Isaac Means et al. versus Charles Hapgood et al. and Trustee, 19 Pick. 105

Shaw C. J. On the disclosure of the trustee, the Court are all of opinion, that the assignees have the better title to the fund and that the trustee ought to be discharged. This assignment would be valid and effectual if made in this Commonwealth, to pass the property to the assignee, and enable him; to hold it against an attaching creditor of the assignor.

This isl founded upon the general principle, that an owner has the disposing power over property, which is recognized by all civilized, and especially by all commercial nations, to transfer his property, for a good and valuable consideration ; and the general disposition of all friendly governments is to give effect to such contracts; when not opposed by some great consideraSions of public policy, or manifestly injurious to their own citizens. A fortiori is this true of the several States of the American Union, who, though foreign to some purposes, are united for many others.

It is contended, that this is founded solely on comity, and this ought not to be extended to Maine, because it appears from a case in the books of reports of that State, that in a similar case they decided against the operation in that State of a similar assignment made in this, when opposed by an attaching creditor of that State. We think it may be admitted as a general proposition, that such operation is given to acts done in other jurisdictions, as they give to like acts done in ours, upon consideration of comity ; but it is a general comity and reciprocity of rights and advantages.

And we think it would be carrying this principle too far, to take a single case, decided several years ago, a case, the authority of which, in point of law, has been repeatedly doubted in this State, and consider it as conclusive evidence of the existing law of that State, and thus make it the basis of a decision, which would not be adopted, if the same act had been done in another State.

Courts of law are competent to take notice of general considerations of comity ; but it is not, we think, within their province, to attempt to enforce a precise system of retaliation, by adopting the same precise rules against their citizens, which their courts adopt against ours.

We are rather to presume, if they have made a judicial decision, in a particular case, which is not in our judgment conformable to the rules of law, which are usually admitted among civilized nations ex comitate, that it has been owing to mistake or accident, and is not to be taken as evidence of a general course of judicial action which we are bound immediately to follow.

In the present case, there is one circumstance not much commented on, which would take this case out of the rule contended for, which is, that one of the cestui que trusts and creditors under the assignment was a citizen of Massachusetts, so that the rule of retaliation, if in other respects applicable, could not be enforced, without injustice and without defeating a purpose, which the rule itself is designed to accomplish. Trustee discharged.