Herschfeld v. Dexel & Co. , 12 Ga. 582 ( 1853 )

By the Court.

Lumpkin, J.

delivering the opinion.

That this assignment is contrary to the Act of 1818, and consequently illegal and void, we entertain no doubt. Indeed, that point is conceded. And it is really the only question made and determined in the Court below.

[1.] But it is argued that this assignment, giving a preference to a portion of the creditors over the rest, is good in the State of New York, where it was made. It did not appear to the Court below, nor has it been made to appear with sufficient distinctness to this Court, that the law of New York was different from ours, on the subject of assignment of choses in action. I am inclined to think, and such will be found to be the practice, that the Court on the trial of a cause, may proceed on their knowledge of the laws of another State; and it is not nec.essary, in that case, to prove them; and their judgment will not be reversed when they proceed on such knowledge, unless it should appear that they decided wrong, as to those laws. 12 Vermont, 396.

[2.] But to give to the plaintiff in error the full benefit of his objection, we will admit that this assignment is legal and valid in New York, and would be executed in that State. Still we are not required by the comity of States, to enforce within our bounds or jurisdiction, a cotract made elsewhere, and which not only contravenes the policy, but violates a positive Statute of this State, and that too, in a contest between our own citizens and those residing within a foreign jurisdiction, as to property situated within our own limits, and the only property out of which the domestic creditors can be- paid. We believe these principles to be fully and unequivocally sustained and settled. 3 Kents Com. 48. Holmes vs. Remsen, 20 Johns. 255, 265. 4 Johns. Ch. Rep. 471. Milne vs. Morton, 6 Binney, 361. LeRoy vs. Crowninshield, 2 Mason, 157. Ogden vs. Saunders, 12 Wheat. 259. Ingraham vs. Geyer, 13 Mass. Rep. 146. Smith vs. The Union Bank of Georgetown, 5 Peters, 518. In this last case, Mr. Justice Johnson, in delivering the opinion of the Court, said, that a it is an acknowledged doctrine, that in conflicts of rights, those arising under our own laws, if not superseded in point of time, shall take precedence, ‘ majusjus nostrum quam jus atienun servemos.’ The obligation of the sovereign to enforce his own laws and to protect his own subjects, is acknowledged to be paramount.” And in the case of Ogden vs. Saunders, 12 Wheaton, Mr. Justice Washington, said, “ where a contract is of an immoral character or contravenes the policy of the nation to whose tribunal the appeal is made, the remedy which the comity of nations affords, for enforcing the obligation of contracts wherever formed, is denied.’?

Similar doctrines will be found maintained in the English Courts, to those held by American Jurists. Hunter vs. Potts, 4 D. & E. 182. Sill vs. Worswick, 1 Hen. Bl. 690. Potter vs. Brown, 5 East. 131. In this last case, Lord Ellenhorough said, “we also import, together with their persons, the existing relations of foreigners, as between themselves, according to the laws of their respective countries, except, indeed, where the laws clash with the rights of our .own subjects in England, and one or the other must necessarily give way; in vjkich case our own is entitled to the preference.

The same general doctrine is recognized in the Courts of Scotland. Levett vs. Levett, Fergusons Scot Consistorial Rep. 633. Ingraham’s Ecclesiastical Rep. 366. Ibid, 168, Ibid, 397. Ibid, 460. Ibid, 466. The principle here laid down- is, that when the admission of the foreign law would be clearly inconsistent with the essential'policy and institutions of the country where it is proposed to be received, this must create an effectual bar to the extension of the principle to such a case.

[3.] There is another fact here, important to be considered. When this assignment was made, as is obvious from the face of it, the parties hail in contemplation another place for its execution. The property was in this State, and the trust was to be performed here. Of course, then, the law of Georgia will be preferred, in the construction of the contract.

How far this doctrine, sustained as it is, not only in this country, but throughout the civilized world, of giving preference to our own people and to orir own laws, rather than to the citizens and laws of a foreign State, in a conflict between the two, harmonizes with the ad captandum sentiment of knowing “ no east, no west, no north, no south,351 will not undertake to decide. It would seem to give but little encouragement to this expansive patriotism! ,