Mulliken v. Aughinbaugh

The opinion of the court was delivered by

Gibson, C. J.

It is a principle both of British and American jurisprudence, that personal property has no locality in respect of the succession, which is always according to the law of the domicil; and the rule is extended by the English courts even to creditors. But in America, the rights of creditors not owing allegiance to the country of the domicil, are generally, if not universally determined by the lex loci rei sitm. In the application of the general principle to cases of foreign bankruptcy, the British judges, while admitting the validily of an involuntary assignment, even as regards their own subjects, have inconsistently denied to the bankrupt his share of the benefit under the commission, by subjecting him to the debts of British creditor.®, from which the certificate purported to *125be a discharge. (Smith v. Buchanan, 1 East. 6.) It surely would1 be more just to the bankrupt, as well as beneficial to the British creditor, to sustain an attachment of effects within the realm. The American courts act more consistently, if not more liberally, in giving effect to the commission as far as they can, without interfering with the claims of those who were not originally bound by it, on the score of allegiance; and this is, perhaps, all that foreign nations have a right to require, as comity is overstrained when it is bestowed at the expense of justice. In Milne v. Morton, (6 Bin. 361,) chief justice Tilghman has glanced at a distinction between things that are tangible, and therefore susceptible of actual locality, and things invisible, (consisting of debts,) of which he seems to suppose locality cannot be predicated; the accuracy of which, I may, with great respect for the opinions of that learned and excellent judge, be permitted-to question. The English courts sustain the title of assignees under a foreign commission, on principles of courtesy, not right; while the preference which we give to the title of creditors, is founded, as we conceive, in duty to prevent foreign interefence with the rights of our citizens or others not owing allegiance to the foreign government, over property which accident, consistently with justice and the laws, has subjected to their power. It can, therefore, make little difference in principle, whether the existence of the property be actual or potential, provided recourse may be had to it under the process of our courts; or whether it be corporeal or incorporeal, provided it be a subject of judicial cognisance, as in either case it seems to me, a creditor would be bound by no transfer but that of the debtor himself. But the case at bar is free of difficulty on this or any other head, the attaching creditor being personally bound by the laws of Maryland, and consequently disabled from gaining an advantage inconsistent with those laws by any proceeding here. Whether, in the case of a creditor not thus bound, we should feel it a duty to exercise a greater degree of courtesy towards a sister state, than towards a country with which we are connected by no political tie, is a question about which we intimate no opinion.

Whether the property was bound by the proceedings in Maryland when the attachment was laid, is a distinct and material fact which ought to have been expressly stated, because not only the existence of a foreign law, but the construction which is part of it, is determinable, not by the court, but a jury.'"There is, however, m the statement of the case, something like an agreement that the court shall pass on matter of fact, which may have been inserted to remedy this very defect. The plaintiff relies on the opinion of the court of appeals, delivered by chief justice Buchan, in Brown v. Brice, (2 Harris & Gill, 24.) in which it was ruled that the provisional trustee is a mere recipient of the property without power to assign it, or exercise any act of ownership in respect of it, but *126that of a baillee. And from this it is evident that he has but a qualified property. But of what value to the argument is it, that the ownership of the insolvent debtor was not divested, if the property were in gremio legis? And that it was, it is impossible from the nature of the case to doubt. The proceeding in cases of insolvency isa process of distribution among creditors; to accomplish which it is absolutely necessary that the law take possession of the fund. To this end, it is provided in the “Act relating to insolvent debtors in the city and county of Baltimore,” passed by the legislature of Maryland, in 1816, that the provisional trustee “ shall take possession for the benefit of the creditors of such insolvent debtor, of all property, estate and effects, books, papers, accounts, bonds, notes and evidences of debt.” Surely against such possession the courts of Maryland would not permit a creditor to gain a preference by execution or otherwise; and if such preference could not be gained there, a creditor bound by the laws of that state, could use the process of the courts with no better success here.

The property was therefore not subject to attachment by an inhabitant of Maryland; not however because a foreign attachment may not issue at the suit of a non-resident, (for that has never before been doubted,) but because it was previously attached by the laws of Maryland, by which the plaintiff is bound. This decision of the preceding points, relieves us from deciding whether the attachment abated by the death of the defendant between interlocutory judgment, and the execution of a writ of enquiry of damages: a nice and critical question, which we would not determine without more consideration than we have had time to bestow on it.

Judgment affirmed.