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tion of New-York, than the law has in England over the "JULY 1829. estate of a bankrupt. In answer to this argument, it may

Robinson be proper to shew how far a sequestration, by a commission of bankruptcy, operates upon the estate of the debtor. Rapelye and

Smith. The law in relation to bankruptcy is municipal in its character, owing its force and operation to the Legislature of the particular country, and not dependant upon any rule -adopted by the community of nations for the adjustment of commercial intercourse; hence it follows, that its influence is limited to the government that adopts it, and that it cannot operate upon the citizens of another nation, that has had no agency in its enactment, and can never have assented to it, as forming rules for judicial action within its sovereignty. In this view we are well sustained.a Lord a Mandersly

v. Park and Kames, in his “Principles of Equity,” vin discussing the

Beckwith, question as to the effect and extent of the English bank- 1 H. Bla. 680. rupt laws, says, “law cannot force the will, nor compel any Remson, man to make a conveyance. In place of a voluntary con 20 John. 254,

Platt's opinveyance, when justice requires it to be granted, all that the Legislature can do, is to be themselves the disposers: and 64th Edit 573. it is evident that their deed of conveyance cannot reach any subject, real or personal, but what is within their territory. In Harrison v. Steeny, c Chief Justice Marshall c5 Cranch says, “the bankrupt law of a foreign country is incapable of operating a legal transfer of property in the United States." Other authorities are to the same point.d

Having shewn the extent of the influence of an assign- 6 Bin. 353. ment by positive law upon the estate of the debtor; we pro- Taylor v. pose next to inquire, whether there be any analogy between

Gear, 1 Kirby

313, Wallis such an assignment, and one made by the debtor himself. &c. v. PatIn respect to the right of the owner to control his property, Warris and it is assumed as a correct rule, that, in time of peace, per- M'Henry 463, sonal property has no locality; and that therefore it is com

13 Mass. 146,

2 Hayw. 24, petent for him to dispose of it by any legal conveyance, 12 Whea.213, though it may at the same time be without the country of his residence, or the place where the conveyance was executed. A different rule might seriously affect trade, and would require an inhibition upon the transfer of property to an impolitic extent. Lord Kames, in his Principles of Equity,"e speaking of the distinction between a e4th Edil. 578 transfer by the party himself and of a commission of bankruptcy, says “the former has no relation to place; the latter, on the contrary, has the strictest relation to place, and reaches not lands or moveablesextra territorium.Chancellor Kent, in Holmesy. Remson, and Chief Justice Par. fa John. Ch.

283,

d Milner v.

R. 460.

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sons, in Goodwin v. Jones, both agree, that such is the

effect of a conveyance by act of the party; and contend, that Robinson

a conveyance by act of the law operates co-extensively with Rapelve and the law. In relation to lands, they may be conveyed by the Smith.

employment of those ceremonies which the lex rei sitä has

made essential to a transference of right; though they be not a 3 Mass. 577.

situate in the country where the conveyance is exccuted. This proposition seems to us legitimately to result from the idea of private property, and a conclusion flowing from what we have said in relation to personal estate.

It is not pretended to question the right of any country to regulate, by positive law, the disposition of personal property found within its limits, so as to give a preference to its attaching creditor over the assignees of a non resident debtor. Such a right we believe to exist when it has not been abolished by the restrictions of fundamental law. But when this right has never been exercised, it is compatible with the rights of sovereignty for the legal forums of every country, to give effect to a conveyance by act of the party; and in point of law, they have no discretion in refusing their aid. We have no statute which sequesters the estate of the non resident debtor, though insolvent, for the benefit of the resident creditor, and cannot therefore deny to the deed the effect it proposes.

The reason employed, sustained as it is by authority of the highest respectability, we think most manifestly shews, that the parallel insisted on between the two descriptions of conveyance, cannot with justice be drawn: the one is voluntary, the other in invitum; the one is the act of the party, the other the act of the law; the one reaches the estate of the assignor wherever it may be, the other only where intra teritorium.

Having patiently investigated the case, we are of opinion, that the Court below decided correctly in refusing a judgment against the garnishees, and the judement must therefore be affirmed.

By JUDGE SAFFOLD. The questions presented by the various assignments of error are: 1. Does sufficienteridence of the due execution of the deed of assignment appear to have been offered to the Circuit Court, to defeat the plaintiff's attachment? 2. Is the deed on its face legal and valid according to its stipulations; or by legal construction, is it fraudulent and void? No evidence is furnished of the execution of the instrument, except by the assignors; their

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execution is certified by a notary public, but neither the notarial certificates, or any other shewing, testifies any

Robinson thing respecting the signing or sealing by either oi the assignees or creditors. It is true, the deed transmitted to Rapelye and

Smith. the garnishees, perhaps by mail, and by them shewn to the Court, purports to have been executed by two of the assignees and some twenty creditors. It cannot, however, be overlooked, that the garnishees admit their indebtedness to the defendants, and state they received notice from the persons named as assignees, of the transfer by deed as above described, but they do not profess any knowledge of the genuineness of the deed; or claim any interest in it. The state of the question is therefore essentially different from what it would be in a case where the assignors are summoned as garnishees, and claim title in themselves, either individually, or as trustees for the benefit of creditors, and consequently deny any indebtedness to the defendants in the attachment. In a case of the latter description, the answer not only denies that any thing is owing, but expressly, or by implication, avers the due execution of the deed.' Under such circumstances, the plaintiff must acqui. esce, or, pursuant to the statute, deny the truth of the answer on oath, and take issue upon it.a But in this case, an a Lawsof Ala. issue could not with propriety have been joined on the facts of the answer; for it avered no material fact, except the admission of their indebtedness, and it would have been perfectly nugatory to contest the statement that a deed as described had existence, either genuine or spurious, and that the garaishees had notice of it.

Evidence of the execution by the assignees, may be dispensed with, and the fact of their assent presumed; or if it be otherwise, Chancery is competent to remove the difficulty by compelling them to appropriate the funds according to the directions of the trust. If the assignment was absolute for the payment of all or any portion of the creditors, without requiring their release or assent as a condition precedent, then as they could have no inducement to refuse, their assent might be presumed, as was done in the case of Brooks v. Marbury. But where the act of 07&11 Whea. becoming parties to the deed by executing it is expressed as the only condition on which they could claim any interest under it, neither the case referred to, or, as I think, any

others cited, give any sanction to the doctrine, that their assent is unnecessary to the validity of the assignment. And as I view the subject, the assent of at least a

17.

JULY 1829.

Smith.

R. 104.

number of creditors whose demands together, bear a rea

sonable proportion to the value of the property assigned, Robinson

is indispensable to the validity of the deed; otherwise it is Rapelve and perfectly evident, the grossest fraud may be committed

with perfect impunity.

In a casc decided in the Supreme Court of Kentucky, 1 Monroe's as late as 1824, M-Kinley v. Ar Clombs, this principle

was maintained in terms far less qualified. There, a deed of trust had been executed by Grimes of all his estate real and personal, expressing to be in consideration of five shillings, and for the payment of his creditors, without naming any of them; neither of the trustees were creditors, nor did it

appear that the creditors were consulted, or that they consented to the conveyance.

A bill was filed by a creditor against the trustees, to set aside the deed, on the ground of fraud. Chief Justice Boyle, in delivering the opinion of the Court, said, "notwithstanding the trustees allege in their answer that they accepted the trust at the request of some of the creditors, yet there was in the cause no proof of the fact, and were it admitted to be true, it could not affect those creditors who had not made such request, or otherwise given their consent to the conveyance.” He remarks further, “it is to be sure reasonable, that the creditors who consent to a conveyance of this sort, should be bound thereby, and ought not to be permitted afterwards to object to it; but it is plain they could not bind other creditors who did not consent to the conveyance." He adds, “the deed of trust must therefore be assumed to be made by Grimes to strangers, and not to creditors, for the payment of his debts, and such a deed is merely voluntary and without consideration." That the consideration of five shillings, expressed, would be considered as merely nominal, and could affect the interest of no one but the assignor himself; that the deed as to purchasers and creditors, must be considered as fraudulent and void. This he said was the doctrine of the English books, under the statute of Elizabeth, of similar import to the statutes of Kentucky, against frauds and perjuries. The same may be said of the statute of this state and probably of New-York; and it

may also be remarked, as was done in the case of Sands u. 614 John. 496. Hildreth. that the statutes for the prevention of frauds in

the usual form, have been universally considered as expositions of the common law. The assignment in the case thus reported, appears to me to be far less exceptionable than the one under consideration; and if the doctrine as

SULY 1920.

Smith.

maintained in that case be correct, it is impossible that this assignment can be valid against the rights of dissenting creditors. There, the creditors, to claim under the deed,

Robinson were not required to release their demands against the true Rapelye and debtor; here it was the only condition on which they could have any claim; there the trustees answered on oath that they accepted the trust at the request of some of the creditors; here a paper is produced purporting to have been signed and sealed by a few of the presumed numerous creditors, and this is the only evidence of their assent, without a particle of proof of the genuineness of their signatures.

It is true the sum of $300, appears to have been appropriated by the deed to the payment of Clark, of Augusta; the language is rather ambiguous whether this was absolute, or on the condition prescribed for the other creditors, that he should execute the deed; but admitting it was absolute, can it be tolerated for a moment that an assignment in trust for the payment of several hundred thousand dollars, can be preserved from the fraudulent taint by a specious pretext securing the contemptible sum of $300? The schedule annexed to the deed, purports to contain an inventory of only the favorite creditors, and exhibits debts in their favor, to the amount of about $200,000!! Whether any of these debts have a real existence, or are merely fictitious, is equally destitute of proof, or even an affidavit by the garnishees, or any of the parties to the deed, or other person. It may, however, be assumed against those claiming under the deed, from the amount of debts inventoried, and various other indications, that this was one of the most extensive mercantile establishments in the United States. But whether the estate purporting to be assigned was of the value of $100,000 or a $1,000,000, is equally uncertain. What kind of property, what proportion of land, or personal estate, or where it is to be found, is left equally doubtful. No article of property is described, nor is the name given of a single debtor to the firm.

The execution of the deed by the creditors, or their assent otherwise given to its terms, would constitute a waiver of these objections as to them; but the position I assume, is that this deed is not shewn to have been assented to by any creditor: also, if it were shewn that the creditors who purport to have joined in the execution, have in fact done so, and that they were bona fide creditors for the respective sums mentioned, yet as their just demands may not equal half the value of the estate, and as the assignors have

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