Ackerman v. Cross. abrogated the law of comity, in respect to a general assignment of property situated in this state, in a case where our citizens are affected. The simple question is whether the plaintiffs can claim title to the property in question, against the defendants' attachment and execution, tested by the provisions of our assignment law. The precise question in his case does not seem to have been adjudicated in this state. (Moore v. Willett, 35 Barb. 663.) This case cannot be cited as authority for the plaintiffs. It was the case of an assignment, by a debtor in North Carolina, of a vessel, then on its passage from the West Indies to New York. In contemplation of law, and for the purposes of transfer, it was situated at the place of the owner's domicil. No question of conflict of laws did or could arise. The assignment was doubtless madę before our statute of 1860, and being found good in North Carolina, was held good here, because not repugnant to our laws. This case must be considered with reference to its particular facts. The courts say, page 665, "the vessel for which the action is brought, being on the high seas, the assignment would operate on it irrespective of our laws, and the title would pass to the plaintiffs, if the assignment was valid in the place where it was made." The case in 21 Barb. 205, (Tyler v. Strong,) was not a case of a general assignment, but a sale of lumber, situated in Pennsylvania, by a vendor to a vendee residing in this state. One question was, whether there had been an actual delivery of the possession of the lumber, as required by the laws of Pennsylvania. The court held that the law of this state must determine the validity of the contract, upon the principle of the lex loci contractus. There was no question of the conflict of laws arising in the case. The rule, as we claim it to be, is well settled in Massachusetts, and recognized in Maine and New Jersey, Louisiana, New Hampshire and Connecticut. (Zipcey v.Thompson, 1 Gray, 243. Boyd v. Rockport S. C. Mills, 7 id. 406. Ingraham v. Geyer, 13 Mass. 146. Blake v. Williams, 6 Pick. 286. Mevus v. Hapgood, 19 id. 105. Varnum v. Camp, 1 Green, N. J. 326. Ackerman v. Cross. 20. 3 id. 326. Morris v. Olliver v. Towner, 2 Mart. Fox v. Adams, 5 Greenleaf, 245. Mumford, 3 Mart. Lou. N. S. Brig Watchman, 8. Am. J. 284. Lou. R. N. S. 93. Burrill on Assign. 362 to 373. Tiffany & Bullard, Law of Trusts, 294. 9 Conn. 487. Story on Confl. of Laws, 327.) These authorities sustain the principle that the lex fori prevails over the lex loci, and that the lex loci rei sitae prevails over the rule of the owner's domicil, in a case of personal property, when the rights and interests of the citizens of the country where the controversy arises, are affected. In the case of Zipcey v. Thompson, (1 Gray, 243,) it was held that "An assignment of property, in this commonwealth, made in New York, by an insolvent citizen of that state, to a trustee for the benefit of creditors, giving a preference to certain creditors, also citizens of New York, is ineffectual against an attachment, made in this commonwealth, by a citizen thereof." It was held invalid, because it contravened the policy of the Massachusetts law, forbidding preferences. Because the assignment in question contravenes the letter and policy of our statute, it must be held to be ineffectual to transfer the title to property in this state as against the process of a citizen. The assignment would be held void, had it been made by citizens of this state-to hold it valid, made in a foreign country, would be to give to an alien immunities and rights superior to those granted to our own people- an injustice which our courts ought not to be asked to perpetrate. Besides, it was held in Bruce v. Anderson, (Stewart's Lower Canada Rep. 127, cited 2 Kent's Com. 9th ed. 527, note a,) that an English commission of bankruptcy operates as a voluntary assignment by the bankrupt, but rights and privileges acquired by the provincial creditors are not affected by the commission or assignment. It is submitted that our courts should apply the same rules to an assignment in Canada, affecting property here, and aid the rights and interests of our citizens. The case of Sortwell v. Jewett, (9 Ohio, 180,) does not militate against the doctrine for Ackerman v. Cross. which we contend. The head note of that case is, "An assignment made by an insolvent debtor residing abroad, of land in Ohio, will not be superseded by a subsequent foreign attachment." The case was a bill of interpleader to distribute surplus on sale of mortgaged premises. The mortgagor lived in New York, where he made a general assignment for the benefit of creditors, and conveyed the mortgaged premises by a separate deed for the purposes of the trust, after which a creditor of the grantor in Ohio seized the land under a foreign attachment. The question was, whether the land belonged to the trust. It was held that it did, because the deed was made conformable to, and the trust did not conflict with any positive law of Ohio. Ch. J. Lane, in his opinion, says, "the natural right of the owner of property to dispose of it at his pleasure, depends on no locality, and is subject to no restrictions except that of conformity with the laws of the state (where the property is situated.) A compliance with these forms should avail equally the stranger as the citizen." In alluding to the laws of Maine and Massachusetts, he says "most or perhaps all the cases show the assignment to be void by the law of the jurisdiction in which the property is situated. Yet an effort is made to place their conclusion upon some other basis than this; upon some rule of policy, that a state should prefer or preserve the rights of its own citizens, and exempt them from the laws and acts of citizens of other states. This harsh discrimination the chief justice condemns, but he does not dissent from the decisions in the cases referred to, so far as they held a foreign voluntary assignment void, which conflicts with the positive laws of the state where the assigned property is situated. This is the position assumed by us in this case. The chief justice further says, "I need not examine by what law personalty is regulated, when held by a stranger; the present suit relates to land only. Its owner might lawfully dispose of it, although it lies abroad. It is only necessary to see if he adopted the forms required in our state, and whether the object he sought would be jus Ackerman v. Cross. tified if undertaken by one of our own citizens." The case of Frazier v. Fredericks, (4 Zabriskie, N. J. 162,) is not against us. The head note is; "a voluntary assignment for the benefit of creditors, valid where made, is sufficient to vest extra territorial property in the assignee, as against a subsequent attaching creditor, of the state where the property is situated, provided there be nothing in such assignment contrary to good morals or repugnant to the policy and positive institutions of the last mentioned state. The non-observance of statute direction of such state is immaterial." The assignment was made in Pennsylvania, embracing property in New Jersey, held good in the latter state, because it did not conflict with its law or policy. III. The taking possession of the property at Cape Vincent cannot help the plaintiffs' case. They derive all the title possessed under the assignment. They are trustees, and bring this action as such. This action must stand or fall with the assignment. Outside of the trust they have no title. If the assignment had been made in this state by a citizen, and was invalid, the property could have been seized under execution at the suit of a creditor, in the hands of the assignee. The property was not brought into this state for a temporary purpose. Nor was it in transit to a destination beyond the limits of the state. It was shipped from Bellville, in Canada, to the city of New York, for the purpose of sale there, on account of the debtors of the defendants, the plaintiffs' assignors. It is submitted that it is enough that the property is here, when the assignment is made, and that when an appeal is made to our courts, the law of our courts must decide the controversy, irrespective of the rule of domicil. IV. The statute of 1860 was intended to embrace all the estate of the assiguor, in this state, irrespective of his residence. (Laws of 1860, ch. 348, p. 594, § 1, sub. 6.) No assignment of property here can convey the title, against creditors, except the conditions of the law are fully complied with. In 2 Kent's Com., (*406,) the chancellor says, "It may now Ackerman v. Cross. be considered as part of the settled jurisprudence of this country, that personal property, as against creditors, has locality, and the lex loci rei sitae prevails, or the law of the domicile, with regard to the rule of preferences, in the case of insolvent estates. (Johnson v. Hunt, 23 Wend. 94, and cases cited.) The case of Holmes v. Remsen, (4 John. Ch. 460,) is also reported in 20 John. 229, overruled as to the question of the locality of personal property. V. The act also plainly contemplates a resident assignee and assignor, within the jurisdiction of our courts, and amenable to process. It is questionable whether a non-resident assignor can make a valid assignment of property in this state. (See §§ 3, 4, 5, Laws of 1860, ch. 348.) These rights of creditors to compel an accounting would be lost if an alien or non-resident assignee was permitted. VI. The assignment being void, it follows that the learned referee erred in ordering judgment for the plaintiff. But should the court be of the contrary opinion, still they should order a new trial. There being a fund in this state out of which the defendants' debt ought to be paid, even under the. assignment, the court will lay hold of it and see justice done to them, at the same time protecting all other creditors and the plaintiffs, and will not drive the defendants out of court remediless, and compel them to seek relief in a foreign court. (See opinion Mullin, J. 31 Barb. 407, 412.) L. H. Brown, for the respondents. I. The case declares the proofs made on the trial were sufficient to sustain every finding of fact found by the referee. Therefore the laws of Canada being matters of proof, and proved as facts, although the same are not incorporated in the evidence contained in the case, the finding of the referee that the assignment was valid under the laws of Canada, cannot now be questioned. The assignment is fair on its face-is found to have been made in good faith-without intent to defraud creditors;* made no preferences, but directed an equal pro rata distribu |