Page:Harvard Law Review Volume 5.djvu/232

216 2l6 HARVARD LAW REVIEW. It is true that it does not in terms provide that an attach- ment in other States shall be dissolved, because such an enact- ment would be without the force of law, as against attachments which are valid according to the laws of the place where they are made. But they nevertheless operate to divert property from the assignees and create preferences, and so are against equity as between citizens of our own State." The court adds that it further appeared from the bill that the defendants, when they made their attachment, knew that the debtors were insol- vent, and had reason to believe that proceedings in insolvency were about to be instituted against them, and that this " pur- pose to interfere with and prevent the proper distribution of the property of the insolvent takes away all claim to equitable consideration which might exist when priority was obtained in good faith." But subsequently, in making the injunction per- petual, the court held — " The intent with which the defendants made the attachment does not affect the equitable right of the assignees." ' While it may be thought that the rule laid down in Dehon v. Foster is somewhat in the nature of judicial legislation, inasmuch as under this rule the courts practically give a certain extra-terri- torial force to the Insolvency Law which it would not otherwise have either by virtue of the statute itself or by comity, yet it is true, as the court says, that making such attachments or garnish- ments in another State is contrary to the spirit and intent of the Insolvent Law, which seeks to vest in the assignee all of the bank- rupt's property free from attachments not more than four months old, and that for a creditor to go from his own jurisdiction and that of his debtor into a foreign jurisdiction, to acquire an advantage expressly and purposely denied him in the former, is an attempt to evade the law of the State of which he is a subject. Further, it cannot be doubted that the operation and effect of the rule have been extremely beneficial. It has forced creditors to come into the Insolvency Court and prove their claims. Without it, on the first intimation of a failure, there would be a general scramble of creditors to lay hold of something outside the State by garnish- ment or attachment ; much of the estate would be wasted in legal costs and otherwise ; for a creditor who has attached property to the value of ten thousand dollars to secure a claim of five thou- 1 Dehon v. Foster, 7 Allen, 57.