#### M'Neil vs. Colquhoon & Ritchie, Co-partners with Auley M’Naughton & Co.

THE plaintiff in this action, had commenced the same by af> tachment, and the following circumstances were disclosed by the garnishee on his examination, to wit 1 that .one of the defendants was one of the partners of a company, who in Scotland had been declared bankrupts, and their estates put into the hands of sequestrators ; and the defendant, one of the partners here, ac the time of the sequestration in Scotland, had goods on hand here and debts due to a large amount; that the sequestrators in Scotland appointed the garnishee in this action to be their agent, to get possession of the goods here, and also to collect and recover the debts here for the sequestrators ; and that the garnishee had received into his' possession, goods to a large amount and part of the debts, and was about to receive others to a much larger a-rnount than would satisfy the plaintiff’s demand.

Counselfor the plaintiff.

The statutes of bankruptcy in England or Scotland, cannot affect the debts and specific articles of property belonging to the pertnership which are in this country j ior notwithstanding the sequestration or assignment of the bankrupt’s effects, an action in this country to recaver the partnership debts, must be in the name of the partners and not 91 the assignees or scquesttators. When the agent of creditors in a foreign country, or the creditors themselves, come here, and get possession of the effects of a debtor by his consent in satisfaction of their demands, perhaps no other creditor can afterwards 4e allowed to say these effects did not vest in the foreign creditors, and then they cannot be attached as the property of the debtor. Salomons vs. Ross and others, noticed in the note to the report of II. Bl. 130, seems to go upon the distinction that assignees of a bankrupt are only entitled to the balance remaining in a foreign country, after the creditors there are satisfied : they cannot mean to assert unconditionally, that the assignees have a right to collect debts here, and to force the. creditors here to come in only *25for a share aad proportion; of their debts, and that too by first applying in England or Scotland for an allowance j that would be indeed to subject the people of this country to the operation of foreign laws, and to submit the 'rights aad interests of cur own citizens to tbe decisions of foreign forums, and to a defalcation from their just demands, merely and solely far tbe benefit of foreigners.

Policy requires we should procure saüfactíon of their just demands in the first place to our own citizens, when the means of doing so, and the fund to which they trusted are within our power, and then to foreigners who have credited in their own country to the funds which they saw there. Justice does not demand that we shall let foreigners of this description into an Lqual participation of the benefits of our laws with our own citizens, when such an equality is to be productive of loss to them. II these cases are to be understood otherwise, I should not hesitate to pronounce them ui lit for our adoption. The case in Douglass, ITO, and 4« Term Re. 182, shew that the effects of merchants in foreign countries, are subject to the bankrupt iaws of the country where they emigrated ; the former of them went upon the ground of the possession being gained by the creditor, the latter upon the attacher’s being subject to the operation of the bankrupt laws and bound by them, and yet endeavoring to elude them to the prejudice of his fellow creditors, who were also bound ; had he been a foreigner, he would not have been liable to that action.

E contra.

It was argued that the assignees of a bankrupt were tbe owners and proprietors of the effects of the bankrupt in whatever part of the world the same might be : The goods of a subject, though moved for the purpose of trade into a foreign country, are there subject to the laws of the merchant’s country, not to the laws of the country where they are; They cited Vatic*,, 270. H. Bl. Re. 665.

Curia advisari.

~At another day, tbe court asked the counsel whether it would be satisfactory to them if the court would decide that the plaintiff’s debt was payable out of the debts not yet collected, saying nothing of the goods and debts received ; the counsel on both sides answered in the affirmative, and said the garnishee had lent money to the plaintiff to the amount of the debt demanded, to be applied to the discharge thereof, should the court be of opinion he ought to recover upon any of the facts disclosed in the garnishment, or to be returned in case of a, contrary decision.

Per curiam.

We are prepared to say the plaintiff is entitled to recover out of the debts not yet collected : the bankrupt laws in Scotland cannot affect any goods, estate or debts due; to the Bankrupt here; — And here we must rest our opinion for the present, chusing purposely to avoid any opinion relative to the effects and debts recen ed by the agent of the sequestrators.

Judgmept for the plaintiff.