Potter, J.
The first question to be considered in these cases is, whether the sale of the iron safes by Bates to the plaintiffs on the 2d of November, 1857, was a valid sale. It is urged that the sale was by a voluntary written assignment in trust to pay creditors, and that such assignment is void upon its face, by virtue of the provisions of our statute. (2 B. S., 135, § 1.) There is no express trust created in the instrument in question, nor is it a general assignment in trust for the benefit of the creditors of the assignor. I am unable to distinguish this instrument, in effect, from that in the case of Leitch v. Hollister (4 Comst., 211.) It is an assignment to creditors themselves, for the purpose of securing then-particular demands. Neither the statute nor the principle contended for applies to such a case. If, after the payment of the particular demands it was intended to secure, there should remain over a surplus, such surplus can be reached by any other creditor, by creditor’s bill, by attachment, and, perhaps, in some cases, by redemption. The conveyance is, in effect, a mortgage. If there was any trust whatever, it was not direct but incidental. It does not appear, from the face of the instrument, that a trust was the object of it; and, if the instrument had provided, in terms, that the surplus should be returned to the assignor, it would have been but the expression of what the law itself implies, and it would [126]*126not, for that reason, have been void under the provisions of the statute referred to. Instead of showing a design on its face to withdraw his property from his creditors, it was the direct application of it to that object; and a preference among creditors for this purpose, even when the assignor is insolvent, is not fraud per se. The several modern cases in this court, of Curtis v. Leavitt (15 N. Y., 9); Leavitt v. Blatchford (17 id., 521); Dunham v. Whitehead (21 id., 131), have clearly settled the law upon this point against the defendants. Bor, can this court hold the assignment to be fraudulent in fact. The finding of the judge at the circuit upon this point not being' reversed by the General Term, is conclusive. If we are right in these views, much of the argument upon the character of the instrument and the intent of the assignor in law and in fact is disposed of.
It is also insisted that if the assignment be not void on its face, still, that the title to the property did not pass to the assignees before the levy by the defendants’ attachments, three days after the assignment, as there was no evidence of the plaintiff’s acceptance of the assignment before the attachments were levied. Whatever may be the common law rule in this' respect, in regard to voluntary assignments in trust, where the assignee has no beneficial interest, it .is not the rule where the assignment is directly to a party having a direct beneficial interest in the acceptance of the assignment. In such case, prima facie, the assignee accepts the title (Townsend v. Tiehle, 3 Barn. & Ald., 31); and the onus is upon the party claiming in hostility, to show that there never was an acceptance. (Nicholl v. Mumford, 4 Johns. Ch., 528; Moir v. Brown, 14 Barb., 45.) There is no provision in the statute in relation to fraudulent contracts (2 R. S., 136, § 5) that makes instantaneous delivery an indispensable element to a valid sale, that would make void a sale of goods and chattels, or prevent the title thereto from passing to the vendee, even if unaccompanied by immediate possession. As against the creditors of the party making the assignment,- or subsequent purchasers in good faith, it is presumptively fraudulent. It throws a suspicion upon the transaction, [127]*127which casts the burden of proof upon the assignee to overcome. If he does overcome this presumption, if he satisfies a jury or a court, of fairness and of good faith; if he makes it appear that the sale was made without any intent to defraud such creditors or purchasers; he shows a valid sale,.and the title will have passed thereby. The finding of the court settles this question of good faith. The plaintiffs overcame this legal presumption to the satisfaction of the court below, and we are not at liberty here to question that finding. When this title passed to the plaintiffs, according to the statutes of this State, the defendants were not creditors within the meaning and intent of this statute. They were merely creditors at large; they did not bring themselves within the class of persons.who had a right to attack the assignment. It being thus a valid assignment in fact, and it being already shown that upon its face it is not obnoxious to the charge of creating a trust for the benefit of the assignor, or of delaying, hindering or defrauding the creditors of the assignor, we proceed to examine the next point in the case, which I regard as the most important one to be decided.
The defendants, and all the plaintiffs in this action (but one, who resided in Ohio) were residents of the State of New York at the time of the date of the conveyance by Bates to the plaintiffs, of the safes in question. The contract of assignment was made at Troy, in the State of New York. The said safes were in Bates’ store in Chicago, in the State of Illinois, at the time of the assignment. Bates, at the time of the assignment, was indebted to the defendants in a bona fide demand, for iron which he had used in the manufacture of his said safes. Three days after the date of said assignment the defendants obtained attachments in pursuance of the laws of the State of Illinois, out of a court of competent jurisdiction, and attached the said safes as the property of said Bates, and regularly proceeded to judgment, by virtue of which they sold the said safes. All these proceedings were regular by the laws of Illinois. The plaintiffs had not, at the date of the levy, taken actual possession of the said safes under the said assignment, but were proceeding in good [128]*128faith and with reasonable diligence to do so, and were prevented by the defendants’ attachments.
The question then presented is this: It is claimed by the plaintiffs that, by the law of the State of Hew York, the plaintiffs have shown the older and better title to the property in question; and by the defendants that, by the law of the State of Illinois, the defendants had secured the prior and better title. Assuming, as I think we must, the law in these two States to be as is claimed, and, there being this conflict of law, the case must be determined by decidihg which law controls, that of Illinois or that of Hew York.
In the view I have taken of this case, it does not raise the question of comity between States, nor does the question come in conflict with that provisión of the Constitution of the United States (art. 3, § 4), which requires that full faith and credit shall be given in each State to the public acts, records and judicial proceedings of every other State. Hor will it come in conflict, as is claimed, with the act of congress .of the 26th Hay, 1790, "which declares that the judgments of State courts shall have the same faith and credit in other States as they have in the State where they were rendered. The judgment record from the court in Illinois in favor of the defendants was not offered in evidence in this action, nor could it have been evidence between the parties to this action if it had been, as the plaintiffs in this action were not parties or privies to that judgment, so as to be bound by it.
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Potter, J.
The first question to be considered in these cases is, whether the sale of the iron safes by Bates to the plaintiffs on the 2d of November, 1857, was a valid sale. It is urged that the sale was by a voluntary written assignment in trust to pay creditors, and that such assignment is void upon its face, by virtue of the provisions of our statute. (2 B. S., 135, § 1.) There is no express trust created in the instrument in question, nor is it a general assignment in trust for the benefit of the creditors of the assignor. I am unable to distinguish this instrument, in effect, from that in the case of Leitch v. Hollister (4 Comst., 211.) It is an assignment to creditors themselves, for the purpose of securing then-particular demands. Neither the statute nor the principle contended for applies to such a case. If, after the payment of the particular demands it was intended to secure, there should remain over a surplus, such surplus can be reached by any other creditor, by creditor’s bill, by attachment, and, perhaps, in some cases, by redemption. The conveyance is, in effect, a mortgage. If there was any trust whatever, it was not direct but incidental. It does not appear, from the face of the instrument, that a trust was the object of it; and, if the instrument had provided, in terms, that the surplus should be returned to the assignor, it would have been but the expression of what the law itself implies, and it would [126]*126not, for that reason, have been void under the provisions of the statute referred to. Instead of showing a design on its face to withdraw his property from his creditors, it was the direct application of it to that object; and a preference among creditors for this purpose, even when the assignor is insolvent, is not fraud per se. The several modern cases in this court, of Curtis v. Leavitt (15 N. Y., 9); Leavitt v. Blatchford (17 id., 521); Dunham v. Whitehead (21 id., 131), have clearly settled the law upon this point against the defendants. Bor, can this court hold the assignment to be fraudulent in fact. The finding of the judge at the circuit upon this point not being' reversed by the General Term, is conclusive. If we are right in these views, much of the argument upon the character of the instrument and the intent of the assignor in law and in fact is disposed of.
It is also insisted that if the assignment be not void on its face, still, that the title to the property did not pass to the assignees before the levy by the defendants’ attachments, three days after the assignment, as there was no evidence of the plaintiff’s acceptance of the assignment before the attachments were levied. Whatever may be the common law rule in this' respect, in regard to voluntary assignments in trust, where the assignee has no beneficial interest, it .is not the rule where the assignment is directly to a party having a direct beneficial interest in the acceptance of the assignment. In such case, prima facie, the assignee accepts the title (Townsend v. Tiehle, 3 Barn. & Ald., 31); and the onus is upon the party claiming in hostility, to show that there never was an acceptance. (Nicholl v. Mumford, 4 Johns. Ch., 528; Moir v. Brown, 14 Barb., 45.) There is no provision in the statute in relation to fraudulent contracts (2 R. S., 136, § 5) that makes instantaneous delivery an indispensable element to a valid sale, that would make void a sale of goods and chattels, or prevent the title thereto from passing to the vendee, even if unaccompanied by immediate possession. As against the creditors of the party making the assignment,- or subsequent purchasers in good faith, it is presumptively fraudulent. It throws a suspicion upon the transaction, [127]*127which casts the burden of proof upon the assignee to overcome. If he does overcome this presumption, if he satisfies a jury or a court, of fairness and of good faith; if he makes it appear that the sale was made without any intent to defraud such creditors or purchasers; he shows a valid sale,.and the title will have passed thereby. The finding of the court settles this question of good faith. The plaintiffs overcame this legal presumption to the satisfaction of the court below, and we are not at liberty here to question that finding. When this title passed to the plaintiffs, according to the statutes of this State, the defendants were not creditors within the meaning and intent of this statute. They were merely creditors at large; they did not bring themselves within the class of persons.who had a right to attack the assignment. It being thus a valid assignment in fact, and it being already shown that upon its face it is not obnoxious to the charge of creating a trust for the benefit of the assignor, or of delaying, hindering or defrauding the creditors of the assignor, we proceed to examine the next point in the case, which I regard as the most important one to be decided.
The defendants, and all the plaintiffs in this action (but one, who resided in Ohio) were residents of the State of New York at the time of the date of the conveyance by Bates to the plaintiffs, of the safes in question. The contract of assignment was made at Troy, in the State of New York. The said safes were in Bates’ store in Chicago, in the State of Illinois, at the time of the assignment. Bates, at the time of the assignment, was indebted to the defendants in a bona fide demand, for iron which he had used in the manufacture of his said safes. Three days after the date of said assignment the defendants obtained attachments in pursuance of the laws of the State of Illinois, out of a court of competent jurisdiction, and attached the said safes as the property of said Bates, and regularly proceeded to judgment, by virtue of which they sold the said safes. All these proceedings were regular by the laws of Illinois. The plaintiffs had not, at the date of the levy, taken actual possession of the said safes under the said assignment, but were proceeding in good [128]*128faith and with reasonable diligence to do so, and were prevented by the defendants’ attachments.
The question then presented is this: It is claimed by the plaintiffs that, by the law of the State of Hew York, the plaintiffs have shown the older and better title to the property in question; and by the defendants that, by the law of the State of Illinois, the defendants had secured the prior and better title. Assuming, as I think we must, the law in these two States to be as is claimed, and, there being this conflict of law, the case must be determined by decidihg which law controls, that of Illinois or that of Hew York.
In the view I have taken of this case, it does not raise the question of comity between States, nor does the question come in conflict with that provisión of the Constitution of the United States (art. 3, § 4), which requires that full faith and credit shall be given in each State to the public acts, records and judicial proceedings of every other State. Hor will it come in conflict, as is claimed, with the act of congress .of the 26th Hay, 1790, "which declares that the judgments of State courts shall have the same faith and credit in other States as they have in the State where they were rendered. The judgment record from the court in Illinois in favor of the defendants was not offered in evidence in this action, nor could it have been evidence between the parties to this action if it had been, as the plaintiffs in this action were not parties or privies to that judgment, so as to be bound by it. The proceedings, however, in the action in Illinois, between the defendants and Bates, the perfecting of a judgment there in defendants’ favor, and its regularity and validity in that State, were admitted on the trial.
It is undisputed, that, at the time of the conveyance of the safes and other property by Bates to the plaintiff on the 2d of Hovember, 1857, that all the plaintiff’s assignees, except Woodbury, and Bates the assignor, and the defendants, were residents of the State of Hew York, and that the conveyance to the plaintiffs was executed here. It will not be disputed, that it is the settled law in this court, that as a general rule, [129]*129a voluntary conveyance upon a good and valid consideration, made by a party according to the law of his domicile, will pass his personal estate whatever may be its locality—abroad as well as at home. (Hoyt v. Thompson, 1 Seld., 352; Parsons v. Lyman, 20 N. Y., 112; Story on Conflict of Laws, §§ 379,'380, 383, 411.) That the control of the owner of personal property has no respect to locality. He can dispose of it wherever it may be; that the law of the owner’s domicile determines the validity of every such transfer, alienation or disposition made by the owner. (Cases, supra.) “ This principle,” says Denio, J., in Parsons v. Lyman (supra), “ no doubt has its foundation in international comity, but it is equally obligatory as a rule of decision in the courts as a legal rule of purely domestic origin.”
If I am right in this view of the law, then, in an action in this State, between citizens of this State, in regard to a contract made in this State conveying the title to personal property, it must be determined by the law of Hew York. By our laws, when on the 2d of Hovember, 1857, Bates executed the written assignment, he divested himself at that instant of all title thereto. This title did not remain in abeyance; at the same instant, as a necessary consequence, it vested in the plaintiffs; it was then their property. The defendants,, who, three days afterward took that property, took property the title of which was in the plaintiffs, unless, by some exception to this general rule which we have laid down, the case is brought within such exception.
It is urged with great force, that in no case can an action be maintained for a tort committed in a foreign country, unless by the laws of the country in which the act was done, an action could have been there maintained, and that in this case, an act which would be adjudged lauful in Illinois is asked to be adjudged here as a wrong, and the .case of Whitford v. The Panama R. R. Co. (23 N. Y., 465) and others are cited to sustain these propositions.
The propositions are broader in scope and more extensive in their bearings than the authorities .cited will sustain. The case of Whitford v. The Panama R. R. Co. raised the [130]*130question, not as to a question of the common law, of general application in all civilized nations or States, hut- simply whether a statute of the State of ¡New York, which created a new cause of action, not before recognized by the common law of this State, not shown to be recognized as the common law of the country where the act complained of was committed, and not known to the statute law of the latter country, had application to an injury committed in such foreign country, if the action was brought in this State. That was a personal action of tort, the right to which, by the common law, died with the death of the person injured. That is not this case. ¡Nor are all actions of tort, so called, in the old distinctions known in the character of actions, subject to the same universal rules in regard to the right to prosecute them in another country, or in regard to the abatement of the cause of action by death of the party injured. Common law remedies for the wrongful taking of personal property, and actions for wrong done to personal property, do not abate by the death of the party, at common law, as did the cause of action of Whitford v. The Panama R. R. Co., and as do the actions of slander, assault and battery, and breach of promise to marry, and the like. Injuries called torts, that affect the personal estate, on the contrary, are not only assignable, but actions to recover for them do not abate, and remedies to recover for injuries done to it are regulated by universal common law; and where the common law of the State.or country in which the injury was committed, differs from the law of the State, of the domicile of the parties to the action, in the State where the action is pending, the law of the latter State will control.
We have not deemed it our duty to discuss, as a question in this case, what would have been the effect of the judgment obtained by the defendants against ¡Bates, the plaintiff’s assignor, had the plaintiff been a- party thereto. It is sufficient to say, that the right given to the- plaintiffs by the statutes of Illinois to appear in that action, and defend their rights there, does not estop them here. The case must be decided here upon the strict technical rule of law, as-between [131]*131two bona fide meritorious creditors of Bates, each pursuing their claim with diligence, and each relying upon the strict letter and spirit of the law for their advantage. We cannot see, that because, in certain classifications of actions, it may be called an action of tort, that the law of domicile is changed; nor that, because by the law of Illinois, the tort could be justified there, it differs from the defense of any action arising upon contract, which could also be justified by the law of the State of Illinois, but not by the law of this State. It does not appear that the punishment, as it is called, or the consequence following the result of a recovery by the plaintiff in the one State, differs from that of the other. If the act of the defendants, who are residents here, was illegal here, should they escape the consequences of their illegal action because they have chosen to transfer the' trial to another State? The proposition has morally, as well as legally, two sides; and comity on the part of the State of Illinois should allow the law of the State of Hew York to prevail, even in case the plaintiffs had gone there to claim title to the property.
If we are correct in these views, the judgment should be affirmed.
All concur.
Judgment affirmed.