Booth v. Clark. The case was argued by Mr. Bradley, for the appellant, and by Mr. Lawrence and Mr. May, for the appellee. The counsel for the appellant contended: I. That by the proceedings in the court of chancery of New York the property of Clark was vested in the receiver, Booth, before Clark petitioned for the benefit of the bankrupt act, and the right of Booth was not affected by the voluntary bankruptcy and discharge of the defendant. 2 Rev. Stat., 173, §§ 38, 39, in margin; Storm v. Waddell, 2 Sandf. (N. Y.), Ch., 494, 510, 512, and cases cited. The order of the court works the transfer of the title. Mann v. Pentz, 2 Sandf. (N. Y.) Ch., 257, 271, 272. The subsequent discharge did not devest the title thus ereated. Marcy v. Jordan, 2 Den. (N. Y.), 570. It is like an execution in the hands of the sheriff, not levied, which, by the "settled law of the state," binds the property. Savage's Assignees v. Best, 3 How., 111. Or the attachment in a New Hampshire suit. Peck et al. v. Jenness et al., 7 How., 612, 619, 622. It is the settled law of the state of New York, 2 Sandf. (N. Y.), Ch., 519. II. The receiver could maintain any action in relation to the property, and rights of property, which the debtor himself could have had. 6 Barb. (N. Y.), 542, 544; 3 Sandf. (N. Y.), 311, 316, 317. III. The matter in controversy was a chose in action at the time of the appointment of the receiver, was personal property, followed the person of the owner, and passed to the receiver. The term chose in action is broad enough to pass the claim in question, whether the evidence of the debt was in his possession or not, at the time of the appointment of the receiver. Nathan *v. Whitelock, 9 Paige (N. Y.), 159; North v. *324] Turner, 9 Serg. & R. (Pa.), 244; and the authorities there cited. 19 Wend. (N. Y.), 75; Gillett v. Fairchild, 4 Den. (N. Y.), 80, 82, and cases cited. A claim upon a foreign government would be embraced in such an assignment. 4 Den. (N. Y.), supra, and cases cited. Couch v. Delaplain, 2 (N. Y.), 397, 402, 403; Milner v. Metz, 16 Pet., 321; Comegys v. Vass, 1 Pet., 193; 2 Story's Eq., §§ 829, 1040. The fund not being the subject of manual possession, an appropriation of it is all that is required. 5 Binn (Pa.), 392, 398. But it was not merely a loose unsettled demand of redress Booth v. Clark. for injuries. The treaties of 1839 and 1843, gave it a fixed character. Having no locality, the validity of its transfer depends on the law of the place where the transfer was made. 2 Kent Com., 570, 7th ed.; Story Confl., §§ 362, 383, 399; Van Buskirk v. Hartford Fire Insurance Co., 14 Conn., 583, 586, 587, 588, 590. "According to the law of the place where made. Black v. Zacharie, 3 How., 483; Oakey v. Bennett, 11 Id., 44. The court of chancery in New York had jurisdiction of the subject-matter, and of the person. It carried with it jurisdiction over his personal effects. Holmes v. Renesen, 4 Johns. (N. Y.) Ch., 485; S. C., 20 Id., 262; Hooper v. Tuckerman, 3 Sandf. (N. Y). Rep., 311, 317; Hoyt v. Thompson, 5 N. Y.. 320; Story's Coufl., 420; Life and Letters of Joseph Story, vol. 1, p. 380, Letter to Chancellor Kent. The defendant resided in the city of New York. He was engaged in business there. His original domicile was in Massachusetts; his next, a domicile for commercial purposes, in Havana; next, from 1841 to 1844, his residence and domicile. for business was in New York. And while so residing and doing business in New York, he appeared in the chancery court, in this cause. There is no evidence to show any other residence or domicile elsewhere, from 1841 to 1843. In the absence of such proof, prima facie he was a domiciled citizen of New York, and his rights over his personalty are to be governed by the laws of that state. We assume, upon these points, that if this cause was in a New York court, the right of receiver would not admit of dispute. IV. The circuit court of the District of Columbia had jurisdiction of this case; was bound to enforce the rights of the receiver according to the law of the state of New York, and ought to have rendered a decree in favor of the appellant. 1. It had jurisdiction of the cause, if the right of the receiver was complete under the laws of the state of New York. Holmes v. Renwer; Hooper v. Tuckerman; Hoyt v. Thompson; Story's Confl., 419, 420, 421, already cited; Thomas v. [*325 Merchant's Bank, 9 Paige (N. Y.), 216; McLaren v. Pennington, 1 Id., 102; Bank of Augusta v. Earle, 13 Pet., 520, 589, 590, 591; Metz v. Milner, 16 Id., 321. 2. There were no conflicting claims on the part of any citizen of the District of Columbia, and the court was bound to give effect to the foreign assignment, not only by the comity Booth v. Clark. of nations, but by the peculiar federal relations existing in this country. 3. The policy of the law of this District shows an enlarged comity. Executors and administrators, by statute act, (24th June, 1812, § 11, 2 Stat. at L., 758), and assignees of insolvents in the several states, have always been allowed by the courts to sue here. The receiver in this case is not a common law receiver, but a receiver by statute, as in case of insolvency. 4. The court had jurisdiction under the act of 3d March, 1849. The title of Booth being consummate, and the fund enjoined, and locked up in the treasury, at the instance of the creditors of Clark, it was subject to the claims of other creditors giving notice and filing their bonds. The design was to keep the money in the treasury, in order that claimants should have a reasonable time to prosecute their rights; the risk ran was that it should be paid over. As regards the claimant, it was merely directory. Time was not of the essence of the law. "There is a known distinction between circumstances which are of the essence of a thing required to be done by an act of parliament, and clauses merely directory. The precise time, in many cases, is not of the essence." Rex v. Loxdale, 1 Burr., 447. The provisions of a law which are merely directory, are not to be construed into conditions precedent. Laws are construed strictly to save a right or avoid a penalty, but liberally to give a remedy, or effect an object declared in the law. Whitney v. Emmett, 1 Baldw., 316. The intention of the legislature should be followed, whenever it can be discovered, although the construction seem contrary to the letter of the statute. Dwarris on Stat., 718; The People v. The Utica Insurance Co., 15 Johns., (N. Y.), 380. See also 6 Cranch, 307; 3 How., 565. By the court: "Courts are not to construe an act so liberally as to work injustice; but so liberally as to prevent the mischief, and advance the remedy." Jackson v. West, 10 Johns., (N. Y.), 466. Negative words will make a statute imperative; words in the affirmative are directory only. Rex v. Leicester, 9 Dowl., & Ry., 972; 7 Barn. & C., 12. *Where a statute directs a person to do a thing in a *326] given time, without any negative words restraining him from doing it afterwards, the naming of the time will be considered as directory to him, and not as a limitation of his Booth v. Clark. authority. Pond v. Negus, 3 Mass, 230; Smith's Com., § 670, et seq.; Stinson v. Huggins, 16 Barb. (N. Y.), 61. When an act is to be done within a given time, it may be done afterwards, if nothing have occurred to prevent it. Grif fith v. Minor, 1 La., 350; Proseus v. Mason, 12 Id., 16. Under a directory statute, a duty not performed at the time specified, may be valid if performed afterwards. Webster v. French, 12 Ill., 302. Remedial statutes have been made to extend, by an equitable construction, to other persons, to other things, to other places, and to other times than those expressly mentioned in the statute. Dwarris, 721-726. Apply these rules to this statute and the facts of this case, and the conclusion is inevitable, that so long as the fund continued in the treasury, the court had jurisdiction to entertain and adjudicate on the complainant's claim to it. It was of no importance that the proceedings should be instituted within any specific time after the award, though it was essential that they should be, while the money was in the treasury. The intent was to prescribe the length of time the money should remain without any claim. It was not a condition precedent, to give the notice within thirty days. There is nothing in the statute to restrain its being done afterwards. Finally: The circuit court had jurisdiction by reason of the general powers conferred upon it by statute. It has all the powers given to the circuit courts of the United States by the act of 13th February, 1801. "Cognizance of all cases in equity between parties, both or either of which shall be resident or be found within said district, (act of 27th February, 1801, § 5; 2 Stat. at L., 106), to proceed against non-residents in the same way as they are proceeded against in the general court, or in the supreme court of chancery in the state of Maryland. Act of 3d May, 1802 § 1; 2 Stat. at L., 193; and see Kendall v. The United States, 12 Pet., 524. Clark was here litigating the case of B. C. Clark, (now in this court,) and appeared and answered in this case. The fund itself had been enjoined, and was subject to the decree of the court, and was a fund in court. The court had juris diction. The counsel for the defendant in error contended:- 1. That the bill was properly dismissed, because the complainant had not filed his bill of complaint, given notice to the secretary of the treasury, or filed his bond, as required by the 8th section of the act of 3d March, 1849, (9 [*327 Stat. at L., 394. No notice was given to the secretary, the bill was not sworn Clark v. Booth. to or filed till the 29th of May, 1851, and the bond on the same day, being about fifteen days after the expiration of the thirty days limited in said section. 2. The proceedings in the chancery court of New York, being proceedings in rem, could only affect property within the territorial jurisdiction of the state. Story Conf. Laws, § 543. Indeed, the authorities in New York seem to go to the extent that the decree operates only on property discovered by the proceedings, even within the jurisdiction of the court. Storm v. Waddel, 2 Sandf., 495; 4 Edw. Ch., 658; 1 Paige, 637; 2 Id., 567; 7 Id., 47, 513; 8 Id., 569, 475. It will be seen by the record that the only return made by the receiver of any property of Clark was dated June 30, 1851, which was six years after the sale and eight years after the discharge of Clark in bankruptcy. In fact, no action was taken in this chancery proceeding, from the year 1842 until 1851. At the time that this receiver was appointed in New York, the claim now in controversy was a claim against the Republic of Mexico. Clark's native domicile was Massachusetts. He resided for a while in Havana, and afterwards returned to his native state, and then took up his abode in New Hampshire. Story Confl. L., §§ 591, 592. See 3. The bankrupt court having taken jurisdiction of the claim in controversy, and it having been disposed of under its decree, the property has effectually passed. City Bank of New Orleans v. Houston, 6 How., 486. 4. There was not, by the decisions in New York, any specific lien on the property in question by virtue of the appointment of a receiver; and if there had been, it should have been presented in the district court, and would have been there recognized. Ex parte Christy, 3 How., 316; Savage v. Best, 3 Id., 119; Norton v. Boyd, 3 Id., 436; Waller v. Best, 3 Id., 111; Jenness v. Peck, 7 Id., 612. Mr. Justice WAYNE delivered the opinion of the court. We learn from the record of this case that Juan de la Camara recovered a judgment in the supreme court of New York, against Ferdinand Clark, for $4,688, with interest at 7 per cent.; that a fieri facias was issued upon the judg ment, and that there was a return upon it of "no goods, chattels, or real estate of the defendant to be levied *328] upon." Upon his return, Camara filed a creditor's bill, before the chancellor of the first circuit in the state of |