would be a straightforward and intelligible policy, though narrow and selfish. Such was the law at one time in Maryland, and possibly in some other States. Our motive is to aid our own creditors; but we do it, as it were, underhand, so that we have the discredit of a want of comity, and fail to reap its full advantages.
The working of our rule is sometimes very annoying. If an insolvent trading corporation, for instance, is being wound up by receivers in New York, for the equal benefit of all its creditors, precisely as such a corporation would be wound up in Massachusetts, and a debtor of the corporation is summoned as garnishee in Massachusetts, by a creditor of the corporation residing in Massachusetts, and answers that the receivers in New York have demanded payment of the debt or have begun an action for it against him, the Courts of Massachusetts will give precedence to their own attaching creditor. Taylor v. Columbian Ins. Co., 14 Allen, 353. If the same debtor is sued by the receivers in New York, and answers that he is summoned as garnishee of the corporation in Massachusetts, the Courts of New York will decide that the receivers have the better title. Osgood v. Maguire, 61 N.Y. 524.
Thus an honest debtor is twice vexed and put to trouble and expense; and if the case in Massachusetts is finished first, and the judgment is satisfied, a preference is obtained by the attaching creditor, although the laws of both States, when dealing with their own insolvent corporations, insist upon equality among creditors, foreign and domestic.
The injustice of the American practice has been often admitted, and several judges have suggested that the subject might be regulated with foreign countries by treaty. Such treaties have been made between some of the nations of Europe.
In Dawes v. Head, 3 Pick. 128, the Supreme Court of Massachusetts, in the case of a deceased foreign insolvent who had left some property here, declared that the practice above referred to ought not to be extended, and that the true rule for distributing the estate here was to give to the creditors here their full and equal dividend, taking into account all the assets and all the debts, both here and elsewhere. This suggestion has been adopted by statute in several States and by decision in others.[1] In Harrison
- ↑ See 4 Kent, Com. 434.
