Louisiana system, a surrender made out of the state of property situated in it has no binding effect;1 and, by the converse of the same principle, that where a citizen of Louisiana, being in the State of New York, executed a deed of trust in conformity with the laws of the latter state, conveying a fund in that state to trustees, this conveyance could not be impeached in Louisiana.2 § 353. We may, in fine, hold it to be the settled law of our courts, both federal and state, that as against attaching rule is that creditors, an extra-territorial assignment has no effect unless valid by the lex situs, even though the assignment was valid by the law of the state of the assignor's domicil, in which state it was made. To this rule two qualifications are to be observed. In the first place, property once vested in an assignee will not be disturbed in another state, while retained by him in

General

an extra

territorial assignment passes no

property in

movables unless in conformity to lex situs.

1 Brent v. Shouse, 15 La. Ann. 110. 2 Hullin v. Faure, 15 La. Ann. 622. 8 Infra, §§ 386-391; Green v. Van Buskirk, 5 Wal. 307; 7 Wal. 139; Felch v. Bugbee, 48 Me. 9; Ames v. McCamber, 124 Mass. 85; Bishop v. Holcomb, 10 Conn. 444; Paine v. Lester, 44 Conn. 136; Pond v. Cook, 45 Conn. 130; Guillander v. Howell, 35 N. Y. 657; Varnum v. Camp, 1 Green N. J. 326; Bentley v. Whittemore, 19 N. J. L. (3 C. E. Green) 366; Stricker v. Tinkham, 35 Ga. 176; Olivier v. Townes, 14 Mart. La. 97; Johnson v. Parker, 4 Bush, 149.

As sustaining the text, see Southern Law Rev. for April, 1873, p. 223 et seq. As holding to the old doctrine, see opinion of Ranney, J., in Swearingen v. Morris, 14 Ohio St. 424, who, how ever, concedes that local liens have priority.

Where, in pursuance of a contract to be performed in a series of states, particular transfers of property are to be made, such transfers are to be in subordination to the lex rei sitae. Morgan v. R. R. 2 Woods, 244. See supra, § 292 a.

As leading to conclusions irreconcilable with the text may be mentioned Mason v. Alexander, 2 Ired. 288. In this case a father, domiciled in South Carolina, loaned to his daughter, resident in North Carolina, a slave; and subsequently made a gift of the slave to the daughter for life, with remainder to her issue. This limitation, it was admitted, would have been bad in South Carolina; and though good in North Carolina, was rejected by the Supreme Court of that state, on the ground that the lex domicilii of the father should prevail. The reason given was that it was to be supposed that the testator had the South Carolina law in his mind at the time. But so far from this being the case, we must conclude, supposing that the grantor intended to execute a valid instrument, that he had the law of North Carolina in his mind, by which the instrument would be effectual.

In Allen v. Baine, 2 Head, Tenn. 100, B., who was domiciled in Pennsylvania, assigned to trustees for creditors a legacy to which he was entitled

under the will of a testator who was

possession, no matter how defective by the law of the latter state the assignment may be.1 In the second place, we must remember that in some jurisdictions, where the attaching creditor is domiciled in the same state with the assignor, he may be precluded, on grounds elsewhere stated, from disputing the assignment in a foreign court.2 At the same time, the rule in the Supreme Court of the United States is that such co-domicil makes no difference, and this, in a matter of inter-state law, is decisive.

3

assign

ments with

preferences may be in

operative

§ 353 a. According to Judge Story, whether a voluntary assignment with preferences carries movables depends Foreign upon the lex loci contractus.4 This may be true as be- voluntary tween the parties to the assignment, but the rule does not hold good when the question arises whether a particular movable passes by a foreign voluntary assign ment with preferences. In such case the lex situs must prevail. If by that law voluntary assignments with preferences are proscribed, as against business morality, then to a foreign assignment will not be conceded a force denied to a domestic assignment of the same class, and such an assignment will

domiciled in Davidson County, Tenn. The assignment was duly executed and acknowledged on March 30, 1857, before a commissioner from Tennessee in Philadelphia. It was forwarded to Tennessee, and filed for registry in Davidson County, Tenn., in June, 1857. In October, 1857, the legacy was attached in Tennessee at the suit of C., a creditor of B. The court held that either the lex domicilii or the lex loci actus must prevail; that in either of these alternatives the law of Pennsylvania must be taken; and that by that law the assignment was bad, not having been recorded. The mischiefs which would arise from a general adoption of the ruling in this case are shown in the Southern Law Review for April, 1873, p. 242.

1 "When property has once vested in a trustee, assignee, or receiver, by

by local

policy.

the law of the state where the property is situated, it makes no difference whether it is done under the local law of the state or under the common law. The law of another state will not divest the trustee, assignee, or receiver, of his right to the property, should he take it into such state in the performance of his duty." Park, C. J., Pond v. Cooke, 45 Conn. 132; citing Crapo v. Kelly, 16 Wal. 610; Wales v. Alden, 22 Pick. 245; S. P., Delane v. Moore, 14 How. 253; Taylor v. Boardman, 25 Vt. 581; Bruce v. Smith, 2 Har. & J. 499.

2 Infra, § 369; Thurston v. Rosenfield, 42 Mo. 474.

3 Supra, § 346.

On this topic will be found some acute remarks by Fiore, § 341. 4 § 423 f.

goods in

At the

not be good as against a subsequent attaching creditor. same time there are cases, as we have just seen, in which, when the assignee under such an assignment has taken possession of the movables in question, his title will not be divested by the fact that the assignment is of a character prohibited by the lex situs.2 § 354. From the supremacy of the lex situs, as above stated, Distinctive may be excepted movables not in transit, or following rule as to the owner's person. This exception rests on necessity, transit. and ceases when the goods take a final location, — and the exception, as we will see, does not obtain in cases of common carriage. And the reasoning which diverts the lex rei sitae from goods in transit operates in the case of goods forcibly or fraudulently withdrawn to a state other than that of the owner's domicil. In such a case the Supreme Court of Louisiana, which holds, as has been seen, the lex rei sitae in its fullest sense, decided that the legal site of such goods continues to be the state from which they were thus surreptitiously removed. Yet even the exception as to goods in transit has limits which show the supremacy of the rule. The goods of a traveller may be seized to pay his hotel bill, no matter how numerous may be the states through which his railway ticket may entitle him to pass, or how transient may be his stay in the place of seizure. And the moment a package reaches the port of New York it is liable to be seized by custom-house officials, though the intention of the owner is to carry it immediately to the Havana steamer. § 355. In all modern systems the vendor of goods has a right, in case of gross breach of contract or bankruptcy on the part of the vendee, to arrest the delivery; but this right assumes in practice forms almost as various as there are countries. Now, in case the vendor desires to exercise this right, as to goods in transit through several countries, by what law is he bound? Subject to the qualifications above given, the answer may be, not by the law of the country in which

Stoppage in transitu governed by lex domicilii.

1 Zipcey v. Thompson, 1 Gray, 243; Maberry v. Shisler, 1 Har. (Del.) 349; Stricker v. Tinkham, 35 Ga. 177; Mason v. Stricker, 37 Ga. 262. See supra, § 348.

2 Supra, § 353; Crapo v. Kelly, 16 Wal. 610; Pond v. Cooke, 45 Conn.

132; U. S. v. Bank U. S. 8 Rob. La. 262. See Dundas v. Bowler, 3 McL. 397.

3 Infra, § 471. See Mumford v. Canty, 50 Ill. 370. Supra, § 301.

4 Paradise v. Farmers' Bank, 5 La. Ann. R. 710.

the goods may casually be, prior to delivery, but by that of his own domicil in all cases when from that domicil the goods are forwarded. And such appears to be the law generally re

The subject of common carriers will be hereafter discussed.2

6. Ships at Sea.

§ 356. A ship in the open sea is regarded by the law of nations as a part of the territory whose flag such ship carries. Hence follows the conclusion that when a merchant forwards goods on a ship of his own nationality, the

sitae of the goods and the lex domicilii of the owner of the goods coincide, until the ship arrives in port in another state. By this may be explained several cases quoted as establishing the lex domicilii, though they are only sustainable on the ground that the ship at sea is part of the territory whose flag she bears. And, as Bar well remarks, this disposes of Judge Story's objection to the lex rei sitae, that it affords no rule for vessels at sea.

serted by the United States during the Napoleonic wars, in opposition to the English claim of the right of imprisonment, and the collision between the two countries on this question was one of the causes of the War of 1812. The treaty of Ghent, which closed that war, ignored the question, but since then no claim of this order has been put forward by the British government. Sir R. Phillimore, i. p. 377, says: "I cannot think it would be now contended that the claim of Great Britain was founded on international law. In my opinion it was not."

power. But the application of this principle to merchant ships is equally beyond doubt." "When, however," as this eminent author further states (§ 319), "the ship enters a foreign jurisdiction, she is subjected to the law of the same." Bischof, in his recent excellent" Grundriss des positiven internationalen Seerechts" (Graz, 1868), speaks most positively to the same effect. 66 Every state is free on the free seas, so that its ships are to be regarded as floating sections of its territory; territoria clausa, —la continuation ou la prorogation du territoire; and those on board such ships, in foreign waters, are under their country's laws and protection. This even applies to children born to subjects on such ships." See, also, Woolsey Int. Law, §§ 54, 64; and Story, § 373 h. This passage was adopted by the Supreme Court of the United States in Crapo v. Kelly, 16 Wal. 61. To the same effect see 5 J. Q. Adams' Autob. 389. Compare Mohr v. R. R. 106 Mass. 67; Calahan v Babcock, 21 Oh. St. 281; Parker v. Byrnes, 1 Low. 539. The English government took this view in the Trent case; and it is now accepted by the English courts. R. v. Lesley, 8 Cox C. C. 269. Mr. Wheaton states the law to the same effect (part ii. c. ii. § 4); and see, also, Mr. Lawrence's very able notes, in loco. As to owner's responsibility for master, see infra, § 440; as to general average, infra, § 443. The doctrine of the text was as- question is settled by Crapo v. Kelly,

430

Mr. Hall (Int. Law, 1880, § 76) rejects the doctrine that a merchant vessel is part of the territory whose flag it bears; and he states that this doctrine is "not admitted" by Wheat. Elem. pt. ii. c. ii. § 100; Manning, 275; Twiss, i. § 159; and Harcourt, Historicus, No. x. Whatever we may say to the English citations, there can be no question that Mr. Wheaton's authority is otherwise interpreted by the Supreme Court of the United States. And Mr. Webster (Letter to Lord Ashburton, Aug. 8, 1842) emphatically declares that the territoriality of merchant ships is a doctrine beyond dispute. Compare 1 Halleck Int. Law (Baker's ed.), 175, where the position in the text is approved. To the same effect is Calvo, Droit. Int. (1872), i. 455-467; and Lawrence, in his commentary on Wheaton, ut sup. So far as concerns the United States, the

ut sup.