"cannot hold this case to be governed by Ex parte Pollard. 66 66 "If it can be decided in favour of the plaintiffs, with"out some further inquiry, it must, I think, be upon the "more broad and general ground, that the property "having been sold, and the proceeds of the sale received by the defendants, the assignees, the rights of the parties have ceased to be governed by the Law of "Demerara, the lex loci rei site, and must be governed "by the Law of this country, the lex loci contractus. No "authority has been cited, nor have I been able to find "any, which touches this point; but I think it must "depend upon the question, how far the lex loci rei sitæ "extends. If it regulates not merely the disposition of "the estate itself, but also the disposition of the proceeds "of the estate, it cannot, I think, be permitted that a "different Law should intervene and defeat those regula"tions. The interest in the proceeds is in substance and "effect an interest in the estate itself, and no rule is more universal than that the lex loci rei sitæ governs "the disposition of the estate. If the lex loci rei sitæ "only permits the alienation of the estate upon the terms "of the proceeds being applied in a particular manner, "this is a restraint upon the alienation; and there is no "doubt that the restraints which may be put upon "alienation must in all cases be governed by the lex loci "rei sita. Again, how could a contract to dispose of the "proceeds of an estate in a manner contrary to that pre"scribed by the lex loci rei sita be enforced? I cannot, "therefore, adopt the broad position contended for on "the part of the plaintiffs, but must send the matter to "the master for further inquiry as to the Law of "Demerara " (u). 66 (u) Waterhouse v. Stansfield, 9 Hare, Rep. p. 234 ; 21 L. J. N. S. (Ch.) p. 881 (1852). [Cf. Thurburn v. Steward, L. R. 3 P. C. p. 478, and Ex parte Holthausen, L. R. 9 Ch. Ap. p. 722.] DCCLIV. According to Mr. Burge, both "the con"stitution or acquisition of the jus hypothecæ in immove"able property, and the rights and obligations of the "mortgagor and mortgagee," are wholly dependent on the lex sitús. Therefore," whether the hypothec be con"ventional or express, tacit or judicial, or whether it be "general or special, it can affect immoveable property so "far only as it is sanctioned by the Law of the place in "which the property is situated” (x). He relies upon Rodenburgh, Matthæus, P. Voet, and J. Voet, for this doctrine, which seems to be well established both on principle and authority. With respect to the possible conflict between the lex contractus and the lex situs as to privileges or 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 sitûs (xx). 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 contract be invalid, because contrary to the lex contractús. On this principle it has been well decided, both in England and the 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 (x) Burge, Comm. vol. iii. pp. 388, 389. rate of interest allowed by the lex sitús (i.e. of the colony), because contrary to the lex contractûs (i.e. of England) (y). Upon the same principle the Common Law courts of England (z), as well as the courts of France (a), and the United States (b), have agreed with the majority of jurists (c), in holding that no [proceeding in rem] can be entertained, or judgment in rem pronounced, as to immoveeable property situated in another state. DCCLVI. The English Court of Chancery, however, entertained suits which, [though not in the form of proceedings in rem,] had 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 (d)," 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 (e), or in Cranstown v. Johnston (ƒ), 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 (y) De Wolf v. Johnson, 10 Wheaton, (Sup. Ct.) Rep. p. 367. Stapleton v. Conway, 3 Atk. Rep. p. 727; Burge, Comm. vol. iii. p. 395. (z) Mostyn v. Fabrigas, Cowper, Rep. at p. 176, per Lord Mansfield. Doulson v. Matthews, 4 Term Rep. p. 503. 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 site; and Mr. Burge is of opinion that a decree of the Court of Chancery could not 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 had no notice of the decree (g). However, the jurisdiction of the Court to decree foreclosure of lands in a foreign country was in the year 1874 expressly re-asserted (h). [The doctrine to which, it is conceived, English judicial opinion now adheres, is that as to questions relating to immoveable property in foreign countries (whether they be questions of transfer, succession, lien, or otherwise), the Courts in England, which sit primarily to administer English municipal law (i), will not assume jurisdiction where a disputed issue of title under foreign Law is raised, or where a judgment in rem is sought for. A distinction, however, may be taken between countries outside England but subject to the British crown, and countries wholly foreign (j). Where a remedy in personam only is sought for, and the title under foreign Law is not in issue, the Courts have entertained proceedings (k).] (g) Burge, Comm. vol. iii. p. 399. (h) Paget v. Ede, L. R. 18 Eq. p. 118. [(i) Cookney v. Anderson, 1 D. J. & S. at p. 379; Re Hawthorne, Graham v. Massey, L. R. 23 Ch. D. p. 743. (j) In re Orr Ewing, L. R. 22 Ch. D. at p. 465. (k) Toller v. Carteret, 2 Vernon, p. 494; Colyer v. Finch, 5 H. L. Cases, pp. 905, 915; Norris v. Chambres, 29 Beavan, p. 246; Paget v. Ede, L. R. 18 Eq. p. 118; Moor v. Anglo-Italian Bank, L. R. 10 Ch. D. p. 681; Buenos Ayres & Ensenada Port Rlwy. Co. v. Northern Rlwy. Co. of Buenos Ayres, L. R. 2 Q. B. D. p. 210; Ex parte Holthausen, L. R. 9 Ch. Ap. p. 722; In re Orr Ewing, L. R. 22 Ch. D. p 456; same case on appeal, L. R. 9 App. Ca. p. 34; Re Hawthorne, Graham v. Massey, L. R. 23 Ch. D. p. 743.] CHAPTER XXXIX. TRANSFER OR ASSIGNMENT OF OBLIGATIONS, (1) BY ACT OF OBLIGEE, (2) BY OPERATION OF LAW-BANKRUPTCY PRIORITY OF LIENS AND MORTGAGES-PRIVILEGED CREDI TORS-PARTNERSHIP LIABILITY. DCCLVII. THE obligation may be transferred in two ways: 1. By the voluntary act of the obligee; 2. By the operation of the Law in the event of the obligor's insolvency or bankruptcy. DCCLVIII. 1. The obligee may of course transfer his obligation to another person, who would be called in English 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 those of 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 or intimation to the debtor, according to that Law. The position is, in fact, a part of (a) Story, ss. 352–355, 395–400, and 565, 566. Burge, Comm. vol. iii. pp. 777, 778. Bell's Principles of the Law of Scotland, book ii. part ii. chap. v. $ 1341. |