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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. 6 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.S And this has been permitted to be done in a number of instances. 9. It has been
1. Wharton Conflict of Laws, S 356. diction of another government, a sale or
2. Kelley v. Crapo, 41 Barb. (N. Y.) contract valid where made is valid every. 603; Moore v. Willett, 35 Barb. (N. Y.) where. Guillander v. Howell, 35 N. Y. 663. See Koster v. Merritt, 32 Conn. 657. 246; Thuret v. Jenkins, 7 Martin (La.), 6. Hutcheson v. Perhine, 16 N. J. 318.
Eq. 167; Walters v. Whitlock, 9 Fla. 86; 3. Guillander v. Howell, 35 N. Y. 657. Osborn v. Adams, 18 Pick. (Mass.) 247; See Caskie v. Webster, 2 Wall. Jr. (U. S.) Dalton v. Currier, 40 N. H. 237; Edgerly 131; Speed v. May, 17 Pa. St. 91; Clark v. Bush, 81 N. Y. 199, Harrison u. v. Connecticut Peat., 35 Conn. 303. Sterry, 5 Cranch (N. S.), 259: Hiber
4. Baylis v. Houghton, 15 Vt. 626; nian, etc., v. Lacombe, 21 Hun (N. Y ), Emerson v. Partridge, 27 Vt. 8; Ward v. 166; s. C., 38 Am. Rep. 518; s. C., 84 N. Morrison, 25 Vt. 593.
Y. 367; Kelly v. Crapo, 45 N. Y. 86; 5. Wharton Conflict of Laws, SS 359, Crapo v. Kelly, 16 Wall. (U. S.) 610; 364; Story Conflict of Laws, $$ 399, Willetts 7'. Waite, 25 N. Y. 577; Story 401. Professor Wharton says that with Conflict of Laws, 410-412. debts the law of the place of payment 7. Receiver of Bank 7. First Nat. technically prevails, though the tendency Bank, 34 N. J. Eq. 450; 2 Kent Com. in American courts is to hold that a do- 406. The question, then, is one of com. mestic attaching creditor is, on general ity to be seitled by the decisions of the principles, entitled to prevail over the courts of this State as determining how foreign assignee when the debtor resides far they will recognize a foreign involun. in the domestic jurisdiction. Judge Storytary assignment. Willets v. Waite, 25 takes the view that in debts and choses in N. Y. 577. action the lex domicilii controls. A chose 8. Hibernia Nat. Bank v. Lacombe, in action cannot be said to have any actual Hun (N. Y.). 166; S. c., 84 N. situs in the place where the debtor resides. Y. 367; 38 Am. Rep. 518; Holmes v. As a general principle, it is payable at the Remsen, 20 Johns. (N. Y.) 259; Hoyt v. residence of the creditor is not otherwise Thompson, N. Y. 351; Hunt v. Jackexpressed, and a tender, to be good, must son, 5 Blatch. (N. J.) 349; Upton 7'. Hub. be made to the creditor. There would bard, 28 Conn. 274; Nilne v. Moreton, 6 therefore seem to be ro sound basis for Binn. (Pa.) 353; Story on Conflict of the debtor's State to legislate exclusively Laws, $ 420; In re Waite, 99 N. Y. 133, as to the legality of the transfer of a debt where see a very interesting case, with a made by a foreign creditor. In such full citation of authorities. cases, as in all others where the property 9. Merchants' Nat. Bank v. McLeod, transferred does not lie within the juris- 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.?
(6) 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. force of the insolvent law of the State Bierce, 36 Ill. 133; Graydon v. Church, where it is made; and to give force to 7 Mich. 36; Cagill v. Woolbridge 8 such law would be to permit a foreign Baxt. (Tenn.) 580; s. c., 35 Am. Rep. tribunal and a foreign law to regulate the 716; Hurd v. City of Elizabeth, 41 N. J. Trust property in another State. Hut
cheson v. Peshing, 16 N. J. Eq. 167; 1. Bagby v. Atlantic R., etc., 86 Pa. Wharton Confi. of Laws, Š 844. St. 291; Receiver, etc., v. First Nat. 3. Hoyt v. Thompson, 5 N. Y. 351; Bank, 34 N. J. Eq. 450.
Rhawn v. Pearce, 110 Ill. 350; Upton v. “We shall not enter much into the Hubbard, 28 Conn. 274. discussion of the subject, and thus travel Hibernia Nat. Bank v. Lacombe, 84 N. over ground so much marked by the foot. Y. 367; s. C., 38 Am. Rep. 518, is an exsteps of learned jurists. Our main en press authority. Plaintiff commenced in deavor will be to ascertain what, by the the State of New York an action against decisions of the courts of this State, has the Mechanics and Traders' Bank of New become the law here. . .. From all Orleans, a Louisiana corporation, on a these cases the following rules are to be draft and attached moneys of that corpo. deemed thoroughly recognized and es- ration in deposit in New York. Plainuff tablished in this State: 1. The statutes of was a corporation organized under the foreign States can in no case have any laws of Louisiana. Before the attachment force or effect in this State ex propria was levied the Mechanics and Traders' vigore, and hence the statutory title of Bank went into liquidation under the foreign assignees in bankruptcy can have laws of Louisiana, and commissioners no recognition here solely by virtue of the were appointed to take possession of foreign statute. 2. But the comity of and administer the assets. They were nations, says Judge Denio, in Peterson made parties to the suit, and claimed that v. Chemical Bank, is a part of the com- as to them the attachment was a nulliiy, mon law, allows a certain effect here to on the ground that their appointment titles derived under the powers created antedated the levying of the attachment, by the laws of other couniries, and from and that the plaintiffs could not claim such comity the titles of foreign statutory that the laws of Louisiana, under which assignees are recognized and enforced the property of the Traders' Bank was here when they can be, without any in- vested in them, were in operation in the justice to our own citizens and without State of New York, because it was itself prejudice to the rights of creditors pur- a resident of the State of Louisiana. But suing their remedies here under our stat- the court of appeals refused to be governutes; provided also that such titles are ed by this argument, and decided that the not in conflict with the laws or public foreign commissioners obiained no better policy of our State. 3. Such foreign as- title as against the foreign creditor than signees can appear, and, subject to the they would have obtained against a docondition above mentioned, maintain mestic creditor. The court said: · The suits in our courts against debtors of remaining question relates to the claim the bankrupt whom they represent, and made by Messrs. Lacombe and others, against others who have interfered with commissioners appointed by the court in or withheld the property of the bankrupt." Louisiana. Neither the law nor the adIn re Waite, 99 N. Y. 433.
judications under which they were ap2. Burrill on Assign. (3d Ed.) 406. pointed can have any operation here.
The reason of the rule seems to be, that They are strictly local, and affect nothinasmuch as the conveyance is involun- ing more than they can reach. For the iary, and is without consideration, it is rule, as we conceive it, is well settled void as against the grantor, except by that an assignment by virtue of and under
(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. 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 ;6 and in all a foreign law does not operate upon a 1. Story Confl. of Laws, $ 409; Hunter debt or right of action as against a person v. Potts, T. R. 182; Sill v. Worswick, I in the State. The plaintiff, as we have H. Bl. 665. seen, although a foreign creditor, is right- 2. Story Confl. of Laws, $ 409: Jollet fully in our courts, pursuing a remedy v. Deponthieu, i H. Bl. 132, note; Sologiven by our statutes.
It may enforce
mons v. Ross, I H. Bl. 131, note. that remedy to the same extent and in 3. Stein's Case, i Rose Cas. on B. 462; the same manner and with the same Selkrig v. Davies, 2 Dowl. 230. priority as a citizen. Any other construc- 4. Story Confl. of Laws, $ 415. tion would make the permission of the 5. Rogers v. Allen, 3 Ohio, 488; Osstatute a form without a benefit--a for- born v. Adams, 18 Pick. (Mass.) 247: mality, and not a matter of substance; a Abraham v. Plestero, 3 Wend. (N. Y.) mere delusion. Once properly in court 538; Clark v. Booth, 17 How.(U.S.) 377; and accepted as a suitor, neither the law Burrill on Assign. (3d Ed.) 405. See In nor the court administering the law will re Page & Sexsmith L. Co., 31 Minn. 136; admit any distinction between a citizen Butler v. Wendell, 57 Mich. 62; Richardof its own State and that of another, son v. Rogers, 45 Mich. 591. Before the law and its tribunals there can 6. May v. Wannemacher, III Mass. be no preference of one over another.” 202; Johnson v. Sharp, 31 Ohio St. 611;
Again, in Johnson v. Hunt, 23 Wend. Hanford v. Paine, 32 Vt. 442; Ockerman (N. Y.) 91, the court said, in referring to v. Cross, 54 N. Y. 29; Sanderson v. Abraham v. Plestero, 3 Wend. (N. Y.) Bradford, 1o N. H. 260; Atwood v. Pro538: “ The amount of the decision, as I tection Ins. Co., 14 Conn. 555; Daniels understand it, is, that an assignment in v. Willard, 16 Pick. (Mass.) 36; Miller v. invitum under the laws of one State or Kernaghan, 56 Ga. 155; Walters v. Whitnation has no operation in another lock, 9 Fla. 87-103; Atherton v. Ives, 20 even with respect to its own citizens; Fed. Rep. (Ky). 894; Speed v. May, 17 that the bankrupt, the subject of the very Pa. St. 91. country under whose laws he was pro- What is a Voluntary Assignment. - If ceeded against, may on crossing the terri- it be an assignment under a compulsory torial line dispose of the property which he statute, it exists alone by force of the has brought with him, may withhold it en- law which cannot operate extra-territirely from the creditors who are proceed- torially. The law is compulsory if it reing against him in the foreign jurisdiction; quires the assignment to be made even and it follows that other creditors coming at the request of creditors, or if it prointo the same jurisdiction may either vides for the discharge of the claims of pursue him by attachment, by judgment creditors, without their consent, upon the and execution, or take a voluntary trans. voluntary surrender by the debtor, under fer of the property so brought by the the terms of the law, of all his property debtor in satisfaction of his claim.” 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.
(6) 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 139; Hervey v. R. I. Locomotive Works, debtor to surrender his property to an 83 U. S. 664; Varnum v. Camp, I Green assignee, to be administered under the (N. J.), 326; Bentley v. Whittemore, 19 direction of a court for the benefit of N. J. Eq. 462; Bryan v. Brisbin, 26 Mo. creditors, and which compel the creditor 423; Philson v. Barnes, 50 Pa. St. 230; to release the debtor on such full sur. Guildander v. Howell, 35 N. Y. 657; s. C., render, are instances of these classes. In 6 Am. L. Reg. (N. S., 531, note; Mum. America, such assignments are held in- ford v. Canty, 50 Ill
. 370; Zipcey v. operative upon property, real or personal, Thompson, i Gray (Mass.), 243; Boyd v. not situated within the territory over Rockport Mills, 7 Gray (Mass.), 406; which the laws that make or compel the Stricker v. Tinkham, 35 Ga. 177; Fuller debtor to make them have dominion, as v. Steidlitz, 27 Ohio St. 355; Edgerly v. are discharges of the debtor, attempted Bush, 81 N. Y. 199–206. See ASSIGNto be made under them, inoperative as to MENTS FOR BENEFIT OF CREDITORS, n. persons not resident of the State under 1, p. 873, Vol. I. Am. & Eng. Encycl. of whose laws they are made.
Weider v. Law. Maddox, 66 Tex. 372, citing Wharton 3. May v. First Natl. Bank, 122 Ill. 551; Confl. of Laws, 390, 390a; Story Confi. Bentley v. Whittemore, 19 N. J. Eq. 462; of Laws, 410-416; Burrill on Assign. (3d Halstead v. Straus (1887), 32 Fed. Rep. Ed.) 313; U. S. v. Banks, 8 Robinson (N. J.) 27. (La.), 414; Hutcheson v. Peshine, 16 N. J. The execution of foreign assignments Eq. 170; Felch v. Bugbee, 48 Me. 9; in New Jersey will be enforced by its Walters v. Whitlock, 9 Fla. 95: Ogden v. courts as a matter of comity, except when Saunders, 12 Wheat. (U. S.) 213; Harrison it would injure one of its own citizens; v. Sterry, 5 Cranch (U. S.), 239; Dalton then it will not. Justice Bradley in Halv. Currier, 40 N. H. 237.
stead v. Straus, 32" Fed. Rep. (N. J.) 280; 1. Burrill's Assignments (3d Ed.). p. Thurston v. Rosenfeld, 42 Mo. 474; Whip406; Story Confl. of Laws, SS 428-444; ple v. Thayer, 16 Pick. (Mass.) 25; Chafee Wharton Confl. of Laws, $ 273.
v. Natl. Bank, 71 Me. 514; s. C., 36 Am. It cannot be doubted that a deed of as
Rep. 345. signment for the benefit of creditors may 4. In Bentley v. Whittemore, 19 N. J. be made in a sister State by a non-resi- Eq. 462, the assignment was made in New dent of the State, and that if its execu- York by a citizen of that State. A portion tion and acknowledgment accord with of the property was in New Jersey. A our statute, it is valid. King v. Glass creditor who was not a resident of New (Iowa, 1887), 34 N. W. Rep. 830; Moore Jersey sought to assail the assignment on v. Church, 70 lowa, 208.
the ground that it was repugnant to laws 2. Green v. Van Buskirk, 7 Wall. (U.S.) 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, 288.
V. What May be Attached, and II. Character of the Remedy, 289.
what May Not, 305.
I. In General, 305.
3. Promissory Notes, 308.
(a) Shares Owned Out of the 1. Non-resident Debtors, 291.
State-Certificates Not At2. Non-resident Present, 292.
tachable, 311. 3. Facts Showing Residence, 293.
5. Partnership Property, 311. 4. Absence, 294.
6. Money, 313. 5. Protracted Absence Removal, 7. Legacies, 314. 295.
8. Real Estate, 315. 6. Public Corporations, 296.
VI. Attaching in the Hands of 7. Cities, 297.
Third Persons, 316. 8. Private Corporations, 298.
1. Right to Retain, 317.
and Corporations when Non- 3. Rights of Garnisher, 318.
VII. The Writ, 319. 10. When Foreign Corporations Held VIII. Publication, 321. Not Liable, 302.
IX. Return of the Writ, 323. IV. Cause of Action which this X. Appearance of the Debtor, 323. Remedy May Aid, 303.
XI. Judgment and Execution, 326. 1. Debts Due, 303. 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 signment made abroad, inconsistent in State ask us to refuse to recognize the substantial respects with our statutes, validity of an assignment made in New should not be put in execution here to the York, and in conformity to her laws. detriment of our own citizens, but for all Upon what pleas consistent with comity other purposes, if valid by the lex loci, it under such circumstances are the authori- should be carried fully into effect.” ties of this government to repudiate a 1. Hanford v. Paine, 32 Vt. 442; Rice transaction valid by the laws of a sister v. Curtis, 32 Vt. 460; Mead v. Dayton, 28 State? If the question touched one of our
Conn. 33. citizens we could vindicate our rejection Authorities. Wharton's Conflict of of such transaction on the ground of our Laws (1st Ed.); Story's Conflict of Laws own statute, passed legitimately for the (Redfield's Ed.); Burrill on Assignments regulation of the affairs of such citizens. (3d Ed.); valuable note in 55 Am. Rep. But if such rejection relates to the citizens 129; article 2 Western Law Monthly, 178; of another State, how is such a line of valuable note in 6 Am. Law Reg. 527; 2 conduct to be justified ? We might in- Kent's Com. (Holmes' Ed.) deed urge as a sort of excuse that the laws 1. Definition. -Abbott's L. Dict.; Law of New York regulating assignments were and Equity Dict.; Bouvier's L. Dict.; not similar to the laws of this State, and Barnet's Case, i Dall. (Pa.) 152. that we preferred the regulation of our “ Foreign attachment is a remedy law. . . . But I cannot think we have a against debtors that are absent and nonright to endeavor to arbitrate in such a resident, while domestic attachment is a
The true rule of law and remedy against resident debtors absentpublic policy is this: That a voluntary as- ing or concealing themselves." Fuller