Page:Harvard Law Review Volume 5.djvu/228

212 HARVARD LAW REVIEW. venience or because of the unsatisfactory remedy afforded in a foreign court, that an assignee under an English bankruptcy pre- fers to enforce his rights in an English court to the property of the bankrupt situated abroad, if that court can obtain jurisdiction. If, for instance, an English creditor on learning of the bankruptcy has obtained full satisfaction of his debt out of property of the bank- rupt situated abroad, the assignee may be able to pursue his remedy at home, as the English court has jurisdiction over the English creditor. In such cases the distinction is taken between property which would have come into the hands of the assignee for distribution among the general creditors and that which would not have become thus available for distribution. If an English creditor gets possession of property of the latter class, he may retain it and still prove his debt, but otherwise in regard to prop- erty of the former class. The principle is thus stated by Baron Parke in the case of Cockerell v. Dickens, 3 Mo. P. C. 132: "If the real estate in Java did not pass by the assignment . . . nor could in any way be got hold of and made available by the assignees for the payment of the general creditors, any individual creditor who could obtain it by due course of law would have a right to hold it, and if he duly proved the debt due to him before he had been paid any part of the debt so proved by means of that estate, he would be entitled to receive the dividends under the in- solvent estate until he had been paid altogether twenty shillings in the pound, exactly in the same way as if a creditor had had a security on the real estate or personal credit of a third person. In this case he could neither be compelled to refund the money ob- tained by means of the real estate or the dividends received on the debt, or be restrained from receiving those hereafter to become due. The principle is that one creditor shall not take a part of the fund which otherwise would have been available for the payment of all the creditors and at the same time be allowed to come in pari passu with the other creditors for satisfaction out of the remainder of that fund ; and this principle does not apply where that creditor obtains by his diligence something which did not and could not form a part of that fund." As an English bankruptcy is ordinarily held not to affect the title to real estate, an English creditor may usually retain an ad- vantage secured by an execution or attachment of real estate of his debtor situated abroad, while an advantage secured by attach-