Bankruptcy.

PART II. being then of the remedy available, which is a matter for the PROPERTY. lex fori,(a) but of the nature of the contract. If, on the other CAP. VII. hand, the chose in action is an ordinary debt, the assignees are not, according to the view best supported, entitled to sue on it in their own names.(b) In the case of Alison v. Furnival (c) the point was not distinctly raised. There the bankrupt, prior to his bankruptcy and the appointment of provisional syndics in France, had become the creditor of the defendant on a French award and judgment, and the contest was rather whether two of the syndics were entitled to sue in their own names by the law of France, than whether the English law as to the nonassignability of obligations was to prevail. O'Callaghan v. Thomond,(d) where the assignee of an Irish judgment, made assignable by an Irish statute, was held entitled to sue in his own name, was not cited, but the Court were perhaps entitled to apply the principle of that case, the debt being on a French judgment. Parke, B., in his judgment, treated the plaintiffs not strictly as assignees of the creditor's choses in action, but as mandatories or agents for the creditors under the French bankrupt law. In Smith v. Buchanan (e) Lord Kenyon said the English law so far gave way to foreign laws of bankruptcy that assignees of bankrupts deriving title under foreign ordinances. were permitted to sue here for debts due to the bankrupt's estate; but that dictum, if it meant that such assignees were entitled to sue in their own names, is certainly inconsistent with the later cases already cited,(ƒ) and considerable doubt is thrown by Story, § 565, on the decisions in the two cases mentioned above. The general principle that an obligation not assignable in its inception cannot be sued for by an assignee, either for valuable consideration or under a bankruptcy, in a form which does not recognise the ordinary assignment of choses in action, appears to be strictly analogous to the rule as to debts due to the estate of a testator or intestate, which requires the personal representative to perfect his title according to the lex fori, by taking out administration in his own name, before he can recover them by suit.

Assignability of choses in action.

By the Judicature Act, 1873, s. 25, sub-s. 6, it is enacted that any absolute assignment by writing under the hand of the assignor (not purporting to be by way of charge only) of any debt or other legal chose in action, of which express notice in writing shall have been given to the debtor, trustee, or other

(a) Infrà, chap. x.

(c) 1 C. M. & R. 277.

(b) Wolff v. Oxholme, 6 M. & S. 92, 99. (d) 3 Taunt. 81. (e) 1 East. 6, 11. (f) Jeffery v. M'Taggart, 6 M. & S. 126; Wolff v. Oxholme, ibid. 92; Folliott v. Ogden, 1 H. Bl. 131.

person from whom the assignor would have been entitled to
receive or claim such debt or chose in action, shall be, and be
deemed to have been, effectual in law (subject to prior equities)
to pass and transfer the legal right to such debt or chose in action
from the date of such notice, and all legal and other remedies
for the same. It would therefore seem that the assignees
under a foreign bankruptcy could now obtain a clear title to
sue in their own names for choses in action of the bankrupt in
England, by calling upon him to execute to them such a written
assignment as the section just quoted contemplates, and giving
the required notice to the garnishee. The distribution of assets
under a bankruptcy is entirely a matter for the lex fori, under
the authority of which the bankrupt has been adjudicated and
distribution ordered. Thus, all questions of the priority of
creditors must be determined by the law of the country where
the bankruptcy takes place,(a) and the question whether or not
a creditor's claim is capable of proof at all must be referred to
the same test.(b) And where double proof against the estates
of two bankrupt firms is not allowed by English law, the fact
that the first bankruptcy under which the creditor has proved
was in Brazil will not render his proof admissible under the
bankruptcy in England.(c) It should be remarked, however,
that in this case the bills which it was desired to make the
subject of the proof had been accepted in England, so that the
English law might have been applied as that of the place where
the contract was to be performed.(d) Moreover, a foreign
creditor, residing out of the jurisdiction of the Court of Bank-
ruptcy, who comes in and proves his debt in an English bank-
ruptcy or liquidation, brings himself thereby within the general
jurisdiction of the Court as to the administration of the estate,
just as if he were residing within it; so that an order can be
made upon him to restore property of the bankrupt or debtor
improperly in his possession.(e) It would seem that the mere
fact of a foreign assignee being present in England with assets
in his hands will not warrant an English Court in assuming to
control his management of the estate, at any rate unless it is
sufficiently shown that the bankrupt has failed to obtain justice
in the ordinary courts of the country where the bankruptcy
took place.(f) And the fact that a creditor in an administration
(a) Thurburn v. Steward, L. R. 3 P. C. 478; Pardo v. Bingham, L. R. 6 Eq. 485.
(b) Ex parte Melbourn, L. R. 6 Ch. 64.

(c) Ex parte Goldsmid, 7 H. L. C. 785; S. C. 1 De G. & J. 257.

(d) See judgment of Turner, L.J., I De G. & J. 285, and Don v. Lippman, 5 Cl. & F. 1.

(e) Ex parte Robertson, Re Morton, L. R. 20 Eq. 733.

(f) Smith v. Moffatt, L. R. 1 Eq. 397.

PART II. PROPERTY.

CAP. VII.

Bankruptcy.

PART II. PROPERTY.

suit has obtained an advantage by means of a foreign attachment upon foreign assets, in respect of a debt barred by the CAP. VII. English Statute of Limitations, but not by the foreign law, will Bankruptcy. not be a reason why an English Court should call upon him to

account for these proceeds or bring them into hotchpot when he is proving under the English administration for another debt.(a) But it has already been shown that, where the estate of the same debtor is being administered both in England and abroad, a creditor who has received a dividend under the foreign bankruptcy will not be allowed to prove in England without bringing in what he has received.(b)

So far as bankruptcies in courts which are British though not English are concerned, the trustee's power of reaching movables within one of the sister jurisdictions is reinforced by s. 118 of the Bankruptcy Act, 1883, which directs the officers of English, Scotch, Irish, and other British Courts to act in aid of each other. An order has been made in England under this section in aid of the Court of the Cape of Good Hope.(c)

p. 321.

p. 322.

pp. 322-324.

SUMMARY.

ASSIGNMENT OF MOVABLE PERSONAL ESTATE ON BANKRUPTCY
OR INSOLVENCY.

To found the jurisdiction of the Bankruptcy Court, it is not necessary that the alleged bankrupt should be domiciled in England. It is sufficient It is sufficient if the debt in respect of which bankruptcy proceedings are taken was contracted, and the act of bankruptcy took place, in England, the debtor himself being commorant or even transiently present there. And it seems to be enough that the last two conditions should be complied with, though the debt was contracted abroad. But there must have been an act of bankruptcy in England, which is a personal act or default, and cannot be committed through an agent.

Assignment under an English bankruptcy includes all movable personal estate of the bankrupt, wherever situate, and whatever his domicil.

The title of the trustee is therefore complete to all movable chattels of the bankrupt abroad, including choses in action. But if a foreign creditor of the bankrupt has obtained possession of (a) In re Bowes, Strathmore v. Vane, W. N. 1889, p. 53.

(b) Banco de Portugal v. Waddell, 11 Ch. D. 522; S. C. on appeal, 5 App. Cas. 161; Ex parte Wilson, 7 Ch. 490.

(c) In re Firbank, Ex parte Knight, 4 Morell, 50.

PART II. PROPERTY.

CAP. VII.

any such movables by a competent judgment of a local Court,
the title of the trustee will not prevail against him even in
England; though there is some authority for contending that
if a domiciled Englishman has used like diligence, an English
Court will not allow him to hold the proceeds as against the
trustee. Nothing less, however, than a judgment of a competent
foreign Court will in any case defeat the trustee's title. But a p. 324.
creditor who has received a dividend under a foreign bank-
ruptcy will not be allowed to prove against the estate of the
same debtor in England without bringing in what he has
received.

Assignment under a foreign bankruptcy to foreign assignees pp. 326, 327. extends to all the movable personal estate of the bankrupt in England, including choses in action. It is not, however, clear that if the bankrupt's domicil be English the title of his foreign assignees will prevail against that of his personal representative on his death.

The right of the foreign assignees to sue in England for a p. 327. debt due to the bankrupt will be the same as that which would be conferred by an ordinary English assignment of the debt.

Priorities of creditors and all other questions of proof and p. 329. distribution under a bankruptcy will be governed by the lex fori; which will deal with creditors who have submitted to the jurisdiction by coming before the Court with regard to their domicil.

on marriage

(v.) Alienation of Movable Personal Property by Marriage. Assignments The last species of assignment by which personal property is lex domicilii. transferred is that universal assignment which results from the marriage of the owner when a woman, and is absolutely regulated by the law of the matrimonial domicili.e., the domicil of the husband at the time of the celebration of the marriage. Story cites for this the words of Lord Meadowbank in Royal Bank of Scotland v. Cuthbert (a): “When a lady of fortune having a great deal of money in Scotland, or stock in the banks of public companies there, marries in London, the whole property is ipso jure her husband's. It is assigned to him. The legal assignment of a marriage operates without regard to territory all the world over." It is obvious, however, that this language is just as applicable to the lex loci celebrationis as to the lex domicilii, and it is extremely probable that the learned judge was confounding the two laws, the case before him being that of an English adjudication of bankruptcy (a) 1 Rose, App. 481.

PART II.

PROPERTY.

against a firm carrying on business both in Edinburgh and in London, and whose domicil for the purposes of the case was CAP. VII. considered as being in both countries equally. The principle of the lex domicilii, however, is regarded by all writers as firmly Assignments on marriage. established ;(a) and has been recently recognised in the case of Loustelan v. Loustelan;(b) where, though the Court of Appeal differed as to the true domicil of the husband at the date of the marriage, they agreed that the law of that domicil must prevail. In this special case, it was applied so as to render null and void a pre-nuptial will executed by the woman, a Frenchwoman, according to French law. The peculiar provision of English law which regards all wills as revoked by marriage, was considered by the Court of Appeal as belonging to the law matrimonial, rather than to the law testamentary.

The law of the matrimonial domicil is also that which is strictly applicable to marriage settlements of personal property as between husband and wife, yet this statement is not to be accepted without qualification. The intention of the parties. may be so manifestly in favour of applying some other law, that the lex domicilii cannot be applied without defeating that intention. This was the case in Van Grutten v. Digby,(c) when a settlement made in France on a marriage between a domiciled Frenchman and an Englishwoman (apparently) domiciled in France, relating to property in England and with English trustees, was supported, though invalid by French law for want of compliance with the lex loci.

The law of the matrimonial domicil will not prevail as against creditors when the husband is afterwards adjudicated bankrupt in another competent jurisdiction, but the law there in force will prevail. (d) This simply follows from the general rule that, in a distribution of assets in a concursus of creditors, the order of distribution is a matter for the lex fori where the distribution takes place,(e) and does not at all interfere with the principle that the law of the matrimonial domicil at the time of the marriage regulates the rights which husband and wife acquire in each other's personal property. By placing himself within the reach of a foreign bankrupt law, the husband in Thurburn v. Steward rendered himself and his wife liable to the operation of that law upon all the rights that had become (a) Story, § 423; Westlake, § 366.

(b) Loustelan v. Loustelan, In re Martin (1900), P. D. 211.

(c) Van Grutten v. Digby, 32 L. J. Cl. 179, 31 Beav. 561; cf. Viditz v. O'Hagan (1900), 2 Ch. 87. As to the effect of a post-nuptial change of domicil, see infrà, p. 337. De Nicols v. Curlier (1900), App. Ca. 21. Lashley v. Hog, 4 Paton, 581. (d) Thurburn v. Steward, L. R. 3 P. C. 478.

(e) Per Lord Cairns, L. R. 3 P. C. 513.