Burk v. M'Clain

The Court set aside the attachment, as appears by the following opinion of Daniel Dulany, Esquire: Opinion op Daniel Dulany, Esquire. How far our attachment law, and the practice under it, if the question should be determined in the dernier resort, would be allowed to prevail, in the case of a bankruptcy in Britain after an assignment, it is not necessary to intimate my opinion. The question would be of great importance and require various considerations. The force and extent of the statutes concerning bankrupts are very great, and the ideas might perhaps be very different in England, and Maryland on the point, whether an act of Assembly, and the practice of a Colony, can controul the operation of statutes; but yet if our act and practice should not be allowed to have any degree of such controuling operation, it might be very injurious here to the credit of British merchants, for it would be extremely inconvenient, in any case, for a Maryland creditor to entitle himself to his proportion, under a distribution of a bankrupt’s estate, and in most cases it would be impracticable.

Wherefore, if creditors here should not be permitted to derive any security or benefit from our local laws, the credit of British merchants here would generally cease. Hitherto the property of a British merchant here, has been and is understood to be a depositum, or peculiar security for the pay ²³⁸ ment of country creditors; to the extent, therefore, of such property, credit is given here without inquiry into the circumstances of the merchant elsewhere, and that Britain does not derive very considerable commercial advantages from this confidence, can hardly be thought. It being generally impracticable for a country creditor to entitle himself to receive his proportion in Britain, in the case of a bankruptcy, and as therefore, if he had no remedy on the spot, he would suffer a total loss, and as such a situation would make every prudent man • very averse from giving credit to British merchants, and consequently prove very inconvenient to trade, I say on diese considerations, our attachment act and practice have been founded; but these reasons not applying to the case of