the past adjudication on these cases, that any American credi tor may, by process of law, retain any property of his debtor which he can get a legal hold upon, by transfer, attachment, or levy, against the claims of any foreign assignee in bankruptcy. (y) not be given to the assignment by the commissioners unless we adopt the British statutes of bankruptcy, as laws binding on ourselves, although they were not considered to affect us, when we were the colonies of Great Britain; and this, too, when their operation would manifestly interfere with the interests of our own citizens." So in Holmes v. Remsen, 20 Johns. 229265, in which case the decision of Chancellor Kent, above cited, was reversed, the judge delivering the opinion of the court, said: "It is an established and universal principle, that, independent of express municipal law, personal property of foreigners, dying testate or intestate, has locality. Administration must be granted and distribution made in the country where the property is found; and as to creditors, the lex rei sita prevails against the law of the domicil, in regard to the rule of preferences. In principle, I perceive no difference between that case and the present. Why should not a liberal comity, also, demand that the first grant of letters of administration should draw to it the distribution, among creditors, of the whole assets, wherever situated? The plausible reason for the distinction may be, that the interests of commerce require a discrimination in favor of the assignees of bankrupts. But in practice I believe it will be found that commerce is equally affected by the rule, in both cases, because the rule, in either case, can seldom be applied, except to merchants and traders. And whether administration be committed to the executors or administrators of a dead man, or to the assignees of a bankrupt, not very material to the point before us. Anomalies are inconvenient in the law, and should not be allowed with out strong reason." (y) The case of Harrison v. Sterry, 5 Cranch, 289, was decided by Marshall, C. J., in 1809. It is there said: "The bankrupt law of a foreign country is incapable of operating a legal transfer of property in the United States." In his opinion in Holmes v. Remsen, above cited, Chancellor Kent said, that the decree of the court in that case, and on this point wants explanation, "and we do not know the The grounds of the decision. It is never, however, to be presumed, that any court intends either to establish or reject a liti gated point of law, of great importance, merely by a dry decision, unaccompanied with argument or illustration." Yet of this case it may, with respect to so great a name as Chancellor Kent, be observed, that this opinion, although unaccompanied with argument or illustration, was essential to the decision of the case, and can by no means be regarded as an obiter dictum, and that every court must be presumed to intend to establish every point of law passed upon essential to the decision of the case. doctrines of this case have been universally followed, so far as we know, in this country, with the limitation set forth in the following note. Blake v. Williams and Marshall, Trustee, 6 Pick. 286. In that case, the question was, whether Marshall, a debtor of Williams, should be held as his trustee, and to pay to the plaintiff the debt he acknowledged to be due to the principal defendant. The trustee's answer disclosed, that a commission of bankruptcy had issued against Williams in England, where he resided, and did business as a banker, on the 27th of October, 1825, in consequence of an act of bankruptcy previously committed by him ; and in pursuance of the commission, the commissioners of bankruptcy proceeded to assign over to the assignees all the property of Williams, including the debts due him. It appeared further, that the trustee had received no formal notice of the assignment by the commissioners in England, at the time of his being summoned, on the 3d of December, 1825, but that such notice was subsequently given — and the assignees, by a person authorized by them for this purpose, had demanded of him that he should pay over to them the amount of the debt due from him to Williams. Upon these facts, the court said they saw no reason why the trustee should not be charged. Parker, C. J.: "Does, then, a commission of bankruptcy in Eng. land, and an assignment of the bankrupt's effects under it, so transfer a debt due to the bankrupt from a citizen of this State to the assignees, that another citizen who We should limit this, however, to cases in which the assignee had not previously obtained possession. Our courts can hardly deny that the foreign assignee has acquired an inchoate title, and a right to perfect his title by possession as soon as he can. And if he thus perfects his title, having, to use the language of the civil law, not only the jus ad rem, but the jus in re, the property should be held to be his by legal title as complete and consummate as sale with delivery could give. (z) is a creditor of the bankrupt, cannot seize it on a trustee process and secure it to himself? We think it very clear that this question has not been settled in the affirmative in this State, nor in any other State in this Union, nor in the Supreme Court of the United States; but, on the contrary, that whenever the question has been raised, it has been determined in the negative. With respect to our own State, the question has not been settled either way directly, though there are some cases in which it has incidentally occurred; but from them nothing favorable to such assignments can be inferred." Ogden v. Saunders, 12 Wheat. 213; Dawes v. Head, 3 Pick. 128; Dawes v. Boylston, 9 Mass. 337; Milne ». Moreton, 6 Binn. 353; Blanchard v. Russell, 13 Mass. 1; Harrison v. Sterry, above cited, again reported, Bee, 244; the comments of Parker, C. J., on Goodwin v. Jones, 3 Mass. 514, in 6 Pick. 305; Ward v. Morris, 4 Harris & McH. 330; Holmes v. Remsen, 20 Johns. 229, Platt, J., reversing the decision of Kent, Ch., in Holmes v. Remsen, 4 Johns. Ch. 460; Wallace v. Patterson, 2 Harris & McH. 463; Ex parte Franks, 1 Cooke's Bankrupt Laws, 336; Burk v. M'Clain, 1 Harris & McH. 236; Mawdesley v. Parke, in the court of Rhode Island, cited in Sill v. Worswick, 1 H. Bl. 680; Topham v. Chapman, 3 Consist. R. 285; Jones v. Blanchard, cited in the last case; Taylor v. Geary, Kirby, 313; Ex parte Blakes, 1 Cox, 398, a case in Virginia, cited in Waring v. Knight, 1 Cooke's B. L. 307; Richards v. Hudson (in Virginia), cited 4 T. R. 187; Ward v. Morris, 4 Harris & McH. 330, in the notes. See also, the intimations of the courts in the early American cases; Van Raugh v. Van Arsdaln, 3 Caines, 154; Bird v. Pierpont, 1 Johns. 118; Proctor v. Moore, 1 Mass. 198; Baker v. Wheaton, 5 id. 509; Watson v. Bourne, 10 id. 337; Ingraham v. Geyer, 13 id. 146; Walker v. Hill, 17 id. 383; the comments of Parker, C. J., on these cases, in Blake v. Williams, above cited; Smith v. Smith, 2 Johns. 235; Bird v. Caritat, id. 342; Abraham v. Plestoro, 3 Wend. 538; Johnson v. Hunt, 23 id. 90; Lord v. Brig Watchman, Ware, 232; Borden v. Sumner, 4 Pick. 265; Saunders v. Williams, 5 N. H. 213; Mitchell v. M'Millan, 3 Mart. (La.), 676; Olivier v. Townes, 14 id. 93; Norris v. Mumford, 4 id. 20; Fall River Iron Works v. Croade, 15 Pick. 11; Fox v. Adams, 5 Greenl. 245. Chancellor Kent, in his Commentaries, admits that his opinion in Holmes v. Remsen cannot now be held to be the law in America. 2 Kent, 408, in the note; Merrick's Estate, 4 Ashm. 485; Lowry v. Hall, 2 Watts & S. 129; Mullikin v. Aughinbaugh, 1 Penn. 117; Goodall v. Marshall, 11 N. H. 88; McNeil v. Colquhoon, 2 Hayw. 24; Robinson v. Crowder, 4 McCord, 519; the recent and instructive cases, May v. Breed, 7 Cush. 15; Towne v. Smith, 1 Woodb. & M. 115; Sanderson v. Bradford, 10 N. H. 260-264. In the case of Eliver v. Beste et al. the Supreme Court of Missouri held, that where the plaintiffs and defendants were citizens of another State, where the defendants had made an assignment in favor of their creditors in accordance with the laws of that State, one of the creditors, a citizen of that State, cannot secure a preference over the other creditors in his own State, by process of attachment against the property of the insolvent in Missouri. As against such attachment, the title of the assignee wil prevail. Eliver v. Beste et al. 32 Mo 240. (z) This limitation is laid down in many of the cases in the preceding note, expressly or by implication, as in Blake v. Williams, 6 Pick. 286. See Towne v. Smith, Woodb. & M 115, 136; The Watchman, Ware, 232; Merrick's Estate. Real property has a lea loci, a positive locality, and must be governed in all matters relative to its transfer by the laws of that locality. This must be admitted in England, as well as here; and would be so the more readily because it is so seldoin more seldom there than here treated as merchandise. (a) But if an American, owning land in New York, and residing and trading in London, became bankrupt there, while his New York land certainly would not pass to his English assignee by his bankruptcy, it could be transferred to an American in trust for his assignee, for the benefit of his creditors, by his deed regularly and in good faith executed, delivered, and recorded, before any attachment or other process in this country. (b) 2 Ashm. 485. In May v. Breed, 7 Cush. 15, the facts of which have been stated, ante, Shaw, C. J., said: "We have been strongly pressed by the argument, that inasmuch as assignees of an English bankrupt cannot sue for and recover debts due the bankrupt, therefore the bankrupt law has no extra-territorial operation, and cannot give effect to a certificate of discharge, when set up here in bar by an English bankrupt. But we cannot perceive the force of this reasoning. The two things are not irreconcilable; they stand on different grounds, and depend on different and distinct principles. Though the point has long been doubted, we consider it now settled by a preponderance of authority, that when a debt due by an American merchant to an English bankrupt is attached by an American creditor of the English bankrupt, by a trustee process or process of foreign attachment, the assignee of the English bankrupt cannot come in and interpose such assignment to defeat such attachment, and claim the assets as by a prior title. But this is the extent to which the authorities go. It by no means follows that the English law has no effect here. On the contrary, we think it would enable the assignee to take possession of, and appropriate to the use of the creditors, personal property not attached, or otherwise subject to any lien, under our laws; and also to collect and receive all moneys due the bankrupt, and give a good discharge therefor, and sue for and recover them, either in their own name or in the name of the bankrupt, if not attached or held by any process or lien by any other creditor." (a) Story on Conflict of Laws, §§ 20, 364, 414; M'Cormick v. Sullivant, 16 Wheat. 202; Ingraham v. Geyer, 13 Mass. 147; Rogers v. Allen, 3 Ohio, 488; Osborn v. Adams, 18 Pick. 245. Sir William Grant, in Curtis v. Hutton, 14 Ves. 537, 541, said: "The validity of every disposition of real estate must depend upon the law of the country where that estate is situated." In Oakey v. Bennett, 11 How. 33-45, Mr. Justice McLean, delivering the opinion of the court, said: "But it is an admitted principle, in all countries where the common law prevails, whatever views may be entertained in regard to personal property, that real estate can be conveyed only under the territorial law. . . . The same rule prevails generally in the civil law. This doctrine has been uniformly recognized by the courts of the United States, and by the courts of the respective States. The form of conveyance adopted by cach State for the transfer of real property must be observed. This is a regulation which be longs to the local sovereignty." (b) See the cases cited in the preceding notes. f SECTION IV. OF THE TRIBUNAL AND JURISDICTION. In England, since the beginning of the reign of William IV., there have been judges and commissioners in bankruptcy, constituting a regular court, with all the usual powers and incidents. Each judge and commissioner may sit alone to hear applications, and issue the proper processes, and for that purpose may decide the questions which come before him; and upon questions of fact, may order a jury. Questions of law go by appeal to the Lord Chancellor, and finally to the House of Lords. (c) In this country, the bankrupt law gave jurisdiction in these cases to the district judges of the United States. (d) But com (c) There would seem at one time to have been a question, under what authority the Lord Chancellor exercised a power in cases of bankruptcy, whether under the general duties of his office, as the head of a court of equity, or by virtue of special authority conferred upon him by statutes of bankruptcy. An examination of the authorities on this subject tends to show clearly that this power comes from the latter; and that although he exercises great discretionary powers in superseding commissions, and regulating proceedings under them, all his power is nevertheless derived from the statutes; he has none as a chancery court, or by virtue of his office as chancellor, and that the two jurisdictions are entirely separate and distinct; that the extraordinary authority which has been sometimes exercised, was so exercised, not by virtue of chancery power, but as conferred by implication of the statute. See on this subject, Ex parte Lund, 6 Ves. 781; Phillips v. Shaw, 8 id. 250; Ex parte Dewdney, 15 id. 496; Ex parte Cawkwell, 19 id. 233; Anonymous, 14 id. 449; Ex parte Thompson, 1 Glyn & J. 308; Ford v. Webb, 3 Brod. & B. 243; Ex parte Glanfield, 2 Glyn & J. 387; Ex parte Smith, 19 Ves. 474; Wilkinson v. Diggel, 1 B. & C. 160; Ex parte Dufrene, 1 Rose, 333; Eden on B. Law, 449, in Law Lib. vol. 34. (d) The jurisdiction conferred by the National Law of Bankruptcy on the district judges was greater than that exercised by the Lord Chancellor. In Ex parte Foster, 2 Story, 131, Story, J., alluded to the matter of jurisdiction as follows: "And here I lay it down as a general principle, that the district court is possessed of the full jurisdiction of a court of equity over the whole subject-matters which may arise in bankruptcy, and is authorized by summary proceedings to administer all the relief which a court of equity could administer, under the like circumstances, upon a regular bill, and regular proceedings, instituted by com petent parties. In this respect the act of Congress, for wise purposes, has conferred a more wide and liberal jurisdiction upon the courts of the United States than the Lord Chancellor, sitting in Bankruptcy, was authorized to exercise. In short, whatever he might properly do, sitting in Bankruptcy, or sitting in the Court of Chancery, under his general equity jurisdiction, the courts of the United States are, by the Act of 1841, competent to do." See, on the point of the jurisdiction of the district courts, the learned opinion of missioners were appointed in every part of each district, who could receive applications, and take proof, and send it to the district judge. In that court the assignee was admitted and authorized, and all trials took place there, and a jury was summoned whenever the district judge thought proper to require one. The State insolvent laws differ in these particulars considerably. Generally, however, judges of probate, masters in chancery, or commissioners of insolvency, sit in fact as a court, and issue process, and hold meetings, and try and decide questions, with power to send the questions of fact to a jury if necessary, and with an appeal in matters of law to the Supreme Court of law or equity. (e) Of the proceedings we shall speak in other sections. But it may be remarked here, that the statutes generally provide for a convenient resort to the court, and for proceedings of sufficient rapidity, without unsafe haste. And that the community are satisfied with the character and results of these proceedings very generally, may be inferred from the infrequency of appeals. SECTION V. WHO MAY BE BANKRUPTS OR INSOLVENTS. We have seen that in England, until very recently, and under our last National Bankrupt Law, all persons owing debts could become insolvents; (f) or by their own action, have the benefit of Hopkinson, J., in the Eastern District of Pennsylvania, in the case of Robert Morris, reported 1 Law Reporter, 354. (e) In 1856, the Legislature of Massachusetts provided by statute for judges of insolvency, each of whom should have his registrar, and hold a regular court at stated periods. It may, however, be presumed that the practice will not vary essentially from what it has been under the commissioners of insolvency. (f) It has been already said, and will be seen from the following section of the late United States Bankrupt Act, that the old distinction between bankruptcy and insolvency was so far maintained therein that traders could be compelled, and other debtors could apply, to go into insolvency, and it would seem, from the reasons which have heretofore governed legislators in reference to this distinction, that it may be expected to be found recognized in any future national bankrupt act. The first section of the late act provided as follows: "All persons whatsoever, residing in any State, District, or Territory of the United |