in the state prison for a less period than life, are liable to be proceeded against as absconding debtors. Perishable goods, when attached under the absconding debtor acts, may be immediately sold and converted into money; and if the sheriff, under the attachment, seizes property claimed by third persons, he is to summon a jury, and to take their inquisition as to the title to the property clained. It any vessel belonging to the debtor be attached under these proceedings, it may be released on giving security to pay the amount of the valuation of the vessel to the trustees; and if it be a foreign vessel, claimed by a third person, the attaching creditor must give security to prosecute the attachment, and pay the damages, if it should appear that the vessel belonged to the claimant.

It has been decided, that a creditor, having an unliqui dated demand resting in contract, is a creditor within the absconding debtor act, and competent to apply for the attachment. It was formerly heid, that the creditor who instituted proceedings against an absconding debtor, must be a resident within the state;' but the statute declares, that any creditor residing out of the state shall be deemed la creditor within the act, and he may proceed by attorney. The act says, that a debtor who resides out of the state is to be proceeded against as an absent debtor; and if a debtor who resides abroad, was to come transiently into the state, without the animus manendi, and, while here, should conceal himself to avoid arrest, he is tu be deem ed an absent debtor.; and the charge of an absconding, or concealed debtor, will not lie against any person whose domicil is not established here. The debt must have been contracted within this state, to bring theTM** case within the act; and its provisions do not apply to a foreign creditor, against a foreign debtor not domi

a Lenox v. Howland, 3 Caines, 323 b Case of Fitzgerald, 2 Caines, 318. c Ibid.

ciled here, and whose debt was not contracted within the state.a

The court in which proceedings under the absconding debtor act are pending, has an equitable jurisdiction over all claims between the trustees and the creditors. They are liable to be called to account at the instance of either the debtor or creditor. Trustees, in this case, resemble commissioners under the English bankrupt laws, as they are to liquidate all demands, and declare and pay dividends; and the proper remedy against the trustees is, either by a bill in chancery, or an application to the equitable powers of the court in which the proceedings are pending, to compel an account, and an adjustment. It was accordingly held, in Peck v. Randall,b that the creditor could not maintain a suit at law against the trustees before the demand had been adjusted, and a dividend declared. In England, it is well settled in the analogous case of a claira for dividends on a bankrupt's estate, that a suit at law cannot be sustained for a dividend, and that the creditor applies to the Court of Chancery for assistance to obtain it.c

A grave and difficult question has been frequently discussed in our American courts, respecting the conflicting claims arising under our attachment laws, and under a foreign bankrupt assignment. If a debtor in England, owing a house in this state, as well as creditors in England, be regularly declared a bankrupt in England, and his estate duly assigned, and if the house in this state afterwards sues out process of attachment against the estate of the same debtor, and trustees are appointed accordingly, the question is, which class of trustees is entitled to distribute the fund,

a Ex parte Schroeder, 6 Cowen, 603.

b 1 Johns. Rep. 165.

e 1 Atk. 90. iz parte White, and Ex parte Whitchurch, 2'Sch. & Lef. 229. Assignees of Gardiner v. Shannon.

and to whom can the debtors of the absent or bankrupt debtor safely pay. In such a case there are assignees in England claiming a right to all the estate and debts of the bankrupt, and there are trustees in New-York claiming the same right. This question was considered in Holmes v. Remsen," and the English, and Scotch, and other foreign authorities examined, and the conclusion was, that by the English law, and by the general international law of Europe, the proceeding which is prior in point of time, is prior in point of right, and attaches to itself the right to take and distribute the estate. It was considered, that as the English assignees in that case were first appointed, and the assignment of the bankrupt's estate first made to them, that assignment carried the bankrupt's property wherever situated, and it consequently passed the debt due by a citizen of this state to the English bankrupt, so that a payment of such a debt to the English assignees was a good payment in bar of a claim for that same debt, by the trustees, under our absconding act. This rule appeared to be well settled, and to be founded in justice and policy, and the comity of nations; and no doubt was entertained, that if the appointment of trustees, under our act, had been the first in point of time, the title of the trustees would have been recognised in the English courts as controlling the personal property in England. By the same rule, the English assignees being first in time, were held entitled to control the personal property of the debtor existing in this state.

But whatever consideration might otherwise have been due to the opinion in that case, and to the reasons and decisions on which it rested, the weight of American authority is decidedly the other way; and it may now be considered as part of the settled jurisprudence of this country, that a prior assignment in bankruptcy, under a foreign law, will not be permitted to prevail against a subsequent attachment

a 4 Johns. Ch. Rep. 460.

by an American creditor of the bankrupt's effects found here; and our courts will not subject our citizens to the inconvenience of seeking their dividends abroad, when they have the means to satisfy them under their own control. This was the rule in Maryland prior to our revolution, according to the opinion of Mr. Dulany, reported in Burk v. M'Lean and afterwards, in 1790, it was decided in Wallace v. Patterson, that property of the bankrupt could be -attached here, notwithstanding a prior assignment in bankruptcy in England. The same doctrine was declared in Pennsylvania, after an elaborate discussion of the question. The court in that state considered that an assignment abroad, by act of law, had no legal operation extra territorium, and that they were bound to look to their own law. The same doctrine was declared in North Carolina, as early as 1797.d In South Carolina, the same question arose in the case of the Assignees of Topham v. Chapman, in 1817; and the court in that case followed some prior decisions of their own, and the case of Taylor v. Geary, decided in Connecticut as early as 1787, f and they held that law, justice, and public policy, all combined to give a preference to their own attaching creditors. The point arose in the Supreme Court in Massachusetts, in Ingraham v. Geyer, in 1816,5 and they would not allow even a voluntary assignment by an insolvent debtor in another state, to control an attachment in that state, of the property of the insolvent, made subsequent to the assignment, and before payment to the assignees; and the court denied that any such indulgence was required by the practice or comity of nations. The opinion in the case of Holmes v. Remsen was

also ably questioned by one of the Judges of the Supreme Court of this state, in a suit at law between the same parties. And still more recently, in the Supreme Court of the United States, the English doctrine (for it is there admitted to be the established English doctrine,) was peremptorily disclaimed in the opinion delivered on behalf of majority of the court.

the

(4.) By intestacy...

The last instance which was mentioned of acquiring title to goods and chattels by act of law, was the case of intestacy. This is when a person dies, leaving personal property undisposed of by will; and in that case, the personal estate, after the debts are paid, is distributed to the widow, and among the next of kin. To avoid repetition and prolixity, or inextricable confusion, I shall be obliged to confine myself to the discussion of the leading principles of the English law and the law of New York, on this head; and I shall assume them to be the law of the several states, in all those cases in which some, material departure from them in essential points cannot be clearly ascertained.

This title will be best explained by examining, 1. To whom the administration of such property belongs, and to whom granted; 2. The power and duty of the administrators; and, 3. The persons who succeed to the personal estate by right of succession.

1. When a person died intestate, in the early periods of the English history, his goods went to the king as the general trustee or guardian of the state. This right was afterwards transferred by the crown to the popish clergy; and, we are told, it was so flagrantly abused, that Parliament was obliged to interfere, and take the power of administration entirely from the church, and confer it upon those who were more disposed to a faithful execution of the trust. This produced the statutes of 31 Edw. III. c. 11. and 21

a Platt, J. in 20 Johns. Rep. 254.

b Ogden v. Saunders, 12 Wheaton, 213.