the assignee by the voluntary and contractual act of the owner (it is otherwise in the case of involuntary assignments in bankruptcy ), and not invalidated by the lex fori et situs, is not subject to impeachment by creditors resident in the forum or elsewhere, merely because the contract is made abroad. The assignment is here made in the exercise of the owner's jus disponendi, which should receive exterritorial recognition, save when the disposition is prohibited by the lex fori."

$135. Policy of the Forum. Although the invalidity of a foreign assignment under the lex fori et situs will suffice in general to defeat the assignment, so far as residents of the forum are concerned, it does not necessarily follow that the lex fori et situs will be substituted in behalf of non-resident creditors also. Whether or not this result will follow will depend upon the construction placed by the courts of the forum upon the policy of its laws. And this in turn will depend in large measure upon the language and scope of the domestic statutes.

Perhaps the most usual objection that has been taken under the lex fori to voluntary assignments valid in the locus contractus is upon the ground of preferences of creditors.

Under these circumstances, the lex fori et situs will generally be substituted for the proper law, as respects resident creditors, and the assignment will be regarded as ineffectual as to them.1 But even as to resident creditors, if the lex fori does not render the assignment roid because of preferences, but merely provides in such case that the assignment shall be regarded as made for the benefit of all creditors equally or pro rata, it has been

See post, §§ 137, 138.

Crapo v. Kelly, 16 Wall. 610, 622; Walters v. Whitlock, 9 Fla. 86, 76 Am. Dec. 607, 612; Askew v. Bank, 83 Mo. 366, 53 Am. Rep. 590; Train v. Kendall, 137 Mass. 366; Fuller v. Steiglitz, 27 Ohio St. 355, 22 Am. Rep. 312; Atherton Co. v. Ives, 20 Fed. 894; Law v. Mills, 18 Penn. St. 185; Ockerman v. Cross, 54 N. Y. 29; Cook v. Van Horn, 87 Wis. 291, 50 N. W. 893; First Nat. Bank v. Walker, 61 Conn. 154, 23 Atl. 696.

1 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, 674; Green v. Iron Works, 49 N. J. Eq. 48, 23 Atl. 498; Williams v. Dry Goods Co., 4 Okl. 145, 43 Pac. 1148; Zipcey v. Thompson, 1 Gray (Mass.), 243; Bryan v. Brisbin, 26 Mo. 423, 72 Am. Dec. 219.

sometimes held that the lex loci contractus should prevail.2 The reason is that the policy of the forum in such cases is not sufficiently pronounced to justify the courts of the forum in substituting the lex fori for the proper law. But it seems that if the property conveyed is real estate, any material departure from the lex situs in this respect will, as against resident creditors, invalidate the assignment.3

With respect to non-resident creditors, much more latitude is shown in enforcing the assignment according to the lex loci contractus. Indeed the lex fori must very clearly include within its protecting scope all creditors and all transactions wherever executed relating to the property situated within its jurisdiction, in order for it to override the lex loci contractus with respect to others than residents. The presumption is that it is intended to apply only to assignments made within its own. limits or for the protection of its own citizens.*

These principles apply to other regulations of the forum as well as to those relating to preferences of creditors. Thus where

2 Atherton Co. v. Ives, 20 Fed. 994; Law v. Mills, 18 Penn. St. 185; Ockerman v. Cross, 54 N. Y. 29. See Barnett v. Kinney, 147 U. S. 476; Varnuin v. Camp, 1 Gr. L. (N. J.) 326, 25 Am. Dec. 476.

3 Williams v. Dry Goods Co., 4 Okl. 145, 43 Pac. 1148; Bentley v. Whittemore, 19 N. J. Eq. 462, 97 Am. Dec. 671; Chafee v. Bank, 71 Me. 514, 36 Am. Rep. 345; Hervey v. Edens, 66 Tex. 420, 6 S. W. 306. See Moore v. Church, 70 Ia. 208, 59 Am. Rep. 439; Loving v. Pairo, 10 Ia. 282, 77 Am. Dec. 108; Bank v. Stelling, 31 S. C. 360, 9 S. E. 1028.

✦ Barnett v. Kinney, 147 U. S. 476; Williams v. Dry Goods Co., 4 Okl. 145, 43 Pac. 1148; Bentley v. Whittemore, 19 N. J. Eq. 462, 97 Am. Dec. 671, 677; Frank v. Bobbitt, 155 Mass. 112; May v. Bank, 122 Ill. 551, 13 N. E. 806; Egbert v. Baker, 58 Conn. 319, 20 Atl. 466; Thurston v. Rosenfield, 42 Mo. 474, 97 Am. Dec. 351; Law v. Mills, 18 Penn. St. 185; Speed 7. May, 17 Penn. St. 91, 55 Am. Dec. 540; Chafee v. Bank, 71 Me. 514, 36 Am. Rep. 345. An example of a domestic policy so pronounced as to override the lex loci contractus altogether will be found in Ex parte Dickinson, 29 S. C. 453, 7 S. E. 593, in which a foreign assignment of personalty was avoided as to non-resident creditors under the lex fori which provided that any assigument by an insolvent debtor containing preferences should be absolutely See also Douglas v. Bank, 97 Tenn. 133, 36 S. W. 874. Other examples may be found in some of the cases involving real estate. Bank v. Stelling, 31 S. C. 360, 9 S. E. 1028; Moore v. Church, 70 Ia. 208, 59 Am. Rep. 439. But see Atherton Co. v. Ives, 20 Fed. 894.

void.

the lex fori prescribes that assignments must be recorded, unrecorded foreign assignments, valid and effectual to pass title to the assignee where made, have been sustained or set aside according to the view of the particular court touching the scope of the domestic policy. The tendency is in favor of upholding the assignment, where non-resident creditors are concerned."

So the question whether an assignment is invalid as fraudulent per se, because of reservations and conditions contained in the deed, is to be decided by the same principles. And so with respect to the effect upon the validity of the assignment of a failure of creditors to consent thereto."

5 Williams v. Dry Goods Co., 4 Okl. 145, 43 Pac. 1148; Warner v. Jaffray, 96 N. Y. 248; Speed v. May, 17 Penn. St. 91, 55 Am. Dec. 540; Birdseye v. Underhill, 82 Ga. 142, 7 S. E. 863; Butler v. Wendell, 57 Mich. 62, 23 N. W. 460, 58 Am. Rep. 329; Cook v. Van Horn, 87 Wis. 291, 50 N. W. 893. See Douglas v. Bank, 97 Tenn. 133, 36 S. W. 874; Rice v. Courtis, 32 Vt. 460, 78 Am. Dec. 597.

6 Woodward v. Brooks, 128 Ill. 222, 20 N. E. 685; Livermore v. Jenckes, 21 How. 126; Rice v. Courtis, 32 Vt. 460, 78 Am. Dec. 597; Moore v. Willett, 35 Barb. (N. Y.) 663; Graves v. Roy, 13 La. 454, 33 Am. Dec. 568; Ramsey v. Stevenson, 5 Mart. (La.) 23, 12 Am. Dec. 468; Railroad Co. v. Glenn, 28 Md. 287, 92 Am. Dec. 688. See Wattson v. Campbell, 35 N. Y. 153; Gardner v. Lewis, 7 Gill (Md.), 378, 393, 398.

7 Frank v. Bobbitt, 155 Mass. 112; Faulkner v. Hyman, 142 Mass. 53; May v. Wannemacher, 111 Mass. 202.

CHAPTER XII.

INVOLUNTARY TRANSFERS OF PERSONALTY INTER VIVOS.

§ 136. Transfers by Marriage. We have already observed time and again the distinction between voluntary and involuntary transfers. In the former case, except where the actual situs of the property is the forum and there is ground to substitute the lex fori, the legal situs of the chattels is to be referred to the actual situs of the owner at the time of the transfer, and the lex loci contractus becomes the "proper law." In the case of involuntary transfers by operation of law, on the other hand, the legal situs of the chattels is to be referred to the legal situs (or domicil) of the owner at the time of the transfer, and the lex domicilii becomes the "proper law;" subject to be substituted by the lex fori et situs of the chattels, wherever the policy of the forum requires it.

To this class of involuntary transfers by operation of law belong those transfers, which take place under some laws, of the personal property of one consort to the other upon marriage. Thus the common law conferred upon the husband an absolute title to the chattels of the wife immediately upon the marriage, and a similar title to her choses in action, provided he reduced them into possession during the coverture. By the Roman law the property of the consorts was held in community. Numerous variations of these rules, as well as some entirely distinct, exist in the various States, and it becomes important to observe the law which properly governs the rights of the consorts in the personalty of each other.

These transfers, and the law properly governing them, have already been discussed in preceding sections, where they were regarded in the aspect of incidents of the marriage status, and we there saw that the lex domicilii of the parties at the time the

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property was acquired is (independently of nuptial agreement) the proper law" to control the rights of the parties.1 Regarding them now in the aspect of involuntary transfers by operation of law, exactly the same result is reached. The discussion of the principles involved need not be repeated here.

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§ 137. Involuntary Assignments in Bankruptcy or Insolvency. In cases of bankruptcy, where bankrupt or insolvent laws prevail, the property of the insolvent is transferred by order of court or by operation of law, for the benefit of all the creditors, to an assignee, who stands to a certain extent in the shoes of the insolvent debtor.

The primary object of such laws is the protection of creditors, and it is only where the assignment takes place at their instance that it can be termed "involuntary." In this respect, such transfers differ from ordinary transfers in invitum, like transfers upon marriage, the primary purpose of which is not the protection of creditors or third persons.

Whether the voluntary feature which appears in some bankrupt laws is to be referred to this head or to that of voluntary transfers of personalty, is not entirely settled,1 and in the succeeding discussion it will be left out of consideration.

The question now to be examined is the effect to be given in other States to an involuntary assignment in bankruptcy or insolvency in the State of the insolvent's domicil; whether or not it is to be deemed of universal obligation, so as to transfer to the assignee the insolvent's movable property wherever situated, and thus withdraw it from the reach of creditors in the courts of the actual situs.

1 Ante, §§ 80-82.

1 See Egbert v. Baker, 58 Conn. 319, 20 Atl. 466; Barth v. Backus, 140 N. Y. 230; May v. Wannemacher, 111 Mass. 202, 209; Hervey v. Edens, 66 Tex. 420, 6 S. W. 306, 309; Butler v. Wendell, 57 Mich. 62, 58 Am. Rep. 329, 23 N. W. 460, 462; Paine v. Lester, 44 Conn. 196, 26 Am. Rep. 442. It would seem upon principle, since the bankruptcy proceeding even when voluntary is in the nature of a judicial adjudication, and, as such, a proceeding in rem, it could only be effectual as to such property as is within the jurisdic tion. Nor can such a proceeding be said to be contractual, since it is done without the assent of the creditors whose debts are thereby released. See Barth v. Backus, supra.