Page:Federal Reporter, 1st Series, Volume 10.djvu/918

908 FEDERAL REPOSTER. �a portion of the territory of the state of which the owner was a citizen, the nation was meant, and not any subdivision of it. He concurred, however, in the judgment of the supreme court, and the reversai of the court of appeals of New York, upon the ground that, as the owner of a ehip at sea can sell and make a valid transfer of title to her without delivery, delivery being impossible, and that as the deed executed by the judge of the insolvent court was intended to assign and convey all the property of the insolvent as fully as he himself could have done, that the effect of the assignment was to vest in the assignee an absolute and perfected title to the ship, which the subsequent attaohment upon her arrivai in New York could not divest. �Two of the justices of the supreme court dissented from the judg- xnent of the court, but not upon grounds which at all weakened the decision in its application to the case now before me. They held that the fiction with regard to the situs of the ship, by which, althougb upon the high seas, she might be eonsidered as still part of the terri- tory and within the jurisdiction of Massachusetts, was but a fiction of law, and such as had never been allowed when its effect would be to give extraterritorial force to insolvent laws ; that insolvent laws hav- ing no extraterritorial force except by comity, such commity was never exercised to the prejudice of the citizens of the state which accorded it. Mr. Justice Bradley, who delivered the dissenting opinion, said: �" I do not deny that if the property had been within Massachusetts juris- diction when the assignment passed, the property would have been ipso facto transf erred to the assignee by the laws of Massachusetts proprio vigore, and, being actually transferred and vested, would have been respected the world over." �The report of Crapo v. Kelly shows that neither by the eminent counsel who argued the case, nor by any of the learned justices who expressed their views upon it, was it ever questioned that if the chat- tel which was the subject of the attachment had been at the date of the assignment within the state of Massachusetts, the title would have passed to the insolvent assignee so that no subsequent attach- ment could have prevailed against it. �The contrary decisions in the court of appeala of Maryland were the resuit of the construction of the federal constitution which pre- vailed in that court when those decisions were made, and when it appeared that the lex rei sitce must yield to its prohibition ; but the supreme court having differently interpreted the constitution, there would seem no reason why those rulings should continue to be the ��� �