PART II. PROPERTY. and, secondly, that if it is disregarded by it, an English creditor, but not a foreign one, will be compelled in an English court to yield the proceeds he has acquired abroad to the English CAP. VII. assignees.(a) The distinction drawn between an English and a Bankruptcy. foreign creditor is clearly one of nationality in the authorities on which this proposition is based; but Mr. Westlake, though speaking of an "Englishman" and "an English creditor," uses language that would lead to the belief that the English domicil is or should be the distinguishing test. The distinction between domicil and nationality was not so clearly marked at the end of the last century, when those cases were decided, as it is at present, and it is certainly difficult to see now in what sense an English subject who has acquired a foreign domicil, remains subject to the English bankruptcy law with regard to his acts done abroad, so as to be bound by an assignment under it of the property of an English bankrupt any more than other people. If the creditor was domiciled in England, and so subject to its laws, the case would be very different, but even then there appears no authority in the cases cited for saying that he would be compelled to refund, if the foreign Court, after due notice of the title of the assignees, had pronounced judgment in his favour. All that is said is that no foreign Court that respected the comity of nations ought to pronounce such a judgment, but that a creditor who recovers in such a way, and is not subject to the bankrupt laws of England nor affected by them (whatever that may mean), can certainly not be compelled to refund, if sued by the assignees. The validity of such a judgment, if pronounced, being in a certain sense in rem,(b) can hardly on general principles be questioned, at any rate as between the parties to it. Where there has been no judgment pronounced by the foreign Court, but a creditor has merely obtained possession, by foreign attachment of the bankrupt's property, it is clear from the later case of Selkrig v. Davis (c) that whether there has been a formal intimation to the garnishee or not of the bankruptcy, the creditor can take nothing by such diligence, and if he can be reached by the English Court, will be compelled to refund. If he is neither present within the jurisdiction, nor has property within it, nor comes before the English Court of Bankruptcy to prove for other debts due to him in excess of (a) Westlake, § 279; 1 H. Bl. 693; 2 H. Bl. 405, 406, 408. (b) Story, § 592; McDaniell v. Hughes, 3 East. 367; Cammell v. Sewell, 29 L. J. Ex. 350. (c) 2 Rose, 291; S. C. 2 Dow. 230. See also Royal Bank of Scotland v. Cuthbert, 2 Rose, 78; Smith v. Buchanan, i East, 6. PART II. PROPERTY. the value of what he has acquired by the foreign process,(a) it is plain that he cannot be reached or in any way obliged to CAP. VII. disgorge. But where a bankrupt estate is being administered Bankruptcy. in England, and the foreign estate of the same debtor or debtors is also the subject of a bankruptcy abroad, creditors who have (b) Banco de Portugal v. Waddell, 11 Ch. D. 522; S. C. 5 App. Cas. 161. (d) In re Boyse, Crofton v. Crofton, 49 L. J. Ch. 699. (e) Minna Craig Steamship Co. v. Chartered Bank of India, 66 L. J. Q. B. 162;: distinguishing In re Oriental Inland Steam Co., L. R. 9 Ch. 557. (f) 8 Ves. 82. (g) Brickwood v. Miller, 3 Mer. 279; Waring v. Knight, cited in Phillips v.. Hunter, 2 H. Bl. 410. (h) Lindley on Partnership, p. 1175. correct. PART II. But if the partners in the foreign firm are the same as those in England, and both firms are bankrupt, a mere differ- PROPERTY. ence in the firm name will not let in a double proof.(a) CAP. VII. Bankruptcies. The question of concurrent and competing bankruptcies in Bankruptcy. different countries is one which has often given rise to difficulty. Concurrent The general rule has been stated as being that the country of the domicil is the preferable forum, and that if it is necessary that there should be but one proceeding in bankruptcy, that proceeding should be in the country of the domicil.(b) It would therefore seem that in a proper case, where the bankrupt's domicil was foreign, and bankruptcy proceedings were pending in that country, an English bankruptcy might be stayed, though commenced with jurisdiction. There is no instance when this has been done in fact, though the possibility of such a course being taken is assumed by the language of Lord Coleridge, C.J., in In re Hermanos. But in the case of a bankruptcy petition in England against a debtor residing (whether domiciled or not appears doubtful) in Scotland, it has been held that the existence of a pending Scotch sequestration is prima facie a reason for refusing to make an adjudication in England, though there was jurisdiction to do so.(c) If the discretion of the Court in such a case will be exercised by refusing to commence bankruptcy proceedings in England, there seems no reason why in a proper case it should not be exercised by discontinuing or staying English bankruptcy proceedings which have been already commenced. It is pointed out by Fry, L.J., in Hermanos' Case, that there are three possible views of the duty of the Court on such an application. The first is, that where there are concurrent bankruptcies each forum is to administer the assets locally situated within its jurisdiction, each forum of course allowing all the creditors to prove, but applying the doctrine of hotchpot, so as to produce so far as may be equality. That each forum has jurisdiction to do this there can be little doubt, as in the analogous case of administration on intestacy; (d) but the question would rather seem to be, whether the jurisdiction ought to be exercised in this manner, or whether (as already (a) Banco de Portugal v. Waddell, 11 Ch. D. 522; S. C. 5 App. Cas. 161. (b) In re Hermanos, Ex parte Châle (1890), 24 Ch. D. 640, 645, per Lord Coleridge, C.J., citing and approving Stein's Case, 1 Rose, 462. Smith v. Buchanan, 1 East 6; and cf. Bartley v. Hodges, 1 B. & S. 375. In re Blithman, L. R. 2 Eq. 23, and In re Davidson's Trusts, L. R. 15 Eq. 383. (c) Ex parte Robinson (1883), 22 Ch. D. 816, citing Er parte McCulloch, 14 Ch. D. 716, on the question of jurisdiction. So leave to serve a writ in Scotland was refused in the somewhat analogous case of the administration of a trust (Creswell v. Parker, 11 Ch. D. 601). (d) Ewing v. Orr-Ewing, 9 App. Ca. 34. PART II. PROPERTY. CAP. VII. Bankruptcy. Effect of foreign bankruptcy. suggested) an English bankruptcy ought not to be stayed where the forum of the bankrupt's domicil has already commenced similar proceedings for a like purpose. The second suggested rule considered by Fry, L.J., is that every other forum shall yield to the forum of the domicil, and that the forum of every other country shall act only as accessory to and in aid of the forum of the domicil-that being the forum concursus, to which all persons interested in the administration of the estate are bound to come. "No doubt there is a great deal in point of law and principle to be said in favour of that view, and there are certainly some conveniences in it."(a) It cannot, however, be said that this rule has without qualification been accepted; and probably it would be safer to say that, cæteris paribus, the forum domicilii has and ought to have the preference. The third suggested rule, which would give priority to the forum in which bankruptcy proceedings were first commenced, irrespective of domicil, provided that there were assets within its jurisdiction, need not be seriously considered, as it has never met with acceptance, and is described by Fry, L.J., "as an entirely unreasonable one." Accord The effect of an English bankruptcy upon personal chattels of the bankrupt situate abroad has been shown above. As to the operation of a foreign bankruptcy in England, the same universal effect of such an assignment that the English law claims for bankruptcies declared by itself is conceded by it to those which result from the laws of foreign countries. ingly, it is settled that an assignment by a foreign bankruptcy passes all the personal property of the bankrupt situate in England, including choses in action.(b) Re Blithman (c) is perhaps a little inconsistent with this doctrine, Lord Romilly holding that the question whether or not an Australian insolvency applied to personalty in England depended upon the domicil of the insolvent, who had died since the adjudication, and that if his domicil was English, and an Australian domicil had not been acquired, the title of his English executrix must prevail. It does not appear to have been quite clear whether Lord Romilly considered that it was the domicil at the time of the adjudication of insolvency or that at the time of the death which ought to be regarded, as he uses expressions consistent with either view, and mutually contradictory, in his judgment; (a) Per Fry, L.J., in Hermanos' Case, 24 Ch. D. 640, 648. (b) Solomons v. Ross, 1 H. Bl. 131, n.; Tollet v. Deponthieu, ibid. 132, n.; Potter v. Brown, 5 East, 124; Ex parte Cridland, 3 V. & B. 94. (c) 35 Beav. 219; L. R. 2 Eq. 23. PART II. PROPERTY. CAP. VII. but it is submitted that as the English bankrupt law does not require an English domicil to found its jurisdiction,(a) so it should recognise foreign insolvencies and bankruptcies without inquiring whether the subject of them was or was not domiciled Bankruptcy. in the country where his bankruptcy or insolvency was declared; and this view seems to be supported by the judgment of James, L.J., in a later case.(b) And though it is of course established law that the personal estate of a testator or intestate shall be distributed according to the law of his domicil, yet, in the first place, the Australian assignment under the insolvency in the case of Re Blithman ought to have been held operative on the English property by English law, as part of the law of nations, and not merely by the Australian statute; and secondly, if it operated at all, it did so at once, so that at the time of the death the English property belonged to the assignees under the insolvency, and was not part of the estate of the deceased for purposes of succession at all. Where the foreign bankruptcy is pending, and the bankrupt, without having obtained his discharge under it, is adjudicated bankrupt on a new petition in England, it would seem on principle that there should be no distinction between such a case and a case where both the bankruptcies are English. (c) In such an event it was decided, prior to the Bankruptcy Act of 1869, that the Court would support the title of the assignees under the later bankruptcy, against those under the earlier one in respect of property acquired between the two bankruptcies, but not, of course, in respect of that which the bankrupt had previously held.(d) If the circumstances are such that it is desirable that one bankruptcy only should be proceeded with, it has already been pointed out that the authorities are in favour of giving the preference to the forum domicilii.(e) foreign All the property of the foreign bankrupt being vested in his Title of assignees, they become of course entitled to his choses in action, assignees. for which they may have to come to English courts, and their right to sue there in their own names depends in the first place upon the original negotiability or liability to assignment of the obligation which it is sought to put in force. If the obligation was negotiable or assignable in its inception, then the assignees may sue in their own names,(ƒ) the question not (a) Suprà, p. 321. (b) In re Davidson's Settlement Trusts, L. R. 15 Eq. 383. (c) Griffith on Bankruptcy, p. 94. (d) Morgan v. Knight, 33 L. J. C. P. 168. (e) Ante, p. 325. Re Hermanos, 24 Ch. D. 640. (f) Jeffrey v. M'Taggart, 6 M. & S. 126; Wolff v. Oxholme, ibid. 99. |