25 Vt. 593
Vt.
1853

The opinion of the court was delivered by

Bennett, J.

This case comes up to this court, upon exceptions, by the claimant to the decision of the County Court, rendering the trustee chargeable. It seems, that the trustee was indebted to John C. Morrison, the principal defendant, for goods sold and delivered at the city of New York/ and the case has been argued upon the ground that the trustee was at the time, and ever *598since lias been, a resident of this State, and the plaintiffs, as well its the claimant, and principal defendant residents of the city of New York. Such we suppose, was probably the case; but no such facts arc distinctly found by the County Court, though in the assignment, which is a part of the case, both the principal debtor, and the claimant are described as residents of the city of New York. The claimant sets up a prior title to the chose in action under the assignment, bearing date the 10th day of May, 1851; and the plaintiffs’ writ was served upon the trustee, on the 15th day of May, five days after; and it does not appear, that the trustee was notified of the assignment, until the 24th day of May, 1851. No questions are raised, as to the validity of the assignment; but the question is, (treating the assignment as valid,) which of the parties have the superior right to this chose in action: the attaching creditor, or the assignee ? The bill of exceptions for some cause, presents the case in a very defective manner; and that this court is, and must be, with respect to facts, limited to the statement •made by the court below, can not be questioned.

We will proceed to examine the rights of the contending parties, under this bill of exceptions. It may he remarked, that the plaintiffs’ claim to the chose in action, now in question, rests upon the statute law of this State, and the rights of assignee upon common law principles. We have no doubt, this debt is subject to our trustee process at the suit of the plaintiffs, though citizens of the State of New York. By the United States Constitution, “The citizens of each State shall be entitled to all the privileges and immunities of citizens of the several States.” Art. 4 § 2. And if wo should deny to the plaintiffs, the use of our courts, to enforce their legal rights, whether against our own citizens, or others, as fully as they may be used by the citizens of Vermont, for that purpose, there might be ground to complain of an infraction of this provision in the Constitution. It is no objection, that the principal debtor, is a citizen of New York. In Chase, Grew & Co. v. Houghton & Co. and Trustees, 16 Vt. 594, both the plaintiffs, and principal debtors, were citizens of Massachusetts. See also Hull v. Blake, 13 Mass. 153. Embree v. Hanna, 5 Johns. 101.

The case of Baylies v. Houghton & Co. and Trustees, 15 Vt. 626, in which it was held, that the trustees were not chargeable, is put upon the ground that the trustees executed the negotiable notes *599in question, to the principal debtors in Boston, Massachusetts, and which, by the implication of law were payable there; and that, by the laws of Massachusetts, such paper was not there subject to the trustee process. But in the case of Burlock v. Taylor and Trustees, 16 Pick. 335, the plaintiff, the principal defendants and the assignees, were all citizens of New York, and the claim was for goods sold and delivered. The assignment, in that ease, was executed at New York, and it was agreed to be valid by the laws of that State; and it was held that as against a citizen of that State, it operated to defeat any right by a subsequent trustee attachment in Massachusetts, upon the ground, that the court would, where citizens of New York were the parties, give effect to the assignment in New York, though the assignment might be invalid by the laws ox Massachusetts. -It is not intimated, that the debt would not have been attachable, if it had not been for the previous assignment ; and had the trustee suit been by a citizen of Massachusetts, the court might not have given effect to the laws of New York, from comity of nations.

In Ingraham v. Geyer, 13 Mass. 146, where it appeared that the trustee was indebted to a firm in Pennsylvania, and there had been an assignment and notice ; yet the court held that a creditor in Massachusetts might attach the debt, even though the assignment was good in Pennsylvania. Though it is said, that movables and debts have no situs ; but will follow the person of the owner, and that the disposition of them is to be governed by the laws- of the place of his domicil; yet to this rule there are some exceptions, and one is, that the law of the domicil will not, from comity of nations, be enforced in an other government, if injurious to the citizens of such government.

In disposing of the case upon the present bill of exceptions, it becomes necessary to see how it stands under the laws of tills State. If to be governed by them, we think the claimant cannot succeed. The rule here is well settled, that to perfect an assignment of a chose in action as against bona fide creditors, and subsequent purchasers, notice must be given to the debtor, of such assignment. In Barney v. Douglass & Trustee 19 Vt. 98, the chose in action had been assigned prior to the service of the trustee process; but no notice given, and the attachment was allowed to prevail for the want of such notice. If the case before us had *600shown that the plaintiffs had had notice of the assignment before they attached, they might perhaps have been postponed to the assignee, upon the ground that they could not present themselves in the character of bona fide creditors, according to the authority of Bishop v. Stocomb, 10 Conn. 446.

If the law requires notice, where a single chose in action is assigned, before the right of the assignee is perfected, except as against the assignor, there is no reason why the rule should not be the same, where an insolvent has assigned all his dioses in action for the benefit of creditors.

In Hall v. Parsons, 17 Vt. 271, it was held, that when personal property in possession, was assigned, first for the benefit of the assignee, as creditor of the assignor, and then for the benefit of the creditors generally, the same chan^ of possession must be had, as in the case of an ordinary sale. In the case of an assignment of a chose in action, an equitable interest only, passes, and as from the nature of the case, there can be no delivery, or change in the possession, notice comes in lieu thereof; and until the assignee gives notice to the debtor or holder of the fund, he has not done every thing he could, to complete his title, and this should be required of him. Besides, to require notice, tends to prevent fraud, and until notice is given, the debtor cannot be regarded, as holding the funds in trust for the assignee.

It has long been the settled law in Connecticut, that to complete the title of an assignee of a chose in action, notice is essential except as against the the assignor. Tudor, Woodbridge & Co. v. Perkins, 3 Day 364. Judah v. Judd, 5 Day 534. Bishop et al. v. Slocumb, 10 Conn. 444. Vanbuskirk v. Hartford Fire Ins. Co., 14 Conn. 144.

We, at an early day, in our jurisprudence, adopted the Connecticut law upon this subject, and so far as it relates to subsequent purchasers, I regard the same rule as settled in England, and upon principle, subsequent purchasers and attaching creditors, must stand upon the same ground. Dearel v. Hall. 3 Russ. 1. Loveridge v. Cooper, 3 Russ. 30. Timson v. Ramsbottom, 2 Shem. 35. Foster v. Cockwell, 9 Bligh 332, 375, 376.

From this it must follow, if the rights of the parties are tobe governed by the laws of this State, the attaching creditor has the superior title. There is no pretence, in the case made, that the *601plaintiffs knew of the assignment, when they attached, and the notice was not given to the trustee, until the 24th day of May; fourteen days after the assignment, and nine days after the attachment.

But it is claimed in argument, that by the laws of New York, the right of the assignee was perfect, to the chose in action, even against attaching creditors, without notice to the debtor of the assignment, and that, by comity of nations, we should apply the rule of the New York law, to this case. But before this can be claimed, it should appear that the attaching creditors are citizens of New York, and that the New York rule of law is different from ours, in regard to the necessity of notice. In the very able opinion of Judge Phelps, in Pickering v. Fisk, 6 Vt. 105, he says, it is a settled rule, that courts do not ex officio take notice of the laws of a foreign sovereignty, but they are to be pleaded and proved as facts, with the qualification, that they may be given in evidence without a plea, like other matters where the rules of pleading, do not require the matter to be set forth specially.

The presumption is, that upon a common law question, the common law of a sister State is the same as our own, and courts cannot tak% judicial notice, of any law of a sister State at variance with our own. If it is claimed that there is a difference, the burden of proof, is upon the party claiming it. Legg v. Legg, 8 Mass. 99. Newton v. Pope, 1 Conn. 109. Holmes v. Broughton, 10 Wend. 75. Leavenworth v. Brockway, 2 Hill 201. Brown v. Gracy, 2 D. & R. 41.

In Buskirk v. Hartford Fire Ins. Co., 14 Conn. 141, the plaintiff and parties to the assignment, were all inhabitants of New York, and no notice had been given of the assignment, until after the service of the trustee process. The court, also found iipon the testimony of a counsellor of law, residing in New York, “ that an assignment of a chose in action in that State, was effectual to convey the title to the assignee, upon the delivery of the instrument to him, and that no notice need be given to the debtor, of the assignment.” Upon the facts reported, the case was reserved for the advice of the fuff-bench.

In argument, it was claimed that the finding of the court below, was not sufficient to show, that by the law of New York, notice was not necessary to defeat an attachment, and that the finding was only as to the rights between assignor and assignee, and of *602tliis opinion was the court. Judge Wait says, “ that to justify the conclusion that the laws of New York, so widely differed from their laws, and those of England, upon a principle, so important, it ought to be made distinctly to appear, and not be left to any forced'construction.” Upon this defect in the finding, the court held, that the case must be governed by the laws of their own State, and advised that judgment must be for the attaching creditor.

After this decision, the same cause came before the superior court a second time, and upon further hearing, this defect in the finding was obviated, and the superior court, then rendered judgment against the attaching creditor, and this was affirmed in the Supreme Court of errors. 14 Conn. 584.

It was a cardinal point, in that decision, that the attaching creditor was an inhabitant of New York. The case of Burlock v. Taylor, 16 Pick. 335, is like the case in the 14th of Conn., and both of' them seem to be well considered cases. If the laws of a sister State are to be proved in our courts, as facts, it is clear, that it would be error in this court, to go aside of the bill of exceptions and take judicial notice of them. In Talbot v. Leeman, 1 Cranch 38, that eminent jurist Chief Justice Marshall remarks, “ that it is not to be questioned that the laws of a foreign nation, designed only for the direction of its own affairs, are not to be noticed by the courts of other countries, unless proved as facts, and that that court, with respect to facts, was limited to the statement made in the court below.” On this question, it has often been decided, that sister states stand in the same relation as foreign nations. Though we may be of the opinion, that the real rights of the parties have not been fairly tried; yet upon this bill of exceptions we cannot say there is error }n the court below; and the party is entitled to an affirmance of the judgment.

Upon motion of the clainjant, the court however, upon terms, proforma, reversed the judgment, and remanded the cause to the County Court,