—I concur in the opinion that the 'questions, whether there was a valid sale or transfer-of the safes to the plaintiffs, and whether title had passed to the latter before the defendants’ attachments issued, are to be determined by the law of Hew Yolk, and not of Illinois. The parties are residents and citizens of this State. Bates, the assignor, resided here. The instrument by virtue of which the plaintiffs claim, and which the defendants, as Bates’ creditors, seek to invalidate, was executed here. So, also, the debts which constituted the consideration for the transfer, as well as those upon which the attachments issued, were contracted in Hew York. The legal controversy is pending in the courts of this State. Indeed, the property in controversy was manufactured here, though happening to be in the hands of Bates’ agent in Illinois, at the precise period of the attempted transfer. Under .these circumstances, if it should be conceded that the law of Illinois differs from ours, the validity of the transfer is to be tested and determined by the law of this State. The law of the owner’s domicil determines the validity of every transfer. ' Alienation or disposition made of personal property by the owner,- and the nature and construction of personal contracts, is tobe controlled by the lex loci contractus. This is the general rule ex comitati ; but a particular State may, by its statute or customary law, make special provisions in respect to personal property actually within its territory, in favor 'of its own citizens, as it has entire dominion over it while therein in points of sovereignty or jurisdiction.
A voluntary transfer of personal property which is valid by the law of the owner’s domicil, is valid everywhere, except the la.w- of the particular sovereignty in which -it is situated has *167abrogated, or is in contravention in special cases of, the general rule of the public law. It is not to be assumed, in the absence of evidence that the lex domicilia does not govern in Illinois, in the case of a voluntary transfer and disposition of personal property by the owner, as well as in this State. Nor that if this case were pending in that State, the nature, validity, and construction of Bates’ assignment would not be determined by the law of New York.
The remedy to be pursued m inoitum as against personal property is controlled by the State in which such property actually is; but because a citizen of a foreign Stateunay elect to pursue such remedy against the property of another foreign citizen, temporarily within the jurisdiction of a particular State, it does not follow that a controversy respecting the title of such property is to be determined by the law of the latter State. Were the controversy pending in the latter State, this would be assuming that the lex domicilia did not govern them. This litigation, however, which involves simply the question whether property in the safes had passed to the plaintiffs before they were attached for the debt of Bates, is pending here, and I think is to be determined by our law.
Now, by the law of this State, was there a valid sale and transfer of the property to the plaintiffs, prior to the issuing of the attachments? for if there was, the defendants were not justified in attaching it for the debt of Bates. On the argument, I supposed this to be the principal and the gravest question in the case. IJpon a„careful examination, however, I have become satisfied that the transfer was valid, and that Bates by the instrument executed on the 2d of November, 1857, effectually devested himself of all title to the property itself. He manifestly intended to transfer the property" directly to the plaintiffs, his' creditors, by way of security. No trust was designed; the legal effect of the provisions of the assignment was not to create any ; and the legal title passed immediately and absolutely to the plaintiffs. Bates never could have invalidated the sale and reclaimed the property on the ground of fraud, or that delivery of possession of the subject-matter of the assignment, which was at a distance, did not accompany a delivery of the instrument itself. But the court below found, that there was no fraud in fact; there is none in law arising *168from the provisions of the instrument, and no proper parties to raise the question if there had been any, and immediate delivery was not indispensable to consummate a change of title. There may be a valid sale of personal property, and the title will pass to the vendee, though unaccompanied by immediate delivery. Our statute makes an assignment of chattels, unaccompanied by immediate delivery, presumptively fraudulent as against the creditors,—that is, the judgment-creditors of the person making such assignment, or subsequent purchasers in good faith; but even as respects these classes of persons (and they are the only ones that can raise the question of fraud), it is not required that delivery should accompany the written instrument of transfer, to pass the title to the thing transferred. The fact that the assigned property was not delivered simultaneously with the instrument, does not prevent a change of ownership, but only casts suspicion upon the fairness and good-faith of the transaction, and as against the creditors of the assignor, or subsequent purchasers without notice of the assignment, throwing the onus upon the assignee to show that the assignment was made in good faith, and without any fraudulent intent. If the assignment in this case was valid, and passed the title to the safes as against Bates, it was equally so against the defendants, who were only creditors at large, and not in a position to attack such assignment as fraudulent. They had not proceeded to judgment and execution, and thereby placed themselves in a position that the assignment interfered with the assertion of their right to the property in question; and until this was done, they were equally bound by Bates’ acts as Bates was himself. The act of attaching as creditors at large, the assigned property, did not put them upon the footing of bonafide purchasers for value without notice, so as to enable them to call in question the validity of the act of Bates in disposing of such property. Were this, however, otherwise, there is no provision of the assignment having the effect to hinder, delay, or defraud Bates’ creditors. It is true that the effect is to give a preference to certain of his creditors, which he had the right to do, but if the transaction is to be regarded as clothing the plaintiffs with a trust, there is no provision of the instrument operating as a restraint upon the discretion of the trustees, or any conditions imposed which would hinder or delay Bates’ *169creditors, in reaching any surplus that might remain after the satisfaction of the plaintiffs’ demands. With regard to the provisions as to the mode of selling, and the price to be obtained for the assigned property, I entirely concur in the view taken, and the construction placed on them, by the learned judge at the circuit.
If the title to the property had been changed, it could not be legally attached for a debt due from Bates. It was no more lawful in Illinois to attach property for the debt of B., than it would have been in New York. It is supposed, however, that because the plaintiffs had notice of the attachment-suits, and permitted them to go to judgment undefended, that they are in some way concluded or estopped by such judgment from contesting, in the courts of this State, the title to the property. This cannot be so. The plaintiffs were not bound to inteipose their claim of title in the suits in Illinois, or be barred. They were not parties, or, in any legal sense, privies to that litigation. Because the defendants had chosen to attach their property for the debt of another, and they were casually notified of the illegal act, and suffered the proceeding to go undefended, they are not consequently concluded by the judgment subsequently obtained.
The defendants were wrongdoers in issuing and levying the attachments, and the subsequent acts of taking judgment and selling the property, were but further illegal steps. In pursuing their remedy against the property, they could only acquire and sell, by force of their judgment, the title and interest of Bates, if he had any. If they wrongfully attached the property of strangers, though those strangers may have been casually informed of the proceeding, and did not come in and defend, or demand a delivery of the property, and bring suit, I am unable to perceive how a judgment against Bates, or in rem, as against the property of Bates, can estop the real owners of the property from asserting their title, in an action against the wrongdoers.
I think that the action was well tried at the circuit, and that the judgment is right. I vote for an affirmance of the judgment.