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jurisdiction exists wherever service can chattels should be made parties to the be had on the defendant, irrespective of foreclosure proceedings; and, of course, the locality of the property. Brown v. the trustee also where the mortgage is in Greer, 13 Ga. 285.

the form of a deed of trust. For a synopsis of the statutory pro

Purchasers of the mortgaged property visions of the various States and Terri- junior encumbrancers, as well as all others tories respecting the foreclosure of chat having liens upon or interest in the tel mortgages see Jones on Chattel Mort property, or in the right of redemption of gages (2d Ed.), chap. xvii.

the same, should be made parties so that The mortgagee is not bound to fore- their respective equities may be adjusted. close. He may assert his legal rights Chapman v. Hunt, 14 N. J. Eq. 149; under the terms of the instrument, and Greither v. Alexander, 15 Iowa, 470; take the custody of the chattels upon the Parroll v. Hughes, jo lowa, 459; Trittipo default. The mortgagor would then be v. Edwards, 35 Ind. 467; Bryan v. Robdriven to the enforcement of his right to ert, i Strobh. Eq. (S. Car.) 334. redeem. Freeman v. Freeman, 17 N. J. If the mortgagee attaches the mortEq. 44; Olcott v. Tioga R. Co., 40 Barb. gaged chattels, -Buck v. Ingersol, II (N. Y.) 179; Tannahill v. Tulile, 3 Mich. Metc. (Mass.) 226;—or causes them to be 104; s. C., 61 Am. Dec. 480. But so sold on execution,-Kimball v. Marshall, taking possession would constitute pay- 8 N. H. 291.-he by so doing waives his ment of the mortgage debt. Stoddard v. claim under the mortgage. If, however, Denison, 38 How. Pr. (N. Y.) 296; Free- he himself becomes the purchaser at the man V. Freeman, 17 N. J. Eq. 44. sale, he will be considered as holding the

Even if the property is of greater value property under the mortgage, and subthan the mortgage debt, the mortgagor has ject to redemption. Dabney v. Green, 4 no redress, except to redeem. Olcott v. Hen. & M. (Va.) 101. Tioga R. Co., 40 Barb. (N. Y.) 179: and The prevailing doctrine is that the see Landon Emmons, 97 Mass. mortgagee may sell the entire property 37.

upon default of any instalment, without Special grounds may exist for resorting special provision io that effect in the to a judicial foreclosure; as, where there mortgage; the reason being that the are many creditors whose interests are mortgagee's right to the property therenot accurately defined by the mortgage. upon becomes absolute. Jones on Chat

- Norton v. Ladd. 22 Conn. 203;-or tel Mort. (2d Ed.), $ 768. Bragelman v. where there is a necessity for marshalling Daue, 69 N. Y. 69; McConnell_2'. Scott, securities, -High_2'. Brown, 46 lowa, 67 III. 274. Compare Brink v. Freoff, 40 259;-or where there are other liens and Mich, 610. encumbrances which may necessitate an Where the entire debt was secured by equitable distribution, Hammers mortgage of real estate, and $200 of it by Dole, 61 III. 307;-or where, for any chattel

mortgage, and the real-estate cause, there is an impossibility of giving mortgage was foreclosed, the decree, the requisite notice, -Sullivan 7. Hadley, becoming absolute, operated as an extin16 Ark, 129.

But resort to foreclosure in guishment of the chaitel mortgage debt. equity cannot be had in those States Calkins v. Clement, 54 Vt. 635. Where where a statutory mode is provided. a part only of a debt was due, a chattel

No demand by mortgagee is necessary mortgage given to secure a portion, not before bringing bill to foreclose. Zeh- specifying what, will be presumed to have ner »). Anetman, 74 Ind. 24.

been given to secure that which was due. All persons interested in the mortgaged Calkins v. Clement, 54 Vt. 635.

279

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FOREIGN.-See note 1.

1. Foreign Assignments. See CONFLICT providing for inspection of exports, apof Laws.

plies to the markets of other States. Foreign Bills. (See BILLS AND Notes.) Shuster v'. Ash, ir S. & R. 90. -Notes of banks of other localities. They Foreign Paupers are

all those persons are not money; and a note payable in coming within the general provisions of such is not negotiable. Jones v. Fales, the poor laws, as persons standing in 4 Mass. 245.

need of relief, who are incapable of supForeign Bonds.—Where a testatrix, plying themselves, who have no parents having about £7500 in foreign bonds and or other kindred liable for their support, £500 in Australian bonds, her bequest of and who have no legal settlement in any

the foreign bonds, amounting to about city, town, or district in the common£8000, purchased with the economies of wealth.” In an act charging the support my own marriage settlement,” does not of foreign paupers on the State and of pass the Australian bonds. Hill 7'. Hill, prisoners on the county, the term includes L. R. 4 Ch. D. 97.,

those committed to the house of correcA power under a will to invest "upon tion as rogues and vagabonds, but not any of the stocks or funds of the govern those confined there for other ofiences. ment of the U. S. of America, or of the Opinion of the Judges, I Metc. (Mass.) government of France or of any foreign 578. government,” authorizes an investment Foreign Plea.- A plea to the jurisdicin stocks of New York and Ohio and tion. Burr, L. Dict. At common laiv bonds of Georgia. Said Jessel, M. R.: there was a distinction between a plea to “Each of these Siates is ruled over by a the jurisdiction and a foreign plea. The government-an actual government in latter was where the action was carried every sense of the word. Why then should out of the county or place where the they not be regarded as a foreign gove venue was laid.

i Ch. Pl. 443. Also, a ernment, that is, a government not under piea in another case between the same the jurisdiction of this country; for that parties, or the creditor and a third party is the meaning of the word 'foreign ? bound to pay the debt. Mazyck v. Coil, That being so, the word 'foreign’is sal- 3 Rich. (S. Car.) 237. isfied, and the word 'government'is also Foreign Port or Place.- In the matters satisfied." Cadette v. Earle, L. R. 5 Ch. of average, hypothecation, maritime lien,

and master's contracts, the term “foreign Foreign Citizens.-Indians

not port” includes all maritime ports other “foreign citizens” or subjects within art. ihan that where the vessel belongs. The 3, sec. 2, of the constitution of the United ports of the several States of the Union States. Kanahoo V. Adams, i Dill. (C. are foreign as to each other.

Lewis z'. C.) 344; Cherokee Nation v. State of Williams, 1 Hall (N. Y.): Burk v. The Georgia, 5 Pet. (U. S.) 1.

M. P. Rich, i Cliff. (C.C.) 308; Negus i'. Foreign Dominion. -A country which Simpson, 99 Mass. 388; The Sarah J. at some time formed part of the dominions Reed, 2 Low. (C. C.) 555: The Lulu, I of a foreign state or potentate, but which Abb. (C. C.) 191; s. c. on appeal, 10 by conquest or cession has become a part Wall. (U. S.) 192. of the dominion of the crown of England. But in a settlement act, a foreign port An act which prohibits the writ of habeas or place is a port or place out of the corpus running into any foreign dominion United States. Overseers of Chatham 2. of the crown, where there is a court estab- Overseers of Middlefield, 19 Johns. (N. lished with authority to issue the writ, Y.) 56. So also in an act giving a court does not include in that expression the jurisdiction of certain assaults.

etc., Isle of Man. Ex parte Brown, 5 B. & S. committed “in any foreign port 280.

place.” King v. Parks, 19 Johns. (N. Y.) Foreign Fishing.--Oil is not the product 375. As used in a non-importation act. of foreign fishing within the revenue laws the phrase was held to mean a place exif the fish from which it is obtained, clusively within the sovereignty of wherever caught, are caught by the crew a foreign nation. It is not applicable to of an American vessel. United States v. a place on the high seas without the juBurdett, 2 Sumn. (C. C.) 336.

risdictional limits of the United States, Foreign Government.-See supra this The Boat Eliza, 2 Gall. (C. C.) 4. tiile. Foreign Bonds.

A port of the United States in the pos. Foreign Markets. —This expression, session of the public enemy is a foreign taken in conjunction with “exportation port. United States 2. Hayward, 2 Ga! out of the province," in a colonial act (C. C.) 501. So far as the revenue laws

D. 710.

are

or

FOREIGN ASSIGNMENTS. (See also ASSIGNMENTS; ASSIGNMENTS FOR BENEFIT OF CREDITORS; CONFLICT OF LAWS.) 1. Of Personal Property, 281.

III. Debts and Choses in Action, 284. I Form of Assignment, 281. IV. Assignments for Benefit of CredII. Transfer of Goods, etc., 282.

itors, 284. I. Rule adopted, 282.

1. Involuntary, 284. 2. Reasons for the Rule, 282.

a. Domestic Creditors, 285. 3. Exceptions Stated in Rule, 283. b. Foreign Creditors, 285. a. Goods in Transit, 283.

c. English Rule, 286. b. Grods with the Owner, 283.

2. Voluntary, 286. 6. Marriage Transfer, 283.

a. General Rule, 286. d. When Both Parties Reside in b. Exceptions as to Real Estate, 287. same Country, 283.

c. Where Assignment is Opposed to e. When the Parties Select some

Public Policy, etc., 287. other Law by Contract, 283. 3. Where Possession has Chang4. Ship at Sea, 283.

ed, 288. I. OF PERSONAL PROPERTY.-1. Form of Assignment.-In reference to the form of the conveyance or assignment of personal property, one well-known authority 1 inclines to the opinion that the lex rei sitæ should control, and his view is also maintained by other writers on international law.?

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are concerned, this is true of any territory Foreign. Voyage. --A voyage 10 some in the enemy's possession. United States port or place within the territory of a 1. Rice, 4 Wheat. (U. S.) 246.

foreign nation. A whaling voyage is not Foreign State-An Indian nation is not such. Taber v. United States. I Story within the meaning of the term as used (C. C.), 1. Even if the vessel touch at a in art. 3, sec. 2, of the constitution of the foreign port, if she do not trade there. United States. Cherokee Nation The Ocean Spray, 4 Sawy. (C. C.) 105, Georgia, 5 Pet. (U. S.) 1.

On the other hand, a foreign voyage is Foreign Subject. -See FOREIGN CITI. defined to be a voyage to some place

without the territorial jurisdiction of the Foreign Trade was held to include trade United States. The Sloop Lark, i Gall. between the Atlantic and Pacific ports of (C. C.) 55. And see the Schooner Three the United States in United States v. Brothers, i Gall. (C. C.) 142. Pation, i Holmes (C. C.). 421.

1. Wharton on Confi. of Laws (ist Under an act exempting from duty Ed.), SS 697, 76, 372, 334, 297, 273. lumber to be used in the construction and 2. Bar. Priv. Inter. Law, $ 64. equipment of “ vessels built in the United “The doctrine of certain cases in Lou. Siates for the foreign trade," the terms isiana, applying the lex rei sitæ in situr "the foreign trade" limit the application which required tradition in order to of the act to vessels owned by Americans. transfer of property in movables and It does not apply to those built for for- rejecting the lex loci contractus, which eigners. Russel v. United States, 15 was the law of the owner's domicile, has Blatchf. (C. C.) 26.

been strongly controverted by Story and Foreign Vessel. —A vessel owned by others, but no authority is cited against residents in or sailing under the flag of it except the cases which establish the a foreign nation. Rapalje & L. L. Dict. lex domicilii as the law regulating succesWhether a ship is foreign or domestic de- sion. On the contrary, the application pends upon the residence of her owners, of the lex rei sita appears to be assumed and not upon the place of her enrolment. in all the numerous cases in which conThe Albany, 4 Dill, (C. C.) 339. But see ficts have arisen in regard to the transThe Mary Merritt, 2 Biss. (C. C.) 381. mission by sale of property in movables." The omission to register and enrol an Savigny, 138, n. 1 (Guthrie's Col.); Whar. American vessel does not make it for- ton on Conflict of Laws, $ 338; 2 Von eign. It only deprives it of the privileges Wachter, 388; 4 Phillimore, 396. of an American. Fox v. The Lodemia, “Of late years, however, the current Crabbe (C. C.), 271.

has set very strongly, even in commer.

Another maintains that the owner's domicile should in all cases determine the validity of every transfer, alienation, or disposition made by the owner, whether it be inter vivos or post mortem.1

II. TRANSFER OF GOODS, ETC.--1. Rule Adopted.—Movables, when not massed for the purposes of succession or marriage transfer, and when not in transit or following the owner's person, are governed by the lex situs, except so far as the parties interested may select some other law.2

2. Reasons for the Rule.—The reasons as given for the rule stated in the text laid down by Wharton are : 1. National preservation requires that no sovereignty should permit the intrusion on its soil of a foreign law.3 2. It is by the local, or the

as

cial countries, towards enforcing the lex tions which suit their own convenience. situs on the title to chattels." Westlake “Every country has a right of regulating Private Inter. Law, art. 267.

the transfer of all personal properly withThe same view is maintained by Presi: in its territory; bui where no positive reg. dent Wolsey, vol. i., $71, of his work on ulation exists the owner transiers at his International Law.

pleasure.' Milne v. Moreton, 6 Binn. * It is insisted that great embarrass- (Pa.) 353. 361. ment will occur if a transfer of movables The reasoning of Lord Kenyon in a must be made according to the law of the celebrated case, Hunter v. Polis, 4 T. situs, as it is not expected that persons R. 182–192, would certainly lead to the will know the laws of a foreign country. conclusion that an assignment of perThis difficulty is rather imaginary than sonal property, whether it were of goods real. The transfer is always held good or debts, according to the law of the for all general purposes. There owner's domicile would pass the title in would seem to be no great injustice in whatever country it might be, unless there holding that movables in one State, which was some prohibitory law in the country. probably have been a ground of their His language is: “Every person having owner's obtaining credit there should not property in a foreign country may dispose be transferred to another State to pay of it in this, though indeed if there be a foreign debts, leaving local debts unpaid, law in that country directing a particular unless it be done in accordance with the mode of conveyance, that ought to be law of their locality.” Peckham, J., in adopted.” Story Conflict of Laws (RedGuillaudet v. Howell, 35 N. Y. 657; S. C., field's Ed.), S 398. 6 Am. Law Reg. 522, note (N. S.).

The transfer of personal property by These results, however, are intended the assignment or sale made in accord. to apply to voluntary assignments for the ance with the laws of the country is the benefit of creditors.

domicile of the owner will be respected by 1. Story Conflict of Laws (Redfield's the courts of the country where the prop. Ed.). § 383, citing Bell Com. (5th Ed.) 4; erty is located, although the mode of Bell Com. (41h Ed.) 65, 67, 68; 3 Burge transfer may be different from that preCom. on Col. and For. pt. 2, chap. 20, scribed by the local law. But this is 750, 752.

a mere principle of comity between the Tilghman, C. J., on one occasion said: courts, which must give way when the “ The proposition (that personal prop- statutes of the country where the property has no locality, but is transferred erty is situated or the established policy according to the law of the country in of its laws prescribe to its courts a difwhich the owner is domiciled] is true in ferent rule. Green v. Van Buskirk. 5 a general sense, but not to its utmost ex- Wall. (U. S.) 307. tent, nor without several exceptions. In 2. Wharton Conflict of Laws (ist Ed.). one sense personal property has local. $ 311. This is the rule laid down by Pro. ity-that is to say, if tangible it has a fessor Wharton after an examination and place in which it is situated, and if invisi- criticism of some length of che contrary ble (consisting of debts) it may be said view held by some other leading authors. to be in the place where the debtor resides; See also Conflict of Laws, 3 Am. & and of these circumstances the more lib- Eng. Encyc. of Law, 616. eral nations have taken advantage by 3. Wharton Conflict of Laws, SS 305making such property subject to regula

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municipal, or the corporate law alone that the registry title of stocks can be made out.1 3. If the doctrine of lex rei site be not accepted, there is no available decisive law.4. Unless the ler rei sita be enforced, property loses its merchantable value.3 5. No absolute title can be given except by a proceeding in rem.4

3. Exceptions Stated in the Rule.-Q. Goods in Transit. --The law seems to be pretty well settled that in the case of goods in transit the law of the owner's domicile should control,5 and this applies as well to goods that have been forcibly or fraudulently withdrawn in a State other than that of the owner's domicile. 6

Some authority, however, seems to incline to the view that the lex loci contractus should prevail.?

b. Goods Following the Owner.-Where goods are with and following the owner, then the same rule is to prevail as goods in transit.8

(c) Marriage Transfer.-It seems to be well settled, where property is transferred by marriage from wife to husband or vice versa, the law of the domicile of the husband at the marriage is to prevail,9 unless a special contract is made to the contrary, 10 and when there is a change of domicile, the law of the actual and not the matrimonial domicile will prevail.11

(d) When Both Parties Reside in the same State or County.—When all the claimants to a movable are domiciled in the same country, and may therefore be viewed as consenting to the same municipal law, then so far as concerns their title to the movable the law of this common domicile prevails.12

(e) When the Parties Select some other Law by Contract.-When not illegal or immoral, the parties may specify by contract what law shall govern it, and such law will control the courts in their construction of such contract.13

4. Ship at Sea.--A ship in the open sea is regarded by the law of nations as a part of the territory whose flag such ship carries, 14 and in reference to the goods carried thereon, the law of the coun

1. Wharton Conflict of Laws, SS 307– 6. Paradise v. Farmers' Bank, 5 La. 10.

Ann. 710. 2. Wharton Conflict of Laws, SS 308– 7. Story Conflict of Laws, SS 322, 10.

401. 3. Wharton Conflict of Laws, SS 309

8. Wharton Conflict of Laws, $$ 350, 10.

306. 4. Wharton, Conflict of Laws, SS 310- 9. Wharton Conflict of Laws (ist Ed.),

SS 191-198; Story Conflict of Laws (Red6. Wharton Conflict of Laws, $ 355. field's Ed.), SS 186, 187, 202. There are See Abbott on Shipping (2d Ed.), pt. 1, a number of limitations to this docch. 1, § 6, ch. 9, S 3; 2 Kent Com. S 39; trine. Story (Redfield's Ed.), § 401; Inglis 2. 10. Story Conflict of Laws, S 187. Usherwood, I East, 515. Mr. Burge, 11. Story, S 187. however, declares that the lex loci con- 12. Wharton Conflict of Laws, SS 310, tractus prevails. 3 Burge's Com. 770, 369, 276. 778. And to this latter view Judge Story

13. Wharton Conflict of Laws, SS 310, to incline. Conflict of Laws 369, 276. (Redfield's Ed.), S 322, 401. Houston's 14. Loyd z'. Guibert, Law Rep. 1 Q. B. Stoppage in Transit, quotation from, in 115; Story Conflict of Laws, 4239; Wharton on Conflict of Laws, p. 306. Wharton Conflict of Laws, $ 356.

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