64.8 PEILLIPS il. BUNTER 8 R. MU 401.

an infrrnt en ventra sa mere at the time of the decease of the father could be con- aidered 8% (L child living at his decease? Unless the will expresses the contrary, a devise to such chiidren of A. who are living a t the time of his decease, means to such a8 are born a t that time. 1 Veeey, 11 1, E~~~~~ v. Airey, ~ u l e s v. &des there cited, Z Brown Chan. Cas. 38.

I have no doubt on any view of this case, It is plain cm tha words of the will, that the testator meant that all the children wbom his brother should leave behind him should be benefited : but independent of this interr- tion, I bold that an infant an ventre sa mere, who by the course and order of nature i8 then living, comes clearly within the description of "children living a t the time of his decease."

f n equity, there are two classes of cases on this subject, the Aret., where the bequest is i i i the nature of a portion or provieiotr for children, and there an after born child takes his share with the rest, of which class is tbe case of ~~~~ Y. ~ ~ ~ g T , X Veaey, 85 : the second, where the bequest arises from some motives of personal affetltiott, aud there i t is confined to children actually in existence, Of this s.ewnd class was the case of C o p r v. Forhes, which therefore makes a striking d i ~ e r ~ ~ between that case and the present. Here the bequest is not confirled to ahildren living at the death of the teattttor, but is kept open till the death of his brether, I t seems indeed now settled, that ati itrfant en ventre sa mere shall be con- sidered, eneral€y apeaking, as Xtorri for all purposes for his own benefit, ~ a n c u ~ ~ ~ ~ e

Watkine'r Law of Descents, 148, after a discussion of the interest of posthumous Lme, the whole is well summed up by saying, "It is now laid down as a axed principle, that wherever such corisidera~iox1 would be for his benefit, a child en ventre sa mere &all be oonsidered as abaolute~y born,"

Picrscin v. Card , id. 63. Cooper v. Forbes. LORI) CHIEF JUSTICE EYRE.

[a11 ~WLLER, J.

v. h m e 5 ire, 5 Term Rep. B. R. 49. And in a eetisible treatise lately published,

HEATX, J., of the same opinion. ROOKE, J., of the same opinion. Lom CHIEF JUSTICE EYRE. The two classes of cases in equity ~roceed on n

distinction which has always appeared to me extremely unsatisfactory, arid unfit to be the ground of m y deciaion whatever.

Postea to the Plai~tiff.

THOU8 PHILLIPY, N ~ T ~ A N [ E ~ JOHN PHILLIPS, ROBERT l?HII,I,lfR, AND ~~~1~~ C~AMMOND, ~ 9 # ~ ~ ~ ~ ~ ~ N T ~ R AND O ~ ~ E ~ S , Aasignees of ~ l a r i ~ h a r d arid Lawis, Bankrupts, i n the Exchequer Chamber, in Eiror. Wedaeaday, Felt. 11 th, 1795.

A. D. and C. being partners in trade in England, A, and B. reside in England, arrd C. goer to a fore~gti c o u n t r ~ for the ~ ~ ~ r p ~ s e of matiagjng the coticerns of the house in that oountry, I). is also resident in EnglaItcI~ where a debt is contracted by D. t6 A, B. and C. D. becomes insolvent, and C. knowing that D. has stopped p a ~ ~ e n t ~ and after 21 co~missiori of b a n k r u ~ t haa in fact issued agninst D. attaches in the n&mes of himself and his partners, a debt due to D. i n the foreign courttry by Iegd p r o c ~ s s ~ and obtains payment of i t under the judgment of z oourt of justice of that country. The assignees of D. have a right to recover the moriey so received by c1, i n tan action a g a j i ~ s ~ A, B. and C. for money had and received to the use of the aeeignees. 'This was an xctiion for money had and received, brought by the ~efendatits against

the Plaintiffs in error in the Court of King's Bench, in which a special verdict was found at Guildhall;, stating, that before the bankruptcy of Blanchard arid Lewis, Phillipn and Co. had sold anddelivered a largaquantity of goods to them, at 1 2 months credit: the debt was contracted in England, arid that the Defetidattts in error a8 well a8 the ban~rup t s before and at the time of the b a r i ~ r u ~ ~ c y , atid a t the time the said debt was so contracted, were residetit in England, and contirrned to reside it1 England long after the debt was contracted, and until the attachments hereiriafter ~ e n t ~ o n e d were issued in the Court of Common Pleas in ~ h i l a ( ~ e l ~ ~ i ~ , in the CommoIt" wealth of Penusylvaais, in North America : that the P la~nt i f f~ in error before and at the time of the bankruptcy, and a t t h e time when the debt was so contraoted, were tradere and caparbners arrd carried on trade arid commerce at anc chest er, in the county of Lancaster ; thst the P ~ ~ i l i i ~ s e s duritig all the time tast aforesa~d were resjdetit

in E r ~ g ~ a u ~ , and c o n t i ~ ~ ~ d to reside in E f i ~ I ~ t ~ d long after the said debt was 80 con- kwted, and until the a t t a c h ~ e I ~ t s hereitiafter mefItioRe~ were issued, but the other Plainti8 in error, William Crammorid, before the year 1184, and before tho bankruptcy, went fmrn England to America €or the purpoae of transacting in that country the c o m ~ ~ e r c i a ~ eoneer~is of the house of P h i l l ~ ~ s and Co. so carrying on trade and Com~eFce at ~ a n c h ~ s t e r as afores~~d, and remained and c o r i t i ~ i u ~ in America till after the issuing of the attachments hereinafter mentioned : that Wjlliam Crammond on the 23d of October, 1783, knowing that Blanchard and Lewis had stopped payment in the month [a33 of August preceding, and after the said commisrrion of bankrupt had issued against them, commenced an action for himself and partners against the b ~ n k r u p ~ s in England, i n the Court of Common Pleas, in Philadelphia, in the ~ o ~ ~ ~ n w e ~ l t h of P e ~ i n ~ y ~ v a n ~ a , in North America, according to the laws and customs of the said Commonwealth, for the recovery of the money due for divers of the said parL.es of goods 80 sold and delivered to the bankrupts ; and thereupon, on the said ‘d3d o ~ O c t o b ~ r ~ 1784, being after the provisional assign~exit of the said benkru~ts’ efffjcfx caused to be at~aehed by the process of the same court as the goods arid ohattela of the said bankrupts in the hands and possession of Duncan Ingraham the yo~nger , of Ph~~adelphia aforesaid, merchant., Stephetl Austin of the 3 m e place, erc chant, and John Bfanchard and Thomas ~ ~ x s ~ e ~ ~ of the same plaoe, ~ e ~ ~ ~ ~ ~ t s , certain mmiea which before Blanchard and Lewia b e ~ m e baIi~rupts, were due to them from the asid Dunotan Ingraham the younger, Stephen Austin, John Blanchard, and Thomas Ruseell, and which at tbe time of the said attachment remained unpaid, and did afterwards i n the said Court of Common Pleas so holden as aforesaid, on the 1st o€ Juiie 1786, according to the laws and customs of the said Commonwealth, m v e r j u ~ ~ ~ e n t against the said B~a t i cha r~ and Lewis for the said debt arid d&mages d e ~ ~ ~ d e d i n tha said action, the sum of 26391. 18s. 3d. cnrrent money of the said Commonwealth of Pennsylvania, being 14031. Os, 6d. of starling money of Greet Britain, and also costs of suit taxed at 191. 2s. of like current money of the said ~ 5 ~ ~ ~ w e a ~ ~ h ; that the said illj jam ~ r a r n ~ o n ~ did, by virtue of, and under such ~ t ~ ~ m e r i t and j ~ d g ~ e n t as aforeaaid, ob~iKi and receive p ~ y m e i ~ t from the said DuneSri Iograb&m the younger, and Stephen Austin, of the BUM of I403L Os. 6d, of law€& money of Great Britain, in full, for the damages recovered by Phillipe and Co. under the said iudgmet~t from &he said monies in tbe hands of the said Duncan I ~ ~ r a h ~ m the younger, and Stephen Austio, t o~e the r with such costs and suit a8 being

art of; the monies and effects of the said Blanchard and Lewis within the said 6 omrnonwealbh : i t was then stated, that Crammond had recovered a further rrum of 231. 9s. 9d. irk Philadelphia, by 21 similar process against Ingraham and Austin, for the residue of the goods sold and delivered to Blarichard and Lewis, and that the two surne of 14031. Os. 6d. E4043 arid 231. 9s. 9d. were before the com~er I~emen t of the actiolri received by the said Phillips and Co. which they claimed to hold to their OWR use, atrd refused to pay over to the assignees.

Judgment hsvirlg been givetr in the Court of King’s Bench for the Defendants in error w i ~ ~ o u ~ a r ~ ~ m e t i t , the case being cori~idercd aa decided by that 5f ~~~~ v. Pot&, 4 Term Rep. B. R, 188, a wri t of error was b r ~ ~ ~ h t which was twice argued, the first time by Park for the Plaintiffs in error, atid Heywood, Serjk., for the ~ ~ f e n d ~ n t r r ; and the aeeond, by Bower for the Piaintiffs in error, and Law for the ~ e ~ e r i ~ a r ~ t s . As the & r g ~ ~ e r i ~ r r were nearly the same as those uoritained in ~2~~~ v. P Q ~ ~ s , d Term b p . B, R. 162, and 8% v. ~ ~ s w ~ ~ ~ ante, vol. i. p. 665, and were entered into by the court in giving judgment, they are bare omitted.

On this day, after time taken to consider, the opinions of the judges were delivered in 8be following manner; Mr. J. Rooke, Mr. B, Thompson, Mr. J. Heath, Mr. B. Perryri, Mr; E). Hotham, and the Lord Ch. B. Macdonaltl, held, that the judgment of the Court of King’s Benah ought to be a ~ r r n e ~ : but the Lord Ch. J. Eyre was of opinion, that it aught to be reversed.

The course of reasoning pursued by those of their Lordships above mentioned, wha thought the judgment right, was to the following effect.

The genera^ queatioIi arising upon the facts which appear on this record, is, whether the creditor of a b ~ n ~ r u ~ t in ~ n ~ 1 ~ u ~ , who became such creditor in ~ n g ~ a n d , having reaoyered a debt due to the bankrupt in a foreign country by process of attachment in thJ country, is erititfed to retain the money so recovered to his own uae, or whether he hso not r e c e i ~ ~ ~ it to the use of the ~ $ i g ~ l e ~ s ~ It, must be r e ~ ~ ~ b e ~ e d , io dia-

But whether, &e.’’

630 PHILLtPS U, HUNTBR 2 8. a. *Ol.

cusaing this queatioii, that i t is fourid by the special verdict, that BIancbard and Lewia thb ~ ~ r u p t 8 were ~ n ~ ~ i s h traders, that the ~ e ~ e n ~ a r i t s were partners i n an English house, &at the debt from the ~ n k r u p t s to the ~ e f e n d a i ~ t s was contracted in E n g ~ s u ~ ~ tbLt the ~ a n ~ r u p ~ ~ as well as the ~ e f e ~ ~ a n t s were resident in England, arid tbat C r ~ 5 ~ a n d ~ who on this verdict must also be taken lo be an ~ ~ ) ~ l i s h subject, went from this Ringdo= to America, for the special and tomporary purpose of transact~ng b u s i ~ e e ~ for the Engtish hOU8e at ~ a i i c h e s t ~ , i n which he C4OS'J cox~tir~ued to be a partner. Th& hourae was the only one the Defendants had, it not beittg found that they had aay'bouse in America. All these facta appearing on the record, this caae m&at be ar@d as arieing between English subjects upon English property. When thb debt t ~ ~ ~ o r ~ was con~racted, all the parties were as much subject to the b ~ i k r u p t bvq &U to the other laws of England under which they livsd. It is a proposition not to be ~ B ~ ~ t e d , that previous to the ~ R k r ~ ~ ~ t c y the b~nkrnpts themselvez might haver ~ ~ ~ E ~ e r r e d or assigned this p r ~ p e r t ~ t ~ o u g h abroad, as absolutely as if it had bem in their own tangible po8sesaion iti this Country, and i t seems that the a ~ ~ n e ~ under the commiss~oi~ were i I i t i t i e ~ ~ by operatiori of law to do with i t aftar the b ~ 5 ~ r u p ~ ~ what the batikrupts t h e ~ s e ~ v e s might have done before, The great; p ~ ~ c i ~ ~ cf the bankrupt laws is justice founchd on equality. No creditor shalt

bted to acquire atl uudue p ~ f e r 0 1 ~ e , artd by so doing, prevent an equal dig- ammg ail the creditors, This being the principla of those laws, it seems to

follaw, ab& 6he whole property of the b a t ~ r u p t must be under their control, withaut regad tzs tBe locality of that property, except in cases which directly militate sgainst the particdar laws of the country in which it happens to be situated. No creditor, whom dbbt me contracted within the sphere of the operstiori of those laws, and who ha8 nobias cf the i ~ s o ~ v e i ~ c y of the debtor, can recover any part of the common fund for his ORB: ~ ~ t i ~ ~ ~ ~ advantage ; after an a ~ s i ~ u m e r ~ t has taken place, his interest i s t r ~ n a ~ ~ ~ d tcr the sasignees, and if he do recover, he mmt a ~ e ~ u n t to the other c ~ e d i t ~ u for the sum received.

If t& bankrupt laws were circumscribed by the local situation of the ~ r o ~ 8 r t y , a d ~ o r w ~ u ~ d be apen to all the ~ r t ~ a l i t y a d undue prefererice which they were framed ta prevent; it being easy to foresee how fr~quetit1y property would he sent abroad with that wjua t view, ~ m m e d i a t ~ l ~ previous to, atid i n contemplation of an sot of b a ~ k r u ~ ~ 11 the personal ~ rope r ty of ~ ~ c h ~ n t s employed in the course of their d e a ~ ~ i ~ ~ & ~ $ore@ countries, were to be taken by an individual creditor going from hence far that purpose, and riot to be d is t r ibu~bie amotig the creditora at large, EU& r n e r ~ h ~ ~ ~ wwld be materially affected in their credit a t home. It is true, that the lawaof the country where the property is situated, have t h e [406] immediate control over it, ie respect. to its locality, and tha immediate protection afforded it ; yet the c~~~ where the propr~etor resides, reepect to another species of p r o t ~ c t i ~ n afforded &o bim and his pruperby, has a t to regulate his conduet relating to that property. This prbttection sEorded to property of a resident subject, which i a $ i t u ~ ~ k a forerign c ~ u ~ ~ r ~ ~ ia not ~ ~ 8 ~ i n ~ r y ~ but real. The executi~e power of this

bs the trade of its subjeate in foreigu countries, faailitates the recovmy d if justice be de l~yed or denied, the King by the iriterventio~ of his gnda and obtains redress. Even in the treaty of peace with ~ m 0 ~ ~ ~ ~

the recowry of private debts due from the inhabitants of that country to the subjects of tatis, made 8Be ~ o u ~ d of a pa~ t~cu la r article. Tbe pro pert^ which this ~ ~ n t r y prcbcts it has 8 right to regulate. And in fact our bankrupt laws b ~ v e made such re~ulatj#n, The statute 13 Eliz. c. 7, enables the commissioners to take the bank- rupt% money, gods, ehatteis, ware&, merGhaIidizes and debts, wheresoever they may be found or kiuown. This expression i s very axtensive, and seems to iocik beyorid the debts and dmts of a trader locally situabd it1 this kingdom. In a ( f O l l l J t I y , a great part of whim c o ~ e r ~ i a ~ eapital is employed abroad, i t i s peculia!,ly proper tb8t such

over which the trader has a d i s ~ s i n ~ power, although situated out of the m, etht&ld be c~neidered as referahfe to the dorniciiiurn of the owner ([ante,

~ 6@3$ In t e g t a ~ e u t ~ ~ cases and irr the ~ u c c e s s i ~ ab j i ~ t e 8 ~ t o ~ the e ~ ~ e t s are rub&@& % &he I&.w which governs the eauntrg of the testator or intestate, as was d e ~ ~ ~ i ~ % ~ i& Pigm v. Pipm (Ambl. as), and ~~~ v. ~~~~~~~~ (2 Ves. 35). The E ~ t ~ t ~ 1 Jaa 1, c. 15, s. 13, wbie~ %nablea the ~ o ~ ~ a s i o I i e r s to aasign debts due to

u p r directa that the same eh& not be attached as the deht of the brrrkrupt, tcr bhe co tom of the city of L~~d~xi or otherwise. The a8si~r~mexit b e i ~ ~ ~

made by thb a u t h o r ~ t ~ of p a r ~ j a ~ e n t , every a~ibject of this k i ~ ~ g d o ~ is a party to it, ~ n a s m ~ c h as ha i s a party and cotisentin~ to an Act of Parliament, and havitig joined in the ~ s ~ g n m e n t , he cannot be permit~ed to co~itravene i t by ~ t t a c h i ~ t g the debt in the haacfs of the debtor: aiid if by ~ e a n s of an attachinent he reee~ves the money, it is reaeived to the use of the assignees.

[407] The words of the statut% ;Iae. f extend to all foreign a t t a c h ~ e n t ~ ~ both at home and abrosd, in countries subject to and independent of the crown of Great Eritaia, As debts due to b ~ n k ~ u p t s from the subjects of foreign ~ountries pass under the aignrnent, the attachment must be considered as eo-extensive with t h e debts men t j~ ied in the statute. The eguat distribution, which it is the policy of the b a n k r ~ p ~ laws to e ~ t ~ b l ~ s h , is as ~~~c~ i n f ~ i ~ i ~ e d by a t ~ a c b ~ e f i ~ s in f o ~ e i ~ ~ ~ couii~ries, as in the British dominions: the ~ i s c ~ i e f is the 5me, and the remedy ought to be advanced b meet the m ~ s ~ h ~ ~ f , The words : I acco~~ ing t o the custom of London” msn, in such mariner as is warmated by the custom of Lorrdon ;I’ which is put by way of iristauce or ~~~ustrat joo. Many casea al~eady d e c i ~ e ~ on the subject of bank. ruptey* go a great way to prove that an i n ~ ~ ~ i ~ u a l creditor is ~reciuded from r e t ~ n ~ i 3 g what he shalt recover abroad and bring into this country. In ~ ~ u c ~ ~ ~ ~ ~ ~ v, ~~~~~e (cited 4 Term Rep, B. R. fSf) , Imci ~ a r d ~ ~ ~ c k e by the writ of fie exeat ~)reyented the creditor from going to sue in ~ c ~ t ~ a r i ~ , afcer the ~ a ~ ~ r ~ ~ t c y . By giving this pre~entive remedy aga~nst an ~ n c o ~ s c i ~ ~ I t ~ o u s ~ r e f e r e ~ ~ c e , which one creditor might have obtai~~ed over the otbers, his Lordship must be understood to say, that the creditor wgs bound, as far 8% the circumstances mould enable him to apply them, by the bankrupt laws of thie country ; arid had that creditor effectuated his payments in %Scotland, i t should seem that his Lordship, i t1 order to be consistent, would have obliged him to have accountetl with the aesigtiees~ if the fund had been b r o u ~ h t within his ~u~isdiction. In ~ o ~ ~ ~ o ~ s v, Boss (ante, vol. i. 1311, mouey attacbed hy 8n ind~viduai cre~itor, after au ~ s e j ~ n ~ e ~ t in ~ o l i ~ n d , was ~ecreed by Lord ~ a r d w ~ c k e to be paid to the attorney of the ass~gnees for the benefit of the creditors; ptainfy ~on~jder~ng each oreditor as bound by the assigri~ex~t, and the ~ a ~ ~ e y recoyerea bem as referable to ~ o I l a t i ~ , the eoutitxy of the debtor. The Barn8 is likewise to be ~nferred from ~ ~ 1 1 5 ~ v. ~ e ~ ~ ~ ~ ~ e ~ (ibid. 132), and Neale v. ~ ~ ~ ~ ~ ~ g ~ u ~ {ibid.). I t has been urged, that those owes turned upon this c j~um~ta r i ce , viz, that we admit the claim. of &he a s ~ i ~ ~ I e e s in preference to a particular creditor, where baukrupt laws are ~ r i s t ~ t ~ t e d in the domicile of the b a r ~ k r u ~ t , but as there are no ba~kkriI~t laws in Arnerioa, the reason is U Q ~ applicahlc in this [@8] case. Now i t does not appear upon tbis record whether there are ba r i~ ru~ i t laws in A ~ e r i c ~ or uot. There were none in Holland nor France peculiar to insolvent traders. The courts therefore here muet i n those c a m have proceeded OR a larger principle. But the judgment of Lord ~ ~ ~ ~ h ~ o € o u g h in XiU v. ~~s~ ante^ vol. i. 665), i s an authority d i T e ~ t ~ y i n po~rit, aad in favour of the Plaiotiffs iti the ~reseJItactiou, The cases opposed, of Le C ~ ~ ~ ~ ~ e ~ v, ~~ , ( ~ ~ ~ g ~ . 169, ~ ~ o . ) , Cievg v, ~~~~s ( ~ ~ 0 ~ 0 ~ Batik. Law, 3?0), and ~ 1 1 ~ ~ v, ~~~~~ (8 Term Rep. B, R. IZfs), prove onlyt that where a debtor hay paid (not where

itor has ~eceived~ ~ o n e y under due process of local law, be shall rrat be com- pelied to pay i t over again : and ~ i ~ s o ~ ~ s W E is truly and s ~ ~ ~ s f a c t o r i ~ ~ explained bs L o r ~ ~ ~ ~ ~ ~ b ~ r o u ~ b itr his judgment in SGl v. ~ ~ ~ ‘ ~ , to have turned OKI the several liens wbich d ~ ~ e r e i ~ t creditors had try the law of ~ c o t l ~ n d : but therct Lord Ha~wick6 held, that the arresters of the fund whioh was not so hound, after the ~ a ~ k ~ u p t ~ y ~ ~ h o u l ~ be p o s t p o n ~ to the ~ssignees.

But it i s ~bjeoted that the judgment in Pennsy~vania i s find aud conc~us~ve~ and birids the property. That i t must be so taken to be betweeri the parties, is not disputed, But as the recovery of the Plaintiffs in error, otherwise than for the use of the Defendants, would be i u violation of at1 Act of Parliament, such recovery shall be takea to be for the use of the ~ e ~ e ~ ~ a r I t ~ . I n an action for m~Kiey had and reccFimed; the receipt ahall be always deemed to enure to the use of him who bath the r i ~ ~ , wen t ~ o u ~ b i t be taken under an adverse title; a& for i i is tan~e~ when this speaisr bf aaticfn is brought to try the title t o an offioe(e). Indeed in the present

(e) [See ~~~~ Y. Wmd, i Freeman, 478, 2d e&, and the note there, ia which the w e 8 are c ~ ~ l e c t e d as to the ~ e c o ~ e r y of ~ o i i e ~ taken under an a~ve rae title in an action for money had and received.]

623 PEILLIPS 2'. EUNTER 2 E. BL 409.

actim the judigment of the court in Pennsylvania is affirmed. Another objection has b a n m d , that the residence of Crammond i n America eriabled hiin to recover this debt, without scoouoting for i t to the Defendants in error. In order to raise that quesbian, the 8pecial verdict should have found that he was residerit within the state of Pmnnaplwrnia. But if that question were raised, no residence in foreign parts can exempt a British mhject from the operation of an Act of Parliament, much less an ocaaaianel residence. It is also imputed to the assignees, arid much relied upon, that they d id not state their claim in the foreign court, which they ougbt to have dotie, itietead OE bring-[409]-ing their action here. But it is not fouud by the verdict that they had any notice of the proceedings in that court. No Eriglisb subject caii he affected by the proceedings iri a foreign court without clear arid direct notice: for haweverlhglish subjects are bound by the proceedings in our own courts from a pre- siimpbioa of their having notice of them, tio such presurnption can be raised with respect to fmeignmurts. When i t is argued, that in many instances the bankrupt laws of this cauuntry do nat operate i n another, i t is to he observed, that though to anme purposes they do uot, yet to all civil purposes they do, wheu such purposes are neither repugnant k the law of the particular state, iior to the general law of riatioiis. And it i s on wise principles that foreign statee acknowledge arid act accordiiig to the diflereot civil rel&iotis which suhsiet between men in their own country. If then there be na law of the particular state, nor any law of nations that forbids the opera- tion of tbe English bankrupt laws on the personal property of an English eubject wherever i t is found, there is nothing to restrict the large words of the statutes 13 Elia. and 1 Jaa 1, but an implied power in a foreign country, to declare that an Eaghiah aubject becoming bankrupt, shall iiotwithstatiditig cotitiriue to be invested wish all his rights, and in the enjoyment of all his property iri defiance of those laws to d i c h be owes submission. But such a power cannot be assumed by any foreign state, norought this country to make to any so important a surreiider. For these reawnr i t appear8 that the judgment of the Court of King's Berich ought to be aflkmed.

This case, i n poiut of circumstances, lies within a velry narrow compass. A British subject, a partner iii a house at Maiichester, residing in AmeFira €or the purpose of collecting the debts of the house, having notice of a commisricn a€ bankruptcy heiug issued against a debtor of the house, iustitutea a suit agaimt thadebtor in the Court of Penusylvania, and attaches a debt due to the debtar in the hands of his debtor, resident in Penrisylvania, finally recovers judgment agriost ehe grrrisbee, and receives from him the amourit of his debt. The assignees of the U m p t debtor bring their action against such British suhject in the (hurt of King's Ekncb, to recover the amount of the money so received, as money had and raceived tcl their use. The question is, whether this action can be niaiutairied? This judgment against the gartiishee in the Court of [410] Peniiaylvania was reaovered properly or irnproprly. If notwithstanding the bankruptcy, the debt remained liable to an attaehmeot according to the laws of that country, the judgment WBB proper: i f according to the laws of that couritry, the property in the debt was dive&& euti of the bankrupt debtor, and vested iri his assignees, the jiidgmerit WBS i m p p e r , But this wan a question to be decided in the cause instituted i r i Penn- eglvmia, by the courts of that country, and not by us: we cannot examine their judgmeak, and i f we could, we have not the means of doing it iri thia case. It is not stated upotr this record, nor can we take notice, what the law of Penrisylvania is upon this subject. If we had the means, we could not examine a judgment of a court in a foreign stehe, brought before us in this manner, I t is in one way only that the seatence orjqdgment of the Court of a foreign state is examinable iti our coupts, apd that S whro Ithe party who claims the benefit of it aqplies to our courts to enforce it. W e n it ir 6h'w voluntsr i l~ submitted to our jurisdictlon, we treat it, not as obligatary to tbe eHtenClta which i t would be abligatory perhaps iri the country in which i t was pronouncd, dor as obligatory to the extent to which by our law sentences and judg- ments am obligatory, not as conclusive, but as matter in pais, as cotisideration priinli faoie e&cient to raise a promise : we examine i t as we do all other considerations of promiaer, and for that purpose we receive evidence of what the law of the foreign state iB, and whether the judgment is warranted by that law. In all other cases, we give entire faith arid credit to the sentences of foreign courts, and consider them as conclusive upon us. It has been distinctly admitted in the argument, that we cannot

LORD CHIEF JUSTICE EYRE.

examine this ~ ~ g m e i ~ ~ , that the j u d g ~ e n t proper or ~ ~ p r o ~ e ~ must stand, asid in particular it is admitted, that for the protection of the garnishee it i s a good judg- ment. If we cannot examine the judgment, there is an end of all considerat~afi of the operation and eaect of our bankrupt laws in F e u n ~ y I v a n i ~ ~ that i I ~ q u i r ~ tetiding directly to try whether the judgment was proper or improper. The giving up the remedy against the garn~shee, was 8 coI~cession t h o u ~ h a~ao~ute ty nec0ssa~y to give colour to this procwdin , arid the cousequances were not adverted to; it i s in truth giving up every thing. % a ga?,nishee in foreign attachme~It here, suffers the goods of A. to be eondemnod in his hands as the goods of B., [4113 the condemnation will not protect him against an action by A. If he i s protected, i t is upon the ground of the goods bdng to be taken to be the goads of B., modo et farm3 as they are c o r i ~ ~ e ~ n e d . In neither cme can A. follow the goods into the hands of him who recovers the j u ~ ~ ~ e t i t ; hie ody remedy is a ~ ~ i € i $ t the gartIishee, But i t is said, that upon ~i*ou(Ida cof la te r~~ to the udgnent, nay even affirming it, the money recovered in Pennsytvania shall be

If i t be eaid that aceorcling to the bankrupt laws i n force in England, the debt recovered itr Pen~ i sy lv~n i~ ss a debt! due to the bankrupt, was in truth riot due to the baiikrupt, but to the assignees, and eonseq~6ntly in the popular sense the ~ e ~ e n ~ a n t may be said to have recovered the money of the assignees, then it ought not to have been recove~e~, which is so far from being colIatera1 to the j u ~ g ~ e ~ t , that i t goes to the very point of it. Another, and the only other ground which has been taken in the a r g u ~ e n t , i s a proposition rouridly asserted, that a ~ r i t i s h ~ubject shall riot ba allowed to contravene our hankrupt laws, by purauing that legal diligence in a foreign country, which all PerSQtiS who are not British subjects may lawfully pursue. This must be a ~ ~ i t ~ d to be a ground perfectly col~atera1 to the j u ~ g ~ e ~ t = It is a specious and very s lendid proposition, but it is not solid ; and if it were solid, i t coadudea notbing

obediet~ce ~a l l~~ ia rkce i t was called) to the statute law8 of the country. These are fine wordej what do they meart? I know that the atatute law, and the b a n k r u ~ t laws in particular, create and establish a rule of property, which may be enforced against every British subject in the due course of law ; and that if a British subject were Eo fortify his house, and resist the s h e r ~ ~ by force, he would not be allowed SO to con~avene the bankrupt 1aw.s. But if we suppose suah ,a British subject to have ~ t a i t i e ~ 8 legal ~ i ~ ~ g ~ e n t here in our courts, in direct opposit~o~1 to the whole scope and tener of the bankrupt laws, either for want of proof, or by the error of the judge, or in any ether maurIer that can be supposed, may he not l a w i ~ ~ ~ y h o l ~ that ~udgmei~t , and puraue it to all its consequences until i t is impeached in a due course of law, notwithetnnding any moral or political obligation he may be said to be under tiot to coIitravene the baIi~rupt laws3 As a ~roposit~oIi l412J in ethics, I have no ~bject ior~ to it, but considered 8s a proposition of law, i t is too general, concluding, &B I have before ~bs6rved, in n o ~ h ~ r ~ g . Lord ~ a ~ & ~ e l r I tried what be could make of this pro- goaition, that B British subject should not be allowed to contravene the statute law of the I d , in one of the strotigest cmea that c m be ~ m a g ~ n e ~ of wilful co~~t r~vent ion , the cage of marriage contracted abroad {a}, by English subjects w i t ~ i d r a ~ i r ~ g themselves from England, for the express purpose of oontravening the statute law respecting ~ a r r ~ a g e s , and he failed altogether, This should teach us trot to hazard any thing apon 80 general a proposition, which breaks under us as often as we a t ~ ~ p t to ~ u ~ r t sng particular conclusion upon it. Tha proposi~ion as a p p ~ i e ~ to this particular case is as incarivenient, impolitio and unjust, as it is ur~fouilded. It was welt said in the a r ~ u m e n ~ ~ you admit that an Americat~ ~ ~ g h t in this case have pursued his legal diligence i n the courts of his own country notwithstanding our bank- rupt Itbws, and that you could not have taken the motley recovered from him, and given it to the assigi~ees~ will you then compel the British subject to sit still, and see the foreigner exhaust that fund which might have satisfied his debt, and so fer reije~ed the fund €or the c r e d j t o ~ at ~ o ~ ~ ? I have heard nQ answer to that question, Such small c i~cumsta~ces 1 ~ 9 notice and making aflidavits here, for the ground of the suit in America, appear to have made some impression in the a r g u m ~ t ~ ~ Has not the foreigner hie agent here? May he not have notice and the aesietaace of a ~ ~ a v i t a taken here? Shall he pursue his legai diligence by these means, and

(U) 2 Burr, 1080. Go. Litt. Hargr. wid Butl. not. 19 b.

deeme d to have been received to the use of the assi~nees, hat are these grounds?

towar B s the s u ~ p o r t of this action, It was said, that every B r i t ~ s ~ subject owes

under these circu~staricea with effect1 If he shall, I canttot discover either good sense or justice in the rule which shall take the moriey recovered by the British subject mder similar circumstances, and give i t to the assigrrees of the bankrupt, even far the lsudablcr purpose8 of an equal distributiot1. In a case where the rule would pmduca imsuoh unjust inequality as it must produce i n this case, in the condition of a Bcitieh snbject arid a forei~t~er, we are riot accustomed to treat legal dili~etice with so much harshness. For instance, our courts of equity distribute amoiig creditors of equal degree, or geueral creditors, as it shall happeu to be a case of legal or e q u i ~ ~ b l e aasets, pari passu. The rule is as well ktiown as the bankrupt laws. But they do not cmplaiu that equity is cot1-[413]-travened by tbat creditor, who, using legal diligerice, secures the p a ~ ~ e i i ~ of his whole debt perhaps of iiiferior degree. Even iu the adminie~8tiori of the baukrupt laws, (these Acts of Parliament which no British snbject is to contravene^ legal diligence is every day pursued ~ ~ a i r i s t the h ~ t i k r ~ ~ t , in direct apposition to the spirit of those laws. A creditor who has arrested him upon t~esne process before the ~ a u ~ r u p t c y , may detain him in prison u p to the moment of his obtaining his certificate ; ha may elect to proceed against him at law, and not to come in under the commission, and if he happens to have the good luck ta have parsued his legnf diligence to ail execution, and sweeps away all the effects of a mart notoriously insolvent, otie miiiute before the debtor has cummitted an act of b ~ n k r u ~ ~ ~ y , he d ~ s ~ p ~ o i ~ I t E ~ with i ~ p ~ I i ~ ~ y , the whole effect of the b a ~ i k r u ~ t laws, and the claims of all the other creditors to an equal distribiitiori of the estate of the dektor, fouuded upon those laws. So far is i t from being true tbat a British subject shall not be allowed to contravene an Act of Parliamerit in any aeiise applicable to this case, khat i t is always a questiori stiictissimi juris betweeii a creditor pursuing

How much moru rationa~ly is this subject treated, in the loose note (as it waa called) of W u ~ i 7 q v, K?Lzght by Lord ~ a u s ~ ~ d ~ who, we all know, carried the notiori of fraud upair the bat~krupt laws to ik utmmt extant ! It is there said, if a man uses legaf diligence in a foreign couritry and obtains a pre~ererice, it catiriot be helped; but that if he afterwatd~ come here for a, dividend, he shall first refurid what he has so acquired by his legal diligence, and come i t b equally with the rest of the creditors, or not coiue in at all. This is t h g only fair aud practicable coercion t h s t CILD be used towards creditors abroad, unless they happen to be so unfortunate as to be British subjects. Thess it seem5 are to have what thsy have acquired by tbeir legal dil~geIice abroad, taker] from them by force of the new invented legal maxim, that no British subject shall be allowed t o contrayene an Act of Par~iament. But if this maxim were as well known and established, as it i s uew and unheard of in our law, i t would coiiclude nothing to the title of the Plaintiffs in this action, for we must go back agnitr to the old q u e a t ~ o ~ whether the assignees of baiikrupt have by the taws of Penrisylvan~a, E4141 the property of the bankrupt vested in them, of which we know nothing. And then cornea, a seaond question, not of easy s o l u ~ i o ~ , whether mOIl8y received upori an adverse judgnoetkt, aud where there is no other privity or relation than that wbich s ~ b s i K ~ ~ ~ t w e e n assignees and a pa~ticular cre~itor, can be c o ~ ~ i d e r e d as money had aud received to the use of those assignees? The case of Muses v. Macft?rZun (2 Burr. 1006) is I believe the only decided case that c0unteriances such an action, but I cannot s u b s c ~ to; the a u ~ h o ~ ~ ~ y of that case. I will state the case shortly. and make some obaervstians upon it. Macferlau sited Moses iu the court of conscience, as indorser olf a small bill of e ~ c ~ a n ~ e , aid recovered againat him &here, in breach of an ~greemeI~ t in writing between them, that Moses shauld not be liable iior prejudiced by reaaon of bia i n d ~ ~ ~ e n t . Moses paid the money, and brought ail actioti in the Kittg’s Bench to recover i b back, Iti the argument of the cas8 it is distinctly admittttd, that the merits of a judgment caii never be e v % r - h ~ l e d by an original suitt either a t law or i n equity, that till tho judg- ment irr set anide or reversed, it is coricluaive as to the suhject-matter of it, to all iutentr and purposes. An a t t e ~ p t is made to d i ~ t i c i ~ u i s ~ between the j u d ~ m e n t atid t;he ground of that action, I think not with much success. The propositiori that the ground upon wbich that action proceeded wae fro defsnce agairist the senterice, can hardly be tnainbaitied. Suppose i t had been a suit in the Court of King’s Bench, iustead of a court of conacience, would it have been a deferice there1 If it would, why not in a court. of coi~science? Is there to be a recovery iri a court of cousc~%Jice only to be overturned by an action in the King’s Bench? It ia said, they might go

a1 d~ljg~nce, and the assignees of a b ~ I i k r u ~ t .

money had arid received to his uae, and did recover it.

a a. BL. us. PfftlrLLIPPS P. HUNrlEa 625

into agree~er~ts and ~tai i s~c~ior~s of great value; doubtless they might, if t;hoee transactions give a defence against a debt of which they have jurisdiction. Is i t not r~ecessa~~ly iiiciderrt? The true objection, if there be ati objection, is, that such a"+ts ought to have 110 jurisdiction at all, because the jurisdiction, if they have it, will draw ta it cogi~i~aItce of matters of which they must be very i t i c o m ~ e ~ e i ~ t judges. It may be ~ ~ e s t ~ o r i a ~ ~ l e whether n, set off of a debt arising out of their jutisdiction can be pleaded or used; but that does trot draw itito question 14153 the truth of the ~ r o ~ o s i ~ i o u that every thing that goes to the essence of the debt (~ernauded, must of neceaaitg be within their jurisdiction. To say that the merits of a case tietermitred by the commissiotrers, where they had jutisd~ctio~i, uever could be brought in queatiori over again i n any shape whatever, and to say that yet the Befetidant ought not in justice to keep the mot~ey, is [tot iti~ellig~ble to me. The cases put all suppose a real fact differirtg from the fact as represerited arid made the ground of the judgment. They are the cams of the irrdorsee recovering agaitist the itidorset on a bill paid by the drawer: the itmured recoveriti~ upon the loss of a ship coming home, or upori B life where the party is still living (a)'. In all of them, the very ground of the judg- !netit i s brought in q ~ e j t ~ a ~ ~ over agajri, coiibrary to the ~dniissioii. Put another

: B man reco~era a debt before paid, the receipt i s mislaid, mid afterwards found ; the receipt disprov~s the whole ground of the recovery, yeb this actioii was never thought to 1Ie(b). In this case, perhaps the money paid ou the receipt migbt be got baek, because tire party by bringiug the nctioti d i ~ a ~ r ~ ~ the ~ p ~ l i e & t ~ o n of the moiiey received ta the paymetit of the debt. One of the cases piit, is upott tihe re~~~ser I ta t io t1 of a risk deemed to be fair, which comes out afterwards to be grossly fraudulent. Is not tbis cornitig out produced by trgitig the question over again! It one could conceive atr action by him who had been wronged tiy the judgment? fouirded upori the j u ~ ~ ~ ~ n ~ , it might steer clear of the d i ~ c u ~ t y . Suppose one to say, '*you have recovered a judgment against me, which you ought not to have done, whereby I am injured ;" this is making the jndgmeiit a par& of the ~ r a v ~ ~ ~ i J . It1 the a r g u ~ e r i t of the case of ~ ~ s e s Y. ~ u c ~ ~ ~ l a n , it is supposed to be the same thing, as to the force atid validity of the judgment, whether the actioii had been brought upon the agree- ment, or to refund the money. But i t appears to R ~ B to be a very clifferatit thiug. Ma&t certainly the case of B&ch v, Warren. (cited 2 fltirr. 1010) doss riot prove the pro~o~itioii , The ~ r o u ~ ~ d of that case was the d i s a ~ r ~ a r i c e of the cofltra~t upun which the consideratioii money had been paid. If the contract could be disaffirmed, d o u b ~ ] ~ ~ ~ the co~s ide ra t i~n nioriey remailred moiiey paid ~ i t h o i i ~ co~isideratioii, and cons~que~ t ly motIey had and received to the P l ~ i n t i ~ ~ s use. How does this apply to the case of money recovered by a judg-[416]-ment? It is agreed that the judgment C ~ R U O ~ be ~jsaffirI~ed, but must stand, If the contract in Dutch v. Wawen could not have beeir disaffirmed, but must have stood, could the money have heerr recovered by this action 2 ~ ~ ~ o u I d it uot have r e ~ ~ j r ~ e d the c o ~ t ~ ~ ~ l ~ r a t i o ~ i of att ~greeme~i t , arid the party left, to proceed upon his agrecn~ent. In the case of Noses v. ~ u ~ ~ ~ ~ l a ~ ~ I think the a g r e e ~ e n t was a good defence in the court of coiisc~erice ; but if it ware otherwise+ t h e recovery there WZIE a breach of the ~ g r e e ~ e ~ i t , upon which an action lay; snd this was i n my judgment the only remedy. Shall the aame judgmeut crest8 a duty for the recoveror, upon which he may have debt, and a duty against him, upon which att actioti for moriey bad aud received will Lie? This goes beyond my com- ~ ~ e ~ e n ~ i o n . 1 believe that. ju~gmei i t did uot satisfy Westtnirister Wall at the time ; f never oould subscribe to i t ; it seemed to me to uiisettle f o u ~ i d a t ~ ~ r ~ s ~ u } z . I can irnagitie but oae case, in which money recovered by one miau shall be money had sad received to the use of another. I mean the case of ati attorney or agent, who may sue in his own name. In that case, the action by the principal for moriey had aud received, does in truth affirm the judgment, and does proceed upon a ground coflateral to it, which is suEcietit to lnaiwtairr the action. It1 that case the ground of the action for money had arid received, is not adverse to the i u d g ~ e i i t ; if i t were,

(a)l [Vide Xses v. ~ ~ ~ ~ ~ Z ~ ~ n } 2 Burr. 1009, Bull. N. P. 130.1 (a) [ t has been decided that such an action Garinot be rnajsit~ine~, ~ ~ a ~ ~ ~ o ~ ~ v,

2 Esp. N. P. C, 546, S. C. arid see B~owtl v, M'Kindly, 1 Esp, Gower v. Pq'pkk, 2 Stark. N. P. C. 85.1

a)a 'cMoses v. ~ ~ c ~ ~ T ~ u ? ~ , has hem properly qu~s t io r I e~~ in many cases," per

3 a m p h , 7 T. R. 269. N. P. C. 279.

Healh, f. B ~~~~~ v, ~ ~ c ~ e s , 5 Taunt, 160, aid see ante, p. 415, w t e (b).]

636 PFfCLLfPS V. HUNTER a 8. BL 417.

it would neither affirm the judgment, nor be collateral tu it. The other cases which were cited in the course of the arpmeitt , the identical case determined iri the Common Pleas excepted, go but a very little way towards maintairiirig the judgment in the case now before us : perhaps they will be found to hear against it. Lord Hsrdwicke’s i n j ~ c t ~ o r ~ militates direct~y against it. Equity i t i t e r ~ ~ 3 e d in that (right or wrong I ehall not inquire) for the express piirpoee of preventing that legal diligence being uaed, the &act of which, if used, could not be prevented or remedied. 111 our case l e e 1 difigenae has been used. The case before Lord Bathurst, supposing the deter- mination to have been right, proves that our laws adopt foreign bankrupt lawa, and give them effect; upon which ground equity interposed, and preveritcd the judgment in foreign attachment obtained here from being set up against the creditors. The analogy is, that the laws of Pett~isyIvania s ~ i ~ ~ i l d adopt oitr ~a i ik iup t laws, and bhat [417] their courts should be applied to interpose to prevent their jidgmertts in foieign attachment Being set up against the assignees. I t does not follow from that case, that i f the aurators had made no application here, but had fouritl the Plaiutiff in the foreign attachment i n Holland, that they could have taken from him the benefit of his judgment; and if they could by their laws, it would not follow that in this case we can do t.he same by our laws. The case from Ireland proceeds upon the same gtouud, and is in priticiple the same case with that before Lord Bathurst : they judged of the e@xt of their owit foreign at~CblU8nt; judging upon a subject which they were competent to judge of, they held tbat the law of Ireland adopted the hankrupt law of England, atid so they defeated the judgment of their own courts in foreign attachment. In the case from Scotland, their courts tlecicled upon the priorities and affects o€ their own process of legal diligence ; whereas we are taking upon ourselves to judgsof the affect of legal diligence in a foreign state. Upon the whole I rest my judgment upon the follow in^ ~)r~positions, 1st. That the Plaintiffs’ demand in this action, ariGrq out of a trattsactioit in a foreign state, though i t may follow the petaon, must be judged of accorditig to the laws of that state. 8dty. That upon this record we m y have no means of knowing, arid cannot take notice of the laws of the foreign state in which this trarrsaction arose, arid consequently cannot know that the Plaintiffs am entitled to maintain this action, The conclusion from these two proposition8 to the particular case of the Plaintiffs appears to me to be irresistible. They claim as assignsea of a barikrupt~ under a title derived to them under our b a i i ~ r u ~ t laws, to recowr a debt due to the bankrupt in America. If our hsrikrupt laws are allowcd to operate in America, they may be entitled to tecover that debt against somebody; if they are not allowed to operate in America, they cnrinot be entitled to recover a sinst any body. But we cauriot know whether our bankrupt laws are or are not

or have riot title to recover against any body. My third proposition is, that if it had been clear that our bartkrupt laws have as ful l effect in Ai~ierica as they have here, tba aseigneee ought to enforce them agaitist the garnishee, arid not against the PIaiiiLiffs in errw, with whom they have nothirig to do : I repeat with whom theg have nothing to do, becauee I mean to negative [418] a 4th proposition, viz. that a British subject shall not be allowed to contravene a British Act of Parliament. This proposition can hedly be said to be true in a popular and vulgar eense, and as I take it, is not true in any sense, in which i t can be made to bear upon the assignees’ title to recover i n this action. My Iast propositio~ is, that upon a jr~dgmertt recove~ed and executed, which for the aake of the argument I suppose ougbt not to have been recovered, an aotion for m m y had and received will trot lie for ally body, not even for the person against w h m the judgment has been so unjustly recovered.

The reeult of the whole i s , tbat upon this record it cannot he collected that the assignees have aiig ground of action here or elsewhere against the Ihfendants; a t any rate thi6 action will not lie, and consequently, in my opinion the judgment ought to be reversed. But as the majority of the judges are of a different opinion, the judg- ment of this cotirt will be, that the judgment of the Court of King’s Bench be affirmed.

a P lowed to operate in America, and therefore carinot know whether the Plaintiffs have

Judgmebt affirmed.