preferences arising out of the hypotheca or mortgage, Mr. Burge adopts the opinion of Rodenburgh, the two Voets, and Matthæus, that such privileges or preferences, even though conferred by the lex domicilii or the lex contractús, must be governed as to their admissibility by the lex sitús. So it may happen that instruments prepared in England as mortgages of property in her colonies may be ineffectual for that purpose, though the colonial court may collect the intention of the parties from these instruments, and endeavour to execute it according to the lex sitús. (y)

DCCLV. On the other hand it may happen that the hypotheca or mortgage security may be valid according to the lex situs of the property, and yet the debt or contracts be invalid, because contrary to the lex contractús. On this principle it has been well decided, both in England and the North American United States, that the taking foreign security does not necessarily entail as a consequence that the Contract is to be fulfilled where the security is taken. A loan of money in England with a mortgage security in a West Indian colony, was not allowed to have reserved for it the rate of interest allowed by the lex situs (i. e., of the colony), because contrary to the lex contractus (i. e., of England). (2)

Upon the same principle the Common Law courts of England, (a) France, (b) and the North American United States, (c) agree with the majority of jurists, (d) in holding that no action can be entertained or a judgment in rem be pronounced as to immoveable property situated in another

state.

(y) Ib. 394.

(2) Wolf v. Johnson, 10 Wheaton's (Amer.) Rep. 323.
Stapleton v. Conway, 3 Atkin's Rep. 727; 3 Burge, 395-6.

(a) Mostyn v. Fabrigas, Cowper's Rep. 180.

Doulson v. Matthews, 4 Durnford & East's Rep. 503.

(b) Cod. 463, t. xix. l. iii.

(c) Story, s. 467.

(d) 13 Burge, 396.

DCCLVI. The English court of chancery, however, entertains suits which have for their object to acquire a title and obtain possession of property situated out of its jurisdiction. It is difficult to defend this stretch of authority on sound principles of international jurisprudence. Mr. Burge observes, (e) "that this court professes only 'agere in personam; but, as it compels the defendant to divest himself of "the property or to subject it to a burthen, it indirectly acts " on the property." The exercise of this jurisdiction, when it is founded on some Contract made or some equity arising between persons in England, respecting lands in the colonies or in a foreign country, as in Penn v. Lord Baltimore, (f) or in Cranstown v. Johnston, (g) may be consistent with the principles laid down by jurists in the case of judgments which are both personal and real. But the exercise of its jurisdiction in making decrees for the foreclosure or sale of mortgaged property in the colonies is not so easily understood; it cannot, he observes, carry its decree into execution without the aid of the forum rei sita; and Mr. Burge is of opinion that the decree of the court of chancery ought not to operate as a lien on property out of its jurisdiction to the prejudice of a third party, who had acquired legally a previous lien and had no notice of the decree. (h)

(e) 13 Burge, 398.

(f) 1 Vesey's Rep. 444.

(g) 3 Vesey's Rep. 170, 5 ib. 276.
(i) 3 Burge, 399.

CHAPTER XXXIX.

TRANSFER OR ASSIGNMENT OF OBLIGATIONS BY THE OBLIGEE, (1.) BY ACT OF OBLIGEE, (II.) BY OPERATION OF LAWQUESTION AS TO PRIORITY OF LIENS BETWEEN ASSIGNEE OF OBLIGEE, AND CREDITOR OR TRUSTEE OF OBLIGEEBANKRUPTCY-PRESCRIPTION.

DCCLVII. The obligation may be transferred in two ways: (I.) By the voluntary act of the obligee; (II.) By the operation of the Law in the event of the obligee's insolvency or bankruptcy.

DCCLVIII. (I.) The obligee may of course transfer his obligation to another person, who would be called in English Law his assignee. If the subject of the obligation happen to be in one State, and the assignment to be made in another, some questions of importance and of difficulty may arise as to the Law which is to govern the form of the assignment, the manner of enforcing it, the possible conflict between the rights and liens of the assignee and the creditor or trustee of the assignor.

DCCLIX. What the English Law terms choses in action, e. g., Debts and Rights or Causes of Action, are universally treated by jurists as attached to the person of the creditor, and governed by the Law of his Domicil. (a) They may be the subject of assignment either absolutely or conditionally, with or without notice of intimation to the debtor, according to that Law. This position is, in fact, a part of the general

(a) Story, ss. 353, 355, 356, 395-400;

3 Burge, 777-8;

1 Bell, 556.

proposition that moveables are transferable according to the lex domicilii of the owner. It is well supported as an axiom of English, Scotch, and North American United States Law, by the authority of Lord Hardwicke, Lord Loughborough, Lord Kenyon, Lord Kames, and Mr. Justice Story. (b)

The English Judges, as will be seen, apply this doctrine not only to voluntary assignment by the party, but also to assignment by operation of Law, as in case of bankruptcy.

DCCLX. The lex fori, as will be seen, governs the form in which remedies are to be enforced. On this principle Mr. Burge is of opinion that even an obligation, assignable by the lex domicilii of the obligee, must be sued upon in England, where choses in action are by the common Law not assignable in the name of the original obligee; an Irish case (c) to the contrary cannot, he thinks, counterbalance the English cases (d) which have decided this point.

It would seem to be reasonable, however, that a distinction should be taken between the case of an obligation which was assignable in its origin and inception, and the case of one not so assignable, (e) and to confine to the latter class the rule insisted upon by Mr. Burge.

DCCLXI. As to the form of the assignment itself, the lex loci of the transaction must govern: this question and others kindred to it are more fully discussed in a subsequent chapter on Bills of Exchange.

(b) Sill v. Worswick, 1 H. Blackstone, 131, 665, &c., and cases therein referred to.

Selkrig v. Davis, 2 Rose's Bank. Cases, 97.

Hunter v. Potts, 4 Durnford & East's Rep. 182-192.

Story, s. 397-8.

(c) O'Callaghan v. Thomond, 3 Taunton's Rep. 81.

(d) Folliott v. Ogden, 1 H. Blackstone,‐131.

Innes v. Dunlop, 8 Durnford & East's Rep. 595.

Wolf v. Oxholm, 6 Maule & Selwyn, 99.

Jeffery v. MacTaggart, ib. 126.

(e) Westlake, s. 242.

DCCLXII. Questions of great nicety and difficulty may arise on the subject of priority of liens, in cases where the assignment is validly made in one state of an obligation or of any other personal property but the property happens to be locally in another state, by the Law of which it is liable to be attached by a creditor or trustee of the assignor. The true rule would seem to be, that if the creditor or trustee of the assignor had notice, at any time before judgment, of the prior lien of the assignees, such lien would be entitled to priority. The lex fori might certainly hold a different doctrine, and apply wrongly the maxim qui prior est in tempore potior est in jure; but then the property might be found afterwards in a third state, and the assignee might there sue for it, and the court of this third state decide that the assignee, and not the creditor or trustee of the assignor, was entitled to it.

DCCLXIII. On the other hand, where the attachment has been made by the creditor or trustee in the place where the property actually is, before the assignor has made the assignment, there is room for the application of the maxim qui prior est in tempore potior est in jure; and Story agrees, with the high authority of Casaregis, that it would be rightly applied by giving priority to the lien of the creditor or trustee over that of the assignee. (f)

DCCLXIV. In the last chapter we considered the transfer of an obligation by the voluntary act of the obligee. In this (g) chapter we have to consider the transfer of an

(f) Story, s. 399, 400, 400a (5th ed.), refers to recent decisions in Louisiana.

(g) Savigny, viii. s. 374 E.

J. Voet, s. 17. Comm. ad Pand. xx. 4, s. 12.

Puffendorf, t. i. obs. 217.

Merlin, Rep., Faillite et Banqueroute, s. 2, 11, art. x.

11 Massé, s. 61, 72, 314, 315, 328.

Story, s. 338-341 as to discharge; 403-423 as to assignment. 2 Bell's Comm. (ed. Shaw), 1294.