George P. Upton and others vs. Henry G. Hubbard and others

George P. Upton and others vs. Henry G. Hubbard and others. A debtor residing in tlie state of Massachusetts applied to a court of insolvency there for the benefit of the insolvent acts of the state. Under the laws of Massachusetts the creditors made choice of a trustee, and the judge of the court executed a conveyance of all the property of the debtor to the trustee and granted him a discharge from his debts, such conveyance operating, by express provision of the statute, to vest all the property of the debtor in the trustee and to dissolve all existing attachments. Previous to the application of the insolvent, sundry creditors residing in Massachusetts had attached in this state a debt due to the insolvent from H, a resident of this state. While these suits were pending, the trustee in insolvency brought a bill in equity in this state, in his character as trustee, against H and the attaching creditors, praying that the court would decree to whom the debt due from H should be paid; the suit being brought under the act of 1854, which provides that, where a party claims to be entitled to a debt which has been thus attached, the court may, upon a bill in equity brought by such party, determine what disposition shall be made of the debt. Held, 1. That by the common law of this state, the plaintiff, being a foreign assignee, could not sue in our courts. 2. That the statute was not intended to introduce any new rule on the subject. 3. That if the plaintiff could maintain the suit in his own name, yet that the attaching creditors had obtained a good lien under the laws of this state, which could not be affected by subsequent proceedings in insolvency in the state of Massachusetts. 4. That if the discharge of the insolvent could be interposed by the trustee in the suits against the insolvent, yet the only effect would be to prevent a judgment against him personally, while a qualified judgment could still be rendered for the application of the property attached to the claims of the attaching creditors. The English courts hold that a foreign assignee in bankruptcy can sue in their courts as if he was assignee under their own law; but the courts of this country have generally refused their assent to this doctrine, and class foreign assignees with foreign executors, administrators, guardians, &c., whose title and power being created by the law, have no legal existence beyond the limits of the sovereignty. And although a foreign assignee may in some cases be allowed to sue in our courts as a matter of courtesy, yet the courtesy will be denied in all cases where there are claims upon the property adverse to the assignment, whether the claimants be citizens of our own, or of some other state. Where an executor or assignee has actually taken and removed property found within another state, and creditors there do not object, his title to it is regarded as good; but his only ordinary remedy is to take out or procure an ancillary administration. It makes no difference with regard to the rights of the assignee in a foreign state, whether the estate of the insolvent is vested in him under legal proceedings instituted against the insolvent, or under legal proceedings which have been had, as in the above case, upon the voluntary application of the insolvent himself. The assignee is still the agent of the law, and derives from it his authority. Bill in equity. The plaintiffs were assignees in insolvency, under the laws of the state of Massachusetts, of the property of William Mason, a resident of Massachusetts, and sued as such. The defendants were Henry G. Hubbard, who was indebted to Mason, at the time when he went *into [ *276 ] insolvency, and sundry creditors of Mason, residing in the State of Massachusetts, who had brought suits in this state and attached the debt due from Hubbard to Mason by process of foreign attachment. The attachments were served upon Hubbard on the 4th day of November, 1857, and the suits were-pending at the time when the present bill was brought. On. the-6th of November, 1857, Mason filed a petition in the insolvency court of the county of Bristol, in the state of Massachusetts, praying for the benefit of the acts of insolvency of that state. Under this petition and in accordance with the laws of that state, the creditors of Mason, at a meeting called for that purpose, made choice of the present plaintiffs as assignees of his insolvent estate; and the judge of the insolvent court thereupon, under power given him by the statutes of insolvency of that state, conveyed and assigned to the plaintiffs' all the property of Mason, both real and personal, and granted to him. a full and absolute discharge from all the debts which had been or should be proved against his estate, or which might have been proved under the insolvent-laws-of the state, and which were- founded on contracts made or to be performed within the state - of Massachusetts. The bill alleged the foregoing facts, and that the claims on which the factorizing suits were brought within this state were embraced in the discharge, and prayed the court to determine to whom the .payment of the debt owed by Hubbard should be made, and to make such decree with regard to the disposition of the fund as should be proper. The suit was brought under the provisions of the act' of 1854; which provides that, whenever any person indebted to another shall refuse to pay such debt on the ground that it has been attached in his hands by process of foreign attachment, it shall be lawful for the party to whom such refusal has been made, to institute his bill in equity, in the nature of a bill of interpleader, against such debtor, and other parties interested ; and that the court shall have power, in such suit, to determine to whom the debt is due, and to order what [ *277 ] disposition shall *be made of the same, and to make any other orders that may be proper to do justice between the parties. The defendants demurred to the bill. The court overruled the demurrer, found the allegations of the bill to be true, and decreed that the factorizing suits should be discontinued, that the respondent Hubbard should pay the taxable costs in the suits out of the funds of Mason in his hands, the amount of which was found by the court, and that the balance of the debt should be paid to the plaintiffs in the present suit.. The defendants thereupon filed a motion in error and brought the record before this court for revision. ■ The statute of Massachusetts with regard to the effect of an assignment of the property of an insolvent by the judge of the court of insolvency to the trustee, is as follows :— “ Which assignment shall vest in -the assignees all the property of the debtor, both real and personal, which he could by any way or means have lawfully sold, assigned, or conveyed, or might have been taken in execution on any judgment against him, at the time of the first publication of the notice of -issuing the above mentioned warrant, although the same may be attached on mesne process as the property of said debtor; and such assignment shall be effectual, to pass all said estate and dissolve any such attachment; and the said assignment shall also vest in the assignees all debts due to the debtor, or to any person for his use, and all liens and securities therefor.,? Tyler, and C. J. Reed of Massachusetts, for the plaintiffs in error. There are four main questions involved in this case:—First, Can the assignees of William Mason, as such, and merely by virtue of their office, created as it is by foreign law, maintain, in their own names, this suit for the recovery of a chose in action ? — Second, Supposing as parties they are properly in court, then, upon the facts averred in the bill, are the attachments dissolved ? — Third, Can the petitioners avail themselves of Mason’s discharge, he not having pleaded it?—Fourth, Supposing the petitioners can so avail *themselves of the [ *278 ] discharge, what effect is to be given to it by this ‘ court ? * 1. The first question naturally divides itself into two branches:—1st. Whether these petitioners, even if a voluntary assignment of the chose in action had been made to them in Massachusetts by-Mason, could here prosecute this suit in their own names; and 2d. Whether, claiming.as they do merely by virtue of an assignment by operation of law, the court here will so far give the Massachusetts statute an extra-territorial effect, as to permit these assignees to maintain-this suit in their own names ? Both branches of this first question are to be determined by the lex fori. Story Confl. Laws, §§ 556, 558. Grant v. Lyman, 4 Met., 475. Wood v. Watkinson, 17 Conn., 500. 2 Kent’s Com., (7th Ed.) 579. Woodbridge v. Wright, 3 Conn., 523, 526. Sicard v. Whale, 11 Johns., 194. Even if the petitioners claimed under a voluntary assignment, they could not maintain this suit. And especially can they not, claiming as they do under an assignment by operation of law. Story Confl. Laws, § 565. Orr v. Amory, 11 Mass., 25. Ward v. Jenkins, 10 Met., 583. Brush v. Curtis, 4 Conn., 312. Betton v. Valentine, 1 Curtis, 170. 2. This assignment and the insolvent proceedings did not have the effect to dissolve the attachments. The attachments constitute a lien upon 'the property. ' Lyon v. Sanford, 5 Conn., 544. Carter v. Champion, 8 id., 549. Gates v. Bushnell, 9 id., 530. Bishop v. Holcomb, 10 id., 447. Vanbuskirk v. Hartford Fire Ins. Co., 14 id., 583. Davenport v. Tilton, 10 Met., 320. Ives v. Sturgis, 12 id., 462. Peck v. Jenness, 7 How., 618. Ingraham v. Phillips, 1 Day, 117. Barber v. Minturn, 1 id., 136. Smith v. Bradstreet, 16 Pick., 264. Springer v. Foster, 2 Story, 383. Story Confl. Laws, § 400. Belton v. Valentine, 1 Curtis, 168. Taylor v. Geary, Kirby, 313. It seems certain that, unless the petitioners can take advantage of Mason’s discharge, the attachments are not dissolved, for it is a question merely relating to the remedy. White v. Canfield, 7 Johns., 118. Sicard v. Whale, 11 id., 194. Woodbridge [ *279 ] v. Wright, 3 Conn., 523, 526. * Atwater v. Townsend, 4 id., 47. Smith v. Healey, id., 49. Boston Type Foundry v. Wallack, 8 Pick., 186. Coffin v. Coffin, 16 id., 323. May v. Breed, 7 Cush., 34. 3. These petitioners can not avail themselves of Mason’s discharge, he not having appeared and pleaded it. It is- a matter of personal privilege, like infancy or coverture. 4. Even if the petitioners can set up Mason’s discharge, no such effect as is claimed can be given to it, (these liens having attached before the insolvent proceedings,) but the respondents are entitled to a qualified judgment against Mason; which shall hold the fund in question. Davenport v. Tilton, 10 Met., 320, 329. Ives v. Sturgis, 12 id., 462. Peck v. Jenness, 7 How., 612. Ingraham v. Phillips, 1 Day, 117. Barber v. Minturn, id., 136. Betton v. Valentine, 1 Curtis, 168. The assignees take subject to all liens ; indeed otherwise the statute would be of questionable constitutionality. T. C. Perkins, and B. Sanford of Massachusetts, for the defendants in error. Three important facts are to be borne in mind in the consideration of this case. 1st. That except Hubbard the garnishee, all the parties to the bill are now, and always have been, citizens of Massachusetts. 2d. That Hubbard, a citizen of Connecticut, is a mere stake-holder—it making no difference to him to whom he pays the funds in his hands ; and 3d. That all the contracts set out in the bill are contracts made and to be executed, or already executed, in Massachusetts. 1. The courts of one state or country will, ex comitate, give full effect to an assignment executed in another state or country, except, 1st, where the interests of their own citizens would be prejudiced thereby, or 2d, when, to give effect to the foreign assignment, would be contrary to the established law or policy of their own state or country. The proposition, without the exceptions, is stated by Story as the English doctrine, and is fully maintained. upon the authorities. Story Confl. Laws, § 403, el seq. Sill v. Worswick, 1 H. *Bla., 690. Phillips v. Hunter, 2 id., 402. Hunter [ *280 ] v. Potts, 4 T. R., 182. With the exceptions, the proposition states the American doctrine, and is fully sustained bv the American authorities. Story Confl. Laws, supra. Goodwin v. Jones, 3 Mass., 517. Holmes v. Remsen, 4 Johns. Ch. 460, 470. Blake v. Williams, 6 Pick., 286. Milne v. Moreton, 6 Binn., 353. Very v. McHenry, 29 Maine, 208. Olivier v. Townes, 2 Martin (N. S.,) 50. Hampstead v. Read, 6 Conn., 489. Norton v. Cook, 9 id., 314. Vanbuskirk v. Hartford Fire Ins. Co., 14 id., 141, 583. Atwood v. Protection Ins. Co., id., 555. The distinction intimated, between the effect to be given to a voluntary assignment by act of parties, and an involuntary assignment by operation of law, has no foundation in this country except the speculation of Mr. Story in his Conflict of Laws, (sec. 399 «,) and the context shows that the author had in mind an attaching creditor, who is a citizen of the state in which the action is brought, ás against an assignee under foreign bankrupt proceedings. But the assignment set out in the bill is in the strictest sense a voluntary assignment. Stat. of Mass., 1838, ch. 163, sec. 1. Id., sec. 10. Id., 1844, eh. 178, sec. 9. Under the English bankrupt law, upon decisions as to the effect of which in other countries this distinction is based if it has any foundation, the proceedings are always in invilum, and the proceedings against the bankrupt can not be initiated by the bankrupt himself. Stat. 6 Geo. IV., ch. 16. Eden’s Bankrupt Law, app’x. But the statute of Massachusetts provides that the assignment shall have the same effect to pass title to property as if made by the insolvent himself. Stat. Mass., 1838, ch. 163, sec. 5. The parties whose interests will be affected by the decree prayed for in the bill, are all citizens of Massachusetts. The policy and provisions of the insolvent laws of Massachusetts and of the insolvent laws of Connecticut are in harmony, and substantially the same, and it is submitted that the proposition above stated, without the exceptions, states the law applicable to the case at bar. We claim therefore that the courts of Connecticut will give to the assignment set out in the bill, as between the claims of citizens of Massachusetts, *the same effect that the courts of Massachu- [ *281 ] setts would give. Vanbuskirk v. Hartford Fire Ins. Co., 14 Conn., 141. 583; Atwood v. Protection Ins. Co., id., 555 ; and cases before cited. This effect would be either—1st. To vest in the: complainants an absolute title to the debt due from Hubbard, to Mason, and by force of the lex loci contractus to discharge the attachment lien acquired by the suits of foreign attachment—the dissolution of the attachment being expressly-provided for by the insolvent laws of Massachusetts in the same manner as by those of Connecticut; (Stat. Mass.', 1838, eh. 163, sec. 5 ;)—or 2d. To vest in the complainants a title to the debt or funds of Mason in Hubbard’s hands, subject to the attachment lien, so that they -became the owners of whatever surplus might remain in the hands of Hubbard, should those liens be enforced and judgments be rendered against Mason in said suits, or to the whole debt, if by any reason the attachment liens should be defeated. The bill avers and shows that after the satisfaction of the claims of the attaching creditors there will be a surplus in the hands of Hubbard. 2. As to the effect of the discharge set out in the bill, and to what extent this court, ex comitate, will give effect thereto in the case at bar. • Under the insolvent laws of Massachusetts, a discharge granted after due and proper proceedings legally terminates the contract, and discharges the debtor from all legal obligations arising thereon. Mass. Stat., 1838, ch. 163, sec. 7. Marsh v. Putnam, 3 Gray, 555.. The debts due from Mason to the attaching creditors are alleged in the bill to be founded on contracts embraced within the statute. And it is claimed that, as between, citizens of Massachusetts, in this state, this court will give the same effect to this discharge. The construction of a contract is to be determined by the law of the place where the contract is made; the remedy-is to be determined by the law of the forum where the action js pending. The. nature and character, the force and obligation of the contract, the extent to which it binds the parties, in all the various contingencies which may occur, what'shall be deemed specific performance, or [ *282 ] .qualified *and substituted performance, a satisfaction, discharge, or termination of the legal existence or obligation of the contract, ai*e to be governed, not by the law which affords judicial remedies, but bv the law of the contract, whether of the place where the contract is-.-made, or where by the terms of the contract it is to-be executed, and upon this principle the. court will ex - comitate give effect- to the discharge pleaded in the cause at bar. Potter v. Brown, 5 East., 124. Hunter v. Potts, 4 T. R., 182. Tallyrand v. Boulanger, 3 Ves. Jr., 448. Van Raugh v. Van Arsdaln, 3 Caines, 154. Smith v. Smith, 2 Johns., 235. Thompson v. Ketcham, 8 id., 189. Hicks v. Brown, 12 id., 142. Blanchard v. Russell, 13 Mass., 1. Bradford v. Farrand, id., 18. Prentiss v. Savage, id., 20. Betts v. Bagley, 12 Pick., 572. Pitkin v. Thompson, 13 id., 64. Savoye v. Marsh, 10 Met., 594. May v. Breed, 7 Cush., 21. Marsh v. Putnam, 3 Gray, 552. Van Reimsdyk v. Kane, 1 Gall., 371. Le Roy v. Crowningshield, 2 Mason, 151. Green v. Sarmiento, 1 Pet., C. C. 74. Harrison v. Edwards, 12 Verm., 648. Woodbridge v. Austin, 2 Tyler, 364. Houghton v. Page, 2 N. Hamp., 47. Bliss v. Houghton, 13 id., 126. Very v. McHenry, 29 Maine, 206. 2 Bell’s Com., 692, et seq. 3 Burge Col. & For. Laws., 874, 876. 2 Kent Com., 459. Story Confl. Laws, § 331. Story on Constitution, sec. 1390, and note. Hampstead v. Read, 6 Conn., 489. Norton v. Cook, 9 id., 314. An action upon a contract is a judicial proceeding to enforce some obligation growing out of the contract. If no right or obligation ever grew out of the contract, or if the obligation has ceased to exist—both of which inquiries are to be determined by the lex loci contractus—then there is nothing to be enforced by the action. 3. The question now arises whether the complainants can, by this bill, avail themselves of the assignment and of the discharge of Mason, to maintain their claim to the debt due from Hubbard. 1st. We claim that they can maintain this bill in their own names. It is the remedy given by statute. Rev. Stat., (Ed. 1854,) p. 140. They may maintain it in their own names as assignees. . When a bill in equity is the ^appropriate remedy upon a chose in action, the as- [ *283 J signee of the chose may bring the bill in his own name. Miller v. Bear, 3 Paige, 466. Field v. Maghee, 5 id., 539. Rogers v. Traders' Ins. Co., 6 id., 583. Whitney v. McKinney, 7 Johns. Ch., 144. 2 Story Eq. Jur., sec 1057. Craig v. Johnson, 3 J. J. Marsh., 573. If this were a suit at law and not in equity, it is not well settled that they could not maintain the action in their own names. There are decided cases both ways. Story Confl. Laws., secs. 566, 568. Jeffery v. McTaggart, 6 M. & S., 126. Trimbey v. Vignier, 1 Bing. N. C., 151, 159, 160. May v. Breed, 7 Cush., 21. 9 Am. Jurist, 42. 11 id., 101. Hooper v. Tuckerman, 3 Sandf. Sup. Ct., 311. Betton v. Valentine, 1 Curtis, 168. 2d. They can avail themselves of the discharge of Mason, as a dissolution of the contract. It is not true that the pleading of this discharge is the mere personal privilege of Mason, of which no other party can avail himself. The discharge operates • upon the contract and annuls it, and any party interested may show that it has been annulled. Its effect upon the contract is the same as a may payment or other performance, and any party interested show such payment or performance. [MAJORITY — Ellsworth, J.] Ellsworth, J. We are all satisfied tnat there is error in the judgment of the superior court; but as this does not necessarily make an end of the case, it may beywell for us to state our views upon the questions so ably and elaborately argued before us. A majority of the court are of opinion that the petitioners, as foreign assignees, can not of right maintain their suit against these respondents ; either ’on principles of the common law or under the provisions of the statute of 1854. We suppose, however, that in the English courts, certainly from the time of the American revolution, the course of decisions is well nigh uniform, that a foreign assignee under a bankrupt law can sue in their courts, as if he was assignee under their own law. They hold this principle on the ground that a general assignment under the statute is equivalent to a special assignment by the party, and then, applying the doc- [ *284 ] trine *of international law, that, what constitutes a transfer in the place of the owner’s residence constitutes a good transfer every where, they make a good and perfect legal title in the assignee. But the courts in this country have not given their assent to this course of argument, though some of our jurists think it is the correct one. The law of the American courts is generally quite otherwise, as an absolute doctrine of the law. They seem to class foreign assignees with foreign executors, administrators, guardians, conservators and selectmen, who, having title, right or power by mere operation of law, have it co-extensive only with the sovereignty of the state which gives it. Hence it follows that such title, right and power have no existence in another sovereignty, and are not of course recognized, though they are admitted in certain cases as a matter of courtesy. This doctrine is familiar to every lawyer in the case of foreign executors and administrators, and we perceive no reason why it is not equally true as to foreign assignees. They are mere agents of the law—instruments of the government to settle the affairs of a deceased or bankrupt debtor. And, m cur view, there is essentially no difference, whether, in consequence of an act of bankruptcy, as in England, the bankrupt's estate is forced from him, or he sets the law in motion himself by a conveyance in bankruptcy in the first instance. It is a local governmental proceeding. This doctrine has often been recognized and concurred in in this state, and we believe has never been called in question. In the case of Taylor v. Geary, Kirby, 313, our highest court held, upon solemn argument, that the commission of bankruptcy against the defendants in England did not secure their effects here, but that they remained as before, transferable by them and open to the attachment of their creditors, as well British as American. The same general doctrine is held in the case of Riley v. Riley, 3 Day, 74. Our courts have never, so far as we know, recognized the absolute right of foreign assignees to institute suits here in their own names, though it perhaps may be allowed as a mere act of courtesy, as has often been done elsewhere, if there be no *adverse [ *285 ] interest to be affected; but it is never allowed to defeat creditors, be the place of their residence where it may ; and especially not if their attachments precede the assignment. Among the most important cases on this subject, we mention those of Abraham v. Plestoro, 3 Wend., 550, Hoyt v. Thompson, 1 Seld., 320, Booth v. Clark, 17 How., 338, and Milne v. Morton, 6 Binn., 353; in which cases the subject is examined with great learning and ability, and all the cases in the books are referred to. The main doctrine will be found to be much as laid down in the case in Kirby, before mentioned, with this addition perhaps, that by mere courtesy foreign assignees are allowed to sue in their own names, where there is no attachment, lien or claim adverse to the assignment. Even in the English view of a transfer by bankruptcy, it is not easy to see how a foreign assignee really sues in his foreign representative character, since, in that view, the assignment is held to be a transfer as much as if it was a private sale, in which latter case we know the vendee gets a personal title the world over. An executor gets such a title to chattels which are within the state of the decedent’s domicil, so that they can, in case of their being stolen or lost, be reclaimed by the executor as his own property and in his own name. The domicil of a person in life, wherever he is, by a legal fiction draws the property to himself, so that he is said to be possessed of it there; but this is not true when the owner dies, having no longer any place of domicil. A statute representative does not universally succeed by legal operation to his title and possession, but as such he takes tbe property only which ■ is within the state. If he is the principal representative, such as the principal executor or administrator, or is a legal assignee, and wishes to obtain the property which is abroad, he must go there, and by an ancillary administration or appointment get authority, or employ some one else to do so in his own name, and remit what he receives to the principal executor, &c. If indeed the principal ^executor or the- assignee go there himself, and, without acquiring local authority, collects a debt or receives property belonging to the estate, it is- well enough, we suppose, if the creditors or legatees• there do not interpose and object; for, in such a case, the same end is accomplished which could be reached through an ancillary administration, and the law does not require any unnecessary formality and expense, but looks at the substance of the thing. Holcomb v. Phelps, 16 Conn., 127, 133. Lawrence v. Kitteridge, 21 id., 582. Story Confl. Laws, § 404. We can not think-it necessary to cite cases to shew that, in strictness, a mere license or power conferred by statute is only co-extensive with the sovereignty from which the license or power emanates. In England administration may be granted in the province of Canterbury or in that of York, or it may be granted in certain jurisdictions denominated “ royal peculiars,” like the city of London, which are entirely independent of the ecclesiastical courts, and administration can be taken out only when there are bona notabilia. 1 Wms. Exrs., 258. If it be taken out elsewhere, it is utterly void. Movables are assets where they happen to be at the decease of' the owner ; chattels real, where the land is situate; judgments and the like, where the records are kept; bonds, &c., where the deeds are kept; and simple contracts, including notes and bills, where the debtors reside. Story Confl. Laws, § 514. We will not dwell longer on the point, and will only remark, in leaving it, that in no view of the case will a bill of interpleader lie at the common law, for such a bill lies only in behalf, and on the application, of the stakeholder, while the present case is not of that character, nor does it resemble such a case in any respect whatever. Let us then inquire if the statute of 1854 affords relief. Does that authorize foreign assignees to sue in their own names, by way of interpleader or otherwise? We have already said that a majority of the court think that it does not; though the language of the act, if construed literally, is broad enough for this purpose. Those of us who- entertain .[ *287 ] *'this opinion, believe that the legislature, in passing the act, had-nothing of this kind in view, and -think that we should not, be justified; in giving the act the broad construction claimed by the plaintiff’s counsel-. Nor is there any necessity for resorting to such a construction of the act, for at all times the equitable owner of a debt which has been attached has the right to show his-title to- it in- his defense on the scire Jadas. Hartford Bank v. Barber, 9 Conn., 407. We conceive the object of this statute to be, to give a summary remedy in cases where the plaintiff comes into court, and has a right to come, as in other instances* at common law; We can not believe for one moment that the legislature, by this simple act of ordinary legislation, the object and aim of which are perfectly manifest, intended to repeal a great principle of international law, and open the courts to parties who had no standing or capacity in them before, whether at law or equity. But even were it otherwise doubtful, the circumstance that these persons come here to prosecute without the necessity of giving bonds for a faithful execution of their trust, would have weight with us in determining the construction of the statute. Without such security for their rights, our citizens might well complain that property should be allowed to be carried out of this jurisdiction and beyond their reach, and not only so, but there administered, in a foreign state, under laws different from our own. But there is another equally serious and, in our judgment, fatal objection to this decree. The attaching creditors, by pursuing the steps of our law, certainly acquired a lien upon the debt due from Mr. Hubbard which no foreign proceedings under the bankrupt law of Massachusetts can destroy or impair, without allowing an extra-territorial effect to the law of that state in conferring title upon the assignees, which we can not do. The right of the attaching creditors to the lien obtained by their attachments being good here, must remain good, and we see not why they may not enforce that lien, by prosecuting their suits to judgment and execution, which' is the only possible mode of realizing any thing from the lien known to our law. *We suppose we have no occasion at this time, and [ *288 ] perhaps ought not, to proceed further in expressing our views upon the case; for we do not know, even if the cases are re-entered in the superior court, that the plaintiffs will ever recover judgment therein. It is most earnestly contended that they can not, and that, if they do not, of course all controversy about the title to the debt due from Mr. Hubbard is at an end, and that even if judgment shall be recovered in the end it will amount to nothing substantial. We are not prepared to say how this may be, and what would be the effect of the discharge of Mason from his debts in Massachusetts if pleaded here, and especially upon this lien, which is good in Connecticut, and to reach which it is. said a conditional execution may be issued. It seems to us, that if Mason himself shall appear in our court and answer to these attachment suits, or if the assignees shall appear for him and prevent a recovery, it will put an end to his personal liability; but if judgment against him personally is prevented on the ground of his discharge in Massachusetts under proceedings in bankruptcy there, then, as is claimed, and we think with much force; a qualified judgment may be had, and execution issued against the property attached. Several cases where this has been done are cited by counsel, one in the circuit court of the United States in this circuit, that arose under the old bankrupt law of the United States, which contained a clause excepting liens, &c., and some others; more especially those of Davenport v. Tilton, 10 Met., 320, Ives v. Sturgis, 12 id., 463, and Peck v. Jenness, 7 How., 618. And here again another question arises. Suppose the lien can be preserved to the attaching creditors and converted into money as above suggested, will or will not these creditors be held accountable for the money in Massachusetts, where all the parties reside, to the assignees of Mason ? or will the lien, being good in Connecticut, the situs of the property in question, have precedence every where? We leave the question with these suggestions for further inquiry, here or else- £ *289 ] *where, as the parties before us shall have occasion to make it in enforcing their rights. There is manifest error in the decree below. In this decision the other judges concurred; Sanford, J., with some doubt however whether the suit ought not to be entertained under the statute of 1854. Judgment reversed.