ereignties, yet its existence cannot at this day be denied. In Vail v. Knapp, 49 Barb. 299, 305, an injunction was continued against citizens of New York, plaintiffs in attachment suits in Vermont, upon the ground that they were proceeding in Vermont in evasion of the laws of New York; and the court points out that, though, as a general rule, the courts of New York decline to interfere by injunction to restrain its citizens from proceeding in an action which has been commenced in a sister state, (citing Mead v. Merritt, 2 Paige, 402; Burgess v. Smith, 2 Barb. Ch. 276, and others cases,) yet "there are exceptions to this rule, and, when a case is presented fairly constituting such exception, extreme delicacy should not deter the court from controlling the conduct of a party within its Jurisdiction, to prevent oppression or fraud. No rule of comity or policy forbids it." The same result was announced in Dinsmore v. Neresheimer, 32 Hun, 204, where the supreme court of New York held that an express company could maintain an action in New York to restrain the defendant, a resident of the state of New York, from prosecuting actions against the company in the District of Columbia, brought to avoid a decision of the court of appeals of New York, differing from the rule upon the same subject in the District of Columbia. In Railroad Co. v. Ramsey, 45 N. Y. 637, the court of appeals, speaking through FOLGER, J., treats the general question as not admitting of doubt.

"At the time of these proceedings, as for many years before, the commonwealth of Massachusetts had an elaborate system of insolvent laws, designed to secure the equal distribution of the property of its debtors among their creditors. Under these insolvent laws all preferences were avoided, and all attachments in favor of particular creditors dissolved. The transfer of the debtor's property to his assignees in insolvency extended to all his property and assets, wherever situated. This was expressly provided as to such as might be outside the state. By one of the sections of the chapter of the Public Statutes of Massachusetts treating of this subject, the debtor was required to do all acts necessary to give the assignees power to "demand, recover, and receive all the estate and effects so assigned, especially any part thereof which is without this state." Pub. St. Mass. 1882, c. 157, § 74. Whenever the debtor had made, to the satisfaction of the judge in insolvency, a full transfer and delivery of all his estate, and conformed to the directions and requirements of the law, he was entitled to be absolutely and wholly discharged from his debts, with certain exceptions; but it was provided that a discharge should not be granted to a debtor whose assets did not pay 50 per cent. of the claims proved against his estate, unless upon the assent in writing of a majority in number and value of his creditors who had proved their claims. Sections 80, 86. Nothing can be plainer than that the act of Butler, Hayden & Co. in causing the property of the insolvent debtors to be attached in a foreign jurisdiction tended directly to defeat the operation of the insolvent law in its most essential features; |

and it is not easy to understand why such acts could not be restrained, within the practice to which we have referred. But for the attachment suits the assignees in insolvency could have collected the claim of Bird against Claflin & Co., but could not have intervened in those suits, and asked of the courts of New York the enforcement of their title. The rule in that state is that by the comity of nations the statutory title of foreign assignees in bankrupt. cy is recognized and enforced, when it can be done without injustice to the citizens of the state, and without prejudice to creditors pursuing their remedies under the New York statutes, provided, also, that such title is not in conflict with the laws or public policy of the state, and that the foreign court had jurisdiction of the bankrupt. In re Waite, 99 N. Y. 433, 2 N. E. Rep. 440. Under such a rule, it is evident that the remedy of the assignees was in equity, and in the courts of their domicile. This is the conclusion reached in Kidder v. Tufts, 48 N. H. 121, 126, referred to by counsel for appellant. That was a case where citizens of Massachusetts commenced in New Hampshire an attachment against certain other citizens of the former state. Proceedings in insolvency against the defendants were afterwards instituted in Massachusetts; and, subsequently to this, certain New Hampshire creditors attached the same property, and then moved for a continuance to await the proceedings in insolvency, for the purpose of pleading the insolvent's discharge in bar of the first attachment. But the court denied the motion, holding that the Massachusetts creditors had availed themselves of their strict legal rights as established and allowed by the statute law of New Hampshire, and, for the purpose of an attachment, might properly be considered subjects of that state government; but the court added: "If the subsequent attaching creditors have a remedy, and can in any way prevent the plaintiffs from obtaining a preference, their appeal should be made, as creditors of the defendant, to the Massachusetts courts, which may exercise their jurisdiction over their own citizens if they have violated any of their laws by their experiment here." Bank v. Lacombe, 84 N. Y. 367, 386. So, in the case of Paine v. Lester, 44 Conn. 196, where a citizen of Rhode Island attached in Connecticut a debt due from a citizen of Connecticut to a corporation of Pennsylvania, which had made an assignment for the benefit of creditors, the lien of the attachment was held valid against the claim of the trustee in the assignment, because the right of the trustee in insolvency in Connecticut rested only on the comity which the court there could exercise or refuse to exercise at its discretion, while the plaintiff had a legal right, under the laws of Connecticut, to prosecute his suit. In Rhawn v. Pearce, 110 Ill. 350, the supreme court of Illinois declined to recognize at law the insolvent laws of Pennsylvania, by giving effect to a statutory assignment in that state, even as against an attaching creditor of the same state with the debtor. But the same tribunal found no difficulty in holding, in Sercomb v. Catlin, 128 Ill. 556, 21 N. E. Rep. 606, that the

courts of Illinois, on the application of a receiver appointed by them, could enjoin a person within the jurisdiction of the court from interfering in respect to property belonging to an insolvent copartnership for which the receiver had been appointed, although that property was outside of the jurisdiction; and Chafee v. Quidnick Co., 13 R. I. 442; Dehon v. Foster, 4 Allen, 545; and Railroad Co. v. Railroad Co., 46 Vt. 792, were cited.

Dehon v. Foster, 4 Allen, 545, is the leading case upon the subject, argued by eminent counsel on both sides, and decided upon great consideration. The supreme judicial court of Massachusetts, speaking through BIGELOW, C. J., points out that the jurisdiction of a court, as a court of chancery, to restrain persons within its jurisdiction from prosecuting suits, upon a proper case made, either in the courts of Massachusetts or in other states or foreign countries, rests on the clear authority vested in courts of equity over persons within the limits of their jurisdiction and amenable to process, to stay acts contrary to equity and good conscience; and that, as the decree of the court in such cases is directed solely at the party, it is wholly immaterial that such party is prosecuting his action in the courts of another state or country. The action was a bill in equity to enjoin a citizen of Massachusetts from availing himself of an attachment of personal property in Pennsylvania, as against a debtor put into insolvency under the laws of Massachusetts, and thus preventing the same from coming to the hands of the assignee. The court held that it was obvious that the controversy was simply as to the relative rights of citizens of Massachusetts to personal property belonging to insolvent debtors domiciled in that state, and raised no question involving a conflict of rights between citizens of Massachusetts and another state, nor as to the validity of a foreign law, or of liens acquired under it. On the contrary, the case rested on the ground that the defendants, if allowed to proceed with their action, would perfect a lien then only inchoate under their attachment, and might thereby establish a valid title to the property of the insolvent debtors under the laws of Pennsylvania. "Looking, then, at our own laws," said the court, "to ascertain which of the two parties to this suit has a paramount right or superior equity to the debts due to the insolvents from persons residing out of the state, there would seem to be but little if any room open for doubt or controversy." The fundamental principle of the insolvent laws of the commonwealth, that all the property of the debtor should be taken and equally distributed among his creditors, was remarked on, and the provisions of the statute intended to secure that end recapitulated. The inevitable conclusion was announced, that, as the act of the defendants in causing the property of the insolvent debtors to be attached in a foreign jurisdiction tended directly to defeat the operation of the law, by preventing a portion of the property of the debtors from coming to their assignees, to be equally distributed among their creditors, and giving a preference to certain of their creditors, so that

they would obtain payment of their debt in full, it was therefore an attempt by those creditors, citizens of Massachusetts, to defeat the operation of their own laws, to the injury of other creditors of the insolvents. And the court proceeded: "This is manifestly contrary to equity. The defendants, being citizens of this state, are bound by its laws. They cannot be permitted to do any acts, to evade or counteract their operation, the effect of which is to deprive other citizens of rights which those laws are intended to secure. Certain it is that they could not in any manner or by any process take from the assignees of an insolvent debtor property belonging to him within this state, and appropriate it to the payment of their debt in full. To prevent such appropriation, if the law furnished no adequate and complete remedy, this court would interfere by suitable process in equity. We are unable to see any reason for withholding such interference merely because our citizens seek to accomplish the same purpose by resorting to a foreign jurisdiction, and with the aid of the laws of another state or country. An act which is unlawful and contrary to equity gains no sanction or validity by the mere form or manner in which it is done. It is none the less a violation of our laws because it is effected through the instrumentality of a process which is lawful in a foreign tribunal. By interposing to prevent it, we do not interfere with the jurisdiction of courts in other states, or control the operation of foreign laws. We only assert and enforce our own authority over persons within our jurisdiction, to prevent them from making use of means by which they seek to countervail and escape the operation of our own laws, in derogation of the rights, and to the wrong and injury, of our own citizens." To the argument that the bill could not be maintained, because the statutes of Massachusetts regulating the assignment and distribution of insolvent estates could have no extraterritorial effect or operation, the court answered that, while it was true that the statutes of Massachusetts, ex proprio vigore, had no effect or operation in other states, it was also true that, by the comity of states and nations, the laws of one country are allowed, to a certain extent, to control the rights of persons and property in other countries, though not allowed to have any effect to the injury of the citizens of such other country. From this principle it followed, as a necessary consequen e, that personal property of a Massachusetts insolvent debtor situated in Pennsylvania would vest in the Massachusetts insolvent's assignees, with power to take possession of and collect them, either in their own names or in the name of the insolvent, if they were not held or attached by virtue of a process or lien in favor of a creditor which would be valid under the laws of Pennsylvania. Hence, if the attachment in Pennsylvania were valid and binding, the Massachusetts creditors would obtain a right superior to that conferred under the Massachusetts laws on the assignees in insolvency, by the act of such creditors, in defeat of the operation of the laws of their own state; so that a pro

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ceeding in equity might properly be resorted to to compel the defendants to desist from the prosecution of a suit which would have such an effect. Nor did the court regard the fact as controlling to the contrary that the attachment was made prior to the institution of the proceedings in insolvency, because the attachment tended to contravene the clear intent of the statutes, which aim to vest in the assignee all the property of the debtor which could have been assigned by him, or taken on execution against him, at the time of the commencement of the insolvent proceedings, "although the same is then attached on mesne process as the property of the debtor," and because, aside from that, it appeared that the defendants, when they instituted process in Pennsylvania and made their attachment, knew that the debtors were insolvent, and had reason to believe that proceedings in insolvency were about to be instituted against them, and caused the attachment to be made with an intent to obtain a preference over other creditors, and to avoid the operation of the insolvent laws of the commonwealth. Under such circumstances, priority gave no equity to the defendants. The purpose to interfere with and prevent the proper distribution of the insolvent's estate took away all claim to equitable consideration which might exist when priority was obtained in good faith. The decree accordingly went, enjoining the defendants from prosecuting their attachments. The objection was urged that the effect of the restraint might be to enable all non-resident creditors to appropriate property by attachment to the payment of their debts, and thereby to gain a preference over attaching creditors residing in Massachusetts, as well as to prevent the property from passing to the assignees. This was, of course, a matter to be considered by the court in arriving at a conclusion as to granting the relief prayed. It may be remarked, however, that while, as between citizens of the state of the forum and the assignee appointed under the laws of another state, the claim of the former will be held superior to that of the latter by the courts of the former, yet this has not been so ruled in many of the states, as between an assignee appointed in another state and citizens of other states than that of his appointment and of the forum. Undoubtedly, the fiction of law that the domicile draws to it the personal estate of the owner, wherever it may happen to be, yields whenever it is necessary, for the purposes of justice, that the actual situs of the thing should be examined, and always yields when the laws and policy of the state where the property is located invalidate a transfer, even though valid by the law of the assignor's domicile, in which state it was made, subject to the qualifications that property once vested in the assignee and in his possession will not be disturbed, and that, in some jurisdictions, when the attaching creditor is domiciled in the same state with the assignor, he may be precluded from disputing the assignment in a foreign court. Whether the lawof the common domicile of two or more litigants determines their title to property in another territory, so that an attaching creditor, whose domi

cile is the same as that of the assignor, cannot set up against an assignment the law of a foreign country where the property is actually situated, has been much discussed. It is certain that the law of the common domicile cannot overcome such registry and other positive laws of the other country as are distinctly politic and coercive. Whart. Confl. Laws, §§ 369, 371. If a state provides that no title shall pass to property within its borders, except on certain conditions, such provision cannot be overridden by the law of any other state which parties domiciled there may be held to have adopted. It was in this view that Mr. Justice MILLER, referring to a voluntary conveyance, in Green v. Van Buskirk, 5 Wall. 307, 311, 312, said: "There is no little conflict of authority on the general question as to how far the transfer of personal property by assignment or sale, made in the country of the domicile of the owner, will be held to be valid in the courts of the country where the property is situated, when these are in different sovereignties. The learned author of the Commentaries on the Conflict of Laws has discussed the subject with his usual exhaustive research; and it may be conceded that, as a question of comity, the weight of his authority is in favor of the proposition that such transfers will generally be respected by the courts of the country where the property is located, although the mode of transfer may be different from that prescribed by the local law. But, after all, this is a mere principle of comity between the courts, which must give way when the statutes of the country where property is situated, or the established policy of its laws, prescribe to its courts a different rule."

Great contrariety of state decision exists upon this general topic, and it may be fairly stated that, as between citizens of the state of the forum and the assignee appointed under the laws of another state, the claim of the former will be held superior to that of the latter by the courts of the former; while, as between the assignee and citizens of his own state and the state of the debtor, the laws of such state will ordinarily be applied in the state of the liti gation, unless forbidden by or inconsistent with the laws or policy of the latter. Again, although, in some of the states, the fact that the assignee claims under a decree of a court or by virtue of the law of the state of the domicile of the debtor and the attaching creditor, and not under a conveyance by the insolvent, is regarded as immaterial, yet, in most, the distinction between involuntary transfers of property, such as work by operation of law, as foreign bankrupt and insolvent laws, and a voluntary conveyance, is recognized. The reason for the distinction is that a voluntary transfer, if valid where made, ought generally to be valid everywhere, being the exercise of the personal right of the owner to dispose of his own, while an assignment by operation of law has no legal operation out of the state in which the law was passed. This is a reason which applies to citizens of the actual situs of the property, when that is elsewhere than at the domicile of the insolvent, and the controversy has chiefly been as to whether prop

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erty so situated can pass even by a voluntary conveyance. In Warner v. Jaffray, 96 N. Y. 248, the debtor, residing in New York, made a general assignment for the benefit of creditors to the plaintiff. He owned personal property situated in Pennsylvania, which was attached by New York O creditors, having no actual notice of the assignment, before the assignment had been recorded in Pennsylvania. A statute of that state provided that assignments of property situated there, made by a person not a resident therein, might be recorded in any county where the property was, and would take effect from its date, "provided that no bona fide purchaser, mortgagee, or creditor, having a lien thereon before the recording in the same county, and not having previous actual notice thereof, shall be affected or prejudiced." It was held that an injunction should not be granted against the New York creditors from prosecuting their attachment suits in Pennsylvania. The assignment, said the court, was a mere voluntary conveyance, and "did not operate upon the creditors of the assignor, nor place them under any obligations. It left them entirely free to act. They could utterly refuse to have anything to do with it, and retain their claims, and enforce them in their own time, as best they could, against their debtor. The assignee became a trustee for such creditors of the assignor only as chose to accept him as such; and without their assent the assignment did not bring the creditors into any relation with the assignee, or with each other. The law did not take this insolvent's property for distribution among his creditors, but its distribution was his own act. Any one of his creditors could, notwithstanding the assignment, enforce his claim against any property of the assignor not conveyed by the assignment, without violating any rights or equities of the other creditors." The law of Pennsylvania was then referred to; and it was shown, as the fact was, that such an assignment was recognized in Pennsylvania, but that to give it effect before it had been recorded where the property was would have been in contravention of the law of the state. Upon this ground the court distinguished Ockerman v. Cross, 54 N. Y. 29, where "it was held that a voluntary assignment by a debtor residing in Canada, valid by the laws of his domicile, and not invalidated by any law of this state, was valid here, and operated to transfer the assignor's property situated here. That the decision would have been different if the assignment had been in contravention of our laws or policy is fully recognized in the opinion of the court." also, the court distinguished the case of Bagby v. Railroad Co., 86 Pa. St. 291. There a receiver had been appointed in the state of Virginia of the property of the railroad company; and at the time of such appointment there was due to it, from a debtor in Pennsylvania, a certain sum of money, which the receiver claimed. But after his appointment a creditor residing in Virginia went to the state of Pennsylvania, and there commenced suit against the railroad company, and attached the debt due it; and it was held that the receiver was entitled to the debt. And the court of appeals said:

And so,

In the case in hand, the supreme judicial court of Massachusetts thought it proper to grant the injunction, since it was a case of the taking by the law of the insolvent's property for distribution among his creditors, who, so far as resident in the state of Massachusetts, were brought into relations with the assignee and with each other which precluded them from enforcing their claim against the property of the assignor conveyed by the assignment, and rendered the effort to do so a violation of the rights and equities of the other creditors, and an absolute infraction of the law of their own domicile. Nor was there any law or policy of the state of New York contravened by the insolvent proceedings in question, or in itself inimical to the title of the assignees. In Lawrence v. Batcheller, 131 Mass. 504, the defendant, Batcheller, a citizen of Massachusetts, had brought suits by attachment in other states against one Paige, also a citizen of Massachusetts, indebted to defendant, and in embarrassed circumstances, and garnished, and ultimately collected, various amounts due to Paige. Paige subsequently went into insolvency, and his assignees sued Batcheller at law to recover the money. The supreme judicial court of Massachusetts held that the assignees could not recover, because, as the attachments were made prior to the time when the assignment in insolvency took effect, and, having been made in other states, were not dissolved by the proceedings in insolvency, and were valid by the laws of the states where they were instituted, they prevailed over the insolvency assignment, the statutes of Massachusetts not making a title so acquired void or voidable, at the election of the assignees in insolvency. And the court, holding that courts of law will not always afford a remedy in damages for all wrongs which courts of equity might prevent, said: "Courts of equity recognize and enforce rights which courts of law do not recognize at all; and it is often on this ground that defendants in equity are enjoined from prosecuting actions at law." The distinction between the action as brought and Dehon v. Foster was treated as obvious.

What has been said is in harmony with the rule announced in Green v. Van Buskirk, 5 Wall. 307, and 7 Wall. 139. In that case, Bates, who lived in New York, executed and delivered to Van Buskirk, who lived in the same state, a chattel mortgage on certain iron safes which were then in the city of Chicago. Two days after this, Green, who was also a citizen of New York, being ignorant of the existence of the mortgage, sued out a writ of attachment in the courts of Illinois, levied on the safes, and subsequently had them sold in satisfaction of the judgment obtained in the attachment suit. There was no appearance or contest in this attachment suit, and Van Buskirk was not a party to it, although he could