try to which the ship belongs prevails.1 As between the several States in the United States, a ship at sea is presumed to belong to the State in which she is registered.2 III. DEBTS AND CHOSES IN ACTION.-Sometimes it has been held that the legal seat of a debt is the domicile of the owner,3 and sometimes the place of payment. Upon these doctrines the leading American authorities on Conflict of Laws hold opposite opinions." IV.-FOREIGN ASSIGNMENT FOR BENEFIT OF CREDITORS.-1. Involuntary Assignment.—It is an elementary principle that a transfer of property in invitum is inoperative beyond the territorial limits of the government under and by whose laws the transfer is made. Whenever such transfer is made or is recognized and given effect by the courts of a foreign government, the courts act upon the principles of international courtesy. And where the rights of creditors are not concerned, the courts of the foreign jurisdiction should permit the assignee or receiver or other legal representa tive of the debtor to take possession of the debtor's property in that jurisdiction, or sue for it if it be necessary. And this has been permitted to be done in a number of instances. It has been 1. Wharton Conflict of Laws, § 356. 2. Kelley v. Crapo, 41 Barb. (N. Y.) 603; Moore v. Willett, 35 Barb. (N. Y.) 663. See Koster v. Merritt, 32 Conn. 246; Thuret v. Jenkins, 7 Martin (La.), 318. 3. Guillander v. Howell, 35 N. Y. 657. See Caskie v. Webster, 2 Wall. Jr. (U. S.) 131; Speed v. May, 17 Pa. St. 91; Clark v. Connecticut Peat., 35 Conn. 303. 4. Baylis v. Houghton, 15 Vt. 626; Emerson v. Partridge, 27 Vt. 8; Ward v. Morrison, 25 Vt. 593. 401. 5. Wharton Conflict of Laws, SS 359. 364; Story Conflict of Laws, $$ 399, Professor Wharton says that with debts the law of the place of payment technically prevails, though the tendency in American courts is to hold that a domestic attaching creditor is, on general principles, entitled to prevail over the foreign assignee when the debtor resides in the domestic jurisdiction. Judge Story takes the view that in debts and choses in action the lex domicilii controls. A chose in action cannot be said to have any actual situs in the place where the debtor resides. As a general principle, it is payable at the residence of the creditor if not otherwise expressed, and a tender, to be good, must be made to the creditor. There would therefore seem to be no sound basis for the debtor's State to legislate exclusively as to the legality of the transfer of a debt made by a foreign creditor. In such cases, as in all others where the property transferred does not lie within the juris diction of another government, a sale or contract valid where made is valid everywhere. Guillander v. Howell, 35 N. Ý. 657. 6. Hutcheson v. Perhine, 16 N. J. Eq. 167; Walters v. Whitlock. 9 Fla. 86; Osborn 7. Adams, 18 Pick. (Mass.) 247; Dalton v. Currier, 40 N. H. 237; Edgerly v. Bush, 81 N. Y. 199, Harrison 2. Sterry, 5 Cranch (N. S.), 259: Hibernian, etc., v. Lacombe, 21 Hun (N. Y ), 166; s. c., 38 Am. Rep. 518; s. c., 84 N. Y. 367; Kelly v. Crapo, 45 N. Y. 86; Crapo v. Kelly, 16 Wall. (U. S.) 610; Willetts. Waite, 25 N. Y. 577; Story Conflict of Laws, 410-412. 7. Receiver of Bank v. First Nat. Bank, 34 N. J. Eq. 450; 2 Kent Com. 406. The question, then, is one of comity to be settled by the decisions of the courts of this State as determining how far they will recognize a foreign involun. tary assignment. Willets v. Waite, 25 N. Y. 577. 21 8. Hibernia Nat. Bank v. Lacombe, Hun (N. Y.), 166; s. c.. 84 N. Y. 367; 38 Am. Rep. 518; Holmes v. Remsen, 20 Johns. (N. Y.) 259; Hoyt v. Thompson, 5 N. Y. 351; Hunt v. Jackson, 5 Blatch. (N. J.) 349; Upton v. Hubbard, 28 Conn. 274; Nilne v. Moreton, 6 Binn. (Pa.) 353; Story on Conflict of Laws, § 420; In re Waite, 99 N. Y. 433, where see a very interesting case, with a full citation of authorities. 9. Merchants' Nat. Bank v. McLeod, 38 Ohio St. 174; Wilmer v. Atlantic, etc., held that in all cases where the rights of domestic creditors are not concerned, the transfer should be given the same force and effect as in the State under whose statute it was made.1 (a) Domestic Creditors.-As to foreign involuntary assignments, there seems to be no question but that they are void as against creditors of the jurisdiction in which the property is situated.o (b) Foreign Creditors.-As to foreign creditors as well as domestic, the rule seems to be well established that foreign involuntary assignments are void.3 2 Woods (C. C.) 409, 418; Iglehart v. Bierce, 36 Ill. 133; Graydon v. Church, 7 Mich. 36; Cagill v. Woolbridge, 8 Baxt. (Tenn.) 580; s. c., 35 Am. Rep. 716; Hurd v. City of Elizabeth, 41 N. J. L. I. 1. Bagby v. Atlantic R., etc., 86 Pa. St. 291; Receiver, etc., v. First Nat. Bank, 34 N. J. Eq. 450. "We shall not enter much into the discussion of the subject, and thus travel over ground so much marked by the foot. steps of learned jurists. Our main endeavor will be to ascertain what, by the decisions of the courts of this State, has become the law here. . . . . From all these cases the following rules are to be deemed thoroughly recognized and established in this State: 1. The statutes of foreign States can in no case have any force or effect in this State ex propria vigore, and hence the statutory title of foreign assignees in bankruptcy can have no recognition here solely by virtue of the foreign statute. 2. But the comity of nations, says Judge Denio, in Peterson v. Chemical Bank, is a part of the common law, allows a certain effect here to titles derived under the powers created by the laws of other countries, and from such comity the titles of foreign statutory assignees are recognized and enforced here when they can be, without any injustice to our own citizens and without prejudice to the rights of creditors pursuing their remedies here under our statutes; provided also that such titles are not in conflict with the laws or public policy of our State. 3. Such foreign assignees can appear, and, subject to the condition above mentioned, maintain suits in our courts against debtors of the bankrupt whom they represent, and against others who have interfered with or withheld the property of the bankrupt.' In re Waite, 99 N. Y. 433. force of the insolvent law of the State Hut 3. Hoyt v. Thompson, 5 N. Y. 351; Rhawn v. Pearce, 110 Ill. 350; Upton v. Hubbard, 28 Conn. 274. Hibernia Nat. Bank v. Lacombe, 84 N. Y. 367; s. c., 38 Am. Rep. 518, is an express authority. Plaintiff commenced in the State of New York an action against the Mechanics and Traders' Bank of New Orleans, a Louisiana corporation, on a draft and attached moneys of that corporation in deposit in New York. Plaintiff was a corporation organized under the laws of Louisiana. Before the attachment was levied the Mechanics and Traders' Bank went into liquidation under the laws of Louisiana, and commissioners were appointed to take possession of and administer the assets. They were made parties to the suit, and claimed that as to them the attachment was a nullity, on the ground that their appointment antedated the levying of the attachment, and that the plaintiffs could not claim that the laws of Louisiana, under which the property of the Traders' Bank was vested in them, were in operation in the State of New York, because it was itself a resident of the State of Louisiana. But the court of appeals refused to be governed by this argument, and decided that the foreign commissioners obtained no better title as against the foreign creditor than they would have obtained against a domestic creditor. The court said: "The remaining question relates to the claim made by Messrs. Lacombe and others, commissioners appointed by the court in Louisiana. Neither the law nor the adjudications under which they were appointed can have any operation here. They are strictly local, and affect nothing more than they can reach. For the rule, as we conceive it, is well settled that an assignment by virtue of and under 2. Burrill on Assign. (3d Ed.) 406. The reason of the rule seems to be, that inasmuch as the conveyance is involuntary, and is without consideration, it is void as against the grantor, except by (c) English Rule.-It is well settled in Great Britain that an involuntary transfer under her bankrupt laws is operative in every jurisdiction, not only on foreign, but also as against domestic creditors of the bankrupt. And an assignment in bankruptcy under foreign laws will be held to pass the title to the bankrupt's property in England, even as against a subsequent seizure of the property by an English creditor. And the same rule has been established in Scotland.3 But it has received this qualification in the English courts, that the title of the foreign assignee will be held paramount in only those cases in which it appears that in the domicile of the debtor there is a bankrupt law in form and substance.4 2. Voluntary Assignments.-(a) General Rule.-In voluntary assignments a different rule prevails than in involuntary assignments or bankrupt proceedings. A voluntary assignment, being by the owner, is the exercise of a personal right belonging to him to dispose of his effects. And the general rule is, that if a voluntary assignment is valid where made, it is valid everywhere ; and in all a foreign law does not operate upon a debt or right of action as against a person in the State. The plaintiff, as we have seen, although a foreign creditor, is rightfully in our courts, pursuing a remedy given by our statutes. It may enforce that remedy to the same extent and in the same manner and with the same priority as a citizen. Any other construction would make the permission of the statute a form without a benefit-a formality, and not a matter of substance; a mere delusion. Once properly in court and accepted as a suitor, neither the law nor the court administering the law will admit any distinction between a citizen of its own State and that of another, Before the law and its tribunals there can be no preference of one over another." Again, in Johnson v. Hunt, 23 Wend. (N.Y.) 91, the court said, in referring to Abraham v. Plestero, 3 Wend. (N. Y.) 538: The amount of the decision, as I understand it, is, that an assignment in invitum under the laws of one State or nation has no operation in another even with respect to its own citizens; that the bankrupt, the subject of the very country under whose laws he was proceeded against, may on crossing the territorial line dispose of the property which he has brought with him, may withhold it entirely from the creditors who are proceeding against him in the foreign jurisdiction; and it follows that other creditors coming into the same jurisdiction may either pursue him by attachment, by judgment and execution, or take a voluntary transfer of the property so brought by the debtor in satisfaction of his claim." 1. Story Confl. of Laws, § 409; Hunter v. Potts, T. R. 182; Sill v. Worswick, I H. Bl. 665. 2. Story Confl. of Laws, § 409; Jollet v. Deponthieu, 1 H. Bl. 132, note; Solomons v. Ross, I H. Bl. 131, note. 3. Stein's Case, 1 Rose Cas. on B. 462; Selkrig v. Davies, 2 Dowl. 230. 4. Story Confi. of Laws, § 415. 5. Rogers v. Allen, 3 Ohio, 488; Osborn v. Adams, 18 Pick. (Mass.) 247: Abraham v. Plestero, 3 Wend. (N. Y.) 538; Clark v. Booth, 17 How. (U.S.) 377; Burrill on Assign. (3d Ed.) 405. See In re Page & Sexsmith L. Co., 31 Minn. 136; Butler v. Wendell, 57 Mich. 62; Richardson v. Rogers, 45 Mich. 591. 6. May v. Wannemacher, III Mass. 202; Johnson v. Sharp, 31 Ohio St. 611; Hanford v. Paine, 32 Vt. 442; Ockerman v. Cross, 54 N. Y. 29; Sanderson v. Bradford, 10 N. H. 260; Atwood v. Protection Ins. Co., 14 Conn. 555; Daniels v. Willard, 16 Pick. (Mass.) 36; Miller v. Kernaghan, 56 Ga. 155; Walters v. Whitlock, 9 Fla. 87-103; Atherton v. Ives, 20 Fed. Rep. (Ky). 894; Speed v. May, 17 Pa. St. 91. What is a Voluntary Assignment.-If it be an assignment under a compulsory statute, it exists alone by force of the law which cannot operate extra-territorially. The law is compulsory if it requires the assignment to be made even at the request of creditors, or if it provides for the discharge of the claims of creditors, without their consent, upon the voluntary surrender by the debtor, under the terms of the law, of all his property for the benefit of creditors. State insol such cases, if the assignment is prior in time, it will be prior in right, and will take precedence over an attachment, execution, or other process of a domestic or foreign creditor within the court's jurisdiction. (b) Exception as to Real Estate. The rule that an assignment valid where made is valid everywhere does not apply to real estate. Title to real estate can never be transferred except by the lex rei sitæ.1 (c) Exception where the Assignment is Repugnant to the Policy of the lex rei sita.-Where the assignment is opposed or repugnant to the policy of the laws of the State in which the goods are situated, and where it is sought to attach them, there the assignment will be held to be void, so far as domestic creditors are concerned; but as to foreign creditors it has been held that if valid where made it will be valid everywhere.3 But where the assignment was valid where made, and where the goods were situated, and the goods were afterwards removed to a State where it was invalid because it was opposed to a State law, the assignment will not be invalidated.4 vent laws which compel the insolvent debtor to surrender his property to an assignee, to be administered under the direction of a court for the benefit of creditors, and which compel the creditor to release the debtor on such full surrender, are instances of these classes. In America, such assignments are held inoperative upon property, real or personal, not situated within the territory over which the laws that make or compel the debtor to make them have dominion, as are discharges of the debtor, attempted to be made under them, inoperative as to persons not resident of the State under whose laws they are made. Weider v. Maddox, 66 Tex. 372, citing Wharton Confl. of Laws, 390, 390a; Story Confl. of Laws, 410-416; Burrill on Assign. (3d Ed.) 313; U. S. v. Banks, 8 Robinson (La.), 414; Hutcheson v. Peshine, 16 N. J. Eq. 170; Felch v. Bugbee, 48 Me. 9; Walters v. Whitlock, 9 Fla. 95: Ogden v. Saunders, 12 Wheat. (U. S.) 213; Harrison v. Sterry, 5 Cranch (U. S.), 239; Dalton v. Currier, 40 N. H. 237. 1. Burrill's Assignments (3d Ed.). p. 406; Story Confl. of Laws, SS 428-444; Wharton Confl. of Laws, § 273. It cannot be doubted that a deed of assignment for the benefit of creditors may be made in a sister State by a non-resident of the State, and that if its execution and acknowledgment accord with our statute, it is valid. King v. Glass (Iowa, 1887), 34 N. W. Rep. 830; Moore v. Church, 70 Iowa, 208. 2. Green v. Van Buskirk, 7 Wall. (U.S.) 139; Hervey v. R. I. Locomotive Works, 83 U. S. 664; Varnum v. Camp, I Green (N. J.), 326; Bentley v. Whittemore, 19 N. J. Eq. 462; Bryan v. Brisbin, 26 Mo. 423; Philson v. Barnes, 50 Pa. St. 230; Guildander v. Howell, 35 N. Y. 657; s. c., 6 Am. L. Reg. (N. S.) 531, note; Mumford v. Canty, 50 Ill. 370; Zipcey v. Thompson, I Gray (Mass.), 243; Boyd v. Rockport Mills, 7 Gray (Mass.), 406; Stricker v. Tinkham, 35 Ga. 177; Fuller v. Steidlitz, 27 Ohio St. 355; Edgerly v. Bush, 81 N. Y. 199–206. See ASSIGNMENTS FOR BENEFIT OF CREDITORS, n. I, p. 873, Vol. I. Am. & Eng. Encycl. of Law. 3. May v. First Natl. Bank, 122 Ill. 551; Bentley v. Whittemore, 19 N. J. Eq. 462; Halstead v. Straus (1887), 32 Fed. Rep. (N. J.) 27. The execution of foreign assignments in New Jersey will be enforced by its courts as a matter of comity, except when it would injure one of its own citizens; then it will not. Justice Bradley in Halstead v. Straus, 32 Fed. Rep. (N. J.) 280; Thurston v. Rosenfeld, 42 Mo. 474; Whipple v. Thayer, 16 Pick. (Mass.) 25; Chafee v. Natl. Bank, 71 Me. 514; s. c., 36 Am. Rep. 345. 4. In Bentley v. Whittemore, 19 N. J. Eq. 462, the assignment was made in New York by a citizen of that State. A portion of the property was in New Jersey. A creditor who was not a resident of New Jersey sought to assail the assignment on the ground that it was repugnant to laws of that State. The court said: "Upon 3. Where Possession has Changed.—Where there has been an actual transfer of possession, the transfer will be upheld everywhere.1 FOREIGN ATTACHMENT.-(See also ATTACHMENT; GARNISHMENT.) I. Definition. Foreign attachment is a remedy against a nonresident debtor, by which property of his, or a credit due him, is secured for the eventual satisfaction of the debt, unless he appear meanwhile and give security for the payment in case of judgment against him, or bond the property attached or subjected to garnishment.1 what principle can a citizen of another State ask us to refuse to recognize the validity of an assignment made in New York, and in conformity to her laws. Upon what pleas consistent with comity under such circumstances are the authorities of this government to repudiate a transaction valid by the laws of a sister State? If the question touched one of our citizens we could vindicate our rejection of such transaction on the ground of our own statute, passed legitimately for the regulation of the affairs of such citizens. But if such rejection relates to the citizens of another State, how is such a line of conduct to be justified? We might indeed urge as a sort of excuse that the laws of New York regulating assignments were not similar to the laws of this State, and that we preferred the regulation of our law. . . . But I cannot think we have a right to endeavor to arbitrate in such a concern. . . The true rule of law and public policy is this: That a voluntary as signment made abroad, inconsistent in substantial respects with our statutes, should not be put in execution here to the detriment of our own citizens, but for all other purposes, if valid by the lex loci, it should be carried fully into effect." 1. Hanford v. Paine, 32 Vt. 442; Rice v. Curtis, 32 Vt. 460; Mead v. Dayton, 28 Conn. 33. Authorities. Wharton's Conflict of Laws (1st Ed.); Story's Conflict of Laws (Redfield's Ed.); Burrill on Assignments (3d Ed.); valuable note in 55 Am. Rep. 129; article 2 Western Law Monthly, 178; valuable note in 6 Am. Law Reg. 527; 2 Kent's Com. (Holmes' Ed.) 1. Definition. -Abbott's L. Dict.; Law and Equity Dict.; Bouvier's L. Dict.; Barnet's Case, 1 Dall. (Pa.) 152. "Foreign attachment is a remedy against debtors that are absent and nonresident, while domestic attachment is a remedy against resident debtors absenting or concealing themselves." Fuller |