Wheeling daily intelligencer. [volume] (Wheeling, Va. [W. Va.]) 1852-1859, 1856-08-20
u. s. CIRCUIT COURT FOR TIE
NORTHERN DISTRICT OF
OHIO-JULY TERM 1856.
WILLIAM S. W1cEHAN d WILLI&a S. GosuAM,
MOSES DGLLoS.
opinion or .Iadse VVilI.on

rs.
Moses DHLoS. } /
Opinion of Jad%e WiIIsoH.
| This is motion to set aside the judgment OBJ
tanned by the Plaintiffs at the July Term, 1850,
| and for q new trial.
| Two causes are assigned in support of it
The first is, that the case was tried in the alb
gence of the Defendant and his counsel, and that
said counsel were unavoidably absent through
sickness. Second, that the verdict Is against the
evidence
| The Court would grant this motion without
hesitation on the first cause assigned. But as
all the evidence in the case is i'll writing, We are
asked by counsel on both sides, to review it, aud
grant or oycrrule the motion as the law and the
testimony shall appear in the examination OF the
case ON its merits.
| The action is in trover, brought by the Plato
tiTs (as assignecs and trustees of Marx Grail OF
VAL to recover the value of 90 boxes OF dry
goods The Defendant Claims to hold these goods
as Sheriff. by virtue of q wit OF foreign attach
nent, issued by the Court of Common Pleas OF
Jefferson county, Ohio against Marx Graft at the
suit of Martin Lewis i Co.
From the evidence on file, it appears that III
the summer of 1851 Marx Graf, resident MGR
chant of Wheeling, had become largely indeht-
cd to Eastern creditors for goodsand merchandise.
lOfthese goods; OH their arrival at Wheeling, land
before being unpacked,) in August, 1851, nc sold
to Raphael Myreson tweEty-seven boxes, Tor
S, 5000, aud took his note for the amount sly
erson shipped the goods from Wheeling TO Steu-
benvillc, in the State of Ohio, and on the I'd OF
ISeDte!nber placed them in store with Alexander
DOYLE, and took from him warehouse receipt
for the same The goods remained in HaJie'S
Warehouse until the 18th OF November, at which
time the Plaintiff Wickha!n took possession Of
them by virtue Of said warehouse receipt, and
written order Of that date from Myerson to Doyle,
for the delivery Of the property to the Plaintiffs
itt ut
by the Plaintiffs, as assignees of Graft, in dis
tchargu of Nycrson's note of $1,000.
On the 2lst of November, while the Plaintiffs
werc in tue act of transhipping these goods at
Steubenviile, the Defendant Dillon, acting as
Sheriff Of Jefferson county, seized and took into
his own possession twenty ofsuid boxes of goods,
under and by virtue of the attachment process
of Martin Lewis & Co., aforesaid.
The plaintiffs claim title to the goods in ques-
ton from Graf, who, on the 18th of November,
1851, executed and delivered TO them at Wheel
ling in the State of Virginia, deed Of t'tIst OF
all his property for the benefit OF his creditors,
without any reservation whatever in restriction
of title. The trust deed was duly acknowledged
and recorded on the day ofits execution and de-
livery, and the conveyance in all respects as to
form was made in according with the laws OF
Virginia
This deed of trust provides, that the trustees
shall sell the property as may seem proper III
their discretion, on CTeulI OF lpT CilSll. 4uel
shall first pay the costs which accrue in the cX-
ecution of the trust ''Thev shall diShurse tho
residue in payment and satisfaction, pro rata, of
all other lust, debts due or to become due from
the said Marx Graft to any creditor or creditors,
who shall, within six months from the date of
this deed, assent to the terms thereof by sub
scribing release to be appended thereto, where
bv the said creditor or creditors SHALL in consid-
Grafton This or their claim or debt coming in
for participation of the said balance, pro iutH,
discharge and forever release and acquit the said
Marx Graf and his representatives from all res
possibility for any portion; il any Of such debt,
claim or demand remains unpaid in the pro rata
distribution ofsaid Misunderstanding, howev-
er, expressly from all benefit under the operation
of this deed, any creditor or creditors who may
within that period issue any legal process a
gainst the goods of the said Marx Graf, or a.
gainst his person; and the residue Of said fund,
Eifanv remain, shall be divided pro rate among
those creditors who shall fail and refuse to come
in and within said six months execute and de-
liver such release; and the residue, il any, they
shall pay over to the said Marx Graf or his as
signces."
At the time ofthese transactions, the Plain
tits, NIycrSon and Graft were all citizens and
residents of Virginia, and the sales and paper
transfer of title to the property named, were
made in the city Of Wheeling.
Upon this statement of facts, three questions
of law are presented for our consideration.
1st. Is this deed of trust, in construction and
effect, to be governed by the laws of Virginia,
where it was made and where the parties to ii
resided, or is it to be governed by the laws Of
Ohio where the property is found:
I'd If the former, the deed then valid and
efectual in Virginia for the legal transfer OF the
propertys
Sd. Is there such evidence of fraud on the
face of the transaction, that will make the trans
fer void as to creditorsP
LISA principle ofinternational law thatcouTts
shall take notice of and give effect to the title o.
foreign Gssignces of an insolveut debtor, whether
1.-THE inSolvent made the transfer himself, or the
+ law Of the State of his domcil made 1t for him
and it is for this reason, that the succession tC
and distribution Of personal property is regula
ted bv the law of the owners domicii and not by
the Ter loci rel iSitdo. This rulc is founded, as
well in the necessity to secure justice by avoid
ing conflicts of jurisdiction in matters affecting
title, as TO promote comfy among States and
nations.
In the case of Phillips vs. Hunter q H. Blac
R. 4o2) this question came before all the judges
!of the Exchequer Chamber on error from the
Kings Bench. That high court fully sustained
the principle as laid down by Lord Camden in
Joliet VS. Deponthieu, decided in 1888, and
adopted, as sound law in England, the decision
of Lord Kenyon in Hunter rs. Potts(4, Term R
i182) This last case established the great doc
trinc that the title of the foreign assignee of al
finsolvcnt debtors estate under the Law of the
bankrupt'S Comieil, Was to be preferred to the
subsequent attachment of the domestic creditor,
made lin that case) in America under the law
l of Rhode Island. And it has been decided owe:
/ and over, again by the English courts, that a
filling debtor, before the actual Issuing Of the
commission Of bankruptcy, might assign his