Paeker, C. J.
It is undoubtedly true, that the regularity of the proceedings, by which the sulky was attached and sold as the property of Pope, is to be tried and determined by the laws of Vermont. The attachment and sale took place within that jurisdiction, the property being found there at the time. It was thus properly subject to the laws there existing ; and even if the same course had not been there resorted to, in order to sell and apply the property in discharge of the debt, as would have been requisite to effect the same purpose here, we are not, for that cause, to hold the proceeding void, if the course adopted was one sanctioned by the laws of that government. Story's Conflict of Laws 462, 321 ; 13 Pick. 53, McRae vs. Mattoon. The process under [142]*142which the defendant acted is to justify him here, for nil acts for which it would be a justification in the courts of that state. ^ Whatever is a justification in the place where the thing is done, ought to be a justification where the case is tried.” Cowper 175, Mostyn vs. Fabrigas, But the right of action is transitory. Ibid; 1 Chitty’s Pl. 268, 273 ; 9 Johns. 67, Glen vs. Hodges; 2 W. Black. R. 1058, Rafael vs. Verelst ; 14 Johns. 131, Gardner vs. Thomas.
But in this case no exception has been taken that the proceedings for the attachment and sale were not in due course, if the property could lawfully be seized, for the satisfaction of the debt against Pope, any where ; but the plaintiff contends that this property was not the property of Pope, and not liable to be taken, in any jurisdiction, for the satisfaction of his debP—that he himself was the owner at the time, having purchased the property of Pope two or three months previous, and that no law of Vermont authorized the defendant to take his property, and apply it to the satisfaction of Pope’s debts. The right to take depends upon the title to the property, and the question is one of property ; for if the plaintiff is correct in the allegation that the sulky belonged to him, it is not suggested that any law of Vermont would justify the attachment and sale of it to pay the debt of another. Such a law, if it existed, would render it questionable whether comity ought longer to exist• for it would be little better than a legalized system of piracy. There is no such reproach resting upon the character of our sister state.
The question which we are called upon to determine is, who, upon the facts disclosed in this case, was the legal owner of the property in controversy, as against creditors, when it was seized by the defendant. If, as against creditors, it belonged to the plaintiff, his action is well sustained ; but if it did not, the defence must prevail, notwithstanding there had been such a contract, or sale, that Pope himself could not have withheld the sulky from the plaintiff. The attachment and return of the officer, and other proceedings, [143]*143in Vermont, do not settle the right of property. 11 Mass. 165, Bolt vs. Burnell; ante 76, Brown vs. Davis.
There is no question that the sulky once belonged to. Pope, who then resided, and perhaps still resides, in Vermont; and this is prima facie evidence for the defendant; but the plaintiff undertook to show that about two months prior to the time when it was attached, he fairly and legally purchased it, and thus became entitled to maintain this action. He proved the contract of sale as alleged, the payment of a full consideration, the delivery of the property, and acts of ownership by him until Pope hired it of him, he being the keeper of a livery stable. The defendant does not deny that these things were done, but he contends this sale was void, as against creditors, by the laws of Vermont, and that he was therefore entitled to treat the sulky as the property of .Pope, when he found it afterwards in Pope’s possession : and he cites several authorities from the reports of that state, which he contends support his position.
If the sale of the sulky had taken place within the state of Vermont, then the validity of the sale, as well as the proceedings to attach and levy upon the property, must be tried by the laws there in force at the time the sale was made ; and it may well be admitted that in such case the question whether the sale was validas against creditors there, should, of right, be tried by those laws, as well as the question, whether it was valid as between the parties to the sale.
But the sale did not take place within the limits of that state, or within several miles of it. The contract of sale was made, the consideration paid, and the delivery perfected within this state ; and the plaintiff held and used the property here for a considerable period afterwards ; and upon what principle is it that the validity of this sale, thus made by the owner, within the limits of this state, is to be determined, for any purpose, by the laws of another state ?
The plaintiff is a citizen of this state, and the purchase by him would appear to have been in the course of his ordi[144]*144nary business, he keeping horses and carriages to be let for hire. At least, the case shows that to be his occupation, and there is no evidence tending to show that the purchase was not so made. This is not a sale made by the owner, in the place of his domicil, of property situated in another jurisdiction. Nor is there any evidence, upon which it could be left to a jury to find that Pope resorted to this state, to make a sale which-was prohibited by the laws of Vermont, and with a view of evading those laws. The contract of sale might as well have been made there as here ; and if it may be surmised that Pope sold because he was in debt, that, it is supposed, would not avoid the sale in either state, so long as there is no evidence that he did it to prevent an attachment; or, if he did, that the plaintiff was at all conu-sant of any such intention.
Nor is there any thing else to bring the case within any exception to the general rule, that the validity of a contract, for the sale of personal property, must depend upon the laws of the government where the contract was made and executed, and the property delivered. Story’s Conflict of Laws 200, 317, &c. Nothing was done in Vermont, and nothing remained to be done there in order to complete the sale ; nor was the sale injurious to the interests of that state ; nor opposed to its policy ; nor did it grow out of any illegal transaction ; nor was it against morals or public rights.
The validity of the contract of sale, then, must be determined by the laws of this state ; and would, doubtless, have been so determined, had this action been brought in the courts of Vermont. 6 N. H. R. 150, Douglass vs. Oldham.,
In determining this question, the subsequent conduct of the parties—the hiring by Pope—the possession of the property, within the limits of Vermont, by him, at the time of the attachment—and the permission of the plaintiff by which it thus went into his possession—may all be taken into the account, but only as they bear upon the question, whether the contract of sale was valid or void. If it was [145]*145once valid, as against creditors, no subsequent possession by-Pope, as a mere bailee, nor any taking of the property into the limits of another state, can render it void.
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Paeker, C. J.
It is undoubtedly true, that the regularity of the proceedings, by which the sulky was attached and sold as the property of Pope, is to be tried and determined by the laws of Vermont. The attachment and sale took place within that jurisdiction, the property being found there at the time. It was thus properly subject to the laws there existing ; and even if the same course had not been there resorted to, in order to sell and apply the property in discharge of the debt, as would have been requisite to effect the same purpose here, we are not, for that cause, to hold the proceeding void, if the course adopted was one sanctioned by the laws of that government. Story's Conflict of Laws 462, 321 ; 13 Pick. 53, McRae vs. Mattoon. The process under [142]*142which the defendant acted is to justify him here, for nil acts for which it would be a justification in the courts of that state. ^ Whatever is a justification in the place where the thing is done, ought to be a justification where the case is tried.” Cowper 175, Mostyn vs. Fabrigas, But the right of action is transitory. Ibid; 1 Chitty’s Pl. 268, 273 ; 9 Johns. 67, Glen vs. Hodges; 2 W. Black. R. 1058, Rafael vs. Verelst ; 14 Johns. 131, Gardner vs. Thomas.
But in this case no exception has been taken that the proceedings for the attachment and sale were not in due course, if the property could lawfully be seized, for the satisfaction of the debt against Pope, any where ; but the plaintiff contends that this property was not the property of Pope, and not liable to be taken, in any jurisdiction, for the satisfaction of his debP—that he himself was the owner at the time, having purchased the property of Pope two or three months previous, and that no law of Vermont authorized the defendant to take his property, and apply it to the satisfaction of Pope’s debts. The right to take depends upon the title to the property, and the question is one of property ; for if the plaintiff is correct in the allegation that the sulky belonged to him, it is not suggested that any law of Vermont would justify the attachment and sale of it to pay the debt of another. Such a law, if it existed, would render it questionable whether comity ought longer to exist• for it would be little better than a legalized system of piracy. There is no such reproach resting upon the character of our sister state.
The question which we are called upon to determine is, who, upon the facts disclosed in this case, was the legal owner of the property in controversy, as against creditors, when it was seized by the defendant. If, as against creditors, it belonged to the plaintiff, his action is well sustained ; but if it did not, the defence must prevail, notwithstanding there had been such a contract, or sale, that Pope himself could not have withheld the sulky from the plaintiff. The attachment and return of the officer, and other proceedings, [143]*143in Vermont, do not settle the right of property. 11 Mass. 165, Bolt vs. Burnell; ante 76, Brown vs. Davis.
There is no question that the sulky once belonged to. Pope, who then resided, and perhaps still resides, in Vermont; and this is prima facie evidence for the defendant; but the plaintiff undertook to show that about two months prior to the time when it was attached, he fairly and legally purchased it, and thus became entitled to maintain this action. He proved the contract of sale as alleged, the payment of a full consideration, the delivery of the property, and acts of ownership by him until Pope hired it of him, he being the keeper of a livery stable. The defendant does not deny that these things were done, but he contends this sale was void, as against creditors, by the laws of Vermont, and that he was therefore entitled to treat the sulky as the property of .Pope, when he found it afterwards in Pope’s possession : and he cites several authorities from the reports of that state, which he contends support his position.
If the sale of the sulky had taken place within the state of Vermont, then the validity of the sale, as well as the proceedings to attach and levy upon the property, must be tried by the laws there in force at the time the sale was made ; and it may well be admitted that in such case the question whether the sale was validas against creditors there, should, of right, be tried by those laws, as well as the question, whether it was valid as between the parties to the sale.
But the sale did not take place within the limits of that state, or within several miles of it. The contract of sale was made, the consideration paid, and the delivery perfected within this state ; and the plaintiff held and used the property here for a considerable period afterwards ; and upon what principle is it that the validity of this sale, thus made by the owner, within the limits of this state, is to be determined, for any purpose, by the laws of another state ?
The plaintiff is a citizen of this state, and the purchase by him would appear to have been in the course of his ordi[144]*144nary business, he keeping horses and carriages to be let for hire. At least, the case shows that to be his occupation, and there is no evidence tending to show that the purchase was not so made. This is not a sale made by the owner, in the place of his domicil, of property situated in another jurisdiction. Nor is there any evidence, upon which it could be left to a jury to find that Pope resorted to this state, to make a sale which-was prohibited by the laws of Vermont, and with a view of evading those laws. The contract of sale might as well have been made there as here ; and if it may be surmised that Pope sold because he was in debt, that, it is supposed, would not avoid the sale in either state, so long as there is no evidence that he did it to prevent an attachment; or, if he did, that the plaintiff was at all conu-sant of any such intention.
Nor is there any thing else to bring the case within any exception to the general rule, that the validity of a contract, for the sale of personal property, must depend upon the laws of the government where the contract was made and executed, and the property delivered. Story’s Conflict of Laws 200, 317, &c. Nothing was done in Vermont, and nothing remained to be done there in order to complete the sale ; nor was the sale injurious to the interests of that state ; nor opposed to its policy ; nor did it grow out of any illegal transaction ; nor was it against morals or public rights.
The validity of the contract of sale, then, must be determined by the laws of this state ; and would, doubtless, have been so determined, had this action been brought in the courts of Vermont. 6 N. H. R. 150, Douglass vs. Oldham.,
In determining this question, the subsequent conduct of the parties—the hiring by Pope—the possession of the property, within the limits of Vermont, by him, at the time of the attachment—and the permission of the plaintiff by which it thus went into his possession—may all be taken into the account, but only as they bear upon the question, whether the contract of sale was valid or void. If it was [145]*145once valid, as against creditors, no subsequent possession by-Pope, as a mere bailee, nor any taking of the property into the limits of another state, can render it void.
It seems to be conceded, if the contract of sale is to be tried by the laws of this state, that there was a sufficient change of the possession, and that the sale must be held valid and the plaintiff’s action sustained.
If we rightly apprehend the law of Vermont, as gathered from the cases cited by the defendant’s counsel, the result of a trial by that law must probably have been the same.
It seems to be supposed, that there is a substantial difference in the rule relative to sales of personal property, as held in the two states ; possession of personal property, after an absolute sale, in this state, being held to he, prima facie, and if unexplained, conclusive evidence of fraud; while in Vermont it is held to be fraud per se. The expressions in some of the cases, taken alone, might perhaps well lead to such a supposition ; but the general current of the authorities seems to indicate, that the principle held in both may perhaps be substantially the same. There might, in that case, be some difference of opinion as to some of the applications which have been made of the principle.
The leading case in this state is Coburn vs. Pickering, 3 N. H. R. 415, in which it was held, that “any trust attend- ‘ ing a sale of chattels is a fraud with respect to creditors. 1 And if the vendor of chattels retain possession after an £ absolute sale, this is always prima facie, and if unexplained, ‘ conclusive evidence of a secret trust.” And further, that an agreement made after the sale, on the same day, that the vendor should retain possession, and pay rent to the vendee, was not a sufficient explanation. By the law of this state, therefore, in order to a valid sale as against creditors, there must be a change of possession ; and doubtless an open, visible and substantial change ; or there must be some sufficient explanation why the property was left in the possession of the vendor. It is not said that the change must be [146]*146actually known and notorious. What will constitute a sufficient explanation has never been fully settled j but its nature is, in some degree, indicated by the fact, that an agreement that the vendor might retain possession, under a lease, has been held not to be sufficient.
In this case, however, there was a change of possession, continuing about two months ; and the courts of Vermont, although they hold that “a sale of personal property, unaccompanied with a change of possession, is per se fraudulent as against the creditors of the vendor,” do not hold, where there has been a visible substantial change of the possession, that the sale is fraudulent, if the property is, afterwards, upon a hiring, suffered to go back into the possession of the vendor, for a temporary purpose. 6 Vermont Reports 521, Farnsworth vs. Shephard; 8 ditto 356, Morris vs. Hyde; 4 ditto 462, Harding vs. Janes.
From the opinion of Mr. Justice Prentiss, 2 Aiken’s R. 69-70, it seems there are exceptions to the rule as held in Vermont. Perhaps an impossibility of removal and change of possession, from whatever cause, might be held to constitute an exception. If what would be held here to be a sufficient explanation, would there negative the fraud and form an exception, the difference between the law, as held in the two states, is rather one of terms than of principles. However this may be. there must in this case be
Judgment for the plaintiff.