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 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 (), 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.

(5) 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 Bearan, 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 CREDITORS-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.

the general 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 [considered] that even an obligation assignable by the lex domicilii of the obligee, must [have been] sued upon in England, when choses in action [were at] common law not assignable, in the name of the original obligee (c); an Irish case (cc) to the contrary [did not, in his opinion,] counterbalance the English cases (d) which decided this point.

It would seem reasonable, however, that a distinction should have been 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.

DCCLX.A. In a recent case, to an action for money

(b) [Solomons v. Ross, 1 H. Blackstone. p. 131, note]; Sill v. Worswick, 1 H. Blackstone, p. 665, and cases therein referred to. Selkrig v. Davies, 2 Rose Bkcy. Cases, p. 97.

Hunter v. Potts, 4 Term Rep. p. 182.

Story, ss. 397-8.

(c) [Burge, ubi sup. p. 778.]

(cc) O'Callaghan v. Thomond, 3 Taunton, Rep. p. 82. (d) Folliott v. Ogden, 1 H. Blackstone, Rep. p. 123.

Innes v. Dunlop, 8 Term Rep. p. 595.

Wolf v. Oxholm, 6 Maule & Selwyn, Rep. p. 92.

Jeffery v. MacTaggart, ib. p. 126.

[By the Supreme Court of Judicature Act, 1873, s. 25, subs. 6, debts and other legal choses in action were made assignable by writing under the hand of the assignor, under certain conditions.]

(e) Westlake, § 221.

payable to the plaintiff, the defendant pleaded-That C., a joint debtor, resided in California, within the jurisdiction of a court there: That by the Law of California a creditor might voluntarily assign his debt to another person who might in his own name sue the debtor: That the plaintiff being in California assigned the debt to R. there, and R. in his own name sued the defendant and C. for that and other debts in a court there, having jurisdiction for the recovery of such assigned debts, and recovered judgment, and the defendant and C. were liable to be sued by R. in England upon that judgment: That the judgment was for an entire sum, making no distinction between the debts, and was partly satisfied by the levy of a sum less than the amount of the judgment, and not applicable to any one of the debts recovered more than to any other. ReplicationThat the Law of California was that the assignee might reassign to the creditor the debt or so much thereof as was unsatisfied, and the creditor might sue in his own name for so much, notwithstanding the creditor in the meantime had recovered judgment, unless the whole was actually levied : That R., before he had received any part of the debt or before any sum applicable thereto had been levied, reassigned to the plaintiff, by reason whereof the plaintiff became entitled to sue for the debt in his own name as if there had been no such assignment as mentioned in the plea--It was holden, that assuming the plea to show that the assignment made in California by the Law of that country transferred the exclusive right to sue, it was answered by the replication (ƒ).

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.

DCCLXII. Questions of great nicety and difficulty may

(ƒ) Thompson v. Bell, 3 Ell. & Bl. p. 236; 23 L. J. N. S. (Q. B.),. p. 159.

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 tem-pore 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 had 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 (g).

DCCLXIV. 2. In the preceding sections we considered the transfer of an obligation by the voluntary act of the obligee. We have now to consider the transfer of an obligation by the operation of the law (h) upon the property of

(g) Story (Confl. of L. ss. 399 a-400 a) refers to some decisions in the Courts of Louisiana.

(h) Savigny, R. R. viii. s. 374 E.

J. Voet, lib. xx. t. iv. ss. 12 et seq.

Merlin, Rép., Faillite et Banqueroute, sect. ii. § ii. art. x. (p. 412,

edit. 1826.)

Massé, Droit Commercial, liv. iii. tit. iii. chap. v.

Story, ss. 338-341 as to Discharge; 403-423 as to Involuntary transfers.

Bell, Comm, book vi. part ii. chap. v. sect. vi.