Page:Federal Reporter, 1st Series, Volume 10.djvu/917

TORUENS V, HAMMOND. 905 �setts, the assignment, although not the personal act of the insolvent, would have divested his title, and that of all persons claiming under him, provided diligence has been used to reduce the vessel to possession, (3) If the vessel had been in the port of New York at the time of the execution of the in- solvent assignment, (there being no personal assignaient,) and had subse- quently been seized there, under attachment proeeedings, by a Xevv York ereditor, such attachment proeeedings would have held the vessel as against the prior insolvent assignment. �"The flrst of these propositions results f rom the facts that personal prop- erty, wherever it may be, is under the personal control of its owner, and the title passes by his actual transfer. The second is based upon the idea that the property, being actually present, and under the control of the law, passes by act of the law. The third proposition assumes that a transfer by legal proeeedings possesses less solemnity than one by the owner himself ; that eacli nation is entitled to protect its own citizens ; and that the remedy by law, taken by its citizens having the actual possession of the corpus, ought to prevail over a title by law from another State, which is not accompanied by such pos- session. This principle authorizes the Massachusetts assignee to hold the property when in Massachusetts, and the New York crediter to seize it when it is in New York, uirder the circumstances stated. The present case is defi- cient in each of the elements necessary to bring the vessel within the range of the foregoing principles. She was not transfenred by the personal act of the owner. She was not literally within the territory of Massachusetts when the insolvent assignment took effect; and, thirdly, she was not in the port of New York. The question then arises, while thus upon the high seas was she in law within the territory of Massachusetts? If she was. the insolvent title will prevail." �The remainder of the opinion is devoted principally to the discus- sion of the question of the legal situs of the ship at the time of the execution of the assignment by the Massachusetts insolvent court. The conclusion arrived at is thus stated : �" "We are of the opinion, for the purpose we are considering, that the ship' was a portion of the territory of Massachusetts, and the assignment by the insolvent court of that state passed the title to her in the sanie manner and to the like effect as if she had been physleally within the bounds of that state when the assignment was executed. * * * If the title passed to the insolv- ent assignees it passed eo instantt the assignment was executed. It took effect then, or never. The return of the vessel to America, her arrivai in the port of New York, her seizure and sale there, did nor operate to divest a title already complete." �Mr. Justice Clifford concurred in the judgment oi rne court, but did not assent to the ground on which the judgment was based in the opin- ion from which the foregoing quotations are taken. It was his opinion that the ship was a vessel of the United States, and not of Massachu- setts; and that when, by the law of nations, vessels were said to remain. ��� �