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Page:Harvard Law Review Volume 1.djvu/271

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v. Sterry, 5 Cranch, 289, both rules were adopted; that is to say, the attaching creditors were first satisfied, and the surplus was disposed of with due regard to all debts and all assets.

The reasons of policy and convenience which induced our Courts to refuse full operation to a foreign decree, apply with equal force to assignments by the debtor himself upon similar trusts. Most of our Courts give greater effect to the latter than to the former; but if we admit, as we do, that a decree assigning movables is valid excepting against attachments, there is no sound reason for not making a similar exception to the operation of assignments in this country. The technical distinction, as usually given, is, that a decree does not operate by its own force (proprio vigore) in a foreign country, while an act of the party does so operate; but this is merely restating the proposition that we give full effect to one mode of assignment and only an incomplete effect to the other, both being valid or invalid as we may choose to give them much or little effect by comity.

In some few States the law of comity is consistently administered, and an assignment by the party is only respected when it conforms to our notions of justice. But in most States, as we have said, an assignment of movables, made by the owner, and good at the place where it is made, is held good here, unless it contravenes some express statute or discriminates against our creditors as such.

Real estate, both in England and the United States, cannot pass by a foreign decree, but must be conveyed by deed according to the forms and methods established by the law of the situs. When these forms are observed, there is no rational distinction between a transfer of land and one of movables. It is, however, sometimes held that the trusts upon which land is conveyed, as well as the forms of conveyancing, must accord with the general policy of the law of the situs. It is undoubtedly true that if there is any positive law of the situs, it must govern; but the better modern opinion is, that this applies to movables as well as to immovables. If no positive law intervenes, there is no sound distinction between assignments of one kind of property or another in regard to the trusts upon which it is to be held.

It results from the superior authority given to a deed of the debtor over a decree transferring his property, that an insolvent owning property in several States is forced to make an assignment,