I find the opinion of a majority of the court conveying, as it seems to me, an erroneous impression of the law of the state of Illinois. And as I deem that law to have a controlling effect in this cause, I make my opinion on that point more full and particular than the one I submitted at the term.
It is fully proved, and indeed the plaintiffs admit, that by the undisputed law of that state, had these plaintiffs undertaken there to claim this property, as being theirs by the assignment from Bates, the defendants, as creditors of Bates, *478having hy their attachment obtained the first actual possession, would have held the property. That is to say, by the law of Illinois, the property was then Bates’ as in favor of the attaching creditor whose attachment was levied, against the assignees, whose attempt to take actual possession was subsequent to that levy.
The defendants, having thus attached what, by the law of the land where they sued, was Bates’ property, pursued their remedy to judgment, (the property being all the time in the custody of the law;). and under an execution on that judgment they sold Bates’ property. After that sale, the plaintiffs in New York commence this suit against the defendants, for having committed a trespass in selling the plaintiffs’ property, on that execution; as, by the law of New York, the assignment passed the title of this property to the plaintiffs, prior to the levying of the attachment.
There is no pretense that there was any attempt, on the part of the defendants, to overreach the plaintiffs; or that there was any unfairness ‘in their proceedings; since the case shows that the suit in Illinois was commenced, and the attachment levied, before the defendants knew that Bates had assigned the property to the plaintiffs. And both parties were bona fide creditors of Bates—-having equal equities— and both, and Bates, were residents of Hew York.
To the judgment of the court of Illinois we are bound to give “full faith and credit,” (U. S. Const., art. 4, § 1,) and also to their public' acts. How, had the state of Illinois a statute, by which this property (as between these two parties) was Bates’, and was held as such by the attachment, can there be the least doubt that giving full faith and credit to their public acts would compel us to treat this property as Bates’, and held by the attachment ? -Would there be any wrong in saying that when Bates put his property in Illinois, he made it subject to the law of Illinois ? And I am unable to see that, because the rule before us is one of the common law of Illinois, it enters any the less absolutely into the *479essence of their judgment. A judgment, in a suit commenced hy attachment, acts in rem; and where the defendant is a non-resident, and is not personally served with process, it acts only in rem; as much so as if the subject of the suit were land situated where the suit is brought. Parties who send personal property to a foreign jurisdiction are as much bound by its laws as to that property as they would be in regard to land there situated, whenever, under that foreign jurisdiction, and by its laws, a lien on, or a right or title to, that personal property attaches. In this case, by the law of Illinois, the defendants, when their attachment suit went to judgment, had a lien on- this property, (which lien related back to the time of levying the attachment,) and which was by the sale perfected, as of the date of the levy, into a title, immediately derived from, and succeeding to, Bates’ title. And these plaintiffs never had any title in that state, and by its laws never could have any, as against these defendants.
As I uhderstand the authorities, this view is fully sustained hy them. Story (Conflict of Laws, § 550,) says, “ whenever personal property is taken by arrest, attachment or execution within a state, the title so acquired under the laws of the state is valid in every other state.” (3 T. R. 733. 9 Mass. Rep. 468.) For illustration, take a case which would seem closely analogous to the one before us: Were it the law of Illinois that a common carrier has not a lien for his charges upon the goods carried; and were a citizen of this state, acting as a common carrier, to transport for a citizen of this state goods through this state to Chicago; and there the owner of the goods were to take them from their place of storage in disregard of the carrier’s claim for, and demand of, his charges, (let the taking be with or without legal process ;) could the carrier, (having there made demand of the return of the goods,) on the return of both parties to this state, sue the owner for the taking of the property in disregard of the lien—the qualified title—which our law would *480have given him had the property reached the end of its transportation here ?■ Very plainly not.
I think a principle similar to the one I hold, has been held at general term, in the first district. A passenger on a steamboat was killed by an explosion of the boiler, within another state; and the passenger’s administrator, being a resident of this state, sued the proprietors of the boat, in our court, under our statute, which gives damages in such cases; and jurisdiction of the persons of the defendants was obtained by due service of process. The defendants demurred to the complaint, and the demurrer was sustained, because when, and where done, the act of the defendants gave no right of action under our law, which differed from that of the state in whose jurisdiction the injury was inflicted. (18 How. Pr. Rep. 335.) I can see no difference between a case where the statute laws so vary, and one where the common law of one jurisdiction is proved to differ from that of another.
Having at first paid more attention to this point of the case than to the nature and construction of the instrument by which Bates transferred the property to these plaintiffs, I allowed the transfer to pass as a valid one. But upon more careful examination, I am by no means satisfied that a debtor can transfer one part of his property, to secure or pay certain creditors, with a proviso that it shall not be sold, except at a specified price, or at such reasonable price as the assignor, or one of the assignees, shall in writing approve. It is a provision for an indefinite delay in the application of the property (and the return of the surplus, if any, to Bates or to the reach of his creditors,) at the arbitrary pleasure of the assignor and one of the assignees; and, if valid, no length of delay would authorize a creditor to expedite their movements. And it must be borne in mind, that if such a transfer of part of a debtor’s property be good, a like transfer of the rest of it must be. . So that, to sustain this transfer, it is necessary to hold that a general assignment with such a provision in it would be good.
*481[Albany General Term, May 7, 1860.For both, or either, of these reasons, I think a new trial should be had; though I am reluctant to dissent from my brethren.
Judgment affirmed.
Wright, Gould and Hogeboom, Justices.]