SMITH, J.
If the Bank of Redemption had brought a suit in its own name for the collection of the notes transferred nominally to Crippen, the case would present no superior equity entitling the bank to appropriate the property attached in this state exclusively to its own debt. Equity as well as comity would require the application of the property to the payment of all the creditors of the insolvents, under the insolvency laws of the state of the domicile of the bank. Kidder v. Tufts, 48 N.H. 121; Eddy v. Winchester, 60 N.H. 63.
The plaintiff offers to prove that the transfer of the notes "was an absolute and bona fide sale of the same, giving to him the absolute ownership and control of the same." But it is clear that the finding of such a fact would have to be set aside as being in direct and irreconcilable conflict with the admitted facts in the case, from which the only conclusion is that the transfer of the notes was a mere cover, to enable the bank to gain a preference over other Massachusetts creditors.
The plaintiff cites Proctor v. National Bank of the Republic, 152 Mass. 223, in support of the right to maintain his suits for the collection of the notes. But the reasons which controlled the majority of the court in that case in refusing to compel a Massachusetts creditor, who had obtained an advantage over the other creditors by his proceedings in another state, to restore the property or its value to the assignee of a Massachusetts insolvent debtor, do not exist in this case. There is no want of jurisdiction of the property or of the proper parties; and equity requires that the bank, under cover of suits in the name of a New Hampshire citizen, should not obtain an advantage over the other creditors in Massachusetts.
The leave given the plaintiff to defend the Strafford suits should be revoked (Levy v. Woodcock, 63 N.H. 413; Martin v. Wiggin, ante, p. 196) and the temporary injunction dissolved.
Bill dismissed.
ALLEN, J., did not sit: the others concurred.
The plaintiff moved for a rehearing.
SMITH, J.
"Personal property has no locality, but is subject to the law which governs the person of the owner, except in cases which directly militate against the particular laws of the country in which it happens to be located." Saunders v. Williams, 5 N.H. 213, 214. "The general rule is, that a transfer of personal property, which is valid by the law of the owner's domicile, will operate to convey the property wherever it may be situate." Sanderson v. Bradford, 10 N.H. 260, 263. "In the absence of ancillary administration or statutory prohibition, the domiciliary administrator or executor has authority to take possession of and remove the goods or effects of the decedent in another jurisdiction, or to collect a debt due from a debtor residing therein, if voluntarily given up or paid, and give a good acquittance and discharge therefor. . . . So, too, he may sell and assign stock in a foreign corporation, and the corporation may voluntarily consent to its transfer by accepting the outstanding certificate and issuing a new one to the purchaser." Luce v. Railroad, 63 N.H. 588, 590.
"It has long been the policy of commercial states not to embarrass the free transmission of the title to personal property. And it has been very justly considered as discourteous and illiberal policy in one state to abridge and fetter the operation of foreign contracts within its limits, or to refuse to enforce them by suits maintained in its courts, or to embarrass foreign owners of personal estate within its limits, in the free enjoyment of its beneficial use, or its ready and unrestricted conveyance. . . . In the law, personalty is generally regarded as having no situs. Its title, mode of transfer, and other incidents connected with its use and transmission, are regulated according to the law of the place of the domicile of the owner. This is confessedly true in regard to the requisite formalities in the execution of a will of personalty, although essentially departing from the requirements of the law of the state where such property happens to be situated at the time of the decease of the owner. It is the law of the place of the domicile of the owner which must control these incidents, as to the operation of wills upon personal estate, and also the distribution of intestate estates, according to the general rules of international comity among civilized and commercial states. . . . . But it is claimed that in regard to the distribution of one's effects (while living) among his creditors, a different rule to some extent has prevailed." Hanford v. Payne, 32 Vt. 442, 452, 454.
"It is said that the laws of a state or country do not have any extra-territorial operation suo vigore, but that such operation is only granted ex comitate. This is the common language of the opinions, but it is an extremely unsatisfactory ground on which to place a decision. For the fact is, that the laws of one state or country are recognized by other states and countries continually, and in many different ways; and in cases in which it is settled on the principles of that branch of jurisprudence known as Private International Law, or the Conflict of Laws, that foreign law should apply, such law is applied as a matter of course by the courts, without the exercise of any vague or irresponsible discretion. . . . In regard to rights under contracts, the law of the place of the contract governs, although the law of the former controls in all questions as to the remedy. So, also, it is a settled rule with regard to succession to personal property by will or intestacy, that the law of the domicile shall govern, even as to property in a foreign jurisdiction. . . . We therefore feel justified in saying that it is not generally a safe reason to assign for the decision of any of these questions that foreign laws have no extra-territorial operation." 15 Am. Law Rev. 254, 255.
A general rule, that a transfer of personal property, which is valid by the law of the owner's domicile, will convey the property wherever situate, may clash with a general rule that law has no extra-territorial operation. It seems to be immaterial which is called the rule and which the exception. The property in controversy in this case should be applied to the payment of debts under the insolvency laws of Massachusetts, unless this disposition of it would infringe the right of a citizen of this state. If the Bank of Redemption had not gone through the form of selling its notes to the plaintiff, and had brought suit upon them in this state and attached the debtor's chattels and land, the land as well as the chattels might become assets in the hands of the Massachusetts assignees notwithstanding the attachment; and, as between the bank and the assignees, the justice of the case and the law of this state would require such procedure as would enable the assignees to apply the attached property to the payment of debts under the law of Massachusetts. Eddy v. Winchester, 60 N.H. 63, 64. Our law does not unnecessarily allow its process to be used by a Massachusetts creditor to avoid the just operation of the insolvency law of that state.
The view of the agreed facts most favorable to the plaintiff is, that the transaction between him and the bank is what it appears to be on the face of the writings. Upon that view the plaintiff will make a profit of about one thousand dollars if he prevails in this suit, and will lose nothing if he fails. If he prevails, the bank will get or keep eight thousand dollars, less expenses of suits, which it is to pay in any event. The guaranty given him by the bank makes the bank the principal plaintiff in interest. The practical effect of the whole transaction is the use of the plaintiff's name in New Hampshire litigation, instituted and carried on in behalf of the bank and at its expense, to enable it to defeat the just law of its own state. If the bank succeeds in this enterprise, it pays him a commission of about one thousand dollars. If it does not succeed, it pays him nothing. The speculative interest which this arrangement gives him does not entitle him to set up a New Hampshire right as a cover under which a Massachusetts creditor can avoid the Massachusetts law. In some sense and for some purposes he could be regarded as the owner of the notes. But he is not the owner in any equitable sense that would give him a position superior to that of the bank in an effort to prevent the application of the attached property to the payment of debts under the law of Massachusetts. The equity of the case is with the assignees. If they had taken and held possession of the goods, their title would have been upheld against the plaintiff. The attachment made by the defendants, Rogers, Wood, Loring Co., was not necessary for the protection of the assignees' rights against the suits brought by the plaintiff chiefly for the benefit of a Massachusetts creditor, and for his own benefit merely as a claimant of a bonus to be paid by the Massachusetts creditor for the use of his name in litigation.
The plaintiff's leave to appear in the suit brought by the defendants in Strafford county will be revoked at the next trial term in September. To prevent delay that might be caused at that term from the pendency of this action in this county, the decree dissolving the injunction and dismissing the bill is rendered at the present law term.
Bill dismissed.
ALLEN, J., did not sit: the others concurred.