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Comment.

"The general rule is, that a transfer of personal property, good "by the law of the owner's domicil, is valid wherever else the "property may be situate."1 "The transfer of personal property "must be regulated by the law of the owner's domicil, and, if valid "by that law, ought to be so regarded by the Courts of every "other country where it is brought into question." 2

No reported case can (it is believed) be cited as absolutely supporting this Rule 3 in reference to individual assignments, e. g., by gift or sale; but the validity of such assignments, when made in accordance with the owner's lex domicilii, is so uniformly taken for granted by judges and by writers of eminence, such as Story, that we may assume that a sale or gift by a person domiciled in England will, at any rate if made in England, be held (if it be in accordance with English law) to be valid as regards goods wherever situate. Whether the same principle will apply to all other cases admits of doubt.

5

X, for example, domiciled and being in England, makes a gift by deed to 4 of goods at Paris. The gift is valid here without reference to French law. If X were to bring the goods to England, no third person having acquired a title to them under French law, the goods would be held to be the property of A. The same result ought (it would seem) to follow if X, when domiciled in England, but being in France, makes a gift by deed to A of goods at Paris. In such a case, however, our Courts would possibly hold that the form required by the lex loci was imperative, and that therefore, if the gift does not, by the law of France, pass the property in the goods, there has been no transfer of property at all.

X, again, domiciled and being in a foreign country, where property in goods can be conveyed by a verbal gift, gives A, by word of mouth, furniture of X's in London. The property (perhaps) passes to A.

1 Story, s. 384. Compare North Western Bank v. Poynter, [1895] A. C. 56.

2 Liverpool Marine &c. Co. v. Hunter, 1868, L. R. 3 Ch. 479, 483, judgment of Chelmsford, Ch.

8 The cases which may be cited refer to general assignments, e. g., in case of death.

4 As to French law, see Code Civil, Art. 931.

5 This limitation must probably be added in accordance with Rule 140, p. 530, ante. See Castrique v. Imrie, 1870, L. R. 4 H. L. 414; Cammell v. Sewell, 1860, 5 H. & N. 728; Stringer v. English &c. Ins. Co. 1870, L. R. 5 Q. B. 599.

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It must, however, remain doubtful whether at any rate the two last cases do not fall within the Exception to our Rule.

If a title acquired under the owner's lex domicilii conflicts with a title acquired under the lex situs, the latter (it is submitted) prevails. X, domiciled in England, there by deed gives goods in France to B. He afterwards in France gives them by delivery to A. If A obtains a good title under the law of France, the gift to A is valid in England as against the claim of B.1

Exception. When the law of the country where a movable is situate (lex situs) prescribes a special form of transfer, an assignment according to the law of the owner's domicil (lex domicilii) is, if the special form is not followed, invalid.2

Comment.

The law of the owner's domicil does not determine the validity of a transfer of movables, if "there is some positive or customary “law of the country where they are situate providing for special "cases (as is sometimes done), or, from the nature of the particu"lar property, it has a necessarily implied locality." Among the latter class have been placed contracts respecting public funds or stock, the local nature of which requires them to be carried into execution according to the local law. No positive transfer can be made of such property except in the manner prescribed by the local regulations.*

1 But see Coote v. Jecks, 1872, L. R. 13 Eq. 597. The question as to a conflict, in the case of a gift of goods, between the lex situs and the lex domicilii, might (semble) have been raised, but was not raised, in Cochrane v. Moore, 1890, 25 Q. B. D. (C. A.) 57.

2 Story, s. 383.

234, 246.

3 Story, s. 383.

▲ Ibid.

See Robinson v. Bland, 1760, 2 Burr. 1077, 1079; 1 W. Bl.

AMERICAN NOTES.

CHAPTER XXIII.

MOVABLES.

(Rules 139-141.) INDIVIDUAL Assignment of Movables. A transfer of movables, made in the country of the owner's domicil and in accordance with the law there prevailing, will generally be enforced by the Courts of the country where the property is situated, although the mode of transfer may be different from that prescribed by the law of the latter country. Green v. Van Buskirk, 5 Wall. 307; 7 Wall. 139; Barnett v. Kinney, 147 U. S. 476; 13 Sup. Ct. 403; Warner v. Jaffray, 96 N. Y. 248; Frank v. Bobbitt, 155 Mass. 112; 29 N. E. 209. This rule, however, must give way when the statutes of the country where the property is situated, or the established policy of its laws, prescribe a different rule. Green v. Van Buskirk, 5 Wall. 307; 7 Wall. 139; Barnett v. Kinney, 147 U. S. 476; 13 Sup. Ct. 403; Barth v. Backus, 140 N. Y. 230; 29 N. E. 209; Frank v. Bobbitt, 155 Mass. 112. As to conflict of laws touching conditional sales, see Benjamin on Sales, 6th Am. ed., Bennett, p. 292.

The general rule stated above as to the transfer of movables applies to the voluntary assignment by a debtor of his movables for the benefit of his creditors. Barnett v. Kinney, 147 U. S. 476; 13 Sup. Ct. 403; Schroeder v. Tompkins, 58 Fed. Rep. 672; Frank v. Bobbitt, 155 Mass. 112; 29 N. E. 209; Woodward v. Brooks, 128 Ill. 222; 20 N. E. 658; Lipman v. Link, 20 Ill. App. 359; Green v. Wallis Iron Works, 49 N. J. Eq. 48; 23 Atl. 498; Matthews v. Lloyd, 89 Ky. 625; 13 S. W. 106; Butler v. Wendell, 57 Mich. 62; Lane v. Wheelwright, 143 N. Y. 634; Vanderpoel v. Gorman, 140 N. Y. 563; Egbert v. Baker, 58 Conn. 319; 20 Atl. 466; Covey v. Cutler (Minn.), 56 N. W. 255; Paige v. Sexsmith Lumber Co. 31 Minn. 136; Smith's Appeal, 104 Pa. St. 381; Zuppan v. Bauer, 17 Mo. App. 678; Weider v. Maddox, 66 Tex. 372. Such assignment may be enforced against subsequently attaching creditors of the place where the property is situated. First Nat. Bank v. Walker, 61 Conn. 154; 23 Atl. 696; Train v. Kendall, 137 Mass. 366; Princeton Mfg. Co. v. White, 68 Ga. 96; Van Wyck v. Read, 43 Fed. Rep. 716; Askew v. La Cygne Exchange Bank, 83 Mo. 366; 53 Am. Rep. 590; Smith's Appeal, 104 Pa. St. 381; Cook v. Van Horn, 81 Wis. 291; 50 N. W. 893; Thompson v. Fry, 51 Hun, 296; 4 N. Y. Supp. 166. See Bacon v. Horne, 123 Pa. St. 452. This rule is, however, subject to the lex situs, under which the Courts may refuse to enforce the assignment as against domestic creditors, or on other grounds of interest or policy. Green v. Van Buskirk, 5 Wall. 307; 7 Wall. 139, approved in Barnett v. Kinney, 147 U. S. 476; 13 Sup. Ct. 403; Townsend v. Coxe (Ill.), 37 N. E. 689; May v. First Nat. Bank of Attleboro, 122 Ill. 551; Henderson v. Schaas, 35 Ill. App. 155; Green v. Wallis Iron Works, 49 N. J. Eq. 48; 23 Atl. 498; Kansas City Packing Co. v. Hoover,

1 App. D. C. 268; Faulkner v. Hyman, 142 Mass. 53; Warner v. Jaffray, 96 N. Y. 248; 48 Am. Rep. 616; Grady v. Bowe, 11 Daly, 259; J. M. Atherton Co. v. Ives, 20 Fed. Rep. 894; In re Dalpay, 41 Minn. 532; 43 N. W. 504; Weiskettle's Appeal, 103 Pa. St. 522. See Frank v. Bobbitt, 155 Mass. 112; 29 N. E. 209. Statutes in general terms forbidding an assignment with preferences are to be construed as affecting only domestic assignments. Barnett v. Kinney, 147 U. S. 476; 13 Sup. Ct. 403; Butler v. Wendell, 57 Mich. 62; Juillard v. May, 130 Ill. 87; 22 N. E. 477; Matthews v. Lloyd, 89 Ky. 625. Contra, Ex parte Dickinson, 29 S. C. 453, where an assignment made in New York, preferring the claims of employees, as required by the laws of New York, was held to be invalid on the ground of such preference in South Carolina, as against the subsequent attachments of foreign creditors. See Russell v. Tunno, 11 Rich. 303; Bank v. Stelling, 31 S. C. 360; 9 S. E. 1028.

Where partners, resident or domiciled in New Jersey, but doing business in New York, made an assignment of property in the latter State with preferences, such assignment was held to be valid in New York, though by the laws of New Jersey assignments with preferences are invalid. Smedley v. Smith, 8 N. Y. Supp. 100.

A statute forbidding corporations to assign with preferences, in contemplation of insolvency, does not apply to a foreign corporation. Lane v. Wheelwright, 69 Hun, 180; affirmed, 143 N. Y. 634. See Boehme v. Rall (N. J.), 26 Atl. 832. On the other hand, a foreign corporation not prohibited by its charter may assign with preferences, or confess judgment by way of preference, in a State where it is lawful to do so, and such assignment or confession will be valid as to property there situate, though a general enactment of the State under whose laws the corporation was created makes such acts unlawful. Pairpoint Mfg. Co. v. Watch Co. 161 Pa. St. 17; 23 Atl. 1003; 34 W. N. C. 216; Hall v. Ohio &c. Co. 24 Wkly. Law Bul. 310.

It has been held in New York that the title of a citizen of that State to personal property is not divested by its sale in a foreign country, without his authority or consent, to another citizen of the State, though the sale was sufficient to pass title in the foreign country. Edgerly v. Bush, 81 N. Y. 199. See also, Wylie v. Speyer, 62 How. (N. Y.) Pr. 107, where this principle was applied to overdue coupons sold in a foreign country and sent to New York, where they were payable, for collection.

The validity of a gift causa mortis is determined by the law of the place where it is made. Emery v. Clough, 63 N. H. 552.

An assignment, by a creditor residing in one State, of a debt due from a person residing in another State, is, if valid according to the laws of the former State, good in the State in which the debtor resides against the attachments of citizens of other States. Consolidated Tank Line Co. v. Collier, 148 Ill. 259; 35 N. E. 756.

Where the lex situs of a movable prescribes a special form of transfer, an assignment according to the lex domicilii is, if the special form is not observed, invalid. Warner v. Jaffray, 96 N. Y. 248. See Forbes v. Scannell, 13 Cal. 241.

CHAPTER XXIV.

CONTRACTS.1 GENERAL RULES.

(A) PRELIMINARY.

RULE 143.2- In this Digest the term "

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proper law of a contract means the law, or laws, by which the parties to a contract intended, or may fairly be presumed to have intended, the contract to be governed; 3 or (in other words) the law or laws to which the parties intended, or may fairly be presumed to have intended, to submit themselves.

Comment.

A contract is a promise, or set of promises, enforceable, or intended at any rate to be enforceable, by law. The parties to a contract must always, therefore, intend, or be presumed to intend, that it shall be subject to, or governed by, the law of some country, e. g., England, or, it may be, that part of the contract shall be governed by the law of one country, e. g., of England, where it is made, and part of the contract by the law of another country, e. g., of Scotland, where it is to be performed. The law or laws

1 Story, chap. viii., especially ss. 241-373; Westlake, 3rd ed., chap. xii., pp. 249-274; chap. xiii., pp. 275-283; Foote, 2nd ed., chap. viii., pp. 322-470; Wharton, chap. viii., ss. 393-546; Pollock, Principles of Contracts, 6th ed., pp. 369-377; Savigny (Guthrie's transl., 2nd ed.), ss. 369-374, pp. 194-272; Bar (Gillespie's transl., 2nd ed.), ss. 247-284, pp. 536–630.

2 For the substance of this definition, see Lloyd v. Guibert, 1865, L. R. 1 Q. B. 115, 122, 123, per Curiam, judgment delivered by Willes, J.; In re Missouri Steamship Co. 1889, 42 Ch. D. (C. A.) 321, 336, judgment of Halsbury, Ch. Compare comment on Rule 148, p. 553, post. See also, Hamlyn v. Talisker Distillery, [1894] A. C. 202.

3 Or, more accurately, though in more cumbersome language, "the law of "the country, or the laws of the countries, by the law or the laws whereof the "parties to a contract intended, or may fairly be presumed to have intended, "the contract to be governed."

Hamlyn v. Talisker Distillery, [1894] A. C. 202.

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