concurring in the judgment.
Unable to assent to the opinion of the court just delivered, I will proceed to state the reasons which induce me to concur in a reversal of the judgment brought here for re-examluation.
Ships and vessels of tfye United States, said Mr. Justice Nelson, are creations of the legislation of Congress. None can be denominated .such or be entitled to the benefits and privileges thereof except those registered or enrolled by virtue of the act for registering aud clearing vessels and. regulating the coasting trade, or those which are registered or enrolled in pursuance of the act for the registering and recording ships and vessels, or such as are duly qualified for carrying on the coasting trade and fisheries; and the provision is that they must be wholly owned by a citizen or citizens of the United States, aud that they shall not’continue to enjoy such benefits and privileges any longer than they shall be so owned, and be commanded by a citizen or citizens of the United States.* Nor can any ship or vessel be registered or enrolled unless built and owtied, as therein required, and thence continuing to belong to a citizen or citizens of the United States,, or ships or vessels captured from the enemy, in war, by a citizen and lawfully condemned as prize or adjudged to be forfeited for a breach of the laws of the United States, and being wholly owned by a citizen *633or citizens thereof. Béyond all doubt these acts of Congress declare the true character of registered and enrolled ships and vessels, and all ships and .vessels not brought within these provisions of the acts of Congress, and not entitled to the benefits and privileges thereto belonging, are of no more value as American vessels, said Mr. Justice Nelson, than the wood and iron out of which they are constructed. Their substantial if not their entire value consists in their right to the character of national vessels, and to have the protection of the national flag floating at their masthead.*
Governed by these views, this court held, in the Case first' cited, that Congress having created, as it were, this species of property and conferred upon it its chief value, under the power given in the Constitution to regulate commerce, that no serious doubt could, be. enthrtained but that the same power may be extended to the security and protection of the rights and titles of all persons'dealing therein. Sumí ships and vessels ate ships and vessels of'the United States and not of the several States in any international sense, and there are no authorities, whether judicial or such as treat of the law of nations, which support any different view, as the word state when used in the treatises upon the law of nations means the nation and not any subdivision of it, as is sometimes supposed.
American ships offending against our law may be seized by the executive authority upon the high seas, but a seizure of ships or vessels of one nation cannot be made within the jurisdiction of another for the infringement of its own revenue or navigation laws, as the act of seizure is a violation of the territorial authority of the nation within whose jurisdiction the seizure is made.†
By the record it appears that the plaintiff, who is the present defendant, is the sheriff of the county where the *634suit was instituted, and that the first five defendants are the assignees in bankruptcy, either of William L. Gibbs and William Jenny, or of Edmund Allen, all of Fairhaven, County of Bristol, and State of Massachusetts, having been duly appointed as such by the court of insolvency for that comity, and that the other two defendants are their sureties in a bond for the undivided half of the ship Arctic, which they gave to release the ship from an attachment served by the plaintiff' in the suit before the court. Gibbs & Jenny owned three-eighths of the ship, and Allen owned one-eighth of the same, and it also appears that the two defendants first named, on the seventh of February, 1861; petitioned the. court of insolvency of the county, representing that they owed debts which they were unable to pay in full, and prayed that a warrant might be issued for taking possession of their joint aud separate estate, and that such further proceedings might be had as the law in such cases prescribes; and it further appears that such a warrant was issued on the same day, and that on the twentieth of the same month the messenger made return that he had taken possession of all the estate of the insolvent debtors, except such as is exempt by law from attachment, and of all deeds, books of account, and papers which had come to his knowledge, and that he had given the required notice. Three of the defendants were duly appointed assignees of the' estate of the insolvent debtors, and on the twelfth of the same month the judge of the court, by an instrument in. due form, conveyed and assigned to the said assignees all the individual and partnership estate, real and persona], of the said insolvent debtors, including all tbe property of which they were possessed, or in which-they were' interested, except such as was exempted from attachment, and all their deeds, books of account, and papers, which of course included the title-papeys to the ship. On the fourteenth of the same month, Allen also presented petition to the same court, of like import, and which contained á similar prayer, and seven days later the court issued the warrant, and on the twenty-fifth of the same month the messenger made his return to the same effect as that made *635to the other warrant. All these proceedings appear to be correct, and the judge of the court having appointed as assignees the person first named in the other warrant and the other two persons named as principals in the bond given for value, on the sixth of March in the same year conveyed and assigned to them all the l’eal and personal estate of the insolvent debtor by an instrument in the same form as in the other case, and which contains the same description of the property conveyed and assigned. Throughout these proceedings the ship was in the Pacific Ocean, or on her homeward voyage to the port of New York, where’ she arrived in safety on the thirtieth of April, laden with a cargo of guano. Debts.were owed by the insolvent debtors to parties in New York, and on the twenty-fourth of April, before the vessel arrived at her wharf, Edward M. Robinson commenced a suit against the thr'ee insolvent debtors to recover a sum exceeding six thousand dollars, and a judge of the court, upon his application, issued a process of attachment, directed to the sheriff, commanding him to attach all the property of the defendants in that action, or so much thereof as would be sufficient to satisfy the demand in the action ; and it appears that on the thirtieth of the same month he did, by virtue of that process, attach one undivided half part of the said ship as the property of the defendants named as such in the process. Seasonable application was accordingly made to the judge by the said five assignees, claiming to be the owners of the said one undivided half of the ship, praying that she might be valued as provided by the law of the State. Hearing was had and the judge granted the application, and the appraisers appointed having valued the said undivided half of the ship, the five assignees with the other two defendants in this action gave the bond which is the foundation of the action in which the judgment before the court was rendered. Refi ereuce need, only be made to a single allegation.in the declaration, which is that the said claimants were not, nor was either of them, at the time the attachment was made, the owners, or owner .of the said one undivided half of the ship, *636as that ip sufficient to Show the nature of the controversy. Service was made, and the defendants appeared and alleged in their answer that the five assignees were the absolute owners of the same at that time, and that they continued to be such until the vessel was released in the manner stated in the declaration. Evidence was introduced by both parties, and the court directed a verdict for the plaintiff, subject to the opinion of the court at general term; and the cause came to hearing at general term, when the plaintiff moved that judgment be entered on the verdict, but the court denied the motion and dismissed the complaint. Pursuant to the regular practice the court, in general term, prepared and entered in the record their conclusions of law, and a statement of the facts on which those conclusions arose. They determined as matter of law that the assignees named as defendants were, at the time the attachment was made, the owners of the property attached, and that they were entitled to claim and take the same from the plaintiff a.s the attaching officer. Their conclusions, it appears, were based chiefly upon the facts set forth in the agreed statement, which need not be further referred to, as the facts which it contains have already been sufficiently reproduced. They also find to the effect that one of the assignees, in behalf of all, left the place of his residence on the second of May, and arrived in New York on the following day, for the purpose of taking possession of the ship, but was unable to do so, as he found she was in the possession of the sheriff, it appearing that the plaintiff'in the attachment suit, having received early information that the ship was coming to that port,.took measures to have the attachment process served even before she cane to her wharf. Appeal was taken by the plaintiff in this suit to the Court of Appeals, where the judgment rendered in general term was reversed and judgment rendered for the plaintiff upon the verdict- found by the jury in the court of original jurisdiction.
Two principal questions are presented for decision-: (1) Whether the property in the ship, testing the question by *637the laws of the State where the insolvency proceedings took place, passed to the assignees by virtue of the assignments .executed by the court having jurisdiction of the subject-matter; or (2) Whether the attaching creditor is entitled to hold it by virtue of his attachment made long subsequent to the execution and delivery of those instruments.
Property may be attached on .mesne process in that State, and if it be true that the property in the ship, testing the question by the laws of that State, did not pass to the assignees of the insolvent debtors by virtue of the instruments of assignment, further examination of the case is unnecessary, as it must plainly follow that there is no error in the record, and that the judgment should be affirmed.
“Pull faith and credit,” the Constitution ordains, “shall be given in each State ... to the judicial proceedings of every other State; and that Congress may, by-general laws, prescribe the manner in which . . . such proceedings shall be proved, and the effect thereof.” Congress accordingly enacted that “judicial proceedings . . . shall have such faith and credit given to them in every court within the United Stafés as they have, by law or usage,- in the courts from •whence” they shall be taken.*
Discussion of those provisions is unnecessary at this time, as their true intent and meaning have been fully explained by the decisions of this court. Congress, say the court in Mills v. Duryee,† have declared the effect by declaring what faith and credit shall be given to the proceeding, so that it only remains, in every case, to inquire what is the effect of a judgment in the State where it is rendered. If a judgment is conclusive in the State where it waspronomiced, it is equally conclusive everywhere in the courts of theUnited States.‡
Such an assignment, as a general rule, passes the whole of the property of the insolvent debtor,' except what is -exempted from attachment; or, in other words, the rights of *638the assignee are as comprehensive as that of an attaching creditor in jurisdictions where the creditor may attach, if need be, the whole property of the debtor, except what is-exempted by statute, to respond to the judgment, giving the assignee, like a creditor, the power to reach'the property of the debtor, in cases of fraud, even greater than the debtor possessed before the decree of insolvency was passed.* Assignees in insolvency under the comprehensive’ rule by which the assignee is vested with all the rights-of property belonging to the bankrupt, acquire the same right as-creditors to avoid any transactions of the insolvent debtor which w-ere intended to enable a third party’ to hold his property' in trust for his own benefit'. In reference to such a case if has been well said that there is a broad distinction between a bill by a baukrupt, the author of the fraud, and one by the assignee, who seeks to recover the property for the benefit of the very interest sought to be defrauded, as public policy in the first case forbids the court to lend its aid to a plan intended ,to deprive creditors of their just rights, but to grant relief in the second casé, is to act in accordance with the rights of creditors for the purpose of defeating the fraudulent design.†’ In cases' unaffected with fraud the assignee stands in the situation of the insolvent debtor, and succeeds to all his property and rights of property, whether legal or equitable, and the rule is supported by the highest authority, that the assignment passes all his' property, whether mentioned or not in the schedule to the. assignee; and it was held, in’ Gray v. Bennett,‡ that any one’ who affirms that a particular thing does not pass by force of the statute must bring himself within its exceptions or show conclusively aliunde that it was the design of thé makers'of the law that the thing specified should not pass to the assignee.§
Where the rule of the State courts is that all the property *639of the insolvent passes to the assignee, this court has decided, the opinion' having been given by the late Chief Justice Taney, that any such imperfection in the schedule cannot have any influence, as this court will adopt the same rule as the State court.*
Had the ship been in the home port it is not denied that the insolvents could have conveyed it for a valuable consideration before the decree'in insolvency was passed, nor that personal property under those circumstances, if it had been previously conveyed in fraud of the Bankrupt Act, would have passed to the assignees by virtue of the assignment executed to them by the, judge of the court of insolvency. Doubt cannot be entertained upon that subject, and it is equally clear by all the authorities that ships at sea and goods to arrive páss to a purchaser for value, if the purchase is made in good faith, just as éftectually as if the ship was moored at her wharf- and the goods were deposited in a warehouse. Owners of. ships, says Mr. Parsons, ought to be able to sell their ships though at sea and employed in making voyages, and the rule which he lays down is in substance and effect that a bond fide, sale, on consideration, with whatever transfer of papers and of registry can. be made, is valid if possession be Raícen by the purchaser as soon as is practicable by reasonable endeavor, however long it may be before such possession is or can-be taken; that such a sale does not merely give an inchoate right to be completed by possession, as the whole property in the ship passes to the purchaser, and the sale operates as a complete transfer thereof, vesting the property in the purchaser, liable only to be divested by his laches in taking possession. Such a purchase, he insists, is valid; and he adds, as a second proposition, that the purchaser is not bound to go or send.to a distant port to take possession, but may safely wait the arrival of the vessel in her home port.† Sales of ships at sea and goods to arrive have been upheld by the courts of that State *640from the earliest period of her judicial history, as appears by an unbroken series of decisions commencing early in the present century.* †Delivery in such a case being-impossible, it.is not required, and it is upon that ground that the title of the purchaser is held to be valid unless he is guilty of laches in taking possession of the ship when she returns. His title is not protected upon the ground that the ship is a ship of the State, but solely upon the ground that a delivery being impossible it is not required. ' When a ship is abroad, says Abbott, in his valuable work on shipping,† a perfect transfer of the ship may, at the common law, be made by assignment of the bill of sale, and delivery of that and the other documents relating to the ship, just as the delivery of the key of a warehouse to the buyer of goods contained therein is held to change the property of the goods, the delivery in such a case being not merely a symbol, but the mode of enabling the buyer to take actual possession as soon aé circumstances will permit. Exactly the same rule is adopted by Mr. Chitty in his work on contracts,‡ and he refers to several American decisions for its support. Symbolical delivery, says Chancellor Kent,§ will in many cases be sufficient 4nd equivalent, in its legal effect, to actual delivery; and he puts the case of the sale of a ship and goods at sea as examples where the delivery must be symbolical by the delivery of the documentary proofs of the title. Superadded to the preceding authorities is another which, it' would seem-, ought to be regarded as decisive, as it is the unanimous opinion of this court, which was delivered by the late Chief Justice T-aney.|| A ship at sea, said'he, may*641be .transferred to a purchaser by the delivery of a bill of sale. So also as to the cargo, by the indorsement and delivery of the bill of lading. It is hardly necessary, said that great magistrate, to refer to adjudged cases to prove a doctrine so familiar in the courts, but he did refer to twelve in number, every one of which supports the proposition. Nor was the question a new one to the court at that time, as the point had been ruled by the unanimous concurrence of the court more than twenty years before that décision, in a case where the. opinion was delivered by- Mr. Justice Story.* He said that cases arise, even of an absolute sale of personal property, where the want of possession is not presumptive of fraud, if possession cannot, from the circumstances of the property, be within the power of the parties; and he puts as a familiar example of the doctrine the sale of a ship or goods at sea, where, as the learned judge said, possession is dispensed with upon the plain ground of its impossibility, and he adds that it is sufficient if the vendee takes possession of the property within a reasonable time after its return home.
Further argument to show that the one undivided half of the ship, which belonged to the insolvents, passed to the assignees by the laws of the State, is certainly unnecessary, as it is believed no different rule prevails anywhere, either in England or in the United States.
By the insolvent law of the State it is provided that the judge shall, by an instrument under his hand, assign and convey to the assignee all the estate, real and personal, of the debtor, except such as is by law exempt from ■ attachment, with all his deeds, books, and papers relating thereto; and it cannot be doubted that the instrument required to be executed by the judge pursuant to that section was intended to have the effect to convey and assign to the assignee all the estate, real and personal, of every name and nature, and that proposition is confirmed by the fact that the seventieth séction makes it the duty of the debtor, at the request of the assignee, to do what may be necessary and useful to *642enable, the assignee to demand, recover, and receive all the estate and effects so assigned, especially any part thereof which is without the State.*
Tested' by these considerations, it is quite clear that the effect of the assignment, when duly executed by the court of insolvency, as there regarded, was to vest in the assignees the one undivided half of the' ship which previously belonged to the insolvent debtors, and the settled law of this court is that in such a case every other court in the United States, whether State or Federal, in which such a proceeding comes under revision, is bound to give it the same effect it would receive in the courts of that State.†
Attempt is made to show that the rule laid down in Green v. Van Buskirk, is not applicable to the Case before the'court, as the ship was upon the high seas, and the suggestion is that the insolvent laws of a State do not have any extraterritorial operation, but the Constitution is operative in the State vfhere the plaintiff resides, as well as iu the State which iis the domicile of the defendants; and the act of Congress passed in pursuance of the Constitution, provides that such judicial proceedings shall have such faith and credit given to them in every other court within the United States as they have, by law or usage, in the courts of the State from whence they shall be taken.
Evidently the Court of Appeals did not give the proceedings in question the,same effect as they have by law and usage in the- courts of the State where the statute'assignment was executed by the judge of the court of insolvency, and for that reason the judgment should be reversed.
1 Stat. at Large, 55; lb. 288.
White’s Bank v. Smith, 7 Wallace, 655; Brig Martha Washington, 25 Law Reporter, 22.
The Flora, 11 Wheaton, 42; The Apollon, 9 Id. 371; 4 Opinions of the Attorney-General, 285.
1 Stat. at Large, 122.
7 Cranch, 484;
Christmas v, Russell,5 Wallace, 302; Bissell v. Briggs, 9 Massachusetts, 462; 2 Story on the Constitution, 3d ed. 1313.
Hill v. Smith, 12 Meeson & Welsby, 618; Russell v. Bell, 10 Id. 352.
Carr v. Hilton, 1 Curtis, 233; Bingham v. Jordan, 1 Allen, 374.
3 Metcalf, 525.
Fiske v. Hunt, 2 Story, 584; Cooper v. Henderson, 6 Binney, 189; Robson on Bankruptcy, 336.
Bank v. Horn, 17 Howard, 160; Robson on Bankruptcy, 642.
Parsons on Shipping, 83; Hilliard on Bankruptcy, 107.
Bank v. Stacey, 4 Massachusetts, 661; Bank v. Stubbs, 6 Id. 422; Putnam v. Dutch, 8 Id. 287; Tucker v. Buffington, 15 Id. 477; Badlam v. Tucker, 1 Pickering, 389; Gardner v. Howland, 2 Id. 599; Joy v. Sears, 9 Id. 4; Pratt v. Parkman, 24 Id. 42; Turner v. Coolidge, 2 Metcalf, 350; Winsor v. McLellan, 2 Story, 492; Brinley v. Spring, 7 Greenleaf, 241; Wheeler v. Sumner, 4 Mason, 183.
Seventh edition, 31.
Tenth edition, 421.
2 Commentaries (11th ed.), 501; Story on Sales, \ 312; Benjamin on Sales, 516. •
Gibson v. Stevens, 8 Howard, 399.
Conard v. Insurance Co., 1 Peters, 449.
General Statutes, 586, 590.
Green v. Van Buskirk, 7 Wallace, 145; S. C., 5 Id. 310.