colony), because contrary to the lex contractûs (i. e. of England) (y).

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

state.

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 (d)," that this court professes only agere in perso""nam; 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 judg ments 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 site; and Mr. Burge

(y) Wolf v. Johnson, 10 Wheaton's (Amer.) Rep. 323.
Stapleton v. Conway, 3 Atk. Rep. 727; 3 Burge, 395–6.
(z) Mostyn v. Fabrigas, Couper's Rep. 180.

Doulson v. Matthews, 4 Durnford & East's Rep. 503.
(a) Cod. 463, t. xix. 1. iii.

(b) Story, s. 467.

(c) 3 Burge, 396.

(d) Ibid. 398.

(e) 1 Vesey sen. Rep. 444.

(f) 3 Vesey's Rep. 170, 5 ib. 276.

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 (g).

However, during the progress of this edition through the press, the jurisdiction of the Court to decree foreclosure of lands in a foreign country has been expressly re-asserted (h).

(g) 3 Burge, 399.

(h) Paget v. Ede, L. R. 18 Eq. 118.

CHAPTER XXXIX.

TRANSFER OR ASSIGNMENT OF OBLIGATIONS BY THE

OBLIGEE, (I) BY ACT OF OBLIGEE, (II) BY OPERATION OF LAW-QUESTION AS TO PRIORITY OF LIENS BETWEEN ASSIGNEE OR OBLIGEE, AND CREDITOR OR TRUSTEE Of obligeE-BANKRUPTCY-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 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. The position is, in fact, a part of

(a) Story, ss. 353, 355, 356, 325-400;

3 Burge, 777-8;

1 Bell, 556.

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 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.

DCCLXA. In a recent case, to an action for money payable by the defendant to the plaintiff, he pleaded that C., a joint debtor, resided in California, in America, within the jurisdiction of a court there. That by the Law of California

(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, ss. 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.

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 this country upon the 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. Replication, that 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, re-assigned 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 (f).

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 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

(f) Thompson v. Bell, 3 Ell. & Bl. 236; 23 L. J. (Q. B.), 159.