Judd v. Lawrence

Wilde, J. This case comes before us on a petition to stay proceedings before the commissioner of insolvency in this county; on the ground that the commissioner has no jurisdiction in the case stated in the petition and admitted by the answer of the respondents. Arthur Sowerby, who made application to the commissioner, to take the benefit of the insolvent laws, was an alien residing in Northampton, in this county ; and, it is contended on the part of the petitioners, that the insolvent laws do not extend to aliens, and were not so intended by the legislature; and that if they are to be so construed, they are void by the constitution of the United States, being laws impairing the obligation of contracts. As to the first point, the insolvent laws (St. 1838, c. 163, and acts in addition thereto) extend in terms to all insolvent debtors, residing within this commonwealth; and this language unquestionably embraces aliens as well as native or naturalized citizens, unless it can be shown that such was not the intention of the legislature. It has been argiied, that this appears by the authority given to the commissioner to assign all the debtor’s estate, real and personal, whereas an alien cannot hold or effectually assign real estate. But, if this were so, there seems to be no reason why the personal estate of an alien .insolvent debtor should not be distributed among his creditors under the insolvent laws, as well as the personal estate of native citizens who have no real estate. But it is not true, that aliens cannot hold and assign real estate. It is true, an alien cannot take by descent, but he may take by purchase or devise, and can hold against all except the commonwealth, and can be divested only by office found, [535] and, until office found, can convey. Sheaffe v. O'Neil, 1 Mass. 256; Storer v. Batson, 8 Mass. 431; Fox v. Southack, 12 Mass. 143. And whatever title the insolvent debtor could convey by deed may be assigned by the statute. It was argued, that the courts of the United States have jurisdiction when an alien is a party, and that an attachment made by virtue of a writ from those courts cannot be dissolved, as is provided by the insolvent law of 1838, c. 163, <§> 20. But this objection would apply to an attachment of the property of a native citizen, as well as to that of an alien. We have no doubt, therefore, that an alien insolvent debtor is entitled to the benefit of the insolvent laws, and that he may be proceeded against by his creditors, in the same manner as they may do against a native citizen. The language of the statute extends to both, and there is no reason for any distinction between them. As to the objection, that these insolvent laws are repugnant to the constitution of the United States, we are of opinion, that it is not sustained by the cases and authorities cited. When it is said, in some of these authorities, that no state can pass an insolvent law, except so far as regards its own citizens, and that foreign creditors, and creditors in other states, cannot be barred, while state creditors may be, it was-not intended by the use of the word “ citizens ” to exclude-aliens ; an inhabitant may be termed a citizen, and there is no reason to suppose that the word was used in any other sense. Such a law, extending only to native or naturalized citizens, would as much impair the obligation of contracts, as a law extending also to aliens. We think, therefore, that these insolvent laws are valid, and that the commissioner of insolvency has jurisdiction, and is authorized to proceed in the case stated. Petition dismissed.