Page:Harvard Law Review Volume 1.djvu/269

 any legal diligence which English creditors or others may afterwards seek to exercise.

Chancellor Kent, in Holmes v. Remsen, 4 Johns. Ch. 460, reasoned in favor of this doctrine, and tried to introduce it into our jurisprudence, but without success. Our Courts still hold that our creditors attaching here, though their actions are begun after the date of the foreign decree, have the better right.

The American doctrine is not founded on an avowed policy or principle that our own citizens should, in any event, have the right to the assets within our jurisdiction. If no creditor happens to be in a situation to attach the personal property, the foreign trustee may take it, and no injunction will be granted to restrain him at the suit of creditors here whose debts have not matured. If he does take it and remove it from the State, no action lies against him to recover it back for the benefit of our citizens. If a foreign creditor attaches first, though it be in the interest of the foreign trustee, our own citizens, afterwards attaching, are not given a priority. We merely say that we do not respect a foreign decree as against our own citizens, who have an opportunity to use the process of our Courts, whether our course seems consistent with the usual rules of international law or not. Thus Chief Justice Gibson says, in substance, in Miliken v. Aughenbaugh, 1 Penn. R. 117, 125, that our Courts do not consider that international comity requires us to interfere to prevent creditors who owe no allegiance to the foreign government from pursuing their remedies against any property which accident has subjected to their power. And Story, Confl. Laws, § 420, says: “The point hitherto has been a struggle for priority and preference between parties claiming against the bankrupt by opposing titles; the assignees claiming for the general creditors, and the attaching creditors for their several rights.”

It is, therefore, not quite accurate to treat this point as one of conflict between the law of the foreign debtor’s domicile and the law of the situs of his property here. We have no law of the situs giving preference to our creditors, but simply refuse to interfere and aid the foreign trustee against the legal diligence of our creditors who may have the good fortune to be able to attach or take in execution the effects here before the trustee has removed them.

A policy to satisfy our own creditors first out of the assets here