all these cases the assignment was made at the domicil, or else the statement is a mere dictum.1

Furthermore, if land situated abroad is the subject of the assignment, notwithstanding the general principle that the lex situs governs the validity and effect of all transfers of real estate, the better opinion is that, so far as the mere effect of the assignment as such is concerned, it is to be governed also by the lex loci contractus. The lex situs of the land, it is true, will govern so far as to determine the effect of the assignment in operating to pass the title to the assignee: it must be such a conveyance, in respect to the parties, the form, and the substance, as would operate to transfer the title to land under the lex situs. But these points being settled, it does not necessarily follow, because the deed would fail as an assignment for the benefit of creditors, if executed in the situs of the land, that it will there be considered invalid if valid by the lex loci contractus. In other words, its validity as a conveyance to pass title must be determined by the lex situs, but its effect as an assignment is to be determined by the lex loci contractus, unless the enforcement of the lex loci contractus would contravene the policy of the situs (and forum), or would injure its citizens.5

4 See Cole v. Cunningham, 133 U. S. 107, 128; Speed v. May, 17 Penn. St. 91, 55 Am. Dec. 540; Barth v. Backus, 140 N. Y. 230, 234, 235; Ockerman v. Cross, 54 N. Y. 29, 32; Guillander v. Howell, 35 N. Y. 657, 658; Moore v. Land Co., 82 Md. 288, 33 Atl. 641, 642; Fuller v. Steiglitz, 27 Ohio St. 355, 22 Am. Rep. 312.

5 Ante, § 11; Bentley v. Whittemore, 19 N. J. Eq. 462, 97 Am. Dec. 671, 675; Williams v. Dry Goods Co., 4 Okl. 145, 43 Pac. 1148, 1151; May v. Bank, 122 Ill. 551, 13 N. E. 806; Juilliard v. May, 130 Ill. 87, 22 N. E. 477; Hervey v. Edens, 66 Tex. 420, 6 S. W. 306; Thurston v. Rosenfield, 42 Mo. 474, 97 Am. Dec. 351; Chafee v. Bank, 71 Me. 514, 36 Am. Rep. 345. But some of the decisions are uncompromising in holding that the lex situs of the realty is to control under all circumstances. See Loving v. Pairo, 10 Ia. 282, 77 Am. Dec. 108; Moore v. Church, 70 Ia. 208, 59 Am. Rep. 439; Bank v. Stelling, 31 S. C. 360, 9 S. E. 1028. So far as principle is concerned, the difference between these two lines of decision is more apparent than real. It is in reality a question of the construction of the statutes of the situs, and of the importance to be attached to their policy. Both lines of decision agree that the lex situs is the final arbiter, but they diverge upon the question as to what are the requirements of the lex situs in respect to foreign assign.

The same general rule is also applicable where the subject of the assignment is a chose in action. Subject to the exceptions already mentioned, the lex loci contractus is the "proper law," and will control."

If at the time of the transfer the property passing under the assignment is situated in the locus contractus, the assignment being good there, the subsequent removal of the property into another State, by whose law the assignment is invalid, will not affect the operation of the lex loci contractus; and it seems that this is true, whether or not the assignee has actually acquired possession of the property prior to the removal. The union of the lex loci contractus and the lex situs at the time of the assignment bestows upon the assignee a title unimpeachable even in the courts of the State whither the property is removed."

ment.

In the following sections we will consider the cases in which the "proper law" will be substituted by the lex fori et situs. § 134. What Creditors may Attack a Voluntary AssignThe mere fact that an assignment, valid where made, would have been invalid if the assignment had been made in the situs, does not of itself necessarily lead the courts of the situs to pronounce it invalid. The lex loci contractus is the proper law, and will prevail, unless one of two states of facts exists. The lex fori et situs may be substituted for the proper law, and may invalidate an assignment valid where made (though it will not validate an assignment invalid where made) in the following cases: (1) Where the creditors attacking the assignment are citizens of the forum, and rely upon ments. Is the lex situs to be applied literally in the case of assignments made in another State as well as in the case of domestic assignments, or is the lex situs intended to apply only to assignments made in the situs? See Bentley v. Whittemore, 19 N. J. Eq. 462, 97 Am. Dec. 671, 675; Chafee v. Bank, 71 Me. 514, 36 Am. Rep. 345, 351.

6 Black v. Zacharie, 3 How. 483, 511; Butler v. Wendell, 57 Mich. 62, 23 N. W. 460, 58 Am. Rep. 329; Ingraham v. Geyer, 13 Mass. 146; Speed v. May, 17 Penn. St. 91, 55 Am. Dec. 540; Woodward v. Brooks, 128 Ill. 222, 20 N. E. 685; Egbert v. Baker, 58 Conn. 319, 20 Atl. 466; Askew v. Bank, 83 Mo. 366, 53 Am. Rep. 590; In re Dalpay, 41 Minn. 532, 43 N. W. 564. 7 May v. Wannemacher, 111 Mass. 202, 209; Moore v. Willett, 35 Barb (N. Y.) 663, 665; Varnum v. Camp, 1 Gr. L. (N. J.) 326, 25 Am. Dec. 476.

the lex fori as applicable to the transfer; (2) Where the enforcement of the lex loci contractus would contravene a pronounced policy of the forum. The first case is but one instance of the second, and they frequently merge into each other; but for the purposes of discussion here, they will be treated separately.

With respect to the first of these cases, it may be said that if the lex fori et situs invalidates an assignment valid where made, the policy of the law of the situs is at the very least to protect creditors who are its own citizens. It may or it may not intend to extend this protection to citizens of other States also, but it always goes to the former extent. Otherwise there would be no object in invalidating the assignment. Hence there will be found but few cases which, as against resident creditors, support a voluntary assignment declared invalid by the lex fori et situs, though valid by the lex loci contractus.1 The overwhelming current of authority is to the effect that resident creditors may always take advantage of the invalidity (under the lex fori et situs) of an assignment validly executed elsewhere."

1 See Speed v. May, 17 Penn. St. 91, 55 Am. Dec. 540; Law v. Mills, 18 Penn. St. 185; Train v. Kendall, 137 Mass. 366; which seem to go to this extreme in favor of the lex loci contractus. In the following cases the lex loci contractus and the lex fori et situs, despite minor differences, were regarded as substantially similar, and hence resident creditors were denied relief, though some of them contain dicta to the effect that resident and nonresident creditors should always be placed upon the same footing. Atherton Co. v. Ives, 20 Fed. 894; Askew v. Bank, 83 Mo. 366, 53 Am. Rep. 590; Fuller v. Steiglitz, 27 Ohio St. 355, 22 Am. Rep. 312; Law v. Mills, 18 Penn. St. 185; First Nat. Bank v. Walker, 61 Conn. 154, 23 Atl. 696. The last case did not involve conflicting titles under different laws, but merely superiority or priority of title. The point in that case was whether a creditor domiciled in Connecticut, having notice of an assignment made in New York, could attach goods in Connecticut embraced in the assignment. It was held that he could not.

2 Barnett v. Kinney, 147 U. S. 476, 481; Frank v. Bobbitt, 155 Mass. 112; Faulkner v. Hyman, 142 Mass. 53, 54, 55; Zipcey v. Thompson, 1 Gray (Mass.), 243; May v. Bank, 122 Ill. 551, 13 N. E. 806; Woodward v. Brooks, 128 Ill. 222, 20 N. E. 685; Juilliard v. May, 130 Ill. 87, 22 N. E. 477; Varnum v. Camp, 1 Gr. L. (N. J.) 326, 25 Am. Dec. 476; Bentley v. Whittemore, 19 N. J. Eq. 462, 97 Am. Dec. 671, 677; Green v. Iron Works, 49 N. J. Eq. 48, 23 Atl. 498; Walters v. Whitlock, 9 Fla. 86, 76 Am. Dec. 607; Egbert v. Baker, 58 Conn. 319, 20 Atl. 466, 467; Williams v. Dry Goods Co., 4 Okl.

Whether or not non-resident creditors will be accorded the same privilege is to be determined, in the absence of express legislative provision, by the policy of the statutes of the forum in the particular case. It is impossible to lay down any general rules by which this can be decided. The statute, its language, provisions, purposes, scope, etc., are all elements which must be reckoned with in determining the policy of the forum. More usually, perhaps, the policy of such statutes is held to be confined to the protection of domestic creditors only. But many cases treat the policy indicated by the statutes of the forum with such respect, when markedly opposed to the lex loci contractus, as to substitute the lex fori et situs for the lex loci contractus in all cases, regardless of the citizenship of the attacking creditors."

Some of the courts also distinguish between cases where the attacking creditors are citizens of the locus contractus and where they are citizens of the forum or of third States. These cases, though giving the benefit of the lex fori et situs to creditors generally, whether resident in the forum or not, refuse it to the citizens of the locus contractus, and require that their rights should be determined by their own law. It is difficult to see any sound basis for this rule save perhaps some general princi

145, 43 Pac. 1148, 1151; Hervey v. Edens, 66 Tex. 420, 6 S. W. 306, 309; Chafee v. Bank, 71 Me. 514, 36 Am. Rep. 345; Bacon v. Horne, 123 Penn. St. 452, 16 Atl. 794; Thurston v. Rosenfield, 42 Mo. 474, 97 Am. Dec. 351; Sheldon v. Wheeler, 32 Fed. 773; Schuler v. Israel, 27 Fed. 85.

3 Instances of this view taken of the supreme importance of the domestic policy may be found in the following cases: Atherton Co. v. Ives, 20 Fed. 894; Barth v. Backus, 140 N. Y. 230; Woodward v. Brooks, 128 Ill. 222, 20 N. E. 685, 686; First Nat. Bank v. Walker, 61 Conn. 154, 23 Atl. 696; Chafee v. Bank, 71 Me. 514, 36 Am. Rep. 345; Ramsey v. Stevenson, 5 Mart. (La.) 23, 12 Am. Dec. 468; Ex parte Dickinson, 29 S. C. 453, 7 S. E. 593 ; Bank v. Stelling, 31 S. C. 360, 9 S. E. 1028.

✦ See Barnett v. Kinney, 147 U. S. 476, 481; Cole v. Cunningham, 133 U. S. 107, 128, 129; Halsted v. Straus, 32 Fed. 279; Williams v. Dry Goods Co., 4 Okl. 145, 43 Pac. 1148, 1150; Woodward v. Brooks, 128 Ill. 222, 20 N. E. 685; Richardson v. Leavitt, 1 La. Ann. 430, 45 Am. Dec. 90; Faulkner v. Hyman, 142 Mass. 53, 55; May v. Wannemacher, 111 Mass. 202, 209; Whipple v. Thayer, 16 Pick. (Mass.) 25, 26 Am. Dec. 626; In re Dalpay, 41 Minn. 532, 43 N. W. 564, 566.

ple of estoppel. But such an explanation loses sight of the fact that it is the policy of the forum which is to be enforced by its courts. That policy, it would seem clear, would generally be intended to apply to the protection either of residents of the forum only, or of all creditors, regardless of citizenship. It would be highly improbable that the legislature, in enacting the statute, intended to create a shifting rule, applicable to some non-resident creditors and not to others; and no such presumption should be made, without plain evidence that such is the legislative intent. The better view is that all non-resident creditors should be placed upon the same footing, whether they reside in the locus contractus or in third States, to be either all included in, or all excluded from, the operation of the lex fori et situs, according as the circumstances point to one or the other course as that contemplated by the policy of the forum."

The above principles are applicable to assignments valid where made, but which, if executed in the forum, would be invalid as against creditors. But some of the courts have gone further, holding that, although the assignment is not inconsistent either with the lex fori et situs or the lex loci contractus, the mere fact that it is a foreign assignment will be sufficient to entitle creditors resident in the forum to attach the property thereby transferred, on the ground that resident creditors are entitled to payment out of property in the forum, before it can be taken out of the State to be distributed according to a foreign law. But the great weight of authority is in favor of the rule that the title, once validly vested by the lex loci contractus in

See Faulkner v. Hyman, 142 Mass. 53, 55.

See Green v. Van Buskirk, 5 Wall. 307; s. c. 7 Wall. 139; Barth v. Backus, 140 N. Y. 230, 238; Warner v. Jaffray, 96 N. Y. 248; Moore v. Church, 70 Ia. 208, 59 Am. Rep. 439; Chafee v. Bank, 71 Me. 514, 36 Am. Rep. 345, 349; Varnum v. Camp, 1 Gr. L. (N. J.) 326, 25 Am. Dec. 476,

487; Ramsey v. Stevenson, 5 Mart. (La.) 23, 12 Am. Dec. 468; Atherton Co. v. Ives, 20 Fed. 894. See Hibernia Nat. Bank v. Lacombe, 84 N. Y. 367. It is probably otherwise, if the transfer is by operation of law. See post, § 138;

ante, § 118.

7 Fox v.

Adams, 5 Me. 245; Woodward v. Brooks, 128 Ill. 222, 20 N. E.

685, 686; Holmes v. Remsen, 20 Johns. (N. Y.) 255, 265, 11 Am. Dec. 269;

Ingraham v. Geyer, 13 Mass. 146.