, in that case, (page 693.) says, “ The Court of St. Christopher’s ought, unquestionably, to have preferred the title of the assignees, to the title of the creditor using the process of attachment, because the law of the country, to which the creditor making the demand ivas subject, had vested that property in the plaintiffs.”

The case of Philips v. Hunter, (2 H. Bl. 402.) before all the Judges in the Exchequer Chamber, was also a question as to the effect of the English bankrupt law between British subjects. The case of Hunter v. Potts, (4 T. R. 182.) is of the same character; the parties being all British subjects. I admit, without doubt or scruple, that these cases were all rightly decided : but so far as the reasoning and illustrations of those learned Judges transcended the cases before them, with a view to establish a favourite theory, I enter my humble dissent.

As was well observed by Mr. Justice Yeates, in Milne v. Moreton, (6 Bin. 369.) “ It is one thing to assert, that assignees of bankrupts under foreign institutions should be allowed, by the courtesy of nations, to support suits, as representatives of such bankrupts, for debts due to them j and it is another thing to give efficacy to those institutions, to cut out attaching creditors, although posterior in point of time, who have commenced their proceedings under the known laws of the government to which they owed allegiance, and from which they were entitled to protection.”

It is important to bear in mind, that the rule contended for by the Courts in England and Ireland is, that under a commission of bankrupt, the property passes by relation to the act of bankruptcy. In that respect, Chancellor Kent admits, that in Solomons v. Ross, “ the application oí the rule was pushed too far.” And he also protests against the same extension of the rule in Neal v. Cottingham ; for it gave effect (he says) to the title of the assignees by relation back, beyond the time of their appointment, to the time of the act of bankruptcy committed ; and so overreached the time of the attachment.” And he says, “ This doctrine of relation is a positive rule of mere municipal policy, which no other country is bound to adopt; as it would lead to great inconvenience,” &c. I confess, I do not see on what principle we can adopt or reject the rule, by halves. It is a wise and essential provision of the bankrupt law, that it shall operate by relation to the act of bankruptcy ; without which, the benefits of that law could not be secured ; and every other part of the system, to my apprehension, is equally “ of mere municipal policy.” If we acknowledge it as a binding rule in any respect, I prefer to adopt it in all its parts ; because I think it more just and equal with that feature, than without it. If foreign Courts exercise the right of modifying the English bankrupt law, by rejecting that part of it; they necessarily introduce prolixity and eonfusion. It would open a door to fraud and unjust preferences by the bankrupt; and would require a different rule of distribution, as between foreign and domestic ereditors. How do we know that Great Britain will accede to this provisional ratification of the rule ? If the municipal law of the domicil, in regard to the rights of creditors, and the distribution of the fund, is not to be the sole and uniform standard ; it seems to follow, that there is no international rale on the subject : for if we have the right thus to modify it in one feature, every other country has an equal right to amend it in other particulars. It is this discretionary power in a foreign Court, to judge of the fitness of the municipal law of the domicil, (which is claimed by his honour the Chancellor,) that will, in my judgment, render it impracticable to establish such a rale in the community of sovereigns.

Mr. Rose terms the rule of comity, as acknowledged in XSngland, e< international bankrupt law” But his honour the Chancellor, more cautiously, and, I think, more correctly, says, " The rule is, that comity is to be observed, yuatenus sine prejudicio indulgentium fieri potest.” After all, it is mere comity; not international law. As a general proposition, I would extend this comity to every nation, whose system of jurisprudence, and whose local vicinity, give assurance that it will be reciprocated with fidelity and convenience. But the relative condition of nations is so various and so variable ; the interruptions by wars and embargoes are so frequent; and the remedies against bankrupt and absconding debtors are so divers and unequal in various countries, as to render this rule of comity extremely difficult in its application. For instance, there are no countries more alike in their principles of jurisprudence, and their commercial habits, than Great Britain and the United States ; and none, where this rule of comity would be more easy or more equal in its application : and yet the mere fact, that in one there is a bankrupt law, and in the other none, destroys, in a great degree, the equality and reciprocity of such a rule. The advantage is greatly in favour of Great Britain, because our foreign attachment : laws are much more limited in their objects and extent thaii ^|le English system of bankruptcy. There, if a merchant or trader commits an act of bankruptcy, a creditor may sue out a commission, and (according to this rule) devest the debtor of all his personal estate- in this country, and appropriate it to the payment of all his debts : but if a bankrupt merchant, resident in New-Yorlc, were proprietor of millions of personal property in England, our laws afford no means for sequestering such property,for the payment of his debts ; although, perhaps, all his creditors reside in this State. It is plain, therefore, that if Great Britain, by issuing a commission against a bankrupt merchant of London, can spring a net, which shall cover all the effects of such bankrupt throughout the world, and draw them all to her, own forum, for distribution, it is, in her hands, a powerful commercial engine, which no other nation has the means of counteracting. In regard to attachment laws, Great Britain has equal and similar weapons with our own. Besides, the fact cannot be disguised, that Great Britain having the most extended commerce, and her merchants and manufacturers, crediting abroad vastly more than they owe to foreign creditors, has a strong and peculiar interest in contending for a rule, which draws to herself the distribution of all the effects which her lucrative commerce has dispersed over the globe. Suppose a commission of bankrupt had been issued, and an assignment made by the commissioners in England, one month before a declaration of war between that country and the United States, what would be the condition of the bankrupt’s property, and of his creditors in this country, if that rule be acknowledged ? Must the American creditors be told, you cannot attach, because the assignees in England are the vested owners j and as the war forbids them to sue, or to come here to protect the property, therefore, let it rot or be wasted ; when the war ends, you may go to England and prove your debts, and look for dividends,

In my judgment, the most convenient and practical rule is, that statutory assignments, as to creditors, shall operate intra territorium only. If, our citizens conduct themselves with a reference to our own laws, in regard to the property -ef their debtors found ivithin our jurisdiction, it seems reasonable that they should reap the fruits which those laws promise to them. This forms a standard of private rights, which all can easily understand and conform to j Tout if an attachment against an absent debtor’s property found here, may be superseded by a statutory assignment, previously made at St, Petersburgh or Calcutta, where the debtor resides, the remedy offered by our statute becomes illusory and hazardous. Let each government, in such cases, sequester and distribute the funds within its jurisdiction, and the general result will be favourable to the interests of creditors apd to the harmony of nations.

It is an established and universal rule, that, independent of express municipal law, personal property of foreigners dying testate or intestate, has locality. Administration must be granted, and distribution made, in the country where the property is found j and as to creditors, the lex rei sitee prevails against the law of the domicil, in regard to the rule of preferences. In principle, I can perceive no substantial difference between that case and the present. Why should not a liberal comity, also, demand that the first grant of letters of administration should draw to it the distribution, among creditors, of the whole assets, wherever situated ? The plausible reason for the distinction1 may be, that the interests of commerce require a discrimination in favour of the assignees of bankrupts. But, in practice, I believe it will be found, that commerce is equally affected by the rule in both cases ; because the rule, in either case, can seldom be applied, except to merchants and traders; and whether administration be committed to the executors or administrators of a dead man, or to the assignees of a bankrupt, is not very important as to the point before us. Anomalies are inconvenient in the law, and should not be allowed without strong reason.

In deciding this question, it is an important consideration, as a matter of fact, besides the deference and respect due to those tribunals, that the Supreme Court of Pennsylvania, the Superior Court of Connecticut, the General Court and Court of Appeals of Maryland, and the Supreme Court of the United States, have decided against the rule of comity claimed by the English, Courts. (Milne v. Moreton, 6 Bin. Rep. 353. Taylor v. Gear, 1 Kirb. Rep. 313. Wallis, &c. V. Patterson, &c. 2 Harris and M‘Henry, 463. See, also, Bush v. M‘Lain, 1 Harris and M‘Henry, 236. Opinion of Mr. Dulany, in 1766. Harrison v. Sterry, 5 Cranch 289.) Chief Justice Marshall, on this point, merely says, “ The bankrupt law of a foreign country is incapable of operating a legal transfer of property in the United States.” The subject was worthy of the powerful mind of that venerable and enlightened Jurist 5 and, with the Chancellor, I regret, “ that a litigated point of law, of great importance,” should have been settled “by a dry decision, unaccompanied with argument or illustration.” It was, however, a point necessary to the decision of the case; and we are not at liberty to regard the opinion as obiter dictum. I am not aware of a contrary decision in any of our sister states; and, so long as our supreme national tribunal (to which all aliens, and all citizens of other states in the union, may compel a resort) denies to Great-Britain the comity which she has ten-dered to us, it can hardly be expected, that a discrimination will hereafter be made by the English Courts, in favour of the state of JYew-Tork, even if the supreme judicial tribunal of this state should accede to the rule of Westminster Hall.

Upon the whole, I am of opinion, that although such a rule of comity between England, Scotland and Ireland; and, also, between the states of our confederacy, may be convenient, and of easy application; yet, as between independent nations, it is so unstable and precarious, and subject to so many qualifications, and liable to so frequent interruptions, and necessarily involves a discretion so large, and so delicate, as to forbid a reasonable hope, that it can ever form a solid basis for private rights. Besides, the expense and delay of going abroad to prove debts, and to claim dividends, may be extremely inconvenient; and, during wars and embargoes, (so frequent in many countries,) such intercourse would be unlawful. If it be an advantageous rule, let it be the subject of treaty; and then our rights will not depend on the undefinable and capricious theory of judicial comity, .but on the force of positive obligation. I do not mean, however, to suggest a .doubt, but ih&% independent of the statutory transfer, a bona fide assignment, for valuable consideration, or for payment of debts, freely made by such foreign creditor himself, would be valid against a subsequent attachment here; nor do I mean to question the settled principle of national jurisprudence, by which the succession to, and disposition of personal property, is regulated by the law of the owner’s domicil, in regard to testamentary bequests, and the succession to the personal estates of intestates, and I admit, that the same general law governs the rights of the marriage contract. In the impressive language of Lord Ellenborough, (5 East’s Rep. 131.) let it be re-echoed across the Atlantic, that these rights have here “ been long settled in principle, and laid up amongst our acknowledged rules of jurisprudence.” But these rights depend on a principle of public policy, which does not apply to, and which can never come in conflict with creditors, against whom, the claimants last referred to, have no rights, at home or abroad.

2. The next question is, whether the assignment made personally, by Mullett, after the commission of bankruptcy, was effectual to transfer this chose in action to the assignees ? In the first place, I doubt its validity, because, it was merely collateral to the proceedings under the commission, and was, in some degree, compulsory. But, there is a stronger ground of objection. I admit that, as between the bankrupt, and his assignees, and English creditors, they are all bound by the law of their own country; and, although I deny the effect of the statutory assignment, to create a lien here, so as to deprive American creditors of their remedy, by attachment, . under our laws; yet, it seems to me, that the bankrupt, M., by the law of his domicil, was incapacitated to make any assignment, after the act of bankruptcy for which the commission issued ; as to him, all his personal property and choses in action, throughout the world, and his power over it, were taken away; and the assignees under the commission, were substituted in his stead. It was in the nature of administration granted on the estate of a man who, in regard to his property, was civilly dead. I deny the lien or preference here, by virtue of that statutory assignment s but freely admit the right of those assignees to sue here, by virtue of the commission, or authorization iu England ; (requiring them, perhaps, to use the name of the bankrupt;) and we would not allow the bankrupt to release the debt, or to thwart or defeat the suit of the assignees. My opinion, therefore, is, that the assignment made, personally, by Mullett, after the commission of bankrupt, was a mere nullity. The law of his domicil had deprived him of all power and control over his jfroperty, and had appointed administrators in his stead. To test this position, suppose, instead of an assignment made personally by him to the assignees under the commission, as in this case, Mullett had made a similar assignment to any other person; I cannot entertain a doubt, that, in such case, we should respect and allow the title of the statute-assignees, so far as to permit them to sue for and recover the chose in action here, in opposition to any other assignee whom the bankrupt might appoint. My opinion on this point, therefore, is, that the assignment personally made by M., after the commission of bankrupt, added nothing to the title of the assignees; because, he was, by virtue of the bankrupt laws, rendered incapable of making any transfer of his property.

3. But on the last point in this case, I fully concur with his honour the Chancellor, that the payment of the debt in England, by the agents of the defendants, being compulsory, and by the judgment of a Court of competent jurisdiction, is a bar to this action for the same debt; assuming, as I do, that the payment was Iona fide, and that the funds were not transferred to England, for the purpose of evading payment here. Of such collusion, the case presents no shadow of proof. (Chevalier v. Lynch, Doug. 170. Allen v. Dundas, 3 Term Rep. 139. M‘Daniel v. Hughes, 3 East, 367. Embree v. Collins and Hanna, 5 Johns. Rep. 101.)

This last point being decisive of the whole case, my conclusion accordingly is, that the defendants are entitled to judgment.

Spencer, Ch. J., Yates, J., and Wo on worth, J., concurred in opinion, that judgment ought to be entered for the defendants, on the ground, that the compulsory payment in England was a good defence in this action ; but they declined expressing any opinion on the other points in the case.

Judgment for the defendants.