K' Cornell University Law Library The Moak Collection PURCHASED FOR The School of Law of Cornell University And Presented February 14. 1893 IN HEnORY OP JUDGE DOUGLASS BOARDMAN FIRST OEAN OF THE SCHOOL By his Wife and Daughter A. M. BOARDMAN and ELLEN D. WILLIAMS Digitized by Microsoft® Cornell University Library K 7040.W52 1880 A treatise on private international iaw 3 1924 021 262 583 Digitized by Microsoft® This book was digitized by Microsoft Corporation in cooperation witli Cornell University Libraries, 2007. You may use and print this copy in limited quantity for your personal purposes, but may not distribute or provide access to it (or modified or partial versions of it) for revenue-generating or other commercial purposes. Digitized by Microsoft® PEIVATE INTEENATIONAL LAW. Digitized by Microsoft® Digitized by Microsoft® A TBEATISE PRIVATE INTERNATIONAL LAW, WITH PRmCIPAL REFERENCE TO ITS PRACTICE IN ENGLAND : BEING IN LIEU OF A SECOND EDITION OF THE "WORK PUBLISHED IN 1858. JOHN WESTLAKE, Q.C., LATE FELLOW OF TRINITY COLLEGE, CAMBRIDGE; HON. LL.D., EDINBLTRGH ; MEMBER OF THE INSTITUTE OP INTERNATIONAL LAW. LONDON : WILLIAM MAXWELL & SON, 29, FLEET STREET, RC, fafa ioohstUws sub |nbli«lj£rs, MEREDITH, RAY, & LITTLER, MANCHESTER j HODGES, FIGGIS, & CO., AND E. PONSONBT, DUBLIN; THACKEE, SPINK, & CO., CALCUTTA; C. F. MAXWELL, MELBOURNE. Digitized by /vfMso/?® LONDON : BRADBTJEy, AQHEW, & CO., PBINTERS, WHITEFRIABS. Digitized by Microsoft® PREFACE. This work difiers in many points from that published in 1858, to which, it stands ia lieu of a second edition. English authority has now touched almost every part of private international law, generally giving a clear deliverance, but sometimes varyiag, or noticing a point without deciding it. It is therefore possible to present the English view in a series of propositions or of topics, which I have done, marking them ofi by the sign § from other exposition and discussion, and adding the authorities after each in smaller type. The other exposition and discussion here referred to is mainly intended for students, whose thoughts I have wished to direct, first, to the general connection of the subject with the history of law in Europe during the last two thousand years, and secondly, to the comparison of received English doctrines with those current at the present day in other countries. Thus, while often pointing out the causes which have made received English doctrines what they are, I have not said much of the reasons why they should be maintained or altered : the doctrines are mostly so well established in the courts that those reasons would be of little use, except in quarters which it would be idle to address in a law-book. Digitized by Microsoft® vi PREP"ACE. Tlius also I have meutioned but little the classical jurists of this branch of la^^''. To do otherwise would have involved more detail than it seemed proper to afford to the history, while the present state of private international law abroad is only to be learnt from the most modern codes, decisions and writers. To be complete even in the two directions indicated would have required another volume as large as this, but I trust that the powerful stimulants of growth and diversity have been sufficiently exhibited to excite the cmdosity of students, in a subject in which they have often been cheated by the empty assertion of universal agreement. Writing with the views here explained, it has followed that when I have invited the reader to look abroad, it has almost always been in Europe and not to America. The jurisprudence of the United States on private international law is rich, but it is too like our own to serve my purpose with students, while the practitioner wUl find its results embodied in the American treatises. It would have required the leisui-e hours of years to examine the United States decisions as care- fully as I have here examined the English ones, and with less care it would have been absurd to compete with theii- native exponents. The order selected for treating the subject is that which seemed best fitted for explaining it to a student who should read the book consecutively, without previously knowing anything of this branch of the law. Since detailed statements on any part are often puzzling before a general view has been obtained, the necessary general notions are delivered in the first two chapters by a kind of successive approximation. Digitized by Microsoft® PREFACE. vii The year of each English reported decision has been given. This, besides the historical purpose served, will enable those who possess other reports than such as are cited to find the cases easily, so far as the reports they have may contain them. The names of the judges have also been given. The legal literature of England need not shrink from a comparison with that of the continent, but the judges mainly take the place in it which authors hold in countries where the bench belongs to the profession of the civil service, instead of being recruited from the most eminent members of the bar, and where the only reasons given for a decision are those incorporated in the formal judgment. To name the EngHsh authorities is therefore a tribute due not more to them than to the country, which is often supposed to be deficient in reasoned law, because its mode of expression is peculiar. I regret that the habit in the privy council, of not disclosing what judges compose the majority, has made it impossible to attach any names to the decisions of that august court but those of the members who delivered them respectively. It is a habit which detracts from the weight of the decisions as reason without adding to their authority as law. Lincoln's Inn, 22nd July, 1880. Digitized by Microsoft® Digitized by Microsoft® CONTENTS. CHAPTER I, PAGE Inteoduction" ... ...1 CHAPTER II. Pkbsent State of the Subject on the Continent 24 Staius mid Capacity 24 Property not Considered in Special Connection mth a Person . . . . 31 Property Considered in Special Connection with a Person .... 33 Forms of Acts, other than Jvdidal ones . . . . . . . . 34 Intrinsic Validity and Effects of Contracts ....... 35 Judicial Proceedings ........... 38 Penal and Police Laws .......... 39 Beservation.in favour of Striru/ent Domestic Policy 39 Rights of Foreigners 40 CHAPTER III. Capacitt, and Foreign Guabdianships and Curatoeships .... 43 CHAPTER IV. Maekiage, Divorce, Legitimacy. Marriage ... 52 Effect of Marriage on Property . . . . . ... . . 61 Divorce ............. 70 Legitimacy 83 CHAPTER V. Succession to Movables on Death 88 The Qrant of Prolate or Administration 91 Validity of Wills of Personal Estate 97 What Personal Estate passes hy the Grant of Probate or Administratimi, or must ie accounted for by the English Executor or Administrator . . . 102 Principal and Ancillary Administrations, and Questions arising in Admin- istration prior to the Distribution of the Surplvs 109 Distribution of the Surplv^ in an Administration 123 Digitized by Microsoft® X CONTENTS. CHAPTER VI. PAGE Bankruptcy . . . . . .... 130 CHAPTER VII. Movables . .... 154 CHAPTER VIII. Immovables 177 CHAPTER IX. Genbkal Notions on Jukisdiction 190 CHAPTER X. Jukisdiction in England, and Extekritokiality 203 Note on Actions for Trespass to Foreign soil 210 Exterritoriality ............ 211 CHAPTER XL ToKTS . . ... .... ... 220 CHAPTER XII. CON'TKACTS .... ... ... 229 Formalities of Contract': . . .... . . 229 Interpretation of Contracts .......... 232 Intrinsic Validity and Effects of Contracts ....... 234 Obligations quasi ex contractu ......... 248 CHAPTER XIII. TRANSF]iR AND EXTINCTION OF OBLIGATIONS 250 Transfer of Obligations 252 Extinction of Obligations 253 CHAPTER XIV. Domicile 259 Rules for the Ascertainment of Eomidlc 271 Trade Domicile in Time of War ,,,..... 285 Digitized by Microsoft® CONTENTS. CHAPTER XV. PAGE British Nationality 286 Natural-horn Svbjeds at Common Law .... . . 286 Natv/ral-horn Subjects by Statute ......... 287 Naturalization, Denization, and Resumption of British Nationality . .289 DeclaratioTis of Alienage and Expatriation ... ... 291 Effect of (ha Family cm, Nationality 292 Transfer of Nationality in cases of Cession 293 CHAPTER XYI. COEPOBATIONS AND PUBLIC INSTITUTIONS . . . ... 294 CHAPTER XVII. FoKEiGN Judgments and Pbooeedings 301 CHAPTER XVIII. Peocedl'HE 320 Proof of Foreign Laws 323 Various 327 CHAPTER XIX. Conclusion 328 INDEX of the English Doctrines on Pkivate International Law . . 333 Digitized by Microsoft® Digitized by Microsoft® LIST OF CASES CITED. [The Numbers are those of the Pages. '\ Abbott w. Abbott, 322 Acklam, Doe v., 293 Adair, Anstnither v., 68 Adam, re, 291 Adams, Forbes v., 178 Adamson, Copin v., 304 Adv. -Gen., Thomson v., 117 .3ineas Macdonald's case, 286 Agnilar, Geyer v. 317 Aikman v. Aikman, 277, 283 Aitcbison v. Dixon, 279 Aktiebolaget, &c., "Westman v., 205, 299 Albion Insurance Co. v. Mills, 240 Alexander, re, 102 — Att.-Gen. v., 296 — V. Vangban, 140 Alivon V. Furnival, 142, 303, 314 AUan, PbiUips v., 257 Allardice v. Onslow, 278 AUen V. Anderson, 179, Add. — 1). Cameron, 140 _ V. Kemble, 244, 248, 321 Alves V. Hodgson, 231 AmaUa, the, 226 Anderson, Allen u, 179, Add. — V. Caunter, 106, 107 _ Dodsworth v., 139, 140 _ LaneuvUle v., 95, 97, 101, 277 — Queen v., VI i AngeU, Pellecatu, 238 Anglesea, Phipps u, 182 Anglesey, Case of Lord, 184 Anglo-ltaUan Bank, Moor v., 184 Angus V. Angus, 183 Anonymous, 67, 122, 243 Anstruther v. Adair, 68 — V. Chalmer, 127 Aramburu, d', Viesca v., 93 Arayo v. Currell, 241 Archbold, Harvey v. 243 Archer V. Preston, 184 Argent v. Argent, 83 Arglasse v. Muschamp, 183, 184 Arkwright, Doe v., 293 Arnolds. Arnold, 117 Amott V. Redfern, 240, 314 Arthur v. Hughes, 107 Athlone Peerage case, 289 Atkins V. Smith, 108 Att.-Gen. v. Alexander, 296 Att.-Gen. v. Beatson, 117 — V. Bouwens, 105, 116 _ V. Campbell, 120, 121, 327 _ V. Cockerell, 117 — V. Dimond, 116 _ V. Forbes, 117 V. Higgins, 116 — V. Hope, 116 — V. Kent, 282 — V. Lepine, 295, 296 — V. London, city of, 296 _ V. MiU, 180 — V. Napier, 118 — Partington v., 116 — V. Pottinger, 283 _ V. Pratt, 116 — V. Eowe, 281, 283 _ Shawu, 79, 8'2 — V. Sturge, 296 — V. Wahlstatt, 28l — V. "Wallace, 118 Att. -Gen. of New South "Wales, Piatt »., 279 Aubery, Provost of Edinburgh «., 295, 296 Audley, Chethamu, 112 Auriol V. Thomas, 247, 248 Austria, Emperor of, v. Day and Kossuth, 175 Ayers, "WiUaus «. , 248 Bacon v. Bacon, 287 Badai-t, re, 120, 121 BaOlie v. BaUlie, 111 Bain v. "Whitehaven & Furness Junction Railway Co. 322 Baker, re, 49 — Johnstone v., 179 Baldwin, Lewis v., 296 Balfour v. Scott, 124, 125 Ballantine v. Goldiug, 256 Baltica, the, 285 Baltimore, Penn v., 183, 184 Banco de Portugal, Exp., 150, 151, Add. — V. Waddell, Add. Bank of Australasia v. Harding, 309, 315 — V. Mas, 309, 313, 315 Bank of England, City Of Berne v., 215 — De la Ohaumette v., 252 — Stewart «., 218 Bank of Montreal v. Bethune, 299 Digitized by Microsoft® LIST OF CASES CITED. Barber, Cockerellw., 112, 128 — i: Lamb, 315 Barbuit's case, 219 Barclay, Taylors;., 238 Thompson t<., 238 Barring, De Tastet v., 247 Barnes v. Vincent, 101, 102 Barron, Gilli)., 258 Barros, de, Sottomayor v., 44, 54, 56, Add. Barry, Brodiet'., 129 Bartels, Griniwoodv., 181 Bartley v. Hodges, 257 Bayley v. Edwards, 186, 317 Bazet't V. Meyer, 238 — Simeon v., 238 Bearcroft, Comptonu., 55, 66 Beatson, Att.-Gen. )/., 117 Beattie, Johnstone v., 47, 48, 273 Beauchesne, de, Hodgson r., 269, 280, 284, 285 Beanfoy, Campbell f., 125 Beaumont v. Oliveira, 180 Beavan i\ Hastings, 108 Beazley, Conway u, 32 Beckford i: Kemble, 185, iVr. — V. Wade, 182 Becquet v. MacCarthy, 305 Bedale, Boyes v., 129 Begrez, Fisher ■»., 218 Belisario, Lindoi;., 325 Bell V. Kennedy, 264 — V. Martin, 186 — Tyler v., 107 Bellamont, Connor v., 242 Bellamy, Bodily ■«., 242 Bempde v. Johnstone, 125, 273 Bent '0. Young, 185 Bentley v. Northouse, 253 — Scott V. , 49 Berchtoldt, Chateeld?)., 179 Bernal v. Bernal, 128 Bernales, de, Cosio v., 47 — iSTational Banlc of St. Charles v., 297 Berne, City of, v. Bank of England, 215 Bernes, Stanley v., 99, 280 Bertram v. Uuhamel, 243 Bethune, Bank of Montreal v. , 299 Bevan, Scott r., 243 Bianchi, re, 96, 276 Biggs v. Lawrence, 238 Bingham, Ommaneyt;., 125 — Pardot)., 114, 253 Bircham, Currieu., 104 Bird V. Sedgwick, 140 Eire v. Thompson, 238 Birt r. Boutinez, 83 Birtwhistle t). Vardill, 187, 188, 189 Blain, £xj}., 141, Add. Blake r. Smith, 33 4 Blakeman, Hovey v., 112 Blakes, Erp., 146 Bland, Robinson v., 237, 239 Bligh, Obicini v., 305 Blithman, re, 142 Bode (Baron de) 's case, 324 Digitized by Bodily V. Bellamy, 24::! Bold Buccleugh, the, 318 Bonaker, New r. , 296 Bond V. Bond, 75, 76 — V. Graham, 106, 107 Bonelli, re, 325 Bonneval, de, v. de Bonneval, 98, 284 Booth V. Leycester, 315 Bos, Eeuss r., 141 Bonard, Vanquelinu, 92, 105, 310, 313 Boucher v. Lawson, 238 Boulanger, Talleyrand v., 321 Bourke v. Eicketts, 123 Boutinez, Birt r., 83 Bouwens, Att.-Gen. v., 105, 116 Bowaman i: Reeve, 122 Bowles V. Orr, 314 Boyes v. Bedale, 129 Braddell, Steele v., 56 Bradlaugh v. De Rin, 246 Bradshaw, Richardson w., 150 Braga, the. The Repeater v., 22S Braidwood, Cowan v., 306 Brampton, King 1;. , 58 Branley v. South-Easteru Railway Co. , 242 Bremer v. Freeman, 101, 271, 326 Brettillot r. Sandos, 321 Brickwood r. Sliller, 151 Bridport, Nelson v., 186, 324, 325 Briggs V. Briggs, Add. Brightwell, Wallis v., 182 Bristow V. Seque-f iUe, 231, 232, 325 British Linen Co. v. Drumraond, 253 Brodbelt, Raymond v., 123 Brodie v. Barry, 129 — 11. Brodie, 75 Brook I'. Brook, 45, 54, 56, 57 Brown, Collins Co. v., 299 — Douglas 1-., 323 — V. Gracey, 323 — Leroux v., 230 — Potter v., 256 — r. Smith, 281 Browne v. Phillips, 93 Bruce, re, 117, 293 — V. Bruce, 124, 277 Brunei v. Brunei, 271 Brunswick, Duke of, v. King of Hanover, 213, 216 Bucclengh t'. Hoarc, 179 Buchanan v. Rucker, 305 — Smith!',, 257 Bullock r. Cau-d, 321 Bunbury c. Buubur}', 184 Burgess, Kent v., 52 Burn V. Cole, 93 — V. FaiTar, 58 Burrows ■!>. Jamineau, 243, 315 Burslem, Lopez v., 322 Burton r. Fisher, 275 Bute, Stuart v., 48 Butler V. Freeman, 52 Cadell v. Grant, 296 Cail V. Papayanni, 226 Microsoft® LIST OF CASES CITED. XV Caird, Bullock t)., 321 Calcutta Jute Mills Co. v, Nicholson, 297 Caldwell v. Vanvlissengen, 225 Callanane v. Campbell, 121 Callander v. Dittrich, 316 Callander, Wynne v., 240 Calvin's case, 287 CammeU v. Sewell, 167, 168, 170, 171 Campbells Att.-Gen., 327 — Att-Gen v., 120, 121 — V. Beaufoy, 125 — CaUanane v., 121 — V. Campbell, 128 — V. Dent, 240 — Duncan v., 234 — V. French, 65 — V. Graham, 128 — Meiklanw. , 111 — V. Sandford, 128 — V. Stein, 253 Camphausen, Padley v., 205 Canham v. Gold, 312 Canuan, Duncan v., 68 Cannon, Allen v., 140 Capdevielle, re, 117, 277 Carbery, Freketi., 180 Carl Johan, the, 226 Carnegie, Hope v.. Ill, 184 — M 'Stephens i;., 208 Carron Iron Co. v. Maclaren, 300 Carteret v. Petty, 184, 186 — Toller v., 185 Cartwright, Stirling- Maxwell d., 108, Add. Cash V. Kennion, 243 Castrique v. Imrio, 167, 168, 169, 172, 314 Catherwood, James v., 231, 232 Catterina Chiazzare, the, 317 Gaunter, Anderson v., 106, 107 Cavan v. Stewart, 305, 308, 309 Cazalet, Newman v., 242 Cesena Sulphur Co. v. Nicholson, 297 Chalmer, Anstruther »., 127 Chambres, Norris «., 184 Champant v. Ranelagh, 242 Chancellor, the, 228 Chapman v. Cottrell, 243, 247 Charkieh, the, 212 Chatfield v. Berchtoldt, 179 Cheetham, Isherwood v., 98 Chetham v. Audley, 112 Chichester v. Donegal, Add. Christiana, the, 226 Cigala, re, 121 Ci^ of Mecca, the, 302 Clarke, re, 98 — de Serre v., 65 — V. Ormonde, 183 Clason, O'NeU v., 206 Clegg V. Levy, 231, 325 Clugas V. Penaluna, 238 Cockerel], Att.-Gen. v., 117 — V. Barker, 112, 128 — V. Dickens, 146, 147, 148, 153 Cohen v. South-Eastern Eailway Co., 242 Cole, Bum v., 93 Collier v. Riva^, 101, 271 Collins Co. V. Brown, 299 — V. Reeves, 299 Colliss V. Hector, 69 Colombian Government v. Rothschild, 215 Colston, Quarrier v., 239 Commercial Bank of India, re, 142 Commissioners of Stamps and Taxes, Keg. u., 117 Compton V. Bearcroft, 55, 56 Connelly v. Connelly, 83 Connor v. Bellamont, 242 Constitution, the, 212 Conway (Countess de) 's case, 292 — ■». Beazley, 82 — Stapletonu, 242 Good V. Good, 183 Coode, re, 96 Cook V. Dey, 205 — V. Gregson, 113, 114 Cooper V. Waldegrave, 242, 243 Coote V. Jeekes, 172 Cope u Doherty, 226 Copin V. Adamson, 304 Coppin V. Coppin, 181 Cosio V. de Bernales, 47 Cosnahan, re, 93, 97 Cosse Brissac, de, v. Rathbone, 309, 313 Costa, da, Sylva v., 51 Costa Rica, Republic of, v. Erlanger, 215 Cottingham, Neal v., 142 Cottington's case, 312, 318 Cottrell, Chapman v., 243, 247 Cowan D. Braidwood, 306 Cox V. MitoheU, 317 Cranstown v. Johnston, 183 Crawford, "Woolsey v., 248 Crispin, JExp., 140 — V. Doglioni, 91 — Sharpe v., 270, 273, 282 Croker v. Hertford, 99 Crookenden v. FuUer, 101, 102, 279 Cruikshauk v. Robarts, 318 Cunha, da, re, 44 Curling v. Thornton, 99, 125 Cm-rell, Arayo v., 241 Currie v. Bircham, 104 — Rothschild v., 245 Curtis V. Hutton, 180 Cust V. Goring, 179 Cuthbert, Royal Bank of Scotland v., 62 143, 145 Daore, Pitt v., 182 Dalhousie v. M'Douall, 85, 281 Dallas, Hamilton v., 271, 284 Dalrymple v. Dalrymple, S3, 81, 325 Daniel v. Luker, 106 Darell, Moore v., 97 Darling, Maekie v., 49 Davidson, re, 143 Davis, Selkrig v., 143, 145, 146 Dawson v. Jay, 48 Day, Emperor of Austria v., 175 Decaix, McCarthy t)., 82 Deck V. Deck, 76 Digitized by Microsoft® LIST OF CASES CITED. Delta, the, 318 Dempsey, Norden Steamship Co. v., 241 Dent, Campbell v., 240 — Reg. 1)., 325 Deponthieu, JoUetu, 142 Dewar v. Maitland, 129 — V. Span, 243 Dewhurst, Piice v., 91, 314 Dey, Cookt;., 205 ■Dickens, Cockerell u , 146, 147, 148, 150 Uigby, van Gnitten v. , 66, 232 Dimond, Att.-Gen. v., 116 Dittrich, CaUandaru, 316 Dixon, Aitchison v., 279 Dobree, Sxp., 150 — V. Napier, 223 Dodsworth v. Anderson, 139, 140 Doe 1). Acklam, 293 • — V. Ark Wright, 93 — V. Jones, 287 — V. Mulcaster, 293 Doglioni, Crispin v., 91 Doherty, Cope v., 226 Dolphin V. Robins, 79, 82, 102, 273 Don, re, 189 — V. Lippmann, 253, 305, 313 Donegal, Chichester v. , Add. Donegall, Houlditchu, 313 Donegani v. Donegani, 291 Donovan, Page v., 99 Dormer, Williams v., 273, Add. Dormoy, re, 324 Doucet V. Geoghegan, 277, 279 Douglas (Sir C.) 's case, 125 — V. Brown, 323 — V. Douglas, 266, 270 — V. Forrest, 305—307 — Munroe v., 276 Doulson V. Matthews, 210, 211 Dowdale's case, 108 Dowdale, Richardson r. 108 Drake, Saunders v. 127 Drevon v. Drevon, 280, 281 Dreyfus, Twycross v., 217 Drocge v. Stuart, 241 Drnce, Reimersu, 313, 314 Drummond's case, 292 — British Linen Co. v., 253 — V. Drumraond, 123, 179 _ President of U. S. of A. v., 284 Dues V. Smith, 65 D;ihamel, Bertram v. , 243 Dumergue, Vallee v., 304 Dumfries, the, 227 Duncan v. Campbell, 234 — V. Camnan, 68 — Swansea Shij)ping Co. <•., 209 Dundas v. Dundas, Add. Dundee, the, 226 Dungannou v. Hackett, 242 Dunlop, Innes v. , 252 Dunsany, "Wilson i>., 113 Dnpleix v. De Koveu, 301 Dutch East India Co. v. Henriques, 297 Dutch Rhenish Railway Co. v. Sudlow, 296 Dutch West India Co. b. Henriques, 297 Eagae, Naylor v., 317 Earl, re, 93 East India Co., Ekins v., 228 — Freeman v., 170 — Mayor of Lyons 1J. , 295, 296 — Skinner-!)., 210, 211 Eckford, Hddane v., 281 Eclipse, the, 228 Ede, Paget «., 185 Edinburgh, Provost of, o. Aubery, 295, 296 Edwards, Bayleyr., 186, 317 — V. Ronald, 257 Ekins V. East India Co., 228 Elias, re, 49 Eliza Cornish, the, 163 EUefsen, Imlay -»., 317, 321 Elliott V. Minto, 123, 179 EUis V. Loyd, 242 — V. McHeniy, 257 Emery v. HiU, 295 Enohin v. Wylie, 95, 110 Erlanger, Republic of Costa Rica v., 215 Erminia Foscolo, the, 318 Este V. Smyth, 59 Eustace, Kildare v., 184 Evreux, d', Macnamara v., 238 Ewer, Walpole v., 241 Ewin, re, 116, 117 Express, the, 241 Eyre, Phillips v., 222 Fabrigas, Mostyn i'., 202, 210, 223, 224 Factage Parisien, re, 141 Fairlie, Freeman ii., 112 — Logan u, 106, 107, 117 — Lowe v., 106 Farrar, Burn v., 58 Fenton v. Livingstone, 1S7 — Reynolds r., 306, 309 Ferguson r., Spencer, 258 Fergusson v. Fyffe, 242, 254 — Gilbertson )■,, 296 Fernandes' Executors, crp., 91, 116 Fernie, Harvey v.. Add. Ferrand, Wilson j'., 317 Finlay v. Finlay, 322 Firebracc r. Firebrace, 78 Fisher r. Begi-ez, 218 — Burton v., 275 Fitch V. Weber, 288, 292 Fitzjames, Mclan r., 321 Fitzpatrick, Herveyr., 106, 107 Flack V. Holm, 321 Fleming, Hai-risr., 208 Fletcher, Lever v. , 238 — Planche v., 238 Florence Land and Public Works Co. Norton r., 184, 186 Flower, Tourton r., 91 Fogo, Simpson r., 168, 172 Digitized by Microsoft® LIST OF CASES CITED. FoUiott V. Ogden, 142, 328 — Ogden v., 328 Forbes v. Adams, 178 — Att.-Gen. v., 117 — V. Forbes, 274, 276, 279, 283 — Jackson v., 117 — Odwiu v., 257 Forrest, Douglas ■!)., 305—307 Foster v. Vassall, 184 Foubert v. Turst, 69 Foxwell, King v., 276 Francis -v. Rucker, 247 Frankland v. McGvtsty, 314 Fraser, Sinclair v., 312, 314 Freeman, Bremer v., 101, 271, 326 — Butler v., 52 — V. East India Co., 170 — V. Fairlie, 112 Freke v. Carbery, 180 Fremont, Gibbsv., 244, 248 French, Campbell v., 65 Fuller, Crookenden v., 101, 102, 279 Furuival, Alivon v., 142, 303, 314 Fyfife, Fergusson v., 242, 254 Galbeaith v. Neville, 312 Gaily, re, 100 Gambler v. Gambler, 49 Garcia del E.io, Jones v., 238 Garcias, Pdcardo «., 315 Gardiner v. Houghton, 256 Garetty, Winchelsea v., 122 Garnet, Pierson v., 127 Gamett, McCormick v., 65, 323 — Stewart v., 182 Gamier, re, 50 Garrett, Law v., 318 Garvan, Eoaoh v., 318 Geddes v. Mowatt, 143 General Co. for Proinotiou of Land Credit, re, 141 General Iron Screw Collier Co. v. Schur- manns, 225 General South American Co., re, 247 General Steam Navigation Co. v. Guillou, 299, 308, 309, 315 Genesee Mutual Insurance Co. o. West- man, 299 Gentili, re, 180 Geoghegan, Doucet v., 277, 279 Geyer v. Aguilar, 317 Gibbons, Molony v., 309 Gibbs V. Fremont, 244, 248 Gilbertson v. Fergusson, 296 Gill V. Barron, 258 Girolamo, the, 226, 227 Gladstone v. Musurus Bey, 217, 218 — - V. Ottoman Bank, 217 Glasgow and South Western Eailway Co., Mackereth v., 300 Godard v. Gray, 314 Gold V. Canham, 312 Golding, Ballantine v., 256 Goldsmid, Exp., 151 Goodman v. Goodman, 86, 129 Goold, Richards, v., 180, 231 Goring, Cust v., 179 Gould, ShuMV., 79, 82,84 — Smiths)., 323 Gout V. Zimmermann, 282 Gracey, Brown v. , 323 Graham, Bondt)., 106, 107 — Campbell v., 128 — Milne v., 253 Grant, Cadell v., 296 Gray, Godard v., 314 Great Australian Gold Mining Co. v. Martin, 205 Greer v. Poole, 241 Gregory, Jurado v., 302 Gregson, Cook v., 113, 114 Grell V. Levy, 240 Greuchy, de Wills v., 249 Grey, Shelby v., 254 Griefswald, the, 315 Grierson v. Grierson, 56 Grimwood v. Bartels, 181 Guepratte v. Young, 47, 66, 69, 229 Guibert, Lloyd v., 241 Guillebert, Sxp., 243 Gumm, Harper v., 172 — M'LeUani)., 172 Gumpach, von. Hart v. , 222 Gumey, Harrison v., 183 Gutch, Williams v., 228 Guillou, General Steam Navigation Co. v., 299, 308, 309, 315 Gutierrez, Bxp., 140 Hackett, Dungannon v., 242 Haldane v. Eckford, 281 Hall V. Odber, 303, 315 — White v., 183 Halley, the, 173, 223, 227 Hallyburton, re, 102 Hamburgh American Steamship Co. v. North of Scotland Banking Co., 228 Hamilton v. Dallas, 271, 284 — United States u, 175 — Walker v., 247 Hankey, Tatnall v., 102 Hanover, King of, Duke of Brun,swick v., 213, 216 Hanson v. Walker, 113 Harding, Bank of Australasia v., 309, 315 Hare v. Nasmyth, 97, 98 Harford v. Morris, 53, 56, 68 Harkness, d'Huart v. 102 Harris, re, 96 — V. Fleming, 208 — V. Quine, 254 — V. Soaramanga, 241 — Sprattu, 96 Harrison v. Gumey, 183 — V. Harrison, 180 Hart V. von Gumpach, 222 Hartley, Tulloch ii., 184, 321 Harvey v. Archbold, 243 — V. Femie, Add. Hastings, Beavan v. 108 Digitized by Microsoft® xviu LIST OF CASES CITED. Hay, Sidaway v., 258 Heath v. Samson, 282 Hector, Colliss'i)., 69 Hellmann, re, 45, 46, 49 Henderson v. Henderson, 311 — 313, 316 Hendrie, Oliphant ii., 295, 296 Hendricks, De Wiitz v., 238 Henley t\ Soper, 314 Henriqnes, Dutch East India Co. ■»., 297 — Dutch "West India Co. v., 297 Hephurn v. Skirving, 273 Herbert v. Herbert, 54, 61 — Jerningham v., 179 Heriz v. Riera, 238 Hertford, Crokeru, 99 — de Zichy Ferraris v., 99 Hervey v. Pitzpatrick, 106, 107 Hessing v. Sutherland, 49 Hicks V. Powell, 186 Higgins, Att.-Gen. v., 116 — Lacon v., 52 Hilderley, Pechellu, 101 Hill, re, 92, 93 — Einery v., 295 Hirsohfeld v. Smith, 245 Hitchins v. Hitching, 327 Hoare, Buccleugh v., 179 — Pike v., 184 Hodges, Bartley v., 257 Hodgson, Alves v., 231 — V. de Beauchesne, 269, 280, 284, 285 Hog, Lashleyu, 70, 125 Holm, Flack u, 321 Holman v. Johnson, 238 Holmes, re, 187 — V. Holmes, 182 Holthausen, Exp., 151 Hooper v. Guram, 172 Hope, Att.-Gen. v., 116 — 1). Carnegie, 111, 184 — V. Hope, 240 Home V. Rouquette, 245, 246 HoTsman, ISTewland v., 315 Hoskins v. Matthews, 267, 269 Houghton, Gardiner v., 256 Houlditch !>. Donegall, 313 Houstoun, re, 48, 49, 51 Hovey v. Blakeman, 112 Howden, re, 96 Huart, d', v. Harkness, 102 Huber v. Steiner, 254 Huet 1). le Mesurier, 44 Hughes, Arthur v., 107 HuUet V. King of Spain, 214 — King of Spain v., 214 Hume, Whicker 1'., 268, 277, 280 Hunter, Livci-pool Marine Credit Co. v. 172 321 — Philip's v., 149, 150, 156, 313 — V. Potts, 149 — V. Stewart, 316 Huthwaite v. Phayre, 91 Hutton, Curtis v., 180 Hyde v. Hyde, 61 Iliidge, Santos v., 239 Imlay v. EUefsen, 317, 321 Imperial Bank, Eepuhlic of Liberia v., 215 Imrie, Castriquei;., 167—169, 172, 314 Inglis V. Usherwood, 170 Innes v. Dunlop, 252 — 1.. Mitchell, 111, 314 — Sandilandst;., 106, 108 International Pulp and Paper Co., re, 142, 145 Isherwood v. Cheetham, 98 Jackson r. Forbes, 117 — V. Petrie, 183 — "Wynne v., 232 James r. Catherwood, 231, 232 — MiUer v., 97 Jamineau, Burrows v., 243, 315 Janverin, Middleton v., 53 Jannay v. Sealey, 107 Jay, Dawson v., 48 Jeekes, Coote r., 172 Jeffery v. McTaggart, 144 Jephson v. Riera, 293 Jerningham v. Herbert, 179 JeTes V. Shadwell, 118 Johnson, Holman v., 238 — 71. Telford, Add. Johnston, Cranstown v., 183 Johnstone v. Baker, 179 — V. Beattie, 47, 48, 273 — Bcmpde v., 125, 273 JoUet V. Deponthieu, 142 Jonathan Goodhue, the, 173 Jones, Doe v., 287 — V. Garcia del Rio, 238 Jonge Klassina, the, 285 Jopp V. "Wood, 277 Jurado v. Gregory, 302 Kaknak, the, 241 Keefe, Quin v., 257 Kelly, Swift t'., 62 Kemble, Allen v., 244, 248, 321 — Beckford v., 185, Err. Kennedy, Bell v., 264 Kennion, Cash v., 243 Kent, Att.-Gen. v., 282 — V. Burgess, 52 Keyn, Queen v. , 208 Kildare v. Eustace, 184 King v. Brampton, 58 — V. Foxwell, 276 Klingemann, re, 324 Knight, "Waring «., 150 Kossuth, Emperor of Austria r. , 175 Krageroe, the, the Repeater r., 228 Krupp, Vavassenr v. , "21 7 Kynnaird r. Leslie, 55 La Chaumette, De, 1 252 Digitized by Microsoft® Bank of England, LIST OF CASES CITED. Lacon v. Higgins, 52 Lacroix, re, 100, 101 Lamb, IJarber v., 315 Laneuville v. Anderson, 95, 97, 101, 277 Lansdowne v. Lansdowne, 68, 182 Lariviere v. Morgan, 216 Larpent r. Sindry, 98 La Saussaye, de, re, 96 Lashley v. Hog, 70, 125 Lautour v. Teesdale, Add. Law V. Garrett, 318 Lawrence, Biggs v., 238 Lawson, Boucner«., 238 Lebel v. Tucker, 246 Le Chevalier v. Lynch, 146 Le Mesurier, Exp. 150 — Huet v., 44 Lepage, Ortellti., 317 Lepine, Att.-Gen. v., 295, 296 Leroux v. Brown, 230 Lesley, Reg. v., 222 Leslie, Kynnaird v., 55 Le Sueur 1!. LeSueui, 77, 273 Lever v. Fletcher, 238 Levy, Clegg v., 231, 325 — , Grelli)., 240 Lewis V. Baldwin, 296 — V. Owen, 257 Leycester, Booth v., 315 Liberia, Eepublic of, v. Imperial Bank, 215 Lindo V. Belisario, 325 Lindsay, London & North-western E ail way Co. v., 307 — Toveyi;., 83, 281 Lippmaun, Doe v., 253, 305, 313 Liverpool Marine Credit Co. v. Hunter, 172, 321 Livingstone, Fenton v., 187 Lloyd V. Guibert, 241 — V. Petitjean, Add. Logan V. Fairlie, 106, 107, 117 Lolley's case, 81, 82, Add. London, City of, Att.-Gen. v., 296 London and North-western Eailway Co. v. Lindsay, 307 Lopez i;. Burslem, 322 — Beg. v., 174 Lord, Moorhouse v., 265—270, 274, 277— 279, 281, 284 Lousada, di Savini v., Add. Lovelace, re, 120 Lowe V. Fairlie, 106 — Macgregor d. , 238 Loyd, Ellis v., 242 Luker, Daniel v., 106 Lnshington v. Sewell, 182 LyaU V. Lyall, 121 Lynch, Le Chevalier v., 146 — I/. Provisional Government of Para- guay, 91 Lyons, Mayor of, v. East India Co., 295, 296 MaoCaetht, Becquet v., 305 McCarthy v, Decaix, 82 McGusty, Franklandv,, 314 Maolaren, Carron Iron Co. v., 300 — V. Stainton, 300 McClure, Maxwell u, 279, 280 McCormick v. Garaett, 65, 323 McCuUoch, re, Add. Macdonald v. Macdonald, 125 McDouall, Dalhousiew., 85, 281 McFarland, Stephens «. , 44 Macgregor v. Lowe, 238 McHenry, EUis i>., 257 Mcintosh V. Ogilvie, 150 Mackenzie, re, 93 Mackereth v. Glasgow & South Western Railway Co., 300 Mackie v. Darling, 49 McKown, Malpica v. , 241 McLellan i>. Gunmi, 17^ Macmaster, Pedder v., 257 Macnamara v d'Evrcux, 238 Macnichol, re, 105 McPhail, Hxp., 208 Macrae, United States v., 215, 322 MoStephens v. Carnegie, 208 McTaggart, Jeffery v., 144 Madrazo v. Willes, 228 Madrid and Valencia Railway Co., re, 141 Magdalena Steam Navigation Co. v. Martin, 218 Maitland, Dewar v., 129 Malcolm v. Martin, 123, 127 Male V. Roberts, 44 Mali Ivo, the, 317 Mallao, Simonin v., ii, 56, 57 Malpica v. McKowu, 241 Maltassi). Maltass, 282 Manning v. Manning, 75, 77, 79 — Newton v., 49 Maraver, re, 96 Marshall v. Murgatroyd, 175 Martin, Bell v., 186 — Great Australian Gold Mining Co. v., 205 — Magdalena Steam Navigation Co. v., 218 — Malcolm u, 123, 127 — V. Martin, 186 — V. NicoUs, 313 JVIasson, Stevenson v., 280 Matthews, Doulson v., 210, 211 — Hoskinsi)., 267, 269 Mattos, Exp. de MeUo, 151 Maule V. Murray, 315 Maxwell v. McClure, 279, 280 — Smith v., 64 Meeus v. Thellusson, 304 Meiklan v. Campbell, 111 Melan v. Fitzjames, 321 Melbourn, Exp. 114, 152 Melville, Preston v., 109 Mette V. Mette, 54 Meyer, Bazett v., 238 — V. Ralli, 314 Middleton v. Janverin, 53 Milford, the, 173, 174, 227 Mill, Att.-Gen. «,, 180 Digitized by Microsoft® b a XX LIST OF CASES CITED. Miller, Brickwood v. , 151 — V. James, 97 Mills, Albion Insurance Co. v., 240 — Pattison v., 240 Milne v, Graham, 253 Minet v. "ViiUiamy, 295 Minto, Elliott?)., 123, 179 Mitchell, Coxa, 317 — Innes?;., Ill, 314 M. Moxham, the, 210, 222 Moffatt, Smith v., 144 Moisson, Quelin v., 256 MoUeson, Phosphate Sewage Co. v., 322 Molony v. Gibbons, 309 Moor V. Anglo-Italian Bank, 184 Moore v. Darell, 97 Moorhouse v. Lord, 265—270, 274, 277- 279, 281, 284 Morgan, re, 50 — Lariviereu., 216 Morris, Harford ti., 53, 56, 58 Mostyn v. Fabrigas, 202, 210, 223, 224 Mottiuhund, Euckmaboye v., 253 Mowat, Geddes v., 143 Mulcaster, Doe v., 293 Munro v. Miinro, 85, 86 . — ii. Saunders, 86 Munroe v. Douglas, 276 Murgatroyd, Marshall ti., 175 Murraj', Maule v., 315 Muschamp, Arglasse v., 183, 184 Musunis Bey, Gladstone c, 217, 218 Napier, Att.-Gen. v., 118 — Dobree v., 223 — V. Schneider, 247 Nasmyth, Hare v., 97, 98 NationalBankofSt. Charles v. de Bernales, 297 Naylor v. Kagar, 317 Neal v. Cottingham, 142 Nelson v. Bridport, 186, 324, 32.'; Neptune the Second, the, 227 Neville, Galbraith v., 2,1-1 New V. Bonaker, 296 Newley v. Van Oppen and Colt's Patent Firearms Manut'actaring Co., 208, 300 Newland v. Horsman, 315 Newman !'. Cazelet, 242 Newton v. Manning, 49 Hias, Bank of Australasia u, 309, 313, 315 Niboyet v. Niboyet, 71, 75—77, 79 Nicholson, Calcutta Jute Mills Co. v., 297 ^ Cesena Sulphur Co. r. , 297 NickcrsoB, Pope v., 241 Nicolls, Martin v., 313 — Smith Uj 315 Norden Steamship Co. v. Dempsey, 241 Norris v. Chambres, 184 North of Scotland Banking Co. , Hamburgh American Steamship Co. v., 228 Northouse, Bentley u, 253 Norton (>. Florence Land & Public Works Co., 184, 186 Nostra Signora de los Dolores, the, 223 Novelli V. Eossi, 314 Nugent V. Vetzera, 48 Obicini u Bligh, 305 O'Callaghan v. Thomond, 252 Ochsenhein v. Papelier, 314 Odber, Hall v., 303, 315 Odwin V. Forbes, 257 Ogden V. FoUiott, 328 — FoUiott u, 142, 328 Ogilvie, Mcintosh v., 150 Olipbant, re, 95, 96 — v. Hendrie, 295, 296 Oliveira, Beaumont i). , 180 Olivier v. Townes, 161 O'Loghlan, Exp. 141 Ommaney v. Bingham, 125 O'Neil V. Clason, 206 Onslow, AUardiee v., 21 & Orleans, d', re, 44, 284 Ormonde, Clarke v., 183 Orr, Bowles v., 314 Oi-y I'. Winter, 253 Ostell V. Lepage, 317 Otto Lewis, Exp., 51 Ottoman Bank, Gladstone v., 217 Overmann, Rouquette v., 244, 245, 248, 321 Owen, Lewis u , 257 Oxholm, Wolff 1'., 320, 328 P.\DLEY V. Camphausen, 205 Page V. Donovan, 99 Paget V. Ede, 185 Papayanni, Call v., 226 Papelier, Ochsenhein c. , 314 Paraguay, T^ynch v. Provisional Govern- ment of, 91 Pardo V. Bingham, 114, 253 Parlement Beige, the, 212 Pai-tington v. Att.-Gen., 116 Pascal, Exp,, 141 Patria, the, 241 Patrick v. Shedden, 303 — Shedden v., 87 Patten, re, 281 Pattison v. Mills, 240 Paul V. Roy, 303 Pearse i\ Pearse, 116 Peat, re, 182 Pechell V. Hilderley, 101 Pedder r. Macmaster, 257 Pellecati). Angell, 238 Penaluna, Clugas r. , 238 Peninsular & Oriental Steam Navigation Co. V. Shaud, 235, 242 Penn v. Baltimore, 183, 184 Pertreis v. Tondear, 68 Peru, Republic of, v. Weguelin, 215 Peruvian Railways Co., re, 141 Peter v. Stii-ling, 121 Petitjean, Lloyd v., Add. Petrie, Jackson v., 183 Digitized by Microsoft® LIST OF CASES CITED. Petty, Carteret v., ISi, 186 Phayre, Huthwaite u , 91 Philips V. Hunter, 149, .150, 156, 313 Pliillipps, di Sora v., 233, 326 Phillips V. Allan, 257 — Browne v., 93 — V. Eyre, 222 Philpotts V. Eeed, 258 Phipps V. Anglesea, 182 Phosphate Sewage Co. v. MoUeson, 322 Pickerings. Stephenson, 296 Pierson v. Garnet, 127 Pietroni, Transatlantic Co. v., 318 Pike V. Hoare, 184 Pilkington, Scott t)., 303 Pipon f. Pipon, 110, 124 Pitt V. Dacre, 182 — V. Pitt, 74, 75 Planche v. Fletcher, 23S Piatt V. Att.-Gen. of New South "Wales, 279 Plummer v. Woodbome, 315. Pollard, Hxp., 183 Pompe, Sase v., 247 Poole, Greer v., 241 Pope V. Nickerson, 241 Portugal, Rothschild v. Queen of, 215 Potinger v. Wightman, 272 Potter D. Brown, 256 Pottinger, Att.-Gen. v., 283 Potts, Hunter v., 149 Powell, Hicks v., 186 Power V. Whitmore, 242 Powles, Thompson v., 238, 243 Pratt, Att.-Gen. v., 116 President of U. S. of A. v. Drummond, 284 Preston, Archer v., 184 — V. Melville, 109 Price V. Dewhurst, 91, 314 Prioleau v. United States, 215 — United States v., 215 Professional Life Assurance Co., Sheehy v., 303 Qttareibr v. Colston, 239 Queen v. Anderson, 174 — 1). Keyn, 208 Quelin v. Moisson, 256 Quin V. Keefe, 257 Quine, Harris v., 254 Raffenbl, re, 275 Ealli, Meyer v., 314 Eanelagh, Champant v. , 242 Ratcliff «. Ratcliff, 74 Rathbone, DeCosse Brissac v., 309, 313 Raymond v. Brodbelt, 123 Read, re, 93 — Strother v., 143 — Waymelli)., 238 Eedfern, Amott v., 240, 314 Eeed, Philpotts v., 258 Reeve, Bowaman v., 122 Reeves, Collins Co. v., 299 Regina v. Commissioners of Stamps and Taxes, 117 — V. Dent, 325 — V. Lesley, 222 — V. Lopez, 174 — V. Sattler, 174 Reid, re, 99 Reimers v. Druce, 313, 314 Reiner v. Salisbury, 187 Repeater, the, c the Braga or Kragevoe, 228 Reuss V. Bos, 141 Reynolds v. Fenton, 306, 309 Eicardo v. Garcias, 315 Richards v. Goold, 180, 231 Richardson v. Bradshaw, 150 — V. Dowdele, 108 Eicketts, Bourke v., 123 Eiera, Jephson v,, 293 — Heriz v., 238 Ein, de, Bradlangh v. , 246 Eivaz, Collier ji., 101, 271 Eoach V. Garvan, 318 Robarts, Cruikshank v., 318 Eoberdeau v. Ecus, 184, 186 Eoberts, Male «. , 44 Robertson, Bxp., 145 Robins, Dolphins., 79, 82, 102, 273 — Sadler v., 303 Robinson v. Bland, 237, 239 Eogerson, re, 92 Ronald, Edwards v., 257 Rose V. Ross, 86 — Whyte v., 92, 104, 105, 106 Ross, Rose v., 86 — Solomons v., 142 Rossi, Novelli v., 314 Rothschild, Colombian Government w., 215 — V. Currie, 245 — V. Queen of Portugal, 215 Rouquette, Home v., 245, 246 — u. Overmann, 244, 245, 248, 321 Eons, Eoberdeau v., 184, 186 Eousillou V. Eousillou, 307, Add. Eoven, de, Dupleix v., 301 Eowe, Att.-Gen. u,281, 283 Eoy, Paul v., 303 Eoyal Bank of Scotland v. Cuthbert, or v. Stein's Assignees, 62, 143, 145 Eoyal Wax Candle Co., Scott v., 299 Rucker, Buchanan'!)., 305 ■ — Francis v., 247 Ruckmaboye v. Mottichund, 253 Ruding V. Smith, 57, 58 Rule, re, 98 Russell V. Smyth, 303 Ryan v. Ryan, 83 Sadler v. Robins, 303 St. Giorgio, Weatherby v., Ill Salisbury, Reiner u, 187 Digitized by Microsoft® LIST OF CASES CITED. Samson, Heath v., 282 Sandford, Campbell u, 128 Sandilands v. Innes, 106, 108 Sandos, Brettillot v. , 321 Santo Teodoro v. Santo Teodoi'o, Add. Santos V. Illidge, 239 Sargazurieta, re, 50 Sattler, Reg. v., 174 Saunders v. Drake, 127 — Munro u, 86 Savini, di, ■». Lousada, Add. Sawer v. Shute, 65 Saxonia, the, 228 Soaramanga, Harris v., 241 SoMbsby v. "Westenholz, 305-309 Schneider, Napier v., 247 Schurmanns, General Iron Screw Collier Co. v., 225 Scinde Railway Co., JExp., 145 Scott, Balfour u, 124, 125 — V. Bentley, 49 — V. Bevan, 243 — V. Pilkiugton, 303 — I'. Royal Wax Candle Co., 299 — V. Seymour, 224, 317 Scrimshire v. Scrimshire, 53, 318 Sealey, Jauncy v., 107 Sedgwick, Birdu, 140 Segredo, the, 163, 168, 171 Selkrig v. Davis, 143, 145, 146 Sequeville, Bristowu, 231, 232, 325 Serre, de, v. Clarke, 65 Sewell, Cammell c, 167, 168, 170, 171 — Lnshington v., 182 Seymour, Scott v., 224, 317 Shadwell, Jeves v., 118 Shand, Peninsiilar & Oriental Steam Navi- gation Co. v., 235, 242 Sharp r. Taylor, 238 Sharpe v. Crispin, 270, 273, 282 ShawB. Att.-Gen., 79, 82 — r. Gould, 79, 82, 84 — V. Staughton, 106 Sheehy v. Professional Life Assurance Co. 303 Shedden v. Patrick, 87 — Patrick v., 303 Shelby v. Grey, 254 Shrimpton, "Watts v., 65, 67, 69 Shute, Sawer v., 65 Sidaway v. Hay, 258 Sill v. Worswick, 149, 160, 156 Simeon v. Bazett, 238 Simonin r. Mallac, 44, 56, 57 Simpson v. Fogo, 168, 172 Sinclair u. Fraser, 312, 314 — V. Sinclair, 319 Sindry, Larpent v., 98 Skinner?;. East India Co., 210, 211 Skirving, Hepburn u., 273 Skottowe V. Young, 86 Smith, £xp., 140 — re, 92, 120, 208, 281 — Atkins v., 108 — Blake v., 31i — Brown v., 281 Smith V. Buchanan, 257 — Dues v., 65 — V. Gould, 3.23 — Hirschfeld v., 245 — V. Maxwell, 54 — V. Moffatt, 144 — v. Nicolls, 315 — Ruding v., 57, 58 — V. "Weguelin, 216 Smyth, Este v., 59 — Russell v., 303 Solomons v. Rosa, 142 Somerville v. Somerville, 123, 125, 280 Soper, Henley «. , 314 Sora, di, v. Phillipps, 233, 326 Sottomaior, re, 48 Sottomayor v. de Barros, 44, 54, 56, Add. South-Eastern Railway Co. , Branley «. , 242 — — Cohen v., 242 Spain, King of, v. Hullet, 21 4 — — Hullet v., 214 Span, Dewar v., 243 Spencer, Ferguson v., 258 Spratt V. Harris, 96 Stainton, Maclaren v., 300 Stanley v. Bemes, 99, 280 Stansfield, "Waterhouse v., 186 Stapleton v. Conway, 242 Stark, re, 50 Staughton, Shaw v., 106 Steele v. BraddeU, 56 Steer, re, 279 Steigerwald, re, 93 Stein's Assignees, Royal Bank of Scotland v., 62, 143, 145 — — Campbells, 253 Steiner, Huber v., 254 Stephens v. McFarland, 44 Stephenson, Pickering v., 296 Stevenson v. Masson, 280 Steward, Thurburn ■!;., 114, 152 Stewart, «, 96 — V. Bank of England, 218 — Cavant'., 305, 308, 309 — V. Garnett, 182 — Hunter v., 316 Stirling, Peter ?>., 121 Stirling-Maxwell <•. Cartwright, 108, Add. Strathmore Peerage, 86 Strother?). Read, 143 Stuart V. Bute, 48 — Droege v., 241 Sturge, Att.-Gen. v., 296 Sudlow V. Dutch Rhenish Railway Co., 296 Suse V. Pompe, 247 Sussex Peerage, 56, 57, 324, 325 Sutherland. Hessing u , 49 Swansea Shipping Co. r. Duncan, 209 Swift II. -Kelly, 52 Sylva u. Da Costa, 61 Talleyrand v. Boulanger, 321 Tarleton v. Tarleton, 313 Tastet, de, v. Baring, 247 Digitized by Microsoft® LIST OF CASES CITED. Tatnall v. Hankey, 102 Taylor v. Barclay, 238 — Shai-p v., 238 Teesdale, Lautour v., Add. Telford, Johnson v., Add. Thellusson, Meeus v., 304 Thomas, Auriolw., 247, 248 Thomond, O'Callaghanu., 252 Thompson v. Barclay, 238 — Eire v., 238 — V. Powles, 238, 243 Thomson v. Adv. -Gen., 117 — Yates v., 129 Thorne v. "Watkins, 124 Thornton, Curling u, 99, 125 Thurburn v. Steward, 114, 152 Tollemache v. ToUemache, 79 Toller V. Carteret, 185 Tondear, Pertreis v., 58 Tourton v. Flower, 91 Tovey v. Lindsay, 83, 281 Townes, Olivier v., 161 Traill, Twyfordu., 107 Transatlantic Co. v. Pietroni, 318 Trimbey v. Vignier, 246 Trotter v. Trotter, 125, 129 Tucker, Lebel v., 246 Tulloch V. Hartley, 184, 321 Turst, Foubert v., 69 Two Sicilies, King of, v. WOlcox, 322 Twycross v. Dreyfus, 217 Twyford v. Traill, 107 Tyler v. Bell, 107 Udny v. Udny, 44, 86, 270, 271, 276 Union Bank of Calcutta, re, 142 United States v. Hamilton, 175 — — V. Macrae, 215, 322 — — V. Prioleau, 215 — — Prioleau v., 215 — — V. Wagner, 215 Usherwood, Inglis v., 170 Valdor, de, "Worms v., Add. Valine V. Dumergue, 304 Van Grutten v. Digby, 66, 232 Van Oppen, Newby v., 298, 300 Vanquelin v. Bouard, 92, 105, 310, 313 Vanvlissengen, Caldwell v., 225 VanzeUer, re, 151 Vardill, Biiiwhistle v., 187, 188, 189 VassaU, Foster-!)., 184 Vaughan, Alexander v., 140 Vavasseur v. Krupp, 217 Vega, de la, v. Vianna, 321 Vernon, the, 226 Vetzera, Nugent v. , 48 Vianna, de la Vegai)., 321 Viesca v. d'Aramburu, 93 Vignier, Trimbey v., 246 Vigny, de, re, 98 Vincent, Barnes v., 101, 102 VuUiamy, Minet v., 295 Waddell, Banco de Portugal v., Add. "Wade, Beckfordu.,182 "Wagner, United States v., 215 "Wahlstatt, Att.-Gen. v., 281 "Waldegrave, Cooper v., 242, 243 — Peerage, Add. "Walker v. Hamilton, 247 — Hanson v., 113 — V. "Witter, 301, 312 "Wallace ». Att.-Gen., 118 "WaUis V. Brightwell, 182 "Wallop, re, 117, 120 "Walpole V. Ewer, 241 "Waring v. Knight, 150 Warrender i>. "Warrender, 61, 74, 75 "Waterhouse v. Stansfield, 186 "Watkins, JUxp. , 49 — Thorne v., 124 "Watts V. Shrimpton, 65, 67, 69 "Waymell v. Read, 238 "Weatherby v. St. Giorgio, 111 "Weber, Fitch v., 288, 292 "Wedderburn v. "Wedderburn, 318 "Weguelin, Eepnblic of Peru v., 215 — Smith v., 216 "Westenholz, Schibsby v., 305-309 "Westmaui;. Aktiebolaget, &c., 205, 299 — Genesee Mutual Insurance Co. v., 299 "Whicker v. Hume, 268, 277, 280 "White V. Hall, 183 "Whitehaven & Furness Junction Railway Co., Bainu, 322 "Whitmore, Power v., 242 "Whyte V. Kose, 92, 104-106 "Wightman, Potinger v., 272 "Willans v. Ayers, 248 "WiUoox, King of Two Sicilies v., 322 "Willes, Madrazo v., 228 "Williams v. , 93 — V. Dormer, 273, Add. — V. Gutch, 228 "Williamson, Exp., 140 "Wills, de Greuchyu, 249 "Wilson, Exp., 151 — re, 82, 84, 129 — (Captain)'s case, 150 — V. Dunsany, 113 — V. Ferrand, 317 — V. "Wilson, 74, 76, 279 "Winchelsea v. Garetty, 122 "Winter, re, 95, 96 — Oryu, 253 "Witter, "Walker v., 301, 312 "Wood, Jopp v., 277 "Woodburne, Plummer v., 315 "Wolff V. Oxholm, 320, 328 Woolsey v. Crawford, 248 "Worms V, de Valdor, Add. "Worswick, Sillw., 149, 150, 156 Wright, re, 85, 129 Wiitz, de, v. Hendricks, 238J Wylie, Enohin v., 95, 110 Digitized by Microsoft® LIST OF CASES CITED. ■Wynne v. Callander, 240 — V. Jackson, 232 Yates v. Thomson, 129 Yelverton v. Yelverton, 77, 78 Young, Bent v., 185 Young, Guepratte v., 47, 66, 69, 229 — Skottowe v., 86 ZiOHY Ferkakis, de, v. Hertford, 99 Zimmermann, Gout v., 282 ZoUverein, the, 228 Digitized by Microsoft® EREATA AND ADDENDA. PAGE 11, last line of text. Fm' "sanctions " read "sanctions.'' 28, line 18, first word. For "their " read "the." 48. To the authorities under § 7, Minors, add Di Savini v. Lousada, 1870, 18 W. E. 425, James. 51, paragraphs following § 12. In Worms v. de Valdor, 1880, "W. N. p. 16, Fry, it was held that a French plaiatiff, who in France had been forbidden on the ground of prodigality to sue without the concuri'ence of a conseil judieiaire, could sue in England without the consent of his conseil jvdiciaire. The view taken in the text that, where the personal law deems a capacity to be incom- plete and supplements it, the modiiied capacity is one entire institution, would lead to a different decision. If the personal law is deferred to when it declares the incapacity of one under a certain age, the capacity of one above that age can scarcely be accepted to any greater extent than that in which the personal law confers it, imless the limitation under which it lies by that law is penal, or opposed to a stringent domestic policy. In fact the decision in Worms v. de. Valdor appears to have proceeded on an assimilation of the modified incapacity arising from the French law on prodigality to ' ' disqualifications resulting from heresy, excommunication, popish recusancy, and other penal disabilities," not forgetting .slavery. 'J'he learned judge adopted the language of Story, that " personal disqualifications not arising from the law of nature, but from the principles of the customary or positive law of a foreign country, and especially such as are of a penal nature, are not generally regarded in other countries where the like disqualifications do not exist." I presume that those who believe in a law of nature would not admit that any thing was a part of it which was contrary to the law of England. Is then the incapacity of a married woman by her personal law to be no further regarded in England than as it might exist by English law ? 54, § 17. In Sottomayor v. de Barros, 1879, L. E., 5 P. D. 94, Hannen, it has been held that a marriage will be good if celebrated in England between a person of either sex domiciled in England and capable of contracting it by English law, and a person of the other sex domiciled abroad and incapable of contracting it by the law of his domicile. 55, penultimate line of § 19. Fm "exclude,'' read "refuse to exclude." 57. To the authorities under § 23, add Zautour v. Teesdale, 1816, 8 Taun. 830, Gibbs. „ 2nd paragraph of § 24. Under this enactment, the authority of the commanding officer for the celebration of the marriage is not necessary : it is sufficient that the person ofiiciating should be under his orders. Waldegrave Peerage, 1837, 4 C. & F. 649, Cottenham and Brougham. Digitized by Microsoft® xxvi ERRATA AND ADDENDA. PAGE 58. As to marriages of British sutjects on board queen's ships on foreign stations, s^.e the Confirmation of Marriages on Her Majesty's Ships Act 1879, st. 42 & 43 Vict., c. 29. 59, end of § 26. It has been decided that the enactment applies where only one of the parties to the ambassadorial marriage is British. Lloyd v. Td'djtan, 1839, 2 Cnr. 251, Lushington. 74, line 11. For "Macg." read "Macq.'' 76, line 11 from bottom. To the authorities for granting a, divorce to the wife, in the circumstances in which it is here treated as doubtful, add Santo Teodm-o v. Santo Teodoro, 1876, L. P.., 5 P. D. 79, PhUlimore. 78, line 9 from bottom. For "petitioner's" read "defendant's.'' To the authoritie.s for the § add Williams v. Dormer, 1851, Fust, and 1852, Dodson, 2 Robert- son, 505. See also OhicJuster v. Donegal, 1822, 1 Add. 5, at p. 19, Nicholl ; from which it appears that the alleged wife, being defendant and maintaining the marriage, is bound by her own contention to submit to the jurisdiction of the petitioner's domicile. 83, line 1. But the resolution in ZoUey's Case has been twice heard of again, the first time only to provoke a decision that a divorce from a mamage celebrated in England, granted for cause insufficient by English law, in a country which was the domicile at the time of the divorce, will be recognized in England : Sarvey v. Fernie, 1880, L. E., 5 P. D. 153, Hannen. The matrimonial domicile, which was the same aa that at the time of the divorce, is referred to in some parts of tlie judgment, but its importance is negatived in other parts. "It appears to me therefore, upon general principles, that we are bound to recog- nize the change of status brought about by a decree of divorce in another country, where that decree applies to the domiciled subjects of that country : " p. 156. " I am of opinion that the resolution in ZoUey's Case is only applicable where the facts are similar, namely where the parties, both at the time of the marriage and of the divorce, are domiciled English : " p. 162. Yet a few days later the same Judge, having to decide on the validity of a divorce granted in a country where the husband was resident but not domiciled, held it invalid on the ground of the resohition in ZoUey's Case as interpreted by him in the passage last cited ; as if the doctrine that the matrimonial domicile may have something to do with the causes for divorce was, after all, a less uncertain one than that of § 46 of this book : Briggs v. Briggs, 1880, L. E,, 5. P. D. 163. 86, line 5 from bottom. For " Skottome " read, " Skottowc." 92, line 3. For " Vauquelin v. Bonard" read " Vanquelin v. Bo\uird." 105, line 3 from bottom. For " VauqvAiUn " read " T'anqiieUn." 108, line 11 from bottom. Stirling-Mnxu-ell v. Ca?-ftOT-i^W is now reported on the appeal, L. E., 11 Ch. D. 622; James, Baggallay, Bramwell. James said: "if any thing had been done in Scotland, the court would have recognized the right of the Scotch court to deal with the matter. It is not for us to anticipate that there will be any such proceedings in Scotland." 123, line 14. For "1790 " read "1789." 125, lines 5 and 10. For "personal estate '' read " movables.'' 127, lino 2. For "pp. 87, 88," read "pp. 67, 68." 129. To the authorities for § 117, add Johnson v. Telford, 1830, 1 E. & M. 244, Leach ; Dundas v. Dundas, 1830, 2 D. & C. 349, Brougham ; Allen y. Anderson, 1846, 5 Ha. 163, Wigram. 141, line 12. Fxp. Blain is now reported, L. E., 12 Ch. D. 522 ; James, Brett, Cotton. §122. In Be M'OuUoch, 1880, [W. K, pp. 108, Bacon, and 118, James, Cotton and Tliesiger, the question was whether an adjudication of bankruptcy Digitized by Microsoft® ERRATA AND ADDENDA. xxvii PAGE in England, being otherwise proper, ought to be made against a debtor already adjudicated bankrupt in Ireland, where the proceedings were being actively prosecuted. In the first court it was held to be e,x debito justUm ; but the judges of appeal, "without saying that the court was bound to make an ad- judication, thought that under the circumstances the English adjudication ought to be made for what it was worth. It could afterwards be determined which adjudication would be the most advantageous to the creditors, and the Irish court would no doubt act properly in the matter." 151, line 1. Exp. Banco de PorUigal was affirmed on appeal, suh mom. Banco de Portugal T. Waddell, 1880, L. R., 5 Ap. Ca. 161, Cairns, Selborne and Blackburn. 185, line 23. For " Beckford v. Wade " read " Beckford v. XemUe.'' 193, line 16. For " contaxisse " rcfflti " contraxisse. " 239, § 204. Thus mRousiUon y. Bousillon, 1880, L. E., 14 Ch. D. 351, Fry held that if a certain contract had been open, so far as it affected trade in England, to the objection which lies by English law against contracts in undue restraint of trade, he could not have enforced it, notwithstanding that it was valid by the lex loci contractus. 267, line 15. For "expressly condemned" read "condemned e converso." 317, line 6. For " Aquilar" read " Agwilar." Digitized by Microsoft® Digitized by Microsoft® PEIVATE INTERNATIONAL LAW. CHAPTEE I. INTRODUCTION. Private international law is that department of national law which arises from the fact that there are in the world different territorial jurisdictions possessing different laws. In order to explain more fully the position which private inter- national law occupies in the field of law, that field must be looked at rather widely. The word law is applied both to the laws of nature and to human laws, and if we vvere discussing an ordinary division of national law, as mortgage or larceny, there would be no need to speak of any laws except human ones. But theories of natural law, or of a law of nature, have been so mixed up with international law that justice can hardly be done to our present subject without noticing every sense in which the word laio is used. The laws of nature are invariable uniformities : if any deviation were proved, the conclusion would not be that the Jaw had been broken, but that the supposed law did not exist. Human laws are continually broken, and courts of justice, and armies so far as their employment is properly defensive, are instituted to correct their breach. It is true that if we look at the rule prescribed by a human law rather than at its observance, the singleness of the rule, com- pared with the multiplicity of the instances which call for its application, reminds us of the uniformities of nature ; and probably this was the similarity which caused the word law to be extended from human laws to natural. Then, the extension having been Digitized by Microsoft® 2 PRIVATE INTERNATIONAL LAW. made, it has sometimes been attempted to give it a philosophical justification by the remark that human laws will certainly be mis- chievous, and probably will not long endure, if they are not framed with due regard to the natural laws that govern the facts about which they are concerned. Thus, a law about buildings will miss its aim if it disregards the natural laws of health, and one about spirituous liquors if it disregards the natural laws of human conduct. Now this may be expressed by saying that human laws ought to be conformable to natural ones ; and then it is easy, first to forget the difference between ov^glit to be and are conformable, and secondly to forget that even when human laws are conformable to natural ones, that no more implies a likeness between them in kind, than the con- formity of a marksman's aim to the laws which govern the flight of his bullet implies a likeness in kind between the act of aiming and the fact of being shot out of a gun. The truth is that it would be difficult to frame any proposition in which the word lavj should stand, and which should be true both of the laws of nature and of human laws, unless such proposition were a mere statement, more or less disguised, of the fact that each are in some sense uniformities ; and the homonymy of the laws of nature and human laws must therefoi-e be regarded as little more than fortuitous. If this is so, human laws are not a division, correlative to the laws of nature, of a single field of law, but are a subject incapable of beincr brought under any wider general head. Indeed more will have to be said before it can be assumed that even all the human institutions which are called laws can be properly brought under one <^eneral head, for international law has been denied a claim to be law in the sense in which national law is such. The prominent feature of national law is that it is a body of rules, to be uniformly applied to the cases that fall within them and of which the breach is redressed or punished by a force irresistible to the individual subject, and regularly applied through courts of justice. This redress or punishment, which is generally, thouo-h not with complete accuracy, spoken of as the enforcement of the law makes the chief difference between law and usage. Law is often traceable to usage, in the sense that what was once usage afterwards Digitized by Microsoft® INTRODUCTION. 3 became law without express enactment. Examples of this may be found in the history of the law of many countries with regard to the distribution of the estates of deceased persons, and the effect of marriage on the property of the husband and wife. In such cases the passage from usage to law is sometimes represented as gradual. That, however, can never really have been so. The frequency of the usage may have gradually increased, and so also may the stringency of the general disapprobation with which its breach was visited. But either there was no administration of justice at the place and time in question, and then society was too barbarous for any thing answering to national law to exist in it, or else, when the administi-a- tion of justice began to redress or punish the breach of the usage, a distinct step was taken, however little it may have been noticed at the moment, by which the boundaiy between usage and law was crossed. The breach of international law is not redressed or punished by any force regular in its action and irresistible to individual states, and the rules which are understood to compose that law are often so vague that the uniformity of their application cannot be conclusively tested, even for the purpose of argument, so difficult is it to ascertain the individual cases to which they should apply. The latter circum- stance results from the former. No set of rules, national or inter- national, will ever be reduced to a reasonable certainty unless they are regularly applied, or some authoritative judgment is passed on the question of their application. Hence it would be difficult to frame any verbal definition of law which should include both national and international law. The very notion of uniformity, on which a link, thin and insufficient for the purposes of a serious classification, may be established between national laws and those of nature, fails us here, unless for many of the uniformities of international law we accept the pious intentions of writers instead of the hard facts of statecraft and hereditary enmity. There is however another mode of defining than by verbal formulas. In zoology and botany a genus is defined by the circumstance that every species within it is on the whole more like one or two typical species than it is to any species outside the genus. Now there are rules of international law, B 2 Digitized by Microsoft® 4 PRIVATE INTERNATIONAL LAW. as those concerning diplomatic intercourse, which receive an amount of observance equal to that which is received by national laws. In the case of other rules, the risk that the mischief of a breach will recoil on the perpetrators is greater than in the case of most of the social usages which prevail between the subjects of a state. But again the extremes of vagueness and inobservance are presented by- rules so important as those which are vaunted as protecting popula- tions from arbitrary conquest, and private property on land from capture and appropriation in war. The truth is that the precision and stringency of international law range from a point below that of ordinary social usages, to a point at which the redressing or punishing power lacks only regularity of action, the strength of its irregular manifestations being sufficient for practical purposes. If then any- one, taking national law described as in the last paragi-aph for the typical species of human law, should yet conclude that international law is on the whole more like to it than to the usages which we see prevailing outside law, there seems to be no sufificient ground for rejecting his conclusion as unphilosophical or contrary to facts. Nor if3 it wonderful that the type definitions of the sciences of organic life should be found to give a better model than the verbal formulas of mechanics, for classifying the phenomena which are produced by the living force of humanity. In fine, national and international laws may be accepted as divisions of the field of human law, without disrespect to those who have contended that the latter division would better be called positive international morality. In the field thus mapped out, the place of private international law is in the division of national law. Private international law is administered by national courts, and generally to subjects, though, when states submit themselves to national courts, its doctrines are applied to them as well as those of any other department of national law. The actions in which it is administered are not a distinct class, like those in which criminal law is administered, but it finds its unity in a certain class of questions which may arise in any action, those namely in which it is sought in what national jurisdiction an action ought to be brought, or by what national law it ought to be decided. The word jurisdiction is popularly used in the general sense of Digitized by Microsoft® INTRODUCTION. 5 competence, as when the common law and equity jurisdictions, which differed in respect of the matter, were formerly contrasted in England, or as when the jursidiction of a county court, which is limited in respect of the value, is contrasted with that of the High Court. But in the present subject we have only to do with juris- diction in the territorial sense, nor in that sense so far as jurisdictions, like those of two county courts, may be territorially distinguished within a country which enjoys in the last resort a unity of legal administration, but only with reference to territories which are separate for the purpose of law, as England and France, or England and Scotland. Such jurisdictions and their laws may be called national, in harmony with the use already made in this chapter of the term national laiv, and then the department which treats of the selection to be made in each action between various national juris- dictions and laws will not unreasonably be called international law, distinguished by the epithet private from the international law which prevails between states, and which may be distinguished as public. Hence in this subject the force of the term 'private is independent of any classification of national law into public and private. Those classifications, of which several have been proposed, generally assign criminal law to the public branch, but the question of the extradition of criminals belongs to private international law, because it is concerned with deciding in what national jurisdiction a criminal ought to be tried. The principal grounds for selecting a particular national jurisdic- tion in which to bring an action are that the subject of the action, if a thing, is situate, if a contract, was made, if a delict, was committed, within the territory : hence the forum situs, or rei sitce, contractus, delicti, the two latter of which are classed together as the forum speciale ohligationis. Or that the jurisdiction is that in which all the claims relating to a certain thing or group of things ought to be adjudicated on together, the forum, concursus; or that to which .the defendant is personally subject, the forum rei. The last mentioned forum, in the Roman and derived laws, has always supposed that between the judge and his j usticiable, if I may use a foreign teim to express a foreign conception, there was a more or less durable tie, the Digitized by Microsoft® 6 PRIVATE INTERNATIONAL LAW. precise nature of which, and the measure of its permanence, are connected with the questions of political nationality and domicile. Among the ancient principles of English law, on the other hand, there is found a competence based on the fact of the writ by which the action is commenced being served on the defendant within the territory. This may have been regarded as a case of the forum rei, the defendant's mere presence within the territory being supposed to make him personally subject to the jurisdiction, irrespective of any special ground, such as that of the forum speciale ohligationis ; but, if so, it was certainly a peculiar conception of the forum rei. Supposing that on some such ground as those above mentioned the action is entertained by the national jurisdiction in which it is brought, the principal grounds for selecting a particular law to be applied in deciding it are analogous to those for selecting a jurisdic- tion. Thus we have the hx situs, loci contractus, loci delicti commissi, and loci concursus ; aud wherever the forum rei is understood as being based on a more or less durable tie between the judge and his justiciable, we also have the conception of a personal law. The latter was anciently the lex cloonicilii, and to a great extent is so still, but the modern tendency is to substitute political nationality for domicile as the test of personal law, so far as possible. Of course, as between two or more national jurisdictions comprised in one state, such as England, Scotland, and the province of Quebec, such a substitution is not possible, and there at least the lex domicilii must maintain its ground. Another law often invoked is the lex loco actus, that of the place where an instrument was executed, or where judicial proceedings have been had. And since validity is often claimed in one jurisdiction for judgments pronounced in another, by virtue both of the lex loci actus and, in matters of status, of the personal law, it follows that the question in what jurisdiction an action ought to be brought may be asked in two ways : first, in order to know what are the actions which a particular jurisdiction will entertain when they are brought in it, and secondly' in order to know when the judgment pronounced in an action will be allowed any force beyond the limits of the jurisdiction in which it was pronounced. Lastly, the court's own law, the lex fori, is a Digitized by Microsoft® INTRODUCTION ■ 7 competitor always on the spot, and applicable when the claim of no other law is established, sometimes even applicable on positive grounds. Such are the questions of private international law, and the various forums and laws which they bring into competition. Now since private international law is administered by national courts, it follows that each court must apply any solution of these questions which its own national law may be found to prescribe. And the national law is very likely to contain an answer to the question under what conditions an action is maintainable in its own courts, while it may probably be silent with regard to the law according to which any particular action is to be decided, or to the validity to be allowed to foreign judgments. What then is to be inferred from the silence of the national law on these topics ? The inference that the national law itself must always be applied, and that no validity is to be allowed to foreign judgments, would have led to practical results so shocking to all notions of justice that it has never been drawn : it has been regularly assumed that the national law tacitly adopts some maxims according to which foreign laws and foreign judgments are sometimes admitted to be of force. The law of England is, or was, preeminently in the case here considered. Its statute book, and the writings of those of its earlier sages whose names are revered as those of the law itself, are almost entirely blank on the head of foreign laws and judgments ; but maxims have been adopted by the courts by means of which an extensive and tolerably consistent jurisprudence has been built up. The value set in England on judicial precedent is such that this jurisprudence, so far as it is consistent, must now in its turn be considered as a part of the national law, and therefore binding on the courts unless and until the legislature shall alter it. But with a view to its com- pletion, whether by legislative aid or by the further action of the courts, the questions, whence the maxims adopted in England were derived, and what was the justification for adopting them, are not yet of merely historical or speculative importance. The maxims adopted in England on questions of private inter- national law were derived from those which prevailed on the con- Digitized by Microsoft® 8 PRIVATE INTERNATIONAL LAW. tinent. The earliest channel through which they filtered into the insular system vyas that of the ecclesiastical and admiralty courts, which professedly administered laws of more than insular extension. Then, about the time of our Revolution, the increasing mercantile and political intercourse with the continent obliged our lawyers to renew their acquaintance with its legal literature, five centuries after Vacarius taught the Corpus Juris at Oxford ; and the views so imported bear traces of the fact that the Dutch was then the leading school, and perhaps also of the fact that Holland was the country with which we had the closest political connection. I do not know enough of the history of Scotch law to assert it, but probably the union with Scotland, coupled with the fact that it had been usual for Scotch advocates to complete their legal education in Holland, may have had some effect in the same direction. Now the leading features of the system which by this time had been elaborated on the continent were these. Statutes which disposed about things were real, and such statutes, existing in the places where the things were situate, were to be applied, as the lex situs, even in other jurisdictions. So far as con- cerned movables, this was largely modified by the maxim mobilia sequunt'iir personam, which was opposed to such property being deemed to have a situation of its own. Statutes which disposed about persons were personal, and such statutes, existing in the places where the persons were domiciled, were to be applied, as the lex domicilii, even in other jurisdic- tions. The chief application of this was to questions of status and capacity. Statutes which were not clearly either real or personal were mixed, and effect might be given to them in other jurisdictions than those in which they existed, either on the ground of the lex sitits or on that of the lex domicilii, according as it was thought that they approached more nearly in character to real or to personal statutes ; or else questions not clearly referable either to the real or to the personal statute might be decided on one or other of certain maxims which stood rather outside the doctrine of statutes, namely : Digitized by Microsoft® INTRODUCTION. 9 The lex loci contractus governed obligations arising out of a contract ; The lex loci actus governed the forms of instruments, and the validity of foreign judicial proceedings ; The lex fori governed the procedure in the action itself ; and the same law, in its character of the lex loci concursus, governed ques- tions arising out of the circumstance that several claims, possibly originating under different laws, have to be adjudicated on at once, such for example as the question of the ranking of creditors against a bankrupt's estate. It must not be supposed that even on the continent the system thus sketched out was certain or coherent. As some among many examples of the vagueness which really beset it, there may be cited the endless discussions whether particular statutes were real or personal, or, if allowed to be mixed, whether they approached more nearly to real or to personal statutes ; whether the lex loci contractus ought to be understood as the law of the place where a contract was entered into, or of that where it was to be performed ; whether the prescription by which an obligation is extinguished ought to be measured by the lex loci contractus, as a limitation of the obligation itself, or by the lex fori, as a law of procedure determining the time for bringing an action on it ; and, with regard to the lex actus, whether it was necessary to draw up instruments in the form prescribed by it, or whether an option as to the form of instruments was allowed between the lex loci actus and the law of the place where they were to operate. As little must it be supposed that the system, such as it was, was imported wholesale into England. Certain parts of it, which suited the national temper or some peculiai'ity of English law, were eagerly seized on. Thus the principle of the lex situs, or of the real statute, was in harmony with the importance attached to landed property, and the estates and interests which English law permitted to be held in land were so peculiar that great confusion would have arisen if its tenure could have been interfered with by deeds in foreign form, or by matrimonial engagements tacitly entered into under and with reference to foreign laws. Hence the lex situs received in England Digitized by Microsoft® 10 PRIVATE INTERNATIONAL LAW. its utmost development, as agaiast the lex loci acMs and the lex loci contractus. On the other hand, the English courts have always been, and still are, extremely backward in admitting a personal law of status and capacity, dependent on domicile, doubtless because the personal forum, which lies at the root of personal law, was not conceived in England, as already mentioned, to depend so much on a durable tie between the judge and his justiciable as on the defen- dant's casual presence within the territory. And the principle of the lex loci actus for the forms of instruments was not only opposed in England by the considerations just mentioned with regard to land, but from another cause can scarcely be said to have been received at all. The institution of public notaries fell early in this country into great disuse, and deeds and wills were drawn in private, with such legal assistance as the parties might think fit to obtain. Hence it did not easily occur to the mind of an English lawyer that the necessity of recourse to a public ofiicer, who would of course adopt the form of his own country, might make the forms of the locus actus unavoidable. It was only in 1861, by lord Kingsdown's act, that the lex loci actus was admitted in England as a sufficient support for the formal validity of a will. Such were the sources from which the English maxims on topics of private international law were derived. The question of the justification for admitting foreign laws ^nd judgments, in accordance Avith these or any other maxims, confronts us at once with history and philosophy, Avith the nature of the obligations which courts of justice enforce, and with that element which is never to be disre- garded in the criticism of human institutions, the course which things have actually taken. Eoman law, as handed down to us, contains little which belongs to our subject. When the preetor, under the republic, judged between citizens of those states which it gradually absorbed, his aim was not to lay down rules for the selection of the law of one of those states as applicable to the case before him, but to frame a body of law gene- rally applicable in such cases by extracting the parts which the several national laws had in common. This was the jus gentium, which was afterwards identified with the ;tts natumle, and the Digitized by Microsoft® INTRODUCTION. 11 Roman law itself was brought into increasing conformity with it by the efforts of successive generations of magistrates and jurisconsults. Still, differences of law continued to exist in the empire, and various provisions arising out of them were contained in the edictum provinciale and the treatises on it ; but these almost wholly lost their interest when the decree of Caracalla extended the citizenship, and with it the law, of Rome, to all her free subjects, and only some fragments on the force of local observances were preserved in the pandects. The conquest of Rome by the barbarians, and still more the mutual conquest of the barbarians by one another, filled every country with a new diversity of laws, and this time no attempt was made either to fuse them or to restore the supremacy of one. In one respect indeed the soil was more fitted than before for such an attempt, because a common Christianity had destroyed the re- ligious sanction which ancestral institutions possessed among the nations of antiquity, whether Greek, Latin or barbarian. But the proud and independent spirit of the Germans attached them as firmly to their laws as an exclusive religion would have done, while to the Roman provincial his law was the symbol of civilization, necessary for the preservation of what remained of it, and for the transaction of his daily affairs. Thus there arose a system of per- sonal laws. Within each of the new kingdom.?, even in the same city, Roman and Lombard, Frank, Burgundian, and Goth might all be found, each living under his own personal law, very much as the Englishman, Hindoo and Mahometan now live together in India under their respective laws. The general rule was, as it now is in India, that the law of the defendant governed ; if an obligation could not be established against him by his OAvn law, there was no other to which he was subject. But marriage was to be celebrated according to the law of the husband, and so strictly was this rule adhered to that wives who had been married by their law were dismissed at caprice, a practice to which, in the year 895, the Council of Tribur could oppose none but religious sanctions* A * Mansi, t. 18, col. 151. I have been directed to this example by SaTigny, Gesch. des Eom. Eechts im Mitt., vol. 1, § 4G. Digitized by Microsoft® 12 PRIVATE INTERNATIONAL LAW. thousand years before, the Eoman praetor would have separated the intention in which the laws agreed from the ceremonies in which they differed, and would have held the marriage to be valid by the jus gentiimi. The German stranger who passed from one kingdom to another, if he did not belong to any of the races whose laws were recognised in his new abode, enjoyed the law of the race which was dominant there : they had the best claim to the benefit of the new pai-tner. The Roman stranger brought his own law with him, for it existed everywhere ; and his too was the common law of all those classes who, from the exercise of any trade or industry, were likely to have dealings out of which the tie of legal obligation might arise between subjects of different kingdoms. To the one law of Imperial Rome, and the distinct personal laws of the dark ages, distinct territorial laws began to succeed at the close of the latter period. These were not at first due to any legis- lation like that by which men now see great legal changes introduced over wide territories by centralized governments. The feudal castle and the civic belfry were the earliest fixed points round which the fluctuating elements of society crystallized, and in connection with which the sentiment of local attachment, of a common home, began to supersede that of race. The latter had in the long run been a disuniting sentiment. Less had been gained for peace and good will among men by the thought which tied Frank to Frank and Lombard to Lombard, over wider areas than a regular administration could then embrace, than had been lost by emphasizing the distinctions between those whom every day brought into mutual contact. Now at length men were to learn the strength and fitness of neighbour- hood as a bond of union, but first they were to learn it on the scale of the smallest groups, from which, as rivalries were smoothed and communications improved, the great territorial aggregates of modern times might be built up. In the nineteenth century race has again been put forward as being rightfully the determining element in the political distribution of the world, but with a meaning essentially changed. The word race is now used in political discussion for any population distinguished by a common language or dialect, and by common traditions, habits of life and sentiments. The ethnologist Digitized by Microsoft® INTRODUCTION. 13 however knows that these are just the points in which agreement and diversity depend much on political and geographical circumstances, and that they are therefore far from being sure indications of agree- ment or diversity in descent. To attach political importance to race in this sense is to pay due homage to the real unities which have resulted from facts and events, and more particularly to unity of language, which has derived quite a new significance from the growth of liberty, and the consequent growth of discussion, in speech and writing, as the main instrument of government. It is also a protest against the arbitrary groupiug of living and feeling men, whether by the accidental results of conquest, or by the calculated fetters of scientific frontiers, which, when they deviate from the boundaries of language and sentiment, rarely confer a defensive strength corre- sponding to the augmented probability of attack which they bring with them. We must not indeed suppose that when Goth and Bur- gundian, Frank and Lombard, invaded the empire, each of those names described a race whose blood had been pure from the earliest times. They may have been aggregates formed by prior political and geogi-aphical conditions of which nothing is now known, just as the Roman provincials, from whom as well as from one another they were distinguished, were certainly political and geographical aggre- gates of very miscellaneous elements. If so, the origin of all these names was similar to that of many races of whom nineteenth century politics have much to say ; but when they were insisted on as dis- tinctions between those who had been spread over the same countries, race presented a very different aspect from that which it wears when the common country is not denied as the basis of national union, but it is merely sought to determine the limits of countries in the best possible accordance with the natural wishes of their inhabitants. Law then became territorial in connection with civic and feudal authority. As the distinctions of race wore out, there grew up both in town and country usages common to the inhabitants of certain districts, which were ultimately turned into laws, also of local extent, through the local jurisdictions undertaking to enforce them ; and the free towns further passed statutes, which were applied to their re- spective districts by a conscious exercise of will. Thus, for the first Digitized by Microsoft® 14 PRIVATE INTERNATIONAL LAW. time in any legal history of -whicli we have detailed knowledge, the occasion for a system of private international law arose ; and the choice of the word statutes, as the technical one in the nomenclature of real, personal, and mixed statutes, was suggested in the infancy of the system by the statutes of the imperial cities. The jurists who pro- fessed in the chairs of those cities adopted that name for their ordi- nances because in the Roman Law, of which the study was at this time revived, the name of lex was reserved for that which was ex- pressly enacted by the highest authority, and the middle ages clung to the idea that the highest authority in Western Christendom was still represented by the Holy Roman Empire. But some curious argumentative shifts were resorted to, in order to justify the admission that the custumals and statutes had the force of lex. Thus, inas- much as the Venetians made their wills with only two witnesses, while the Roman law required five, one doctor trusted that they had received some forgotten dispensation from the successors of Justinian ■ while another argued that since by the Roman law a parent could with two witnesses divide his property between his children, a citv, which was the parent of her subjects, might authorize them to dis- tribute their substance with no more elaborate formality.* When it is remembered that Venice, at the time these apologies were made for her, did not acknowledge the supremacy of the emperor, it will be understood how severely the difficulty of upholding the authority of the statutes must have been felt by the doctors. The jud^^-es of the different cities were probably not troubled by any such scruples, and at any rate would not have been suffered to allow their action to be impeded by them. For the custumals there was also another apology in vogue, which even to some of the judges who administered them may have seemed their true defence. It consisted in denying to them any force of their own, and regarding them as beino- still that out of which they had certainly arisen, usages to which men chose to conform. This of course was really an untenable doctrine as soon as the usage was enforced in spite of an evident intention not to conform to it, but we shall hereafter see that it impressed its mark on private international law * BartoluB, ad Cod. 1, 1, 1, Digitized by Microsoft® INTRODUCTION. 35 Of that branch of jurisprudence, the first methodical conception appears in the commentaries on the Corpus Juris, where it generally finds its place among the annotations on the first law of the first title of the code de Summa Trinitate, although there is no inducement to its insertion at that point beyond the word volumus, and the propriety of discussing the limits of laws in general in the com- mencement of a commentary on particular laws. There cannot well be a better example of the strength and weakness of mediseval habits of thought than is afforded by the commentaries on this law. The sublety wasted in endless subdivisions, the earnestness worthy of a better cause, and the confusion which ultimately reigns in spite of the acuteness displayed, forcibly exemplify the disadvantages of the commentatorial method as compared with that of original treatises. Take, for instance, the headings of the commentary of Bartolus (born 1313, died 1356), on the law in question. First, Relativum quis ponitur declarative, argumentative, augmentative, et restrictive; next, a precept perhaps difiicult to observe under the circumstances, Lex non debet esse ludibno. In the tenth, we reach Argumentum de pojuro ad licereticum quando procedat, and so on through fifty-one sections on a short law, including, obiter, a system of private international law, though of course that name did not then exist, on the word volwmus. Lord Coke's expansion of one of Littleton's, &c.'s is nothing to the feats in the same line of the commentators, and still more of the glossatores, on the Corpus Juris.* In these commentators several things may be noticed. First, they conceive the question of private international law as being that of determining the legitimate field of operation of each law, and not primarily as that of the conflict of laws having by possibility over- lapping fields. This was due to the fact that the Koman law ap- peared everywhere in the background of the view, as the common law to which the statutes and custumals were exceptions, permitted by what was conceived as a still living imperial will. That will could not be in conflict with itself, and it must therefore have set some * In this and some other paragraphs of the present chapter I avail myself of some historical matter which, hut not any criticism on my book, I contributed to the notice of the first edition in the Law Magazine and Review. Digitized by Microsoft® 16 PRIVATE INTERNATIONAL LAW. bounds, could they only be discovered, to the field within which it intended to permit the operation of each local provision. As another result of this mode of looking at the subject, the maxim that ex- cejDtions are to be construed strictly was always at hand, to limit the application of a local provision which for any reason was disliked. Secondly, the doctrines on the selection of a law were often deduced from doctrines relating to jurisdiction, in accordance with the maxim, paria sunt forum alicubi sortiri ct statiUis ligari: si ibi forum, ergo et jus. Hence, if it could be determined to what territorial juris- diction any contention belonged directly or by the strict rule, the law of that jurisdiction was to be applied if incidentally, or by a permitted deviation from the strict rule, the matter arose in any other forum. And hence again the provisions contained in the Corpus Juris on the forum for each kind of action, and which in the empire of Justinian could not have contemplated a diversity in the laws of those forums, became available for determining the law to be selected. Thus statutes regulating the status and capacity of persons were applied to the justiciables of the forum where they existed, and to them only; and the forum speciale obUgafionis was very influential in the genesis of the maxim of the lex loci contractus. Thirdly, the personal statute, in its purest form, as affecting the status of persons, disposes, like the real statute, about a thing, although about an intangible thing ; and the philosophy of the earlier middle ao-es greatly disposed the minds of the doctors to see a sacramental efficacy in both these classes, impressing the thing or person with a character which clung to it inalienably even in other jurisdictions and in spite of the conflict of other considerations. Fourthly, as the divergences from the common Roman basis had not become very wide in Italy, to which countrj"- the doctors chiefly belonged, their writings are marked by a dearth of illustration ; indeed it sometimes looks as if important distinctions had been suggested by logic, without the aid of experience at all. The great Charles Dumoulin (Molinseus), in the middle of the sixteenth century, was one of the last jurists who wrote on this subject by way of commentary on the code de Siimma Trinitate. As a Frenchman, he thought less of civic statutes, possessed of a Digitized by Microsoft® INTRODUCTION. 17 binding force through some derivation of imperial will, than of the custumals of his country, and of the theory which treated them as usages to which men were presumed to conform. Also while the topics most discussed by his predecessors had been the solemnities of acts, and the laws respecting the capacities of persons and the destination of property, Dumoulin is fonder of considering cases arising out of contract. On both accounts his tendency was to seek in the circumstances a clue to the intention of the parties, and to allow to that intention, when discovered, a greater influence than to legal rules. This may be instanced by the doctrine, developed in his 53rd consilium, that where a marriage is solem- nized without express contract, between persons domiciled within the territory governed by a custom, that custom receives a con- tractual force through tacit adoption, by which it applies even to the immovable property of the pair situate under another custom, contrary to the prevailing opinion in favour of the lex situs in such case. Henry Boich appears to have meant much the same thing when he said that a personal custom was one |jer quam jus nascitur ex contractu.* The commentatorial method was still followed by d'Aigentre, late in the sixteenth century, in his gloss on the 218th article of the custumal of Brittany, but after that time regular treatises became abundant. This change in literary form was due to the freer spirit which came in with the revival of letters, and to the accession of importance which the subject derived from increased divergency of laws and more frequent communication between distant places, partly also, it is probable, to the changed aspect which the subject bore in consequence of the more independent footing which nations had obtained with reference to each other. No living imperial will could any longer be regarded as maintaining a common law for Western Christendom, and permitting exceptions by way of statute or custumal. There were manifestly autonomous legislators side by side ; it was necessary to ascertain not merely the expression of their will, but the limits of their respective authority, or, if that could not • Quoted by cl'Argentr^, Comm. in Biit. Leg., Ait. 218, gl. 6, ii. \i c Digitized by Microsoft® 18 PRIVATE INTERNATIONAL LAW. be done, then to lay down rules by which the conflict of their authority might be determined ; and for this, a gloss on any expres- sion of the will of one of them was scarcely the fitting occasion. Grotius, in his famous treatise De Jure Belli ac Pads, was the first who attempted to solve these questions from the new point of view. The general nature of his system, with his application of its principles to our subject, was as follows. The highest degree of approval is merited by human actions when they conform to counsels of perfection, consilia lionesta quidem seel non ohligantia. Contrasted with this is rectum, the conduct to which men are obliged, and to which correspond jus and lex, each taken in the largest sense, and, when so taken, synonymous. Jus in a narrower sense, and justum, correspond to juditia, which is only one of the many virtues the observance of which makes up rectiwi. Jus in the larger sense may be divided into ncUurale and volunteiriuin. (I. 1. 9.) J'us nedurale is the dictate of reason, pointing out that an action must have been forbidden or ordered by God. (I. 1. 10.) Jii,s volunteiriuvi is either elivinum or humauum, the former being the law which we learn from revelation to have been ordained by God, and the latter being again divided into civile and gentimn. Jus civile is the law within a state, being either that of the state, or at least existing in subordination to the state, as the precepts of fathers and masters. Jus ejentiuin is that which derives its obligatory force from the will either of all nations, or of all the nations inhabiting a certain part of the globe. (I. 1. 13-15.) Hence it is evident that when Grotius makes obligation the distins'uishino' mark between rectum and consilia lionesta, he understands obliga- tion as meaning that the rule from time to time in question has been imposed by some will, divine or human. What is not clear in his system is how reason, approving or disapproving of two actions, can distinguish between one of them, as ordered or forbidden by God, and the other, as merely the subject of a counsel of perfection. In other words, he fails to shew any base for a conception of rectum, as covering a definite field, larger than is covered by human or revealed law, but smaller than that over which the moral sentiment of approval or disapproval extends. An intermediate but indefinite Digitized by Microsoft® INTRODUCTION. 19 field, ■within which the moral .censure passes through various degrees of strength, is of course conceivable enough ; but Grotius regards his jus naturale as definite and ascertainable. Another division of jii,s is into what is properly or strictly, and what is improperly or loosely, so called. To strict jus corresponds the virtue justitia expletrix, which Aristotle called o-wvaXXaKTi/cij and €Tiavopd(jiTi.Kr\, the latter term being the better, since the matter with which this justice is concerned is not limited to the fulfilment of contract. It consists in suffering another to possess what is already his, or making it good to him, which includes the duties of not being enriched out of another's property, of performing pro- mises, of repairing damage done by our fault, and of submitting to due punishment at the hands of our fellow men. And the rights which correspond to it, the name for which is facultas, may belong to a private person, as right of' property, right under a con- tract, right of a father over a child ; or they may belong to a state, or a king as representing the state, as in the case of eminent, domain. To the looser jus corresponds the virtue justitia attri- hutrix, which Aristotle called Siai'e/xrjrtK?/, and it consists in "a prudent dispensation of what is proper for each man or group of men, as in preferring the wiser to the less wise, the neighbour to the sti-anger, the poor to the rich, according to the nature of each case." For the rights which correspond to it the name is aptitudo, called by Aristotle af I'a, or what one is worthy of Jus civile often derives its principles of legislation from attributive justice, but not always ; for example, it follows expletive justice when it ordains the repayment of what individuals have spent for the public benefit. The two kin^s are also mixed in the actions of private persons ; thus there is room for attributive justice in giving a legacy. (Prolego- mena, 8, 10 ; lib. I. 1. 5-8.) The mutual relations of the two modes of dividing jus explained in the last two paragrajahs have not been worked out by Grotius with all desirable clearness. The looser or attributive jus is to be ascertained by " the judgment with which men are endowed above other creatures for estimating what pleases or hurts, not only at the moment but afterwards, a.nd what may lead to either result " C 2 Digitized by Microsoft® 20 PRIVATE INTERNATIONAL LAW. (Pr. 9). This test is not to be called utilitas, which term Grotius uuderstood in a narrower sense, so as to exclude the satisfaction of the social appetite, when unconnected with any other want (Pr. 16, 57). The law which satisfies this test is the dictate of right reason, and a correct inference from the principles of nature, and it cer- tainly has much to do with the jus naturale (Pr. 40, 41). But not the less does the stricter and expletive jus also belong to the natural division, since that division often draws the appropriate con- sequences from a state of facts which has been introduced by human will. Thus property, as it now exists, was introduced by human wil', but, since it exists, theft is forbidden hj jus naturale (I. 1. 10). We are not now concerned with the system of public international law which Grotius erected within this framework. For our subject, his mofst important utterance is in lib. 2, c. 1 1, s. 5. There, after mentioning the diversity of national laws on the age of majority, he says that "' these have nothing to do with the law of nature and the jus gentium, except that it is natural to observe them in the places where they prevail. Wherefore even if a foreigner contracts with a citizen, he will be bound by those laws ; because he who contracts in any place becomes a temporary subject to the laws of that place. It will be quite otherwise if the contract be made at sea, or in an un- occupied island, or by letter between persons in different countries. For such contracts are governed by the law of nature alone, as also the contracts of the chief rulers of states, made by them in that character ; for when such persons deal in their private capacity, even laws for the avoidance of acts may be applied in their favour, though not penally against them." It is a pity that Grotius did not explain his statement that it is natural to observe laws in the, places where they prevail, when he was about to draw from it a conclusion so un- usual both in theory and in practice as that the age of majority for contracting should be determined by the lex loci contractus and not by the personal statute. But for the sentence which immediately follows, it might have been supposed that he assumed the contract would be adjudicated on in the country -where it was made, and that what he considered to be natural was that the judges of that country should observe their own law, in accordance with the maxim Digitized by Microsoft® INTRODUCTION. 21 si ihijwum ergo etjus. When however he discussed the law to be applied to contracts made at sea, or by letters interchanged by persons in different countries, he must have contemplated that such contracts would come before some forum, and the maxim referred to might have pointed to the national law of the defendant, but certainly not to the law of nature. Grotius cannot therefore have been thinking of the judges observing their own law, and what he says about temporary subjection may suggest that his meaning was this. Obligation under a national law arises from the will which imposes that law ; that will is territorial in its field of operation ; it is therefore natural, that is to say the dictate of reason, that the obligation which arises on the occasion of an act done within a given territory should be measured by the law in which the will reigning within the territory has ex- pressed itself Such a line of argument would be consistent with emancipating contracts made at sea, or on an unoccupied island, from all national law, but with regard to contracts made by letter it would rather lead to measuring the obligation of each party by the national law under which he wrote. Perfect consistency is however scarcely obtainable from the passage, and the explanation here given is in accordance with the eagerness with which the territorial principle was seized on, when the great states began to stand out in clear shape after the misty vision of a continuing political unity in Western Christendom. Of course the advocates of the personal statute would retort that the will which imposes a national law within tenitorial limits does not necessarily decree the a.pplication of that law to all the cases there arising, when great inconvenience would result from so doing. And certainly no system could lead to greater inconvenience than one which should exclude the personal statute from its influence on capacity, and hand over all commercial transac- tions, in which the parties do not happen to be within the same jurisdiction at the moment of contracting, to the sway of a vague law of nature, which can amount in practice to little else than the judge's private opinion of what is equitable. It is not therefore to be wondered at that the particular conclusions of Grolius on our subiect remained without much effect, but the Digitized by Microsoft® 22 PRIVATE INTERNATIONAL LAW. spirit in which he approached it worked, and the result followed which is inevitable whenever the maxims of territorial sovereignty and the temporary subjection of passing foreigners are put forward with any strength, in relation to transactions which by their scope or by the persons who enter into them are connected with more territories than one. The idea of determining the proper field of each law gave way to that of arbitrating on a conflict between laws, an idea which presupjDOses some imperfection in the definition of their respective fields, since otherwise a conflict would be impossible. The most important among the treatises of the seventeenth century are those of Rodenburg, Be jure quod oritur ex stafutorum vcl con- suetudinum diversitate ; of Paul Voet, Be statutis eorumque concursu ; of Huber, Be conflidu leg inn ; and of Hertius, Be collisione legum ; and conflict is avowed in the last three of these titles. Huber indeed asserts formally that, by reason of the territorial character of sovereignty, the law of the land is always primarily obligatoiy, subject only to a comity by which sovereigns admit foreign laws to operate within their territories. Such comity would be a positive institution, analogous to the jus gentium, and for the proof of the rules composing it an appeal could only be made to general reception, real or supposed. In fact, as we have seen, rules really of general reception did not cover the subject, but authors clung to the belief that they did so, partly because in their absence there seemed to be no mode of deciding any particular cases, and partly because the belief in a universal science of law had survived from the days when men had believed in a universal law. Hence arose the practice of laboriously collecting authorities, as testimonies to the general reception of certain maxims, with the result however of betraying more clearly the vagueness and uncertainty which beset the matter. The critical spirit of the nineteenth century has not been content with so barren a method, but this historical sketch has now reached the point at which the English courts completed the importation of their maxims on what is now called private international law, and wc can appreciate the justification they felt for so doing. Disciples of Huber, who has been oftener quoted in England and the United Digitized by Microsoft® INTRODUCTION. 23 States than on the continent of Europe, they considered that in not deciding every case by the strict law of the land they, in the name of that law, were making a concession, but one which was dictated as well by a convenience amounting to necessity, as by deference to a science of law, from which they conceived that they drew the re- quired maxims. That science they probably regarded as so elemen- tary that the law of England, whether common or statute law, must be taken to have foreseen and assumed that its own interpretation and application would be subject to it. They probably did not reflect how far that science, so far as it had a real existence, arose from generalizing certain parts of the Roman law, of which the law of England had always been very jealous. It came to them in the form of maxims claiming universal recognition, and as soon as any such maxim had been accepted by the courts of this country, the practice of relying on the precedents of those courts assisted in pre- venting a further investigation which might have seriously damaged the claim to universality. And so far as the courts may still be called on to complete the system thus established, or as parliament may think fit to modify it, no way more consonant to its original spirit can be found for either than to adopt those rules which in truth are now most widely received, even, so far as the aid of parlia- ment be given, although they should differ from the rules which were imported in former days, under the impression, correct or other- wise, that they were then the most prevalent. Digitized by Microsoft® CHAPTER II. PRESENT STATE OF THE SUBJECT ON THE CONTINENT. In the course of the preceding introduction, a very summary view of the maxims of private international law has heen given. The ultimate scope of this work is to present in detail the maxims which are received on the subject in England, and the applications which are there made of them ; but the next step will be to present with intermediate fulness the maxims which are now most widely received on the continent of Europe. A general review of the present condi- tion of the subject would in any case have been desirable, before entering on details many of which, in whatever order they are taken, must require for their understanding some notions about what is to follow ; and by connecting such general review with the continent, the reader will be put in possession of the matter which, according to the conclusion arrived at in the introduction, ought to exercise the most important influence on the settlement of those points which remain to be settled in England. The civil code adopted in 1865 for the kingdom of Italy, and operative there from 1st January 1866, is fuller on private interna- tional law, as well as more recent, than the code of any other country of equal importance. I shall therefore take it as the standard, translating all those of its articles which relate to the subject, and comparing them with such provisions as are contained in the Prussian code of 1794, the French code (Napoleon) of 1803, and the Austrian code of 1811, operative from 1st January 1812. Stcdus and Capacity. The status and capacity of persons, and their family relations, are governed by the law of the nation to which they belong. Italian Code, Preliminary Article 6. Digitized by Microsoft® STATUS AND CAPACITY. 25 We have seen in the introduction that the older criterion of the personal statute was domicile : the statute governed the status and capacity of the persons domiciled within its territory. The founda- tion of this, as we also saw, was jurisdiction : as to the status and capacity of the justiciable, there was nothing to set against the presumption which existed in favour of the law of the court. Now under the feudal principle of homage, the man was justiciable in the court of his lord ; but when this principle gave place to views of jurisdiction drawn from the study of the Roman law, the Roman, notion of domicilium revived, as the instrument for subjecting a person to the justice of a particular locality. It is true that the Roman law knew two sources of jurisdiction over the person, origo, or citizenship, as well as domicilium. But in the Corpus Juris the forum originis is but little mentioned, for which circumstance Savigny accounts as follows. "In the first jJace, that rule" [the forum originis] " had complete application only in Italy, not in the provinces, in which there were no municipal magistrates with juris- diction. Here therefore origo could found no jurisdiction, while on the contrary the abstract notion of domicile was just as applicable to the territory of a province, and therefore to the jurisdiction of the imperial governor, as to the territory of a particular town. But several of the passages cited expressly speak of the provinces only, and others may also have spoken of them although in their present form it is not apparent. In the second place, perhaps, the applica- tion of the foruvi originis to one who had origo and domicilium in two different municipalities was always limited to the case in which he happened to be found in the town to which he belonged by origo. But even if such a restrictive rule of law had not existed, the plaintiff must still, for his own interest, have preferred the forum domicilii, because the defendant was more easily and conveniently reached in the place of his domicile."* Very naturally then the forum originis fell into a desuetude from which the revived study of the Roman law did not resuscitate it, nor was there any thing to suggest the establishment of a new personal jurisdiction founded on * Syst. d. heut. Ebm. reohts, § .853 ; translation of Mr. Guthrie [Savigny on the Conflict of Laws, by Guthrie], p. 68. Digitized by Microsoft® 26 PRIVATE INTERNATIONAL LAW. political nationality, and therefore analogous to origo. So long indeed as the Holy Eonian empire retained even the most shadowy claim to universality, its jurists were not likely to strike out any such conception; and hence, in Germany and Italy, the personal statute was interpreted as resting on a base of domicile, protected by the Roman doctrine, that domicilium re et facto transfertur* from any influence which, like allegiance, might have fettered the action of one who for the purposes of private law was sui juris. In France however the reception of domicile as the criterion of the personal statute was qualified by a very limited reference to political conditions, not indeed through any reintroduction of origo as a ground of jurisdiction, but through a jealousy oi domicilium as such ground, when by any possibility it might lead to consequences hurtful to Frenchmen. France attained early to the consciousness of a political unity within herself, marking her off from all foreign countries, the empire included, and which led, long before the consolidation of the royal power under Lewis the Eleventh, to certain peculiarities in her jurisprudence. The Roman notion of domicilium. was revived, as in the empire, so that a Frenchman could not be sued for a personal matter except before the judge of his domicile ; but the foreigner (aiibain), being in France with a residence there short of domicile, was not allowed, when sued by a Frenchman, to plead that his proper judge was the judge of a foreig-n domicile. His only pro- tection was that the French plaintiff could not bring him before any tribunal he chose, but only before that of his actual residence. Also a foreign judgment had the force of res judicata in France when pro- nounced against a foreigner, but by the ordinance of 1629, Art. 121, a Frenchman could again disiDute the merits of the cause before a French tribunal. Hence the personal statute of a Frenchman was that of his French domicile, and if he acquired a foreign domicile, neither a judgment there pronounced, nor the statute of that place operating through the medium of such a judgment, could affect his status or capacity in France. But the foreigner was bound as to his status and capacity by the res judicata, and therefore by the statute, of his foreign domicile, though it is more than probable that, if sued in * Dig., 50, 1, 20. Digitized by Microsoft® STATUS AND CAPACITY. 27 « France by .a Frenchman for matters transacted in France, he would not have been allowed to defend himself by that statute.* Suppose however that the foreigner established in France, not merely a simple residence, but such a residence as satisfied the Eomau notion of domicilium : could this be counted in his favour ? The French legists, either by a misconception or through a desire to justify the inequitable droit d'aubaine, seized on the Roman distinction between jits civile and jus gentium, and held that foreigners enjoyed the latter in France, but not the former. Now it has been already noticed that the transfer of domicile was in Roman ideas a question of fact, domicilium re et facto transfertur .• therefore it did not depend on the jus civile : therefore a foreigner was allowed to establish his domicile in France, with the effect of submitting his status and general capacity to the law of that domicile, his particular rights remaining limited by his exclusion from those which arose out of the^tts civile, as succession to property on death, its transmission by will, the patHa potestus, and adoption. f This exclusion is often spoken of as incapacity, and not without etymological accuracy ; but questions about it must be distinguished from those about the general capacity which is the subject of this section. A Frenchman, as a minor, may have wanted the latter capacity, while enjoying rights, for instance, of succession : a foreigner in France may have been sui juris, while deprived of such rights. To come now to the modern law of France, the Code Napoleon says : — The laws concerning the status and capacity of persons govern Frenchmen, even though residing in foreign countries. Art. 3. This is the natural outcome of the ancient French principles just ex- plained. The internal differences of law, with regard to which the precise domicile within France was important, have disappeared, but the political nationality of a Frenchman remains, to govern his civil relations even abroad. The same code says : The foreigner who may have been admitted by the authority of the govern- * See Demangaet, Histoire de la condition civile des strangers en France, p. 117-121. t Demangaet, lib. cit., p. 123-155. Digitized by Microsoft® 28 PRIVATE INTERNATIONAL LAW. ment to establish his domicile in France shall enjoy there all civil rights, so long as he continues to reside there. Art. 13. I understand the general intei-pretation of this article to be in accordance with its obvious meaning, namely that it refers to questions of right and not to those of capacity, distinguished as at the end of the last paragraph. In other terms, it repeals the exclusion of the foreigner who has established his domicile in France with' the authority of the government from the rights given by the jus civile, the difference between which and the jus gentium is still sometimes noticed by French lawyers even under the empire of the code, but it neither says nor implies any thing as to the law by which the status and general capacity of any foreigner is to be determined. As to that matter, the prevailing opinion is that a silent revolution has been wrought by Art. 3, and that as the status and capacity of Frenchmen are to be determined by French law, so, by analogy, the status and capacity of foreigners, whether they have established a domicile in France with the authority qf the government or not, must be determined by the law of theV^ political country. And even those who adhere to domicile, as the criterion for the personal law of foreigners, generally admit that a domicile established in France without the authority of the government can now no longer be regarded as sufficient for that purpose, so that the only question about which there appears to be still any practical doubt relates to the personal condition of those who have established a domicile in France with such autho- rity. It remains to observe that the French courts do not generally allow a Frenchman to suffer from the incapacity, by his personal law, of a foreigner who contracts in France, when the foreigner would have been capable by French law, and the Frenchman was in good faith ignorant of his incapacity.* So much still remains of the ancient practice, which in no case permitted a foreigner contracting in France to defend himself by his personal statute against a French plaintiff. The Prussian code contains the following provisions. * Demangeat, lib. cit., p. 37.3. Digitized by Microsoft® STATUS AND CAPACITY. 29 Introduction, § 23. The status and capacity of a person are to be judged according to the law of the jurisdiction in which he is domiciled. § 24. One's merely quitting his jurisdiction, an intention to choose another domicile not yet appearing with certainty, does not alter his personal rights and obligations. § 25. So long as one has no determinate domicile, his personal rights and obligations are to be judged according to the place of his origin. § 26. If the place of his extraction is unknown, or not within the king's dominions, either the general law of the country [that is, this code, so called. — J. W.], or the particular law of his residence from time to time, is to be applied, according as the one or the other is more favourable to the validity of what he does. § 27. If any one has a double domicile, his capacity is to be judged according to the law of that one of the two jurisdictions which is most favourable to the validity of the matter in question. § 34. Subjects of foreign states, who live or carry on business in this country, must be judged as well as others according to the foregoing determinations. § 35. But a foreigner who contracts in this country about things situate in it is to be judged, as to his capacity, according to that law which is most favour- able to the validity of the matter in question. Hence, as might have been exjDected, the Prussian code adheres more closely than the law of France to domicile as the criterion of the personal statute. It makes no mention of political nationality, except to preclude any exemption of foreigners from the rules which it lays down. The extraction of which it speaks is not the Roman origo, but merely the domicile of origin which is attri- buted to every one before he is of age to choose for himself, usually the domicile of his father, and the domicile with which it is con- trasted is merely that which is afterwards freely chosen. But the Prussian law makes a wider breach than the French in the principle of the personal statute, whatever be its criterion, since in cases of very frequent occurrence it determines the capacity by the law most favourable to it, without limitation to the necessity of pro- tecting a subject who has contracted in good faith. The Austrian code contains the following provisions. § 4. The civil laws bind all the citizens of the dominions for which they are promulgated. Also citizens remain bound by these laws in what they do out of the dominions of the state, so far as their personal capacity to do it is restricted by such laws, and as what they so do may produce legal consequences in these countries. How far foreigners are bound by these laws will be determined in the following chapter. [The reference is to §§ 34, 35, here following. J. W.] Digitized by Microsoft® 30 PRIVATE INTERNATIONAL LAW. § 34. The personal capacity of a foreigner is in general to be judged according to the law of the place to which he is subject by reason of his domicile, or, if he has no domicile of his own, by reason of his birth ; that is to say, so far as this code does not lay down a different rule for the particular case. § 35. A thing done by a foreigner within this state, by which he confers rights on others without their being reciprocally bound, is to be judged either by this code or by the law to which the foreigner is subject, according as the one or the other is the more favourable to its validity. The birtli menlioned ia § 34, like the extraction of the Prussian code, is the domicile of origin. Tlius the Austrian code, like the Prussian, gives domicile as the general criterion for the personal statute, but, like the French code, it claims to bind the Austrian subject universally by its provisions on personal capacity, when his Austrian connection is with any province of the empire for which the code may have been promulgated. During the half century winch intervened between the enactment of the Austrian and Italian codes, a new factor, nationality, was in- troduced into European politics. Any body of people, occupying a certain territory or forming the majority in such a territory, and united among themselves and differentiated from their neighbours by language, customs, and actual or imagined ties of race, claimed a separate political development. The unity and independence of Italy was the most striking and important, and at the same time the best justified, result of this tendency ; and both in preparing for it, and in the glow of national feeling which succeeded its accom- plishment, the Italian jurists were foremost in developing the ten- dency on its theoretical side. Viewed on that side, the social characteristics of what was called a nationalitjr, including the laws which moulded or expressed those characteristics, were not made exclusively the antecedents, and the political unity and autonomy exclusively the consequent. Tb.e nationality was regarded as the product of a living force, which showed itself, or tended to do so, at once in the political and social spheres, so that in a normal state of things the political organization might as well serve for the index to that which should exist for private law, as tlie social oro-aniza- tion might serve for the index to the political. The civil code of Italy was drawn up under the influence of these principles, and when Digitized by Microsoft® STATUS AND CAPACITY. 31 it says, in the article placed at the head of this section, that the status and capacity of persons are governed by the law of the nation to which they belong, it declares itself, for the criterion of the per- sonal statute, against domicile, and in favour of the nationality, as developed ideally, and as far as possible also iia fact, by political relations. Thus, according to Italian legislation, the personal law of an Italian subject or a French citizen is Italian or French, irrespec- tive of his domicile, and the latter element can only be invoked to determine the personal law in such cases as those of England and Scotland, countries legally distinct but politically one. In this the Italian code is at least more distinct than the • Code Napoleon, if indeed the latter was really intended to proceed quite so far in the same direction. But to point for the origin of that direction to France or to the doctrine of nationality is to point to two sources which are not essentially diverse. We have seen that the ancient French maxims which in due time determined the line taken on this subject by the Code Napoleon arose from the sentiment, first ex- perienced in France of all great continental countries, of an intimate connection between the political and the social or jural aspects of national life ; and the modern doctrine of nationality is at bottom this sentiment, coupled, it may be hoped only for a time, with somewhat fantastic theories as to the influence of race on national life. Property not considered in special connection with a person. Movables are subject to the law of the proprietor's nation, except so far as the law of the country where they are found may contain contrary dispositions. Immovables are subject to the laws of the place where they are situate. Italian Code, Preliminary Article 7. There are certain cases, for example marriage and succession on death, in which masses composed of various kinds of property, %ini- versitates juris, Are considered together, in connection with some person -who forms the only tie between their elements. These cases, which are sometimes described as universal assignments, a term not always strictly appropriate, are those which, in the rubric at the head of this section, it is intended to distinguish from the considera- Digitized by Microsoft® 32 PRIVATE INTERNATIONAL LAW. tion of a particular piece of property with no further reference to any person than property must always involve. The Italian code, in the passage above cited, does not take this distinction ; but since succession on death is treated of in the articles which will be cited in the next section, and other so-called universal assignments rather attach themselves to other articles, the present article may be con- sidered only in relation to particular property. The second part of it simply follows the old maxim that the real statute, or lex situs, governs immovables. The first part deals with a question on whicli there had never been a satisfactory general understanding, namely whether the real statute also governs particular property in movables, leaving the maxim viohllia sequuntur personann to operate only in universal assignments, in which its operation is undoubted, or whether the latter maxim also comprises particular property. This question the text solves by taking mohilia sequuntur persona'm as the rule, subject to an exception where the lex situs contains con- trary provisions. Practically, this is much the same thing as adopting the lex situs for particular proijerty in movables, but the peculiar form of the article was no doubt determined by the desire of the Italian legislator to uphold nationality, so far as practicable, as the governing principle of private international law. The Prussian code lays down the doctrine rtiohilicc sequuntur oxrsonaon without taking any notice of the distinction between universal and particular assignments, and therefore so as to apply it to both. Its articles on the subject, together with that which affirms the real statute for immovable property, are as follows. Introduction, § 28. A pei'son's movable property is to be judged according to the law of his ordinary jurisdiction, without reference to his residence at the moment. (§ 23 and following.*) § 29. In the case of a double jurisdiction, the law of the place where the thing is situate has the preference. § 30. But if, in the case of § 29, the movable property, at the time of the transaction relating to it, is at a third place, the law of that place is to be applied which approaches nearest to the common law of the Prussian states [that is, to this code. J. W.]. * This reference is made in the Prussian code itEclf. If the reader will tiu-n hack to p. 29, he will see that its effect is to identify the ordinary jurifdiction with the ■ domicile. Digitized by Microsoft® PROPERTY. 33 § 31. The movable property of a person who has no determinate domicile is to be judged according to the law of his residence from time to time, but with regard to his personal status. § 32. The law of the jurisdiction in which it is situate applies to immovable property, without regard to the owner's person. The Code Napoleon is silent as to the law applying to movahle property, but says : Immovables, even those possessed by foreigners, are governed by the law of France. Art. 3. The Austrian code contains nothing on the subject of this section. Property considered in special connection with a person. Nevertheless, successions, whether by destination of law or under a will, and with regard both to the order of succession, to the measure of the rights of succession, and to the intrinsic validity of dispositions, are governed by the national law of the person whose inheritance is in question, of whatever kind is the property, and in whatever country it is situate. Italian Code, Preliminary Article 8. .... The substance and effects of donations and last wills are considered to be governed by the national law of the persons who make the dispositions. It. Co., Pr. Art. 9. Here the personal statiite is laid down as governiDg succession on death, intestate or testamentary, with an express inclusion of im- movable property, which forms indeed the only novelty of the clauses. The Austrian code must be understood as adopting by its silence the old rule, which limited to movable property the operation of the personal statute in cases of succession ; and the French and Prussian codes place themselves more distinctly on the same side, since in their articles affirming the real statute for immovables, which are quoted in the last section, the phrases "without regard to the owner's person," and " even those possessed by foreigners," pointedly include the cases in which the foreign personality of the owner would make a difference if the property were movable. Donations are mentioned in Art. 9, above, because restrictions on the testamentary power are commonly reinforced by restrictions on the power to defeat the lawful heirs by donations inter vivos. There can be no doubt but that the Italian legislator intended the D Digitized by Microsoft® U PRIVATE INTERNATIONAL LAW. effect of marriage on property to be governed by a similar rule to that which he has expressed for the case of succession. That he has not expressed the rule for the former case may be due to an assumption that succession would be treated as a typical instance for universitates juris, or perhaps, and indeed more probably, to his considering that the effect of marriage on property comes under the head of contract, even where the contract, so far as regards property, is tacit. The subject shall therefore be postponed till the clause on the substance and effects of contracts is reached. Forms of acts, other them judicial ones. The external forms both of acts in/er vivos and of last wills are determined by the law of the place where they are made. Nevertheless, it is optional for persons making dispositions or contracts to follow the forms of their national law, provided such law be common to all the parties. Italian Code, Preliminary Article 9. This clause decides an old doubt on the continent, namely whether the forms of the lex loci actus are necessary, or may be waived, where it is possible so to do, in favour of other forms specially appropriate to the matter, such as, for a contract, the forms of the place where it is intended to be performed, and for a will, those of the testator's personal statute, or of the place where the immovable property be- queathed is situate. The more common opinion is in favour of the latter doctrine, and the Code Napoleon does not even always permit the forms of the locus actus to be employed, for it says : A Frenchman who happens to be in a foreign country may make his testa- mentary dispositions by act under private signature, as prescribed in Art. 970 [this must be a holograph will. J. W.], or by acU authentiqtie, with the forms used in the place where the act is passed. Art. 999. A Frenchman is not therefore free to make his will in any private form which the lex loci actus may permit. In England, as has been noticed in the introduction, a sharp line has not been drawn between the law affecting the form of acts and that affecting their substance, and until the legislation of 1861 wills of movables were required to be made in the form prescribed by the law of the testator's domicile. Digitized by Microsoft® FORMS OF ACTS. 35 ■while wills of English real property are still required to be made in English form. The Prussian code contains this article : Introduction, § 33. Provincial laws and statutes, which determine the external ceremonies of any matter, are valid only for those matters which are transacted within the jurisdiction for which the law has been enacted, by persons subject to that jurisdiction. Such a provision might seem to refuse the power of employing the forms of the lex loci actus to all but the domiciled subjects of that law. It will be observed however that it only applies to provincial laws existing within the Prussian dominions, and it is therefore not in truth a rule of private international law, but an expression of the will of the Prussian sovereign as to the respective limits of his general code and the particular laws of his provinces. On what is really the subject of the present section the Prussian code disposes as follows. Part I, Title 5, § iii. The form of a contract is to be judged according to the law of the place where it was concluded. § 112. When a formal contract is made inter aisenfes,its form is to be judged according to the law of the place from which the instrument is dated. § 113. But when a contract is made inter absentes by letters, no formal instrument being executed, and the legal forms differ in the domiciles (*) of the parties, the validity of the form is to be judged according to the law of the place most favourable to it. § 1 14. The same holds when a contract is dated from several places which have different laws as to its form. § 115. In all cases in which immovables, the property, possession, or enjoy- ment of them, are the stibject of a contract, the law of the place where the im- movable is situate must be observed as to the form. § 148. When contracts about corporeal movables are made by word of mouth at a foreign place where such contracts are good without distinction, the want of writing cannot be pleaded in the courts of this country. Intrinsic validity and effects of contracts. [The substance and effects of donations and last wills are considered to be governed by the national law of the persons who make the dispositions.] The substance and effects of obligations are considered to be governed by the law * The word is wohnort, between which and wohntiiz, the usual word for domicile, Saviguy does not admit a difference in meaning. Syst. d. heut. Eom. rechts, § 353 ; Guthrie's translation, p. 53, note a. D 2 Digitized by Microsoft® 36 PRIVATE INTERNATIONAL LAW. of the place in which the acts were made, or, if the parties contracting are foreigners and belong to the same nation, by their national law. This is subject, in every case, to the exception of a different intention being shewn. Italian Code, Preliminary Article 9. In order to show the mode in which the subject is treated in the Italian code, I have repeated here, in the place which it occupies in the original, the clause about donations and last wills which I have already taken in connection with the article on successions. With regard to the substance and effects of obligations, the chief discussion has been whether they are to be governed by the law of the place where the contract is made, lex loci celebrati contractus, or by that of the place where it is to be performed, often called, from a special though very common case, lex loci solutionis. The term lex loci contractus is sometimes used to include both, though it more properly describes the former. The importance of the distinction is much smaller than it would seem to be at first sight, because it is admitted on all hands that when persons sui juris contract with one another, their intention is the main thing to look to. The Italian article decides for the lex loci celebrati contractus as the rule, while taking full note of the paramount importance of the parties' intention. It also varies the rule itself, in favour of the personal law of compatriots contracting abroad ; and certainly there is a much stronger presump- tion that in such a case the home law was tacitly refeiTed to, than the law of the place where the contract happened to be made. But this part of the clause is specially important with regard to the effect of marriage on property, the consideration of which was postponed in order that it might be taken in connection with it. The matrimonial domicile is that in which, at the time of the marriage, the consorts expect and intend to live together. It will therefore be in general the domicile of the husband at the time of the marriage, though perhaps, if it were agreed between the parties that the husband should adopt another domicile immediately after the celebration, and he adopted it accordingly, such agreed domicile might be considered the matrimonial domicile. Now it has been generally held that the law of the matrimonial domicile governs, at least in the first instance, the effect of the marriage on the movable Digitized by Microsoft® CONTRACTS. 37 property of a couple who marry without express contract ; but it is amoDg the moot points of private international law whether it should continue to do so after a change of domicile, and whether, if the law of the new domicile operates at all, it should govern all the movable property of the consorts, or only the portion acquired after the change. It is also a moot point whether the law of the domicile has any effect on the immovable property of the consorts, or whether this is left to the operation of the lex situs. Those who teach that the law of the matrimonial domicile is introduced by a tacit agreement between the consorts naturally extend it to immovables, with regard to which there is quite as much reason for inferring an agreement as with regard to movables : they also naturally repel any operation of the law of a substituted domicile, which, as it could not have been foreseen, could not have been comprised in the agreement. Those on the other hand who, instead of inferring intention, seek in the absence of express contract to base the decision on positive rule, generally repel any operation of the law of the matrimonial domicile on immovables, because .they are led to that law by the maxim mobilia sequuntur personam ; and their principles are not without a tendency to let in the law of a new domicile, and this for the movables acquired as well before as after the change. The exclusion of immovables from the operation of the matrimonial law of the domicile prevailed in the middle ages, and is still maintained in England. How the system of implied contract arose, especially in France, has been glanced at in the introduction. All that needs here be added is that, since agree- ments belonged to the jus gentium, and not to the jus civile, the foreigner domiciled in France was capable of them, and, on his marriage, it was generally held, on the ground of implied contract, that community did or did not arise between him and his wife, according to the law or custom of his French domicile.* Since the enactment of the Code Napoleon, it is doubtful whether the matri- monial law of property in the case of a foreigner domiciled in France, either with or without the authority of the government, is that of France, or that of his political nationality, t * Demangeat, lib. cit., p. 153-5. t See Journal du Droit Int. Priv6, t. 2, p. 425 ; t. 5, p. 596. Digitized by Microsoft® 38 PRIVATE INTERNATIONAL LAW. It can scarcely be doubted that, in the view of the Italian code, the effect of marriage on the property of the consorts is to be deter- mined, in the absence of any express contract, on the ground of an implied one, by the personal law of the husband, for immovables as well as for movables, and for property acquired after as well as before a change of domicile. Indeed this was probably the instance which the framers of the code had chiefly in mind, when they laid down the common national law of two foreigners contracting, as the primd facie indication of their intention with regard to the substance and effects of obligations. The wife, even were her nationality different before the marriage, would naturally be treated for this purpose as having the same law with her husband, whose nationality she acquires by the marriage. The Austrain Code has these provisions. § 36. When a foreigner enters in this country into a transaction with a citizen from which reciprocal obligations arise, such transaction is to be judged without exception according to this code : but when he contracts with another foreigner, the transaction is only to be judged according to this code when it is not proved that another law was contemplated at the time of the contract. § 37. When foreigners enter into transactions abroad, either with foreigners or with subjects of this state, such a transaction is to be judged according to the law of the place where it was concluded, so far as it is not apparent that it was based on another law at the time of concluding it, and the provision above contained in § 4 [see p. 29. J. W.] does not oppose. Judicial Proceedings. 1. Competence and forms of procedure are governed by the law of the place where the court sits. 2. The means of proving obligations are determined by the laws of the place where the act was made. 3. Judgments pronounced in^ivil matters by foreign authorities shall receive execution in the kingdom, when they have been declared executory in the forms established by the Code of Civil Procedure, saving however the dispositions of international conventions. 4. The modes of executing acts and judgments are governed by the law of the place where their execution is proceeded with- Italian Code, Preliminary Article 10. The clauses of this article are not numbered in the code. The first clause expresses a doctrine received in aU countries. It is that of the lex fori, but is sometimes gi-ouped under the les Hessing v. Sutherland, 1856, 25 L. J. (N. S.) Ch. 687, Knight-Bruce and Turner ; re Baker, 1871, L. R., 13 Eq. 168, Wickens. In the last case the lunatic had been judicially found such in the colony of Victoria, and the colonial master in ^ lunacy appeared by the colonial statute to be in the position of a committee. Lord Eldon seems to have questioned the power attributed in this § to a foreign -\ committee of the estate of a lunatic : re Houstoun, 1826, i Russ. 312. But x\ both as to this point and as to the authority over the person, with reference to which the case is quoted above, § 6, the report is so worded as to leave it |A^ " possible that lord Eldon only issued the commission because, the lunatic being in England, he thought it necessary for his protection that not merely a com- mittee, but an English court, should have authority over him and his property. Again, it is not quite clear that the lunatic was not domiciled in this country at the time of the application. If the chancellor really meant to deny the com- mittee of the domicile's power of suing and giving receipts in England, his opinion must be considered to have been overruled by the later authorities here quoted. Minors. A father claimed the enjoyment of his children's property up to the age of 18, under Art. 384 of the Code Napoleon, and Sir L. Shadwell appears to have rejected the claim only on the ground that the children were domiciled in this country, and not in that in which the Code Napoleon was in force: Gambier v. Gambler, 1835, 7 Sim. 263. In re Hellmann, however — 1866, L. R., 2 Eq. 363 — where a legacy was bequeathed to an infant, lord Romilly refused to direct the executors to pay it to the father, entitled by the law of the domicile to receive it as guardian. The latter case may perhaps be put on the ground of judicial discretion, as in § 9 : otherwise it would not seem to be maintainable, for a distinction could hardly be drawn between recognizing the guardian of an orphan and recognizing the father as guardian during his child's life, or between recognizing a guardian by law and one judicially ap- pointed, and the general doctrine seems to be sufficiently established as well by the cases with regard to lunatics as by that next cited. A Scotch curator and factor loco tutoris is the proper person to retain the Enghsh assets of his Scotch minors : Mackie v. Darling, 1871, L. R., 12 Eq. 319, Wickens. In exp. Watkins, 1752, 2 Ves. Sen. 470, it is said, but the saying appears to be only that of counsel, that the appointment in a colony of a guardian of personal estate failed as soon as the infant came to England. Lord Hardwicke appointed a guardian of the personal estate, for which there may have been some special necessity. E Digitized by Microsoft® so PRIVATE INTERNATIONAL LAW. § 9. But where the property is iu the custody of the court, or can only be reached by an order to be made by the court under its juris- diction as to trust property, or under the statutory jurisdiction as to property vested in lunatics, it is in the discretion of the court whether and to what extent it will hand over the property, or the income of it, to the foreign guardian, curator or committee. Re Morgan, 1849, i H. & T. 212, Cottenham ; re Stark, 1850, 2 M. & G. 174, Langdale and Rolfe ; re Sargazurieta, 1853, 20 L. T. 299, Cranworth ; re Gamier, 1872, L. R., 13 Eq. 532, Malins. All these are cases with regard to lunatics. § 10. " Where any stock, or any portion of the capital stock or any share of any company or society, whether transferable in books or otherwise, is standing in the name of or vested in a person residing out of England and Wales, the lord chancellor intrusted as aforesaid " [that is, by the interpretation clause, the judges exercising the juris- diction in lunacy], " upon proof to his satisfaction that the person has been declared idiot lunatic or of unsound mind, and that his personal estate has been vested in a curator or other person appointed for the management thereof, according to the laws of the place where he is residing, may order some fit person to make such transfer of the stock, or such portion of the capital stock or share as aforesaid, or any' part or parts thereof respectively, to or into the name of the curator or other person appointed as aforesaid, or otherwise, and also to receive and pay over the dividends thereof, as the lord chancellor intiiisted as aforesaid may think fit." Lunacy Regulation Act 1853, st. 16 & 17 Vict. c. 70, s. 141. The court has a discretion in acting under this provision : see the last §. " The masters shall be at liberty, without order of reference, to inquire and report whether or not any person residing out of England and Wales, and where, has been declared idiot lunatic or of unsound mind ; and whether or not his personal estate, or some and what part thereof, has been vested in a curator or other and what person appointed for the management thereof, according to the laws of the place where the person is residing ; and whether or not any and what stock, portion of the capital stock, or share of any and what company Digitized by Microsoft® FOREIGN GUARDIANSHIPS. 51 or society, is standing in the name of or is vested in that person, and what is his interest therein." Lunacy Regulation Act 1853, s. 85. § 11. But no English legislation about kmatics or their committees can be applied to persons who have only been found lunatic in foreign proceedings, or to committees or curators appointed in foreign pro- ceedings, without express words to that effect. Sylva V. Da Costa, 1803, 8 Ves. 316, Eldon ; overruling exp. Otto Lewis, 1749, ' Ves. Sen. 298, Hard wi eke. § 12. Nor can the English jurisdiction in lunacy be applied to any one unless an enquiry into the state of his mind is first made under an English commission. Re Hottstonn, 1826, i Russ. 312, Eldon. The close connection which exists between the subjects which have been included in this chapter will be the more apparent if we consider that the measures which are taken to supply the defect of capacity are not confined to the case where that defect is total, but often extend to supplementing a capacity which is deemed to be only incomplete. Thus a wife may be capable of acting with her husband's concurrence, but not otherwise ; a minor who has passed out of guardianship may still be capable of acting with the concurrence of a curator, but not otherwise. In such and the like instances the modified capacity is one entire institution, and it would be both in- convenient and devoid of principle were the several elements of that institution to be referred to different laws. Special exceptions to the general rule of the personal law as governing capacity, in the case of penal laws or stringent domestic policy, will be noticed under the head of marriage. See §§ 18, 19. Digitized by Microsoft® E 2 CHAPTER IV. MARRIAGE, DIVORCE, LEGITIMACY. Marriage. Proceeding, as does the Italian code, from capacity to family relations, the remark has first to be repeated that marriage is peculiar among contracts, in that in almost all countries that particular tie is not created without the intervention of public authority, applied by means of some ceremonial, civil or religious. It may therefore well be that such a ceremonial is void unless the conditions are present which the law of the place of celebration requires to be fulfilled in the contracting parties, no less than those which their personal laws require, although, if the latter conditions are present, the former may not be necessary to the legal effect of a contract which no public minister is called on to authenticate. See above, pp. 45, 46. Indeed marriage interests both the country in which its tie begins to exist, and that in which the permanent relations of the parties destine it to continue. On this account, and also in order to facilitate a more thorough examination of the authorities, the English doctrines on the validity of marriages will here be split up into a greater number of propositions than would result from simply enquiring by what law each element in that validity is to be determined. § 13. It is indispensable to the validity of a marriage that the lex loci actus be satisfied so far as regards the forms or ceremonies. Butler \. Freeman, 1756, Ambl. 303, Hardwicke ; Lacon v. Higghis, 1S22, 3 Star. 178, Dow. & Ry. N. P. 38, Abbott ; Kent v. Burgess, 1840, 11 Sim. 361, Shadwell. See also S-wz/t v. ICe/fy, 1835, 3 Knapp 257, Brougham ; where the validity of a marriage contracted at Rome depended on the sufficiency of the abjuration of protestantism by the parties, and the question whether their abjuration was sufficient was decided according to the law of the Roman church. Digitized by Microsoft® MARRIAGE. 53 § 14. It is also indispensable to the validity of a marriage that the lecc loci actus be satisfied so far as regards the consent of parents or guardians. Scrimshire v. Scrimshire, 1752, 2 Hagg. Cons. 395, Simpson ; MiddUton v. yanverin, 1802, 2 Hagg. Cons. 437, Wynne. In both these cases there was also a defect of form according to the lex loci actus, and in the second, where the marriage was solemnized by the chaplain of the Dutch garrison at Furnes in Austrian Flanders, it does not appear that by the law of Austrian Flanders the want of consent would have been fatal to the marriage, although by Dutch law it was so. But in each case the court went on the broad ground that a marriage void for any reason by the lex loci actus cannot be set up by the lex domicilii. In Harford v. Morris — 1776, 2 Hagg. Cons. 423, Hay, and 1781 and 1784, 2 Hagg. Cons. 436, Court of Delegates — the marriage, which was solemnized abroad, was invalid according to the lex loci actus for want both of form and of the necessary consent, and it was further alleged that it had been procured by force. Also, since lord Hardwicke's marriage act had been passed in the interval between the marriages in Scrimshire v. Scrimshire on the one hand and those in Harford v. Morris and Middletoft v. Janverin on the other, the want of consent, which at the earlier date would have rendered the marriage only irregular if celebrated in England without banns, would have been fatal to it at either of the two later dates. Hence the validity of the marriage in the two later cases could only be maintained on the almost incomprehensible ground that there existed a jus gentium on the subject of marriage, adopted by the old law of England, and which therefore, through the saving in lord Hard- wicke's act of Scotland and of marriages solemnized beyond sea, continued in force as an English law of marriage for English persons married abroad, not- withstanding that the lex loci actus might be quite different. In Harford v. Morris, Sir George Hay rejected the allegation of force, and sustained the marriage on this strange ground ; but the Delegates declared the marriage invalid on the ground of force, leaving the question of law undetermined. The latter question was again raised, and set at rest, in Middleton v. Janverin, so that Harford v. Morris seems no longer to need citation. § 15. It is equally indispensable to the validity of a marriage that the lex loci actus be satisfied so far as regards the capacity of the parties to contract it, whether in respect of the prohibited degrees of affinity, or in respect of any other cause of incapacity, absolute or relative. This proposition does not appear to have been questioned in any English case, and it is covered by the broad view above referred to as having been taken in Scrimshire v. Scrimshire and Middleton v. Janverin, that a marriage void for any reason by the lex loci actus cannot be set up by the lex domicilii. A still broader doctrine would seem to have been propounded in Dalrymple v. Dabymple, 181 1, 2 Hagg. Cons. 54, Scott, which was the case of a marriage in Digitized by Microsoft® 54 PRIVATE INTERNATIONAL LAW. Scotland between a Scotch lady and a gentleman who is treated in the judgment as domiciled in England (see pp. 54, 60, 61). The discussion in the judgment turns entirely on the sufficiency of the compliance with the forms necessary in Scotland, and the want of the consent of Mr. Dalrymple's father, which English law would have required, is not alluded to. On the contrary, Sir WiUiam Scott says : " The only principle applicable to such a case by the law of England is that the validity of Miss Gordon's marriage rights must be tried by reference to the law of the country where, if they exist at all, they had their origin " (p. 59). The propositions contained in this and the two preceding §§ amount to the statement that no marriage rights can be valid unless they are valid by the law of the country where, if they exist at all, they had their origin ; but § 17 will show that marriage rights which are countenanced by the law of the country where, if they exist at all, they had their origin, are not always deemed valid in England. § 16. A marriage in which the forms required by the lex loci actus have been satisfied is valid in England, in point of form. Herbert v. Herbert, 1819, 3 Phil. Ecd. 58, 2 Hagg. Cons. 263, Scott; Smith V. Maxwell, 1824, Ry. & Mo. 80, Best. § 17. It is indispensable to the validity of a marriage that the personal law of each party be satisfied so far as regards his capacity to contract it, whether absolute, in respect of age, or relative, in respect of the prohibited degrees of consanguinity or affinity. Brook V. Brook, 1857 & 1858, 3 Sm. & G. 481, Cresswell & Stuart; 1861, 9 H. L. 193, Campbell, Cranworth, St. Leonards, Wensleydale. In Mette v. Mette, 1859, I S. & T. 4T6, Cresswell, the incapacity existed by the law of the man's domicile, but not by that of the woman's ; and the marriage was held invalid expressly on the ground that the capacity of each party by his own law was necessaiy, and without reference to any superior claims of the law of the husband's domicile, as being that of the matrimonial domicile if the marriage be supposed to be valid. In Sottomayor v. De Barros, 1877, 3 P. D. i, Cottor James, Baggallay ; reversing S. C, 1877, 2 P. D. 81, Phillimore ; the circum- stance that a marriage within the degrees in question would have been valid according to the lex domicilii, if a papal dispensation had been obtained, was adverted to but disregarded, d-^^ a-^->ThyiAj^^ ^ /^W^, § 18. But an incapacity to marry, existing by a personal law of a penal nature and foreign to the locus actus, wUl be disregarded in England. This is a consequence of the maxim received in England, that the effect of a penal law is limited to the territory of the law. The maxim would certainly operate in favour of the marriage in England Digitized by Microsoft® MARRIAGE. 55 of one who was prouounced i-ncapable of marrying by a penal law of his domicile, and it has been applied even to the recognition in England of the foreign marriage of an Englishman, notwithstanding that a question was raised as to his having been incapacitated by English penal law. It seems that, by the law of England, an attainted person is not incapacitated from contracting marriage ; but the incapacity, if any, will not prevent the English court from recognizing a marriage contracted by him abroad, supposing him to be capable — " in the land in which he is living," Erie — by the lex loci contractus, Willes. Keating and Montague Smith concurred. Kynnaird v. Leslie, 1866, L. R., i C. P. 389. It may perhaps be said that in this case there was no incapacity by the personal law, because an attainted man would have adopted the country to which he had fled as his domicile ; but the decision would no doubt have been the same, if the judges had adopted political nation- ality as the criterion of personal law. § 19. Although there is no decided case on the point, I think it may be stated with confidence that an incapacity to marry imposed by the personal law in virtue of religious vows or orders would equally be disregarded, in the case of a person subject to it seeking to many in England. The reservation in favour of any stringent domestic policy, with which all rules for giving effect to foreign laws must be understood (see above, p. 39), would there operate. No principle of English pplicy can be deemed to be more stringent than that which would^ejrclude a whole class of the population from the possibility of marriage. ■L~ a^J-t^-^-^^--^)-^ /l^ ^>^^2Z~' The lex loci contractus of a marriage was also more or less vaguely referred to, with reference to the validity of a divorce from it, in the following cases from which no rule can be extracted. Tovey v. Lindsay, 1813, i Dow 117, Eldon and Redesdale; Ryati v. Ryan, 1816, 2 Phil. Eccl. 332, Nicholl ; Connelly v. Connelly, 1851, 7 Mo. P. C. 438, Lushington, in which case the validity of a separation a mensa et toro was in question ; Argent v. Argent, 1865, 11 Jur. N. S. 864, Wilde ; Birt v. Boutinez, 1868, L. R., i P. & M. 487, Penzance. Legitvmacy. The subject of legitimacy is one with regard to wkich it is im- possible fully to carry out the maxim of determining questions of status by the personal law of the party concerned, for whether the critei'ion be domicile or political nationality, the personal law of a newly born cHld will generally be that of its father if it be legiti- mate, but if it be illegitimate will be derived from its mother or from the place of its birth. Hence in numberless cases a decision on the personal law can only be reached through a previous decision on the legitimacy. But every question of legitimacy must involve that of the validity of some marriage; and if the party concerned was born before the marriage, it must involve the further question of the applicability to bis case of a rule concerning subsequent legitimation existing in some national law. Also the validity of a marriage may depend on that of the divorce of one of the parties to it from a pre- vious marriage, and thus the subject of legitimacy can be treated as a corollary to those of marriage and divorce, with an appendix relating to legitimation per subsequens 'niati'imoniuin. Different cases may occur on the remarriage of a divorced person during the life of his or her former consort. When it is the man who has been divorced and remarries, and at the date of his re- maiTiage his personal law is that of a country in which, as well as in the locus actus of the remarriage, the whole series of transactions is held to be valid, it would seem to be an excess of refinement to make any objection on the ground that at the date of the divorce his personal law was that of a country in which the jurisdiction that granted the divorce would not be deemed internationally competent. He has changed his domicile or his political nationality between the G 2 Digitized by Microsoft® 84 PRIVATE INTERNATIONAL LAW. dates of the divorce and the remarriage ; he was competent to make such change, whether the divorce was valid or not ; and it would be unreasonable to make the legitimacy of his children depend on his personal law at any date prior to that of the marriage from which they spring. But when the woman has been divorced and remarries, her power to change her domicile or political nationality in the interval depends on the validity of the divorce. Therefore if her personal law at the date of the divorce was that of a country which would not recognize it, she never acquired a capacity to remarry in accordance with her personal law ; and pursuant to the doctrine that the capacity of each party to a marriage according to his personal law is requisite, which in § 17 has been expressed with regard to age and the prohibited degrees, it must be unavailing to allege that the divorce and the remarriage would be deemed valid in the locns actus of the latter, and by the personal law of the second husband. Since the main scope of this work is to present the English authori- ties, it is not necessary here to discuss a case which does not appear to have arisen before ovx courts, namely that in which a sentence of judicial separation, pronounced in her undoubted country, may authorize a woman to transfer her domicile indejDendently of her husband, and thereby to acquire a capacity for remarriage -^vithout any divorce which otherwise than by reason of such transfer would be held valid in her former country. The next § shows that on the point which has occurred the English authorities take the view just now expressed. § 49. Where the capacity of a woman to rernarry depends on the validity of a divorce the jurisdiction for which is not deemed in England to have been internationally competent, the children of the remarriage will be deemed illegitimate in England, notwithstanding that the remarriage is deemed to be valid in its locus actus and bj^ the personal law of the new husband. Re Wilson, 1865, L. R., i Eq. 247, Kinderslej- ; confirmed, sub noin. Shaiu \. Gould, 1868, L. R., 3 E. & I. A. 55, Cranworth, Chelmsford, Westbury, Colonsay. § -50. With regard to the legitimation of a child by the subsequent Digitized by Microsoft® LEGITIMACY. 85 marriage of its parents, neither the place of its birth nor that where the marriage is contracted is important. But such legitimation cannot take place unless permitted by the personal law of the father at the date of the marriage. Since the legitimated child must acquire the personal law of its father, its legitimation in despite of the personal law of the father at the time of the legitimation would be a contradiction. Dalhoiisie v. McDouall, 1840, 7 CI. & F. 817 ; Mtcnro v. Munro, 1840, 7 CI. & F. 842 ; both decided together by Cottenham and Brougham. In these cases the father's domicile was held not to have been changed between the date of the birth and that of the marriage, but in stating the point before the house Brougham made no mention of the domicile of the father at the former date, but only at the latter : p. 882. Then he quoted the opinion of certain of the Scotch judges appealed from, that " the condition of children previously born must be determined by the law of the country where the parents were domiciled at the birth and the marriage. If the domicile was not the same for both parents at these two periods, we should hold that that of the father at the time of the marriage should give the rule. But as they were the same in this case, the question does not arise." And with reference to the opinion thus quoted he added immediately, " thus agreeing clearly upon the point of law with the majority of the learned judges, though they differed in point of fact : " p. 884. Finally, he described himself as " agreeing with almost the whole of them," the Scotch judges, " upon the question of law : *' p. 893. Lord Brougham therefore would have supported a wider statement than has been ventured on in the §, namely one that legitimation by subsequent marriage depends only on the law of the father's domicile at the date of the marriage ; but lord Cottenham contented himself with "the proposition that the child of a Scotchman, though born in England, becomes legitimate for all civil purposes in Scotland by the subsequent marriage of the parents in England, if the domicile of the father was and continued throughout to be Scotch : " p. 875. This is one of the Scotch appeals which, as stated on p. 43, I quote because nothing was intended by the house of lords to turn on the reception of any particular rule of private international law in Scotland. § .51. Neither however can the legitimation of a child by the sub- sequent marriage of its parents take place unless it is also permitted by the personal law of the father at the date of the birth. This was decided by vicechancellor Wood, in re Wright, 1856, 2 K. & J. 595, not noticing the contrary opinion of lord Brougham shown under the last § and erroneously quoting lord Cottenham as saying in Munro v. Mtmro that " the question in such cases must be, can the legitimization of the children be effected in the country in which the father is domiciled at their birth?" p. 614. The doctrine has however been repeated by the same judge, as lord Hatherley, Digitized by Microsoft® 86 PRIVATE INTERNATIONAL LAW. in Udny v. Udity, 1869, L. R., i S. & D. A. 447, and has been followed in Good- man V. Goodman, 1862, 3 Giff. 643, Stuart. Savigny's opinion is the same as that of the Scotch judges in Munro v. Munro and of lord Brougham. He says : " legitimation by subsequent marriage is regulated according to the father's domi- cile at the time of the marriage, and in this respect the time of the birth of the child is immaterial. It has indeed been asserted that this latter point of time must be regarded, because by his birth the child has already established a certaia legal relation, which only obtains fuller effect by the subsequent marriage of the parents ; and it is added that the father could arbitrarily elect before the marriage a domicile disadvantageous to the child. But we cannot speak at all of a right of such children or of a violation of it, since it depends on the free will of the father not only whether he marries the mother at all, but even, if he contracts such a marriage, whether he will recognize the child. In both these cases the child obtains no right of legitimacy, for a true proof of filiation out of wedlock is impossible, and accordingly voluntary recognition, along with mar- riage and independently of it, can alone confer on the child the rights of legitimacy." * The following cases bear on the subject of legitimacy, but it is not possible to extract a rule from them. Straihmore Pcc7-age, 1821, 6 Paton 645, Eldon and Redesdale ; Mttnro v. Satmders, or Rose v. Ross, 1830, 6 Bligh N. R. 468, 4 Wils. & Sh. 289, Eldon, Lyndhurst, Wynford. In Bligh's report of Rose v. Ross, the date is incorrectly given as 1 832, and the respondent is inconectly named Rose in the title. § 52. A child whose legitimacy has been acquired through the subsequent marriage of its father, domiciled abroad, ranks as a child under the British legacy and succession duty acts. Skottomev. Young, 1871, L. R., u Eq. 474, Stuart. § 53. But if a child born in a country politically foreign be legiti- mated by the subsequent marriage of its parents, it will not thereby be naturalized under st. 4 Geo. 2, c. 21, although its father was a ■^ Syst. d. heiit. Eum. rcchts, § 380 ; Guthrie's translation, p. 250. Digitized by Microsoft® LEGITIMACY. 87 natural-born British subject ; because the benefit of tliat act is ex- pressly limited to children whose fathers were natural-born subjects at the time of their birth, and at the time of its birth the child was not only an alien but filius nidlius, and in legal understanding had no natural-born subject for its father. Shedden v. Patrick, 1854, i Macq. 535 ; Cranworth, Brougham, St. Leonards. It must be observed, with regard to the doctrines on legitimation quoted in this section even from English authorities, that they do not determine the right of succeeding to property in England. We shall see in due place that the right of inheriting English land is held to be limited by the condition of having been born in wedlock, in addition to that of being legitimate ; and that when the word " children " occurs in an English will, the testator may be held to have tacitly intended the union of the same two conditions. Digitized by Microsoft® CHAPTEE V. SUCCESSION TO MOVABLES ON DEATH. After status, capacity, and family relations, the Italian code passes to the respective laws which govern movables and immovables in general. I prefer however to pass to the remaining cases in which property is considered in special connection with a person, in order to exhaust the applications of the personal law while on the subject of it ; and of such applications the most important, after those connected with marriage, are those connected with death. These must for English practice be limited to movables, because English land is in no case subjected to the personal law, but always to the lex situ,s. In England, and in those countries and colonies of which the law is derived from that of England, the personal or movable property of a deceased person can only be possessed under a grant from public authority, usually judicial. Such grant is, in England, in one of three forms : (1.) Probate of a will, granted to the persons, one or more, ap- pointed in such will as executors ; (2.) Administration with the will annexed, where no executor is appointed by the will ; (3.) Administration, where the deceased left no will. The executors or administrators have to realize the personal pro- perty of the deceased, pay his debts, and distribute the surplus among those who may be entitled under the will, or by law in case of intestacy. These duties are classed together under the name of administration, which term has therefore two meanings : it is used in opposition to probate, to express a certain description of public Digitized by Microsoft® SUCCESSION ON DEATH. 89 grant, and it is used to express that course of dealing with the property granted which is expected from the grantee, whatever was the kind of grant. In those countries of which the law has been derived from that of Rome more directly than has been the case with the English law on the subject, the movable property of a deceased pei'son, like his immovable property, descends on the heirs appointed by his will or entitled by law as the case may be, and in some cases on his universal legatees, subject of course to the acceptance of such heirs or legatees. And these are liable personally for the debts of the deceased, though, if they have accepted the succession with benefit of inventory, only to the amount of the property received by them, to which amount they are also liable for the particular legacies be- queathed by the will ; but the beneficial interest is theirs, subject to the satisfaction of the debts and particular legacies. The appoint- ment of executors by a testator is exceptional, and the power of making it is usually limited, as for instance by Art. 1026 of the Code Napoleon, which permits seisin of movable property alone to be given to the executors, and of this for not more than a year and a, day. In the former, or English, system, only the beneficial interest in the surplus of personal property, remaining after payment of debts, is transmitted on death, whether in the case of testacy or of in- testacy. The property itself passes by a public grant, made after the death, and implying no beneficial interest, though in the absence of an executor appointed by will it is usually made to some one beneficially interested. In the latter, or continental, system, the movable property is itself transmitted on death, whether in the case of testacy or of intestacy, and such transmission implies a beneficial interest, which is limited only by the debts and legacies to be satis- fied out of it. This system, as will be perceived, is very similar to that which through successive legislative changes has come to exist in England for real property. The common origin of both systems is the ancient principle of Roman law, by which the heir continued, and in that sense represented, the person of the deceased, both as to his rights and as to his obligations. This principle has been modi- Digitized by Microsoft® 90 PRIVATE INTERNATIONAL LAW. fied in England, for personal property, first by making a public grant necessary in all cases for the representation of a deceased person, and secondly by separating the beneficial interest in the representation from the representation itself; and the executor or administrator, called in England the personal representative, has thus come to be something very different from the complete con- tinuator of the deceased's person. In the continental system, the principle has been modified only by the benefit of inventory, intro- duced by Justinian. In working out the problems which arise for private international law out of these systems, the continental rule governs succession, whether testate or intestate, by the personal law of the deceased, this being extended by the Italian code, in accordance with the opinion of Savigny,* even to the immovable property of the deceased situate in other countries than his owfi. The principle which lies at the base of the English authorities is in substance an adaptation of the same rule to the English system with regard to succession in personal property, and may be stated thus : § 54. The law of a deceased person's last domicile governs the beneficial interest in the surplus of his personal property, after pay- ment of his debts, funeral expenses, and expenses of administration, that is of getting in and distributing such property ; and this, whether in the case of testacy or in that of intestacy. And since no law can be so well expounded or applied as by the courts of the countrj' where it is in force, the following corollary from the last § is well established ; § 55. Where the court of a deceased person's last domicile has had an opportunity of declaring who are entitled to the beneficial interest in his personal property, subject to payment of his debts, funeral expenses, and expenses of administration, its authority is regarded in England as final, whether the question arises on a claim to a grant of administration, on a claim to be heard as contradictor to a will propounded for probate, in the distribution of the English assets after payment of debts and the other expenses above men- tioned, or in any other way. * Syst. d. heut. Eom. reohtp, § 37(! : Guthrie's translation, p. 227. Digitized by Microsoft® SUCCESSION ON DEATH. 91 Crispin v. Doglioni, 1863, 3 S. & T. 96, Cress well; 1866, L. R., i E. & I. A. 301, Chelmsford and Cranworth. § 56. By the law of the deceased's last domicile, in the preced- ing §, must be understood that law as it existed at the date of his death. A retrospective law, passed since the death, will be dis- regarded by the English court in all questions concerning the succession. Lynch v. Provisional Government of Paraguay, 1871, L. R., 2 P. & M. 268, Penzance. The more detailed international questions which arise in England on the matter of personal succession may conveniently be taken in the order of the proceedings in a particular case. First will come the rules as to the person to whom a grant of probate or administra- tion is made, and those as to what wills are provable : both these operate at the same time in determining the grant, but the former are of more general application, because they comprise the case of intestacy as well as that of testacy. Next will come the rules as to what property passes by the grant of probate or administration, and, last, those which decide the questions that can arise in the adminis- tration of such property, taking the word administration in the second of the two senses contrasted on p. 88. The Grant of Probate or Administratimi. § 57. Whatever the domicile or political nationality of the de- ceased, his personal property situate in England cannot be lawfully possessed, or if recoverable in England cannot be sued for, without an English grant of probate or administration. Totirion v. Flower, 1735, 3 P. W. 369, Talbot. Price v. DewMtrst, 1838, 4 M. & C. 76, Cottenham ; illustrating what is a necessary consequence of the §, that in the judicial administration of the personal estate of a deceased person, that is to say when the duty of the executors or administrators to administer is being carried out under the direction of a court — see the second sense of ad- ministration, p. 88 — the court can take no notice of any will which has not been proved in England. Exp. Fernandes' Executors, 1870, L. R., 5 Ch. Ap. 314, Giffard, reversing Romilly. In Huthtuaite v. Phayre, 1840, i M. & Gr. 159, Tindal, Bosanquet, Coltman and Erskine allowed an administrator under an Irish grant to sue on a deed Digitized by Microsoft® 92 PRIVATE INTERNATIONAL LAW. which was assumed to have been bona notabilia in Ireland at the date of the death. But this was certainly an error : see Whyte v. Rose, under the next §. In Vaiiquelin v. Bonard, 1863, 15 C. B., N. S. 341 ; second count and i6th plea; it was held by Erie, Williams, and Keating that a universal successor, entitled under the law of a deceased person's domicile to sue in his own right for debts comprised in the succession, could sue for them in England in his own name, without an English grant. At the same time they were anxious to save the rule laid down in this §, only they seemed to think that their own holding applied to a peculiar case, instead of the case before them being the general one under continental law. § 58. And no grant from any foreign jurisdiction is necessary, to enable a suit for any personal property of the deceased to be main- tained in England. Whyte V. Rose, 1842, 3 Q. B. 496 ; Tindal, Abinger, Coltman, Maule, Parke, Alderson, Rolfe; reversing the same case, 1840, ib. 493, Denman, Littledale, Patteson, Coleridge. § 59. The leading maxim for determining the person to whom the English grant should be made cannot be better expressed than by the following quotation. " I have before acted on the general prin- ciple that where the court of the country of the domicile of the deceased makes a grant to a party, who then comes to this court and satisfies it that, by the proper authority of his own country, he has been authorized to administer the estate of the deceased, I ought, without further consideration, to grant power to that person to ad- minister the English assets." Lord Penzance, in re Hill, 1870, L. R., 2 P. & M. 90. The same judge is reported to have expressed the same maxim on another occasion as follows. " It is a general rule on which I have already acted that where a person dies domiciled in a foreign country, and the court of that country invests any body, no matter whom, with the right to administer the estate, this court ought to follow the grant simply, because it is the grant of a foreign court, without investigating the grounds on which it was made, and without reference to the principles on which grants are made in this country." Re Smith, 1868, 16 W. R. 1 130, Wilde. But this mode of expressing the maxim is scaixely so accurate, for it will be seen that so long as power to administer is granted to the same person who has received it from the court of the domicile, it is not always necessary that he should receive it in the same form : below, § 63. In support of the present §, see also re Rogerson, 1S40, 2 Cur. 656, Jenner. A converse rule to that of § 59, requiring that, where the deceased was domi- ciled in England, power to administer should be granted in the colonies to the person who had received such power in England, was laid down by the Privy Digitized by Microsoft® GRANT OF ADMINISTRATION. 93 Council as early as 1762, in Burn v. Cole, Ambl. 415, Mansfield. In Browne v. Phillips, 1737, there cited, the Privy Council considered that the rule did not extend to the case where administration in the domicile had been granted to a creditor ; and it may not be quite certain that lord Mansfield disapproved this limitation, though his own words in Burn v. Cole do not repeat it. He cited however with disapproval the reason given for the rule in Williams v. , 1747, P. C, Lee, "that the plantations, being within the diocese of London, are subordinate to the prerogative of Canterbury,-" "the better and more sub- stantial reason for such a determination," he said, " is the residency." § 60. The rule of § 59 applies in favour of one who has received in the domicile a grant ck, bonis non, as well as to one who has received an original grant. J?e Hill, 1870, L. R., 2 P. & M. 89, Penzance. § 61. And it has been applied in favour of one who in the domicile had been appointed judicial administrator, pending a suit to determine which of two wills was valid. Viesca v. d' Aramburu, 1839, 2 Cur. 277, Jenner. § 62. Also in favour of one- who in the domicile has been ap- pointed provisional executor, during the incapacity of the executor named by the will ; and the grant of administration was then limited to such time as the authority of the provisional executor should continue in the domicile. Re Steigerwald, 1864, 10 Jur., N. S. 159, Wilde. § 63. Where in the testator's domicile probate has been granted to one as executor according to the tenour, the case being such that according to English practice he would only have been entitled to administration with the will annexed, the grant to the foreign executor will only be administration with the will annexed. Re Read, 1828, i Hagg. Eccl. 474 5 re Mackenzie, 1856, Deane 17, Dodson ; re Cosnahan, i866, L. R., i P. & M. 183, Wilde ; re Earl, 1867, L. R., i P. & M. 450, Wilde. §64. ''From and after the date aforesaid" [12th November, 1858] " it shall be competent to include in the inventory of the personal estate and effects of any person who shall have died domi- Digitized by Microsoft® 94 PRIVATE INTERNATIONAL LAW. ciled in Scotland any personal estate or effects of the deceased situated in England or in Ireland, or in both : provided that the person applying for confirmation shall satisfy the commissary, and that the commissary shall by his interlocutor find, that the deceased died domiciled in Scotland, which interlocutor shall be conclusive evidence of the fact of domicile : provided also that the value of such personal estate and effects situated in England or Ireland re- spectively shall be separately stated in such inventory, and such inventory shall be impressed with a stamp corresponding to the entire value of the estate and effects included therein, wheresoever situated within the United Kingdom." Confirmation and probate act 1858 ; st. 21 & 22 Vict., c. 56 ; s. 9. " From and after the date aforesaid, when any confirmation of the executor of a person who shall in manner aforesaid be found to have died domiciled in Scotland, which includes besides the per- sonal estate situated in Scotland also personal estate situated in England, shall be produced in the principal court of probate in England, and a copy thereof deposited with the registrar, together with a certified copy of the interlocutor of the commissary finding that such deceased person died domiciled in Scotland, such confirma- tion shall be sealed with the seal of the said court and returned to the person producing the same, and shall thereafter have the like force and effect in England as if a probate or letters of administra- tion, as the case may be, had been granted by the said court of probate." lb., s. 12. This legislation provides, in fact, for a new form of English grant and proof, and therefore does not affect the necessity of an English grant for possession or suit in England, or the necessity of an English proof before a court of administration in England can take notice of a will, as laid down under § 57. Sect. 13 of the same act is identical with s. 12, putting Ireland for England, and s. 14 makes a corresponding provision for giving effiicacj- in Scotland to probates and letters of administration granted in England or Ireland to the executors or administrators of persons who died domiciled in the latter countries respectively. § 65. Where the deceased died domiciled abroad, and no one Digitized by Microsoft® GRANT OF ADMINISTRATION. 95 has been authorized to administer his personal estate by any court of his domicile, either because such authorization was unnecessary by the law of that country or otherwise, the English court makes the grant : First, to the executors, if any, appointed by the will or appearing from its tenour. And where the will of a testator who died domiciled abroad contains a general appointment of executors, the English court ought to grant probate of it to the executors so appointed without enquir- ing whether the will operates on any personal property in England, just as it would do in the case of the will of an English testator. Lord Chelmsford, in Enoliin v. Wylie, 1862, 10 H. L. i, p. 23. Lord West- bury, in the same case, p. 14, referred to the further circumstance that the will had been authenticated by the executors in the proper court of the domicile ; but the proposition does not seem to need that qualification. § 66. But where a testator appoints by the same will different executors for his English and foreign property, it may reasonably be assumed that those appointed for the latter will not be entitled to any probate in England. In re Winter, cited under § 72, Sir C. Cresswell said : " I find that when a testator has left general executors and a limited executor, the practice has been to grant probate to each of them according to the terms of his appointment. I do not quite see the principle upon which that practice has obtained." With deference, the practice seems sound, and it leads to the conclusion that no pro- bate could be granted to an executor specially appointed for property not within the jurisdiction. § 67. And an executor appointed by the will, but whose executor- ship has expired by the law of the testator's last domicile, is not entitled to any grant in England. Laneiiville -v. Anderson, i860, 2 S. & T, 24, Cresswell. § 68. In the case of foreign wills not expressly appointing execu- tors, the English practice is to gi'ant probate to one named as heir, as executor according|to the tenour, but only to grant administration with the will annexed to a universal legatee. Re Oliphant, i860, 30 L. J., N. S., P. & M. 82, Cresswell. Digitized by Microsoft® 96 PRIVATE INTERNATIONAL LAW. § 69. Reverting to § 65, if there is no will, or no executors are appointed by the will or appear from its tenour, the second class of persons entitled to the grant, which under these circumstances must be one of administration and not of probate, is composed of those who as heirs, next of kin, or legatees, are interested in the beneficial succession, that is to say in the surplus after payment of debts and funeral and administration expenses. The English practice will be followed in selecting the grantees, subject to referring the question of beneficial interest to the law of the deceased's last domicile. Re Stewart, 1838, i Cur. 904, Nicholl. And see re Oliphant, under the pre- ceding §. § 70. And one who in the last domicile of ^the deceased represents the persons interested in the beneficial succession, for example as guardian of the deceased's children, is entitled to a gTant of adminis- tration in England. Re Bianchi, 1862, 3 S. & T. 16, Cresswell. § 71. Thirdly, failing any title to the grant under the preceding §§, it will be made to a creditor. Re Maraver, 1828, i Hagg. Eccl. 498, Nicholl. § 72. Whether a testator died domiciled in England or abroad, administration will not be granted with a will or codicil relating only to foreign property annexed, nor will probate be granted of any such will or codicil unless it be incorporated by reference in some will otherwise entitled to probate in England, in which case it is neces- sary for the justification of the English executors that the document refen-ed to should be included in the probate, in order that it may be seen that they have no concern with the property disposed of by it. Re Coode, 1867, L. R., i P. & M. 449, Wilde ; overruling Spratt v. Harris, 1833, 4 Hagg. Eccl. 405, Nicholl, and re Winter, 1861, 30 L. J., N. S., P. & U. 56, Cresswell. Re Harris, 1870, L. R., 2 P. & M. 83, Penzance; re De la Saussaye, 1873, L. R., 3 P. & M 42, Hannen ; re Howden, 1874, 43 L. J., N. S., P. & M. 26, Hannen ; in all which cases the documents disposing of the Digitized by Microsoft® GRANT OF ADMINISTRATION. 97 foreiga property were admitted to probate on the ground of incorporation, and in the last of them the reason given in the § was assigned by the judge. § 73. By St. 24 & 25 Vict., c. 121, s. 4, it is enacted that subject to reciprocity being secured by a convention with the foreign state in question, and to the making of an order in council thereupon, " when- ever any subject of such foreign state shall die within the dominions of her majesty, and there shall be no person present at the time of such death who shall be rightfully entitled to administer to the estate of such deceased person, it shall be lawful for the consul viceconsul or consular agent of such foreign state within that part of her majesty's dominions where such foreign subject shall die to take possession and have the custody of the personal property of the deceased, and to apply the same in payment of his or her debts and funeral ex- penses, and to retain the surplus for the benefit of the persons entitled thereto ; but such consul viceconsul or consular agent shall immediately apply for and shall be entitled to obtain from the proper court letters of administration of the effects of such deceased person, limited in such manner and for such time as to such court shall seem fit." Validity of Wills of Persoiud Estate. § 74. As to the testamentary character of a document, and its validity as a will or codicil, with respect not only to the forms of execution but also to every circumstance on which the validity of a will may depend, the English Court will follow a judgment obtained in the country in which the testator or alleged testator had his last domicile. Probate, or administration with document annexed, granted on the strength of a judgment in the domicile. Hare v. Nasmytli, i8i6, 2 Add. 25, NichoU ; Re Cosnahan, 1866, L. R., i P. & M. 183, Wilde ; Miller v. James, 1872, L. R., 3 P. & M. 4, Hannen. In the last case unsound mind and undue influence were objected, but the court held itself bound by the judgment in the domicile in favour of the will, although those objections had not been made there. Probate, or administration with document annexed, refused or revoked on the strength of a judgment in the domicile. Harew. Nasmyth, 1821, 2 Add. 25, Nicholl, probate revoked ; Moore v. Darell, 1832, 4 Hagg. Eccl. 346, Nicholl; Laneiiville v. Anderson, i860, 2 S. & T. 24, Cresswell. II Digitized by Microsoft® 98 PRIVATE INTERNATIONAL LAW. § 75. Yet it is said that where a court of the domicUe has pro- nounced on a document propounded as testamentary, the authority ■which is allowed to that judgment in accordance with the preceding § rests only on its being conclusive evidence of the law of the domicile, and that it is therefore not sufficient to aver the judgment, out those who propound the document must aver its execution according to the law of the domicile. Isherwoodw. Cheetham, 1862, 7 L. T., N. S., 250, Cressvvell. § 76. On the other hand, where the original document is in EngUsh, and a translation of it has been established in the court of the domicile, if the doctrine of § 74 be relied on, what will be obtained will be administration with a retranslation of the translation annexed, although the original will be admitted to probate on proof of its validity according to the law of the domicile. Re De Vigny, 1865, 4 S. & T. 13, Wilde; Ri Clarke, 1867, 36 L. J., N. S., P. & M. 72, Wilde; re Rule, 1878, L. R., 4 P. D. 76, Hannen. It seems difficult to reconcile this with § 75, for if the foreign judgment operates only as evidence of due execution according to the law of the domicile, it is the original the due execution of which is so testified by it, and therefore it might be argued that probate of the original, or administration with a copy of the original annexed, ought to be granted in England, even on the strength of the foreign judgment. § 77. If the testamentary character of a document, or its validity as a will, is being litigated in the testator's last domicile, probate in England will be suspended in order to await the result of those proceedings. Hare\. Nasmyth, 1815, 2 Add. 25, Nicholl ; De Bonneval \. De Bonneval, 1838, I Cur. 856, Jenner. § 78. The English court will also follow the court of the domicile, on the question whether two papers are to be admitted to probate as a will and codicil, or as containing together the will of the deceased. Larpentv.Sindry, 1828, i Hagg. Eccl. 382, Nicholl. § 79. When the English court is not aided by any judgment in the testator's last domicile, the old rule was that the testamentary character and validity of any document propounded must be tried by Digitized by Microsoft® VALIDITY OF WILLS. 09 the law of that domicile. But now, by section 3 of st. 24 & 25 Vict. c. 114!, commonly called lord Kingsdown's actj "no will or other testamentary instrument shall be held to be revoked or to have become invalid, nor shall the construction thereof be altered, by reason of any subsequent change of domicile of the person making the same." And by section 5, " this act shall extend only to wills and other testamentary instruments made by persons who die after the pas.sing of this act," 6th August 1861. Consequently, in the case of future testators, or of those who have died since the date just named, the document will be held a valid testamentary one if it satisfies either the law of the testator's last domicile, or that of the place which was his domicile at the date of the document ; and it is necessary that it should satisfy one of those two laws, so far as the case does not fall within the exceptions stated in § § 81, 82. For the old rule, see Stanley v. Bernes, 1831, 3 Hagg. Eccl. 447, Court of Dele- gates, Parke, afterwards lord VVensleydale, apparently being their president ; reversing the same case, 1830, 3 Hagg. Eccl. 373, Nicholl, who had admitted to probate codicils not executed according to the law of the domicile, on'mixed con- siderations, referring to the testator's political nationality, to the situation of the property bequeathed (money in the British funds), and to a supposed difference between the respect to be paid to the law of the domicile in cases of testacy and of intestacy. Sir John Nicholl had expressed similar views in Curling v. Thornton, 1823, 2 Add. 6. See also de Zichy Ferraris v. Hertford, 1843, 3 Cur. 468, Jenner Fust ; affirmed 1 844, sub nom. Croker v. Hertford, 3 Mo. P. C. 339, Lushington ; in which the place of execution and the situation of the property disposed of were repudiated as grounds of decision on the form of a will : and Page v. Donovan, 1857, Deane 278, Dodson, where the lex loci actus ws^s, not even referred to. § 80. Either the old or the new rule in § 79 is not limited to the forms of execution, but extends to every circumstance on which the validity of a will may depend, except, it is presumed, the testator's capacity, which even under the new rule should certainly continue to be determined by his personal law at the time of his death. Thus, under the new rule, if the testator marries after changing his domicile,, and his marriage would revoke his will by the law of his last domicile,, but not by that under which he was domiciled at the time when he made his will, the will is not revoked. Re Reid, 1866, L. R., i P. & M. 74, Wilde. H 2 Digitized by Microsoft® 100 PRIVATE INTERNATIONAL LAW. § 81. "Every will and other testamentary instrument made within the United Kingdom by any British subject, whatever may ,be the domicile of such person at the time of making the same or at the time of his or her death, shall as regards personal estate be held to be well executed, and shall be admitted in England and Ireland to probate, and in Scotland to confirmation, if the same be executed according to the forms required by the laws for the time being in force in that part of the United Kingdom where the same is made." St. 24 & 25 Vict. c. 114, s. 2. This enactment, in the cases to which i', applies, adds a third alternative, that of the locus actus, to those of the new rule in § 79, with regard to the forms of execution, but not with regard to any other circumstance on which the validity of a will may depend. For the commencement of its operation see s. 5, quoted in § 79. § 82. " Every will and other testamentary instrument made out of the United Kingdom by a British subject, whatever may be the domicile of such person at the time of making the same or at the time of his or her death, shall as regards personal estate be held to be well executed for the purpose of being admitted in England and Ireland to probate, and in Scotland to confirmation, if the same be made according to the forms required either by the law of the place where the same was made, or by the law of the place where such person was domiciled when the same was made, or bj'- the laws then in force in that part of her majesty's dominions where he had his domicile of origin." St. 24 i*i; 2.3 Vict. c. 114, s. 1. This enactment, in the cases to which it applies, adds two alternatives, that of the lex loci actus and that of the law existing in the domicile of origin at the date of the will, to those of the new rule in § 79, with regard to the forms of execution, but not with regard to any other circumstance on which the validity of a will may depend. For the commencement of its operation see s. 5, quoted in § 79. The enactments in §§ 8i and 82 were applied to the wills of naturalized British subjects in re Gaily, 1876, L. R., i P. D. 438, Hannen (case of § 81), and re Lacroix, 1877, L. R., 2 P. D. 94, Hannen (case of § 82). The former case how- ever might have been decided on the new rule in § 79, and latter on the same rule combined with that in § 83. Digitized by Microsoft® VALIDITY OF WILLS. 101 § 83. In interpreting §§ 79, 81 and 82, the law of any foreign country by which a will may be sustained includes private inter- national law as received in that country, so that if a v/ill would there be held valid because executed according to the forms of any other law, as for example that of the locus actus or of the testator's political nationality, an execution according to those forms will be one according to the law of the domicile, though not in accordance with the foi'ms of the domicile. Collier v. Rivaz, 1841, 2 Cur. 855, Jenner (the doubt expressed as to the facts of this case va. Bre7ncr v. Freeman, 1857, 10 Mo. P. C. 374, does not affect the law in it) ; Crookenden v. Fuller, 1859, i S. & T. 441, Cresswell ; Laneimille v. Anderson, i860, 2 S. & T. 24, Cresswell, pp. 38, 39 ; re Lacroix, 1877, L. R., 2 P. D. 94, Hannen. In the first three cases this interpretation was treated as applicable to the old rule in § 79, and in the last to § 82. § 84, In all the cases where alternatives are given by §§ 79, 81 or 82, the court will have regard to the law of one country only at a time, and will not mix up the legal precepts of two countries. Pechell y. Hilderley, 1869, L. R., i P. & M. 673, Penzance. § 85. Where a document was intended to operate in execution of a power to appoint by will, conferred on its author by some instrument itself operating under English law, it must be admitted to probate, or administration must be granted with the document annexed, in either of two cases, notwithstanding in each case that the author may have had no testamentary capacity otherwise than as donee of the power. And the grant of probate or of administration with the document annexed will be decisive in favour of its being a good execution of the power, so far as the question of form is concerned. The first case is that where the document complies with the forms which would be required for its validity as a will by the law, or any of the laws, which under the preceding §§ would be applicable in the case of an ordinary testator. Barnes v. Vincent, 1846, 5 Mo. P. C. 201 ; Brougham, Buccleugh, Cottenham,. Campbell, Knight-Bruce. The concurrence of the privy councillors who heard the argument, and of Lyndhurst and Sugden, to whom the judgment had been Digitized by Microsoft® 102 PRIVATE INTERNATIONAL LAW. submitted, is stated by Brougham at p. 21 8. No question of private international law arose in this case, but it was decided that the will of an English married woman, which satisfied English testamentary forms, should be admitted to probate without enquiring whether it also satisfied the particular formalities im- posed by the power in execution of which it was made ; and the date of the will prevented the decision being aided by the wills act, which now, as a rule of English law, puts the general English testamentary forms in the place of all particular formalities imposed by powers on their execution by will. The principle of the decision was that probate must not be refused on the ground of the form of the document, in any case in which such form would entitle it to probate if its author were an ordinary testator ; and the bearing of the principle on private international law was not allowed by lord Brougham to pass un- noticed. See p. 217. The international application arose in D'Huart v. Hark- ncss, 1865, 34 Beav. 324, Romilly, where the will of a married woman, made since the wills act under an English power, was not in English form, but was in good form by the law of her last domicile. It had been proved, apparently without objection, and was held to be a good execution of the power. But lord Cranworth stated the inclination of his opinion to be opposed to this doctrine, in Dolphin v. Robins, 1S59, 7 H. L. 419 ; where however Barnes v. Vincent does not seem to have been quoted. On the other hand the dissents from § 86, which will be noticed under that §, are so many more authorities in support of the doctrine now under consideration. § 86. The second case is that where the document complies with English testamentary forms, although it does not comply with any forms which under the preceding §§ would sustain its validity as the will of an ordinary testator. Tatnall v. Hankcy, 1838, 2 Mo. P. C. 342, Brougham. The report of this case was corrected, and the case followed, in re Alexander, i860, 29 L. J., N. S., P. & M. 93, and I S. & T. 454, note, Cresswell ; contrary to the personal opinion of that learned judge, which he had previously expressed in Crookenden v. Fuller, 1859, i S. & T. 441. Tatnall v. Hankey was again followed, and also with dissent, in re Halliburton, 1866, L. R., i P. & I\I. 90, Wilde. It will be understood that nothing in this section applies to the validity of wills of English real estate. What Personal Estate passes by the Grant of Probate or Adminis- tration, or must he accounted for by the English Executor or Administrator. In England and those other countries in which the succession to movable property on death is regulated by the method of English Digitized by Microsoft® PROPERTY PASSING BY GRANT. 103 law explained on p. 88, every grant of probate or administration is held to carry such corporeal chattels of the deceased as either are at the date of the grant within the jurisdiction of the court from which it issues, or afterwards come within that jurisdiction without having been previously reduced into possession by lawful authority since the death. Such authority would be that of an administrator under a grant issued by some other court, or that of an heir or universal legatee entitled without grant under the continental system ex- plained on p. 89. The property in all such goods is vacant, and the jurisdiction in which they are found can confer it on the executor whom it confirms or the administrator whom it appoints. But if the goods only come into the jurisdiction after they have been reduced into possession by lawful authority since the death, the property in them has not been vacant at any moment at which the domestic grant could operate on them ; they must be recognized as being the goods of the foreign heir or legatee, executor or administrator. Let us say, of the foreign heir or administrator, taking the latter term, as is very commonly done, in an extended sense, so as to include executors. If the goods, since the decease of the testator or intestate, have been within a foreign jurisdiction in which a grant has been made, or an heir entitled to their possession exists, but the administrator under that grant or the heir has not reduced them into possession, that makes no difference : the property is regarded as vacant when they enter the domestic jurisdiction. Thus in a New York case, where there were stage-coaches and stage-horses belonging to a daily line running from one state to another, chancellor Walworth said : "if administration had been granted to different individuals in the two states, I think the property must have been considered as belonging to that administra- tor who first reduced it into possession within the limits of his own state." Orcutt v. Orms, 1832, 3 Paige 459, 465. And Story says : " according to the common course of commercial business, ships and cargoes and the proceeds thereof, locally situate in a foreign country at the time of the death of the owner, always proceed on their voyages and return to the home port without any suspicion that all the parties concerned are not legally entitled so to act ; and they are taken possession of and administered by the administrator of the forum Digitized by Microsoft® 104 PRIVATE INTERNATIONAL LAW. domicilii, with the constant persuasion that he may not only right- fully do so, but that he is bound to administer them as part of the funds appropriately in his hands." Conflict of Latvs, § .520. Hence : § 87. The corporeal chattels of a deceased person belong to the heir or administrator who first reduces them into possession within the territory from the law or jurisdiction of which he derives his title or his grant. " If property came to England after the death, would the foreign administra- tion give a right to it ? " Rolfe, in Whyte v. Rose, 1841, 3 O. B. 506. " Suppose, after a man's death, his watch be brought to England by a third party, could such party, in answer to an action of trover by an English administrator, plead that the watch was in Ireland at the time of the death ? " Parke, ib. These questions were evidently meant to be answered in the negative, and to refer to property not reduced into possession before it is brought to England. " It seems to me that your argument goes too far, and would show that no adminis- tration in England could give a right over goods anywhere out of England. A man may sue here in his own name, naming himself as executor or adminis- trator under a foreign probate or grant ; but does a man ever sue here in the character of executor or administrator under such a probate or grant ? " Abinger, ib., p. 504. Here lord Abinger appears to have contemplated property which had been reduced into possession under a grant within the jurisdiction from which the grant issued. If England was that jurisdiction, the English administrator would afterwards have a right over the goods out of England . if that jurisdiction was foreign, the goods would afterwards belong in England to the foreign administrator, who might sue for them in his own right, naming himself administrator under a foreign grant as a mere matter of description. Ciirrie v. Bircham, 1822, i Dow. & Ry. 35, King's Bench ; where it was held that an English administrator cannot recover from the agent in England of a Bombay administrator the proceeds, remitted to him by the latter, of effects of the intestate reduced into possession under the Bombay administration. It does not appear, and can have made no difference, whether the effects were corporeal chattels or choses in action. With regard to the debts of the deceased, the jurisdiction in which it is necessary or possible to sue for them depends on considerations not connected with administration : the death of the creditor cannot affect that question, except so far as he maj^ have been entitled, and his heir or administrator may not be entitled, to the benefit of some such exceptional legislation as that of Art. 14 of the Code Napoleon, which allows a Frenchman to sue in France on all obligations con- tracted towards him by foreigners. But in whatever jurisdiction the circumstances of the case point out that a debt ought to be or ma^- Digitized by Microsoft® PROPERTY PASSING BY GRANT. 105 be sued for, tlie administrator who has obtained a grant in that jurisdiction, or the heir who is entitled under its law, and he only, can sue for it therein, or, if the debt is assignable, assign the right of suing for it therein : see § 57. To this however the debts due on negotiable instruments are an exception, because they can be suffi- ciently reduced into possession by means of the paper which re- presents them. They are in fact in the nature of corporeal chattels. Hence : § 88. The negotiable instruments of a deceased person, and his bonds or certificates payable to bearer, belong to the heir or adminis- trator who first obtains possession of them within the territory from the. law or jurisdiction of which he derives his title or his grant. He can indorse them if they were payable to the deceased's order, and he or his indorsee can sue on them in any other jurisdiction without any other grant. Aii.-Gen. v. Bouwens, 1838, 4 M. & W. 171, Abinger, Parke, and (?). The point decided in this case was that such instruments, when found in England at the date of the death, are liable to probate duty ; and the class to which the decision referred was described by lord Abinger, in delivering the judgment of the court, as that of instruments " of a chattel nature, capable of being transferred by acts done here, and sold for money here." That an administrator who becomes lawfully possessed in one state of a negotiable note of the deceased need not take out administration in the state where the debtor resides, in order to sue on it, is laid down by Story : Conflict of Laws, § 517. The point established by the decision in Whyte v. Rose, during the argument of which the observations cited under § 87 were made, was that the place where an instrument which is not negotiable is found at the death is of no importance to the question under what grant it ought to be sued on: 1842; Tindal, Abinger, Coltman, Maule, Parke, Alderson, Rolfe ; reversing Denman, Little- dale, Patteson and Coleridge, whose judgment was given in 1840. § 89. Judgment is another means of reducing debts into posses- sion. Therefore when a foreign heir or administrator has obtained iudgment abroad on a debt due to the deceased, he may sue in England on such judgment, or prove on it in bankruptcy or any other administration of assets {concimsus), without an English grant. Vauqiielin v. Botiard, 1863, 15 C. B., N. S. 341 ; first count ; Erie, Williams, Keating : re Macnichol, 1874, L. R. 19 Eq. 81, Malins. § 90. If an administrator receives without suit payment of a debt Digitized by Microsoft® 106 PRIVATE INTERNATIONAL LAW. due to the deceased, will his receipt be a sufficient discharge to the debtor, supposing that that jurisdiction was not one in which the debt could have been recovered, and another administrator after- wards sues for the debt in the proper court for its recovery ? On principle, it should not be a sufficient discharge. In Daniel v. Luker, 1571, Dyer 305, Dalison 76, it was held that a release by one administrator was no answer to a suit in another jurisdiction, to the administrator in which the debt was thought more properly to belong ; but the question between the two administrators was thought to depend on the locality of the deed at the time of the death, a notion exploded by Whyte v. Rose, quoted under § 88. In Shaiu v. Staughton, 1670, 3 Keble 163, it seems to have been thought that the question whether even a recovery by one administrator was an answer to an action by another depended on the determination to which of the two the debt more properly belonged. Besides the property -which under the doctrine thus far developed passes primarily by an English grant, the wide extent which is given in this country to the liability of an administrator and to judicial administration of the effects of a deceased person may lead to the result that property is ultimately deemed to be comj)rised in such a grant, although it has been reduced into possession since the death under a foreign title or at least without any assistance from the English title. § 91. If a foreign administrator sends or brings to England any personal assets of the deceased, for his administration of which he has not yet accounted in the jurisdiction from which he derives his title, and which he has not caused by any specific appropriation to lose their character as part of the deceased's estate, a creditor or benefi- ciary may maintain an action here for their judicial administration, and an injunction and receiver will be granted in case of need to prevent their being removed out of the jurisdiction. But in accord- ance with § 57 an English administrator must be constituted and made a party to the action, the assets administered in which will be deemed to have passed by the grant to him. Loiue V. Fairlie, 1817, 2 Mad. loi, Plumer : Logan v. Fairlie, 1825, 2 S. & St. 284, Leach : Sandilands v. Inncs, 1829, 3 Sim. 263, Shadwell : Bond v. Graham, 1842, I Hare, 482, Wigram : Hervey v. Fitzpatrick, first motion, 1854, Kay 421, Wood ; receiver granted. In Anderson v. Gaunter, 1833, 2 My. & K. 763, which was a suit by a creditor Digitized by Microsoft® PROPERTY PASSING BY GRANT. 107 against the Indian executrix of the debtor's Indian executor, who it was charged had possessed assets of the debtor, Leach held that the presence of an English administrator of that executor was unnecessary, saying that his estate could not be administered in the suit. But in Tyler v. Bell, 1837, 2 My. & Cr. 89, no, lord Cottenham pointed out that this was irreconcilable with what the same judge had said in Logan v. Fairlie. In Arthur v. Hughes, 1841, 4 Beav. 506, Langdale, there had been such a specific appropriation as to take the case out of this §. The principle was thus stated by Wigram in Bond v. Graham : " If an executor or administrator has so dealt with the fund that by reason of such dealing it has ceased to bear the character of a legacy or share of a residue, and has assumed the character of a trust fund in a sense different from that in which the executor or adminis- trator held it — if it has been taken out of the estate of the testator and appropriated to or made the property of the cestui que trust — it may not be necessary that the cestui que trust should bring before the court the personal representative of the testator in a suit to recover that part of the estate." § 92. So also any personal liability for a breach of trust in dealing with any assets of the deceased, which under the ordinary rules governing the competence of the English court may be enforceable against a foreign administrator in this country, may be enforced by or in the presence of an English administrator of the deceased, -the fruits of such action being in fact an asset of the deceased recoverable here. Anderson v. Gaunter, which as to this point is not impugned by Tyler v. Bell : see these cases referred to under the preceding §. Twyford v. Trail, 1834, 7 Sim. 92, Shadwell ; decree against estates of Hall and J. A. Simpson. The last case also shows that the English executor of a foreign executor is not executor of the original testator, as the English executor of an English executor is. § 93. But the mere presence in England of a foreign administrator, who is accountable in the jurisdiction from which he derives his title for assets received by him, but who has not so dealt with those assets as to make himself personally liable for a breach of trust, will not enable any one to maintain an action against him for judicial ad- ministration here, although for that purpose the plaintiff has procured an English grant. Jatmcy v. Sealey, 1686, i Vern. 397, Jeffreys : Hervey v. Fitzpatrick, second motion, 1854, Kay 434, Wood. § 94. And although a foreign heir who has accepted the succession Digitized by Microsoft® 108 PRIVATE INTERNATIONAL LAW. without benefit of inventory may probably be sued in England on the personal obligation he 'has thereby assumed towards the creditors of the deceased, and, if so, an English grant of administration is not necessary for that purpose, yet no action can be brought against him here for judicial administration, because his liability is not in respect of assets. Beavati v. Hastings, 1856, 2 K. & J. 724, Wood. § 95. If an English administrator, without obtaining a foreign grant of administration, succeeds in reducing assets of the deceased into possession abroad, he will be liable to account for them in a •judicial administration in this country, or on an issue upon assets in answer to the action of a creditor independent of judicial adminis- tration, just as if they had been received by authority of the English grant. Dowdale's case, 1604, 6 Coke 46 b \ sub »om. Richardson v. Dowdele, Cro. Ja. 55 ; Common Pleas, on an issue upon assets, Walmsley dissenting. Atkins V. Smith, 1740, 2 Atk. 63, Hardwicke ; where it would seem from the obscure note that the doctrine was applied to a case of judicial administration. Story- understands that the English executor who in Dowdale's case was made liable for assets received by him in Ireland had received them under an Irish grant of administration, and accordingly treats that decision as iiTeconcilable with the modern ones : Conflict of Laws, § 514 «. If such were the fact, the decision would not be reconcilable with the doctrine of § 93, since it can scarcely be held that any difference ought to be made in the position of a person under a foreign grant by the circumstance of his holding an English grant as well : but I do not find the Irish grant mentioned in either of the reports of Dowdale's case. Story considers that an administrator who obtains assets of the deceased in a country where he has no grant will be liable in that country as executor de son tort : Conflict of Laws, § 514. This may well be true, and yet he may be also liable in the country from which he derives his grant, d^ J-^^-kn^Vln Stirling-Maxwell v. Cartwright, 1879, L. R., W. N. 1879, p. 73, the k. Jf^JT court of appeal affirmed the decision of Hall (1878, L. R., 9 Ch. D. 173) who had '^ held that if an English probate or letters of administration are not expressly limited to the English assets, no such limitation will be introduced into a judg- ment for administration founded on them, although the deceased was domiciled abroad, unless there has been a decree for judicial administration abroad, as to which case the judge reserved his opinion. In Sandilands v. Tnnes, 1829, 3 Sim. 263 (see above, under § 91), Shadwell said that the account of the assets brought to England would incidentally make it necessary to take an account of all the assets possessed under the foreign administration. These authorities can hardly be considered as establishing either that there is no dis- Digitized by Microsoft® PRINCIPAL AND ANCILLARY ADMINISTRATIONS. 109 tinction between the case of an English administrator who has received foreign assets under a foreign grant and that of one who has received such assets with- out a foreign grant, or that the liability of a foreign administrator to account in England for the assets received under his foreign grant can depend on whether he has or has not an English grant also. Principal and AnciUari/ Administrations, and Questions arising in Administration prior to the Distribution of the Surplus. Wliea the estate of a deceased person includes both personalty in England and property elsewherOj so that there are or may be con- current administrations in different countries, that in the country of the deceased's domicile is called the principal administration and the others are called ancillary. It has been seen at p. 88 that an English administration consists of two parts, first, realizing the personal estate of the deceased and paying his debts, and secondly ,^ distributing the surplus among those who are entitled by will, or by law in case of intestacy. The first part belongs to an ancillary administration as well as to a principal one, for the English courts, maintaining the paramount authority of the situs over the assets themselves as distinct from the beneficial interest in their clear surplus, a principle which we have already seen carried out in the necessity for an English grant in order to the possession of the English assets, con- sistently make it their rule to allow creditors to seek their remedy in England against the English assets, notwithstanding that the ad- ministration in this country is ancillary. That rule may be made the subject of the next §. § 96. An English grant of probate or administration renders the executor or administrator liable to account in an English court, to creditors of the deceased, for the assets received under it ; so that even if the deceased was domiciled abroad, such executor or administrator cannot be required to hand over, and cannot safely hand over, any part of those assets to the heir or administrator of the domicile, until they have been cleared of debt. Preston \. Melville, 1841, 8 CI. & F. i, Cottenham. But it is much less clear how far the second part of the duty of Digitized by Microsoft® 110 PRIVATE INTERNATIONAL LAW. administration, the distribution of the surplus, is held to be in- cumbent on an English personal representative when the deceased died domiciled abroad. Since the law of the domicUe, and the authority of the court of the domicile where it has been consulted, are admitted to govern the rights in the surplus (§§ -54, .55), much may be said for the expediency of requiring that all questions relating to such rights shall be brought before the court of the domicile. Even in the case of intestacy, the law of succession must be best known to the courts of the country where it is in force ; still more, where a will is concerned, than which no class of documents is more fertile in legal disputes, ought the courts of that country to be appealed to by the law of which it must be interpreted and the validity of its dispositions ascertained. § 97. I think it may be laid down that where no action for ad- ministration is pending in England, and there is in the deceased's domicile either a personal representative in the English sense, charged with the distribution of the property, or an heir or universal legatee holding the property for his own benefit subject to actions by particular legatees, an English executor or administrator who pays over to such person the surplus of the English assets after clearing the estate will be held in England to be discharged by such payment. In Pipon V. Pipon, 1744, Ambl. 25, lord Hardwicke refused to entertain a suit by persons claiming as next of kin the clear English assets of an intestate domiciled in Jersey, not merely because the general administrator was not before the court, but also saying " the plaintiffs are wrong in coming into this court for an account of only part, for by the statute [of distributions] an account must be decreed of the whole ; " and " if I was to direct an account of the whole, the courts in Jersey would act contrary, which would be to involve people in great difficulties." It is true the reporter makes lord Hardwicke add, " this case differs from where a specific part consists of chattels here in England ; " but that dictum is not reconcilable with the rest of the judgment, and I suspect the real words were " this case differs from a specific legacy of chattels here in England." In Enohin v. Wylie, 1862, 10 H. L. i, it was laid down by lord Westbury that where the domicile of the deceased was foreign, not only the English executors or administrators, but even the English court, supposing the estate here to have been under judicial administration, ought to hand over the surplus of the English assets to the persons who are entrusted with the administration of the estate in the domicile, in order to be distributed by them among the persons Digitized by Microsoft® PRINCIPAL AND ANCILLARY ADMINISTRATIONS. Ill entitled by the deceased's will or by law. Lords Cranworth and Chelmsford thought otherwise, and the point did not call for decision. § 98. But where there is an action for administration in England, it is doubtful whether the court will insist on carrying that action out to its full completion, by distributing the surplus with such light as it can obtain on the law of the deceased's domicil e, or will hand over the surplus to a representative of the deceased in the domicile. In Weatherby Y. St. Giorgio, 1843, 2 Ha. 624, Wigram considered that as soon as the debts are paid the executor in the domicile is a mere trustee of the surplus for the parties beneficially interested, and that therefore to hand over the surplus to him would be contrary to the rule " that if property is given to a trustee for certain cestui que trusts, the court will pay it to the cestui que trusts and not to the'trustee_; " and this was in a case where the testator had expressly directed his English executors to transmit the surplus to his Italian executors. In Meiklan v. Campbell, 1857, 24 Beav. 100, the evident leaning of Romilly was towards distributing the surplus himself, only adopting any proceedings in the courts of the domicile. On the same side are the opinions of lords Cranworth and Chelmsford, cited under the preceding §. On the other side is the opinion of lord Westbury there cited, and the argument to be drawn from the action of the English court where the domicile is English, for which see the next §. In Innes \. Mitchell, 1857, 4 Dr. 141, i De G. & J. 423, the beneficial interest in the English personal estate of a testatrix domiciled in Scotland was in dispute, and there was a suit pending in Scotland in which the question might have been tried. Kindersley and Knight-Bruce agreed in ordering service of the bill on certain defendants in Scotland, in order that the litigation in England might proceed ; but Turner doubted. § 99. Where on the other hand the deceased was domiciled in England, and the English executors or administrators do not suggest that in respect of assets received by them under foreign title or authority the English court can give them no valid discharge as against creditors, an injunction will be granted in England to restrain the prosecution of a suit abroad for the administration of the personal estate there situate. Hope \. Carnegie, 1866, L. R., i Ch. Ap. 320, Knight-Bruce and Turner affirming Stuart. The discussion was between beneficiaries only. Baillie v. Baillie, 1867, L. R., 5 Eq. 175, Malins. The plaintiif in the foreign proceedings claimed to be interested in the surplus, and although it was admitted that an account was necessary before it could be known whether there was a surplus, still the executors did not suggest that a foreign discharge as against creditors was necessary for their protection, and one of them on the contrary was the party who sought the injunction. Digitized by Microsoft® 112 PRIVATE INTERNATIONAL LAW. § 100. But if the persons who are in possession of the foreign assets of one who died, domiciled in England should object to rely on the discharge which the English court can give them as against the creditors of the deceased, it may be doubted whether that court would restrain by injunction foreign proceedings for administration, further than as such proceedings might be directed to the distribution of the surplus. To restrain them further would not be consistent with that view of the authority of the situs over the assets on which § 96 is based. § 101. If the accounts of a foreign administrator have to be taken in the English court, through his submission or otherwise, he will be allowed such commission on his transactions under his foreign grant as would be allowed him in the jurisdiction from which it issued. The Indian commission of 5 per cent, was allowed in Chetham v. Audley, 1798, 4 Ves. 72, Arden affirmed by Loughborough, and Cockerell v. Barber, 1826, I Sim. 23, Leach. It was disallowed in Hovey v. Blakeman, 1799, 4 Ves. 596, Arden, on the facts as to the transactions ; and in Freeman v. Fairlie, 1817, 3 Mer. 24, Grant, because the will gave a legacy to the executor for his trouble, which it must have been considered would defeat his title to the com- mission even by Indian practice. § 102. Every administrator, principal or ancillary, must apply the assets reduced into possession under his grant in paying all the debts of the deceased, whether contracted in the jurisdiction from which the grant issued or out of it, and whether owing to creditors domi- ciled or resident in that jurisdiction or out of it, in that order of priority which according to the nature of the debts or of the assets is prescribed by the law of the jurisdiction from which the grant issued. This rule is an immediate consequence of the maxim of private international law that the priorities of creditors in a concursus are determined by the lex fon or lex concursus, which indeed is almost an inevitable maxim, for if two debts were contracted under different laws, and each by the law under which it was contracted would be prior to the other, how shall their order of priority be determined if not by the law of the forum where they meet ? Mediately, the rule Digitized by Microsoft® PRIORITIES IN ADMINISTRATION. 113 is a consequence of the authority which English law attributes to the situs over the assets themselves, as distinct from the beneficial interest in the clear surplus of them; for it is by reason of that authority that English law first requires the assets to be possessed under a grant in the situs, and then establishes a concursus in order to clear from debt the assets so possessed before the law of the deceased's domicile can affect their beneficial surplus. If the authority of the domicile or political nationality were admitted to extend over the gross instead of over the net property left by the deceased, which is the general continental view, the succession would be opened, as the phrase is, in the country of the domicile or political nationality, the concursus of creditors would be there, and the law of that country would determine their order of priority, as on the continent it is generally held to do. In fact, in that system, it is not a concursus against the assets but against the heir, although his liability may be limited by the benefit of inventory ; and the heir is determined for all jurisdictions by the law of the deceased's personal jurisdiction, in which the succession is opened. For the English authorities, see under the next §. § 103. If, through the submission of a foreign administrator or otherwise, foreign assets are being judicially administered in England, the court will apply them as the foreign representative should have done, that is, will assign to the creditors as against any particular assets tbat order of priority which is prescribed by the law under the authority of which those assets were reduced into possession. In Hanson v. Walker, 1829, 7 L. J. Ch. 135, Leach, the produce of foreign land belonging to a testator domiciled in England was applied in the order of priority among creditors prescribed by the lex situs. In Cook v. Gregson, 1854, 2 Dr. 286, Kindersley, a creditor claiming on an Irish judgment was allowed priority over simple contract creditors as to property brought from Ireland, but as against the English property he ranked as a simple contract creditor, ac- cording to the rule which allows only that rank to foreign judgments, notwith- standing that the testator was domiciled in Ireland. On the contrary in Wilson V. Dunsany, 1854, 18 Beav. 293, Romilly, where also the testator was domiciled in Ireland, both the English and the Irish assets were applied on that ground in the Irish order of priority, a creditor on an English judgment being ranked against both as a simple contract creditor. This case was decided before Digitized by Microsoft® lU PRIVATE INTERNATIONAL LAW. Cook V. Gregson, but was not cited in it. In Pardo v. Bingham, 1868, L. R., 6 Eq. 485, Romilly is reported to have expressed the modified view that the law of the deceased's domicile would not determine the priority of creditors as against assets foreign to the domicile, except in favour of a creditor who was domiciled in the same country with the deceased ; but he was not required to apply either this doctrine or his former one, the alleged domicile of the deceased out of England not being proved. Story approves the doctrine which I have adopted in § 102, and says that it is established in the United States : Conflict of Laws, §§ 524, 525. See the decisions in favour of the lex loci conciirsus as the rule for priorities in bankruptcy: exp. Melbourn, 1870, L. R., 6 Ch. Ap. 64, Mellish and James ; Thiirbur?i v. Steward, 1871, L. R., 3 P. C. 478, Cairns. Two classes of duties are levied in England out of personal estate, on the occasion of the death of the owner. One, which consists of the duties on probates and letters of administration, may conveniently be called probate duty. Considered without reference to the ques- tions which arise from the diversity of national jurisdictions, it may be described as being levied in the first instance on the total value of the personal estate which passes to the executor or administrator by the grant, and, under st. 23 & 24 Vict., c. 1 .5, s. 4, on such per- sonal estate as the deceased may have disposed of by will under any authority enabling him to dispose of the same as he should think fit, that is, under a general power of appointment. But so much of it is afterwards returnable as corresponds to the amount of the debts of the deceased, payable by law out of his personal estate, which may have been paid by the executor or administrator. It is there- fore a tax on the clear personal estate left by the deceased. The other class, which consists of the duties on legacies and shares of residuary estate, and may be conveniently called legacy duty, is levied on the personal estate received by the beneficial successors of the deceased. The probate duty therefore may be considered as the price of the protection which the government affords to the ad- ministratoi", whether principal or ancillaiy, in collecting the personal estate of the deceased and clearing it of debt ; and the legacy duty may be considered as the toll taken by the government on the trans- mission of movable wealth from a dead hand to living hands. The subject of taxation is one with which the political authority of any country can deal as it pleases, subject of course to any complaints Digitized by Microsoft® PROBATE DUTY. 113 whicli foreigaers may make against taxation which would involve a breach of faith, but in England parliament has in fact imposed, and the courts have in fact applied, the probate and legacy duties, in a manner consistent with that difference between their apparent grounds which has just been pointed out. The domicile of the deceased is irrelevant to the probate duty, but the situation of the property the collection of which is supposed to be protected is relevant to it : the domicile of the person whoso wealth is transmitted is relevant, and the situation of the particulars which compose that wealth is irrelevant, to the legacy duty. The rules into which these leading notions have been worked out belong to this place, as questions arising in adminis- tration before the payment over of the clear surplus, because an English executor or administrator must see to the payment of both classes of duty, so far as they are respectively incident in the par- ticular case. § 104. The duty on probates and letters of administration is pay- able, irrespective of the domicile of the deceased : On his corporeal chattels, negotiable instruments, and bonds or certificates payable to bearer, so far as at the date of his death they were in England, or if they were then on the high seas or in other jurisdictions, so far as they are afterwards first reduced into posses- sion by the administrator under the grant ; And on the debts due to the deceased otherwise than in respect of negotiable instruments or bonds or certificates payable to bearer, and on his shares in companies and other incorporeal chattels, so far as at the date of his death England was the proper jurisdiction in which to recover them or otherwise reduce them into possession. In other words, probate duty is payable on the personal estate which passes primarily by the English grant, pursuant to §§ 57, 87, 88, and not on any other personal estate for which an English ad- ministrator may be accountable pursuant to § 95, or which may be recoverable by or in the presence of an English administrator pur- suant to §§ 91 or 92. That probate duty is not payable on the proceeds of foreign property which the administrator could not have recovered or reduced into possession by means of the grant, although having received them lie may be accountable for them in I 2 Digitized by Microsoft® IIG PRIVATE INTERNATIONAL LAW. England, was treated as certain by Alexander and Bayley in deciding re Ewin, 1830, I Cr. & J. 151, i Tyr.91, and was decided in Att.-Gen. v. Dimoiid, 1 83 1, I Cr. & J. 356, Lyndhurst, Bayley, and (?). In both these cases foreign government stocks were in question. It was decided again by the court of exchequer, and by the house of lords (Brougham) on appeal, in Att.-Gen. v. Hope, 1 834, 1 Cr. M. & R. 530, 8 Bl. N. R. 44, 2 CI. & F. 84, in which case foreign government stocks, debts due from persons domiciled and resident abroad, and goods which at the time of the death were in foreign countries in the hands of agents for sale, were in question, but theduty had been paid without question on goods which at the time of the death were on the high seas. I think it may be assumed that the goods in the hands of agents for sale were sold by them and not sent home again, and that if there had been any goods in foreign juris- dictions at the time of the death which afterwards arrived in this country and were here reduced into possession by the administrator, duty would have been payable on them as well as on those which were on the high seas at the time of the death : at least the case is no authority to the contrary. In Att.-Gen. v. Pratt, 1874, L. R., 9 Ex. 140, Amphlett reserved his opinion as to the incidence of probate duty on property on board ship at the date of the death, but Kelly was clear in its favour, and there seems to be no reason for a doubt. Probate duty has been held to be incident on negotiable instruments found in England at the death : Att.-Gcii. v. Boiiwens, cited under § 88. On the shares in railway companies incorporated within the jurisdiction : Att.-Gen. v. Higgins, 1857, 2 H. & N. 339 ; Pollock, Martin, Watson. On the shares of a company incorporated by royal charter with a head office in England, although its busi- ness was chiefly carried on in India : Fernandes' Executors' case, 1870, L. R., 5 Ch. Ap. 314 ; Giffard reversing same case, 1869, Romilly. And on debts due from persons residing in England : Att.-Gen. v. Pratt, 1874, L. R., 9 Ex. 140 ; Kelly, Pigott, Amphlett. But not on Indian government securities which at the death had not been converted into debts due from the East India Company in England, although the deceased had declared his option for such conversion : Pearse v. Pcarsc, 1838, 9 Sim. 430, Shadwell. In Partingto7i v. Att.-Gen., 1869, L. R., 4 E. & I. A. 100, administrations had been taken out to the estates of two persons, though by applying the doctrine of § 59 only one would have been necessary, as lord Westbury pointed out. Westbury held that the duty on the unnecessary grant ought not to be exacted, but Hatherley, Colonsay, and Cairns held that whether that grant was un- necessary or not the duty must be paid on it, since it had been taken out. Chelmsford and Cairns considered it to have been necessary, but they cannot be cited in opposition to the docti'ine of § 59, the bearing of which on the case they do not seem to have had clearly in view. As reported in the courts below, the case has no importance for private international law : i H. & C. 457 3 H. & C. 193- § 105. Where the deceased leaves assets in different jurisdictions, and foreign assets not liable to English probate duty reach the hands of the English administrator, the latter -will nevertheless be entitled to a return of duty corresponding to the whole amount of the debts paid by him. Digitized by Microsoft® LEGACY DUTY. 117 Reg. V. Commissioners of Stamps and Taxes, 1849, 13 Jur. 624; Denman, Patteson, Coleridge. § 106. The duty on legacies and shares of residue arising out of movable property is payable when and only when the last domicile of the deceased was in the United Kingdom, and is then payable on the entire amount of the deceased's legacies and residue, whether produced or not from assets received under any British grant, and whatever may be the domicile of the legatees or pei'sons interested in the residue. The old authorities did not make legacy duty depend on domicile, but on the estate being administered in England, including all the cases of §§ 57, 87, 88, 9'i 92, 95- Att.-Gen. v. Cockerell, 1814, i Price 165 ; Thomson, Richards, and (?) : Att.-Gen. v. Beatson, 1819, 7 Price 560; court of exchequer: Logafi V. Fairlie, 1825, 2 S. & St. 284, Leach. The domicile of the deceased was introduced as the determining fact in Re Ewin, 1830, i Cr. & J. 151, 1 Tyr. 91 ; Alexander, Bayley, Garrow, Vaughan. The pohtical nationality of the deceased was taken as the determining fact, in a case however where that criterion and domicile gave the same result : Re Bruce, 1832, 2 Cr. & J. 436 ; Lyndhurst, Bayley. But in the same term the same court again took domicile as the determining fact, and this time in a case where political nationality would not have given the same result : Jackson v. Forbes, 1832, 2 Cr. & J. 382, 2 Tyr. 354 ; Lyndhurst, Bayley, Vaughan, BoUand. Lord Brougham acted in tlie court of chancery on the certificate given by the court of exchequer in the last case, and this was affirmed by the house of lords, sub nont. Att.-Gen. v. Forbes, 1834, 8 Bl. N. R. 15, 2 CI & F. 48, Brougham, Plunkett ; but in the reasons given the old autliorities were expressly saved, so as to leave it possible that the duty might be payable although the domicile was out of the United Kingdom, if the assets were administered in the United Kingdom, previous to any such specific appropriation of them as is mentioned in § 91. In Logan v. Fairlie, 1835, i My. & Cr. 59, Pepys and Bosanquet (a further decision on the case before Leach above cited, in which a different view of tlie facts was taken), and Arnold y. Arnold, 1836, 2 My. & Cr. 256, Cottenham, the doctrine remained at the point where Att.-Gen. v. Forbes had left it. Finally, the doctrine expressed in the § was established by Thomson v. Advocate-General, 1845, 12 CI. & F. I, 13 Sim. 153 ; Lyndhurst, Brougham, Campbell ; Tindal deliver- ing the unanimous opinion of the judges to the same effect. After the passing of the succession duty act it was contended that that act had imposed legacy duty under a different name on legacies and shares of residue left by persons dying domiciled abroad, so far as realised out of assets administered in Great Britain. In re Wallop, 1864, i De G. J. & S. 656, Turner expressed an opinion in favour of this contention, which however was not necessary to the decision : see under § 108. In re Capdevielle, 1864, 2 H. & C. 985, Martin and Channell followed this opinion, and Pollock was prepared to follow it if he had thought the case turned on the point ; but all evidently against their personal opinions, as well as that of Bramwell. The Digitized by Microsoft® 118 PRIVATE INTERNATIONAL LAW. contention was ultimately repelled in Wallace v. Att.-Gen. and Jeves v. Sliadit'ell, 1865, L. R., i Ch. Ap. i, Cranworth. § 107. An administrator under an English grant is liable to account to the crown for the legacy duty on the whole of the clear jDersonal estate of the deceased, to the extent of the clear surplus of all such assets as he has received under any British grant. Att.-Gen. v. Napier, iSjf, 6 Exch. 217, Parke and Alderson. It will be observed as to this case that the acts of parhamcnt imposing the legacy duty bind all British courts, though they do not impose the duty for all the British dominions. It would be a different thing to hold the administrator liable for the duty to the extent of assets received by him under the grant of a politically foreign jurisdiction, in which he might be accountable for them, and which might ignore the English revenue laws. I said on p. 114 that two classes of duties are levied in England out of personal estate on the occasion of the owner's death. More strictly it should have been, on the occasion of the absolute owner's death ; and the difference will now be explained. By the English system of settlements personal estate through the intervention of trustees, and real estate either with or -without the intervention of trustees, are tied to go to a series of persons in succession one after anothei-, who may be called owners to the extent of their limited interests, beneficiary owners if there are trustees, full owners if there are not. It is from this limited ownership that absolute ownership is distinguislied. Thus it continually happens that property, full or only bcneficiarj', is transmitted on the death of a limited owner and tlie simultaneous expiration of his ownership, the devolution not being determined by the will of the deceased owner, or by the of»era- tion of law as on his property, but by the terms of the settlement under which the property is held. And that settlement may be the will of some former absolute owner, a marriage contract, or a disposi- tion inter vivos otherwise than on marriage. Such cases are analo- gous to the usufruct followed by the nuda loroprietas so wxll known on the continent, although a commoner continental mode of securing the enjoyment of property by a series of persons in succession was by giving to the first taker what was nominally the absolute property, but charged with the duty of preserving it and passing it on to a third Digitized by Microsoft® SUCCESSION DUTY. 119 person, winch was called a substitution. Under an English settle- ment the first taker may be also the trustee, and then he has in the one character the terminable enjoyment of what in the other charac- ter he must preserve and transmit. The union in the same character of the right to the enjoyment with the duty of transmission, which is the essential note of a substitution, does not occur under English law. Since however substitutions have been prohibited in many countries — Code Napoleon, art. 89G — authors and courts of justice have made great efforts to uphold as usufructs followed by the imda •proprietas many dispositions which would formerly have taken effect by way of substitution. Now the duties which have thus far been considered are those levied on the occasion of the death of an abso- lute owner, and we must now consider those which by the succession duty act, passed in 18-53, are imposed on the transmission of personal estate at the death of a limited owner whose ownership expires with his life. These fall within the present chapter, the subject of which is the succession to movables on death, and they may be conveniently noticed immediately after the probate and legacy duties, although their relation in principle to each of the latter is rather one of con- trast than of analogy. Even a conti'ast however is instructive. First then the succession duty has no analogy at all to the probate duty. On the death of a limited owner the property has not to be collected under public authority : it is already massed together in the hands of the trustees, or possesses a visibly separate existence as real estate, though with the latter case we have not now to deal. Nor is there any question of clearing it from the debts of the de- ceased owner, for he could not burden it with debt beyond the duration of his own limited ownership. Secondly, the succession duty like the legacy duty is a toll taken by the government on the transmission of movable wealth from a dead hand to living hands, but the wealth transmitted is not the wealth of the deceased — his interest in it is not transmitted but has terminated — and therefore his domicile would not appear to be relevant to its taxation. He is merely a predecessor, as the succession duty act calls him, and the successor derives his title not from him or from the operation of law as on his property, but from the original settlement.. It might Digitized by Microsoft® IS^O PRIVATE INTERNATIONAL LAW. therefore have been reasonable to adopt as the ground of taxation either the domicile of the successor or something in the settlement, and the act, as interpreted by the courts, has done the latter. The duty attaches when the settlement is a British one, in the sense in which that term I'efers to the United Kingdom and not to other British countries. What it is in a settlement which constitutes it a British one will appear from the next §. § 10(S. When by a will, a marriage contract, or any other disposi- tion inter vivos, movable property has been placed in trust for a series of persons in the hands of trustees personally subject to the jurisdiction of a court in the United Kingdom, so that such court by reason of such subjection is the proper forum for deciding on claims to the successive enjoyment of the property, succession duty will be payable on the devolution of the enjoyment from a predecessor to a successor, irrespective of the domicile of either of them or of the settlor. It makes no difference whether the settlement (will, con- tract, or gift) itself completely determines the line of devolution, or gives to any one the power of determining it, to be exercised in any manner. If the person to whom such a power is given (donee of a power of appointment — see § 8-3) is domiciled out of the United Kingdom, and exercises the power by will, succession duty will nevertheless be payable on the devolution so determined, because it is still the case of a devolution under the settlement and not of a legacy under the will of the donee. If the settlement be made by the will of a person domiciled out of the United Kingdom, the fund, being a legacy left by such will, is not subject to legacy duty on being placed in the hands of the trustees, but succession duty will be payable on the subsequent devolutions of the enjoyment of it. Succession duty has been held to be payable in the following cases : — Notwithstanding that the devolution took place through the e.«cution of a power by the will of a person domiciled abroad. He Lovelace, 1859, 4 De G. & J. 340, Knight-Bruce and Turner : Re Wallop, 1864, i De G. J. & S. 656, Knight- Bruce and Turner. Notwithstanding that the settlement was created by the will of a testator domiciled abroad. Re Smith, 1864, 12 W. R. 933, Stuart: Re Badart, 1870, L. R., 10 Eq. 288, Malins : Att.-Gen. v. Campbell, 1872, L. R., 5 E. & I. A. Digitized by Microsoft® SUCCESSION DUTY. 121 524 ; Hatherley, Chelmsford, Westbury, Colonsay ; reviewing same case, sub nom. Callatiane v. Campbell, T871, L. R., II Eq. 378, Romilly. In Lyall v. Lyall, 1872, L. R., 15 Eq. I, second point, where a testator domiciled in New South Wales directed his colonial executors to transmit his residuary estate to trustees in England for investment, but no part of that estate had reached the hands of those trustees before a succession took place under the trusts declared of it by the testator, Romilly held that duty in respect of that succession was not payable on the estate which afterwards reached the hands of the trustees. There was therefore a clear distinction on which he might have put the decision, but after a long criticism of the judgment of the house of lords in Att.-Gen. v. Campbell, in connection with the first point in the case before him, all he said on the second point was : " I hold that no duty is payable on those funds which constitute the residuary estate of the testator." Notwithstanding that the funds on which the duty is claimed reached the hands of the English trustees after the date when the succession took place, the right to them having however been vested in the trustees previous to that date. Lyall V. Lyall, 1872, L. R., 15 Eq. I, first point, Romilly. But consider the second point in this case, cited in the last paragraph. Notwithstanding that the property vested in the English trustees consists of the stocks of foreign governments and shares in foreign companies. Re Cigala, 1878, L. R., 7 Ch. D. 351, Jessel. Notwithstanding that all the trustees are not personally subject to the jurisdiction of a court in the United Kingdom, so long as it is practically necessary for those who claim as beneficiaries to sue the trustees in the United Kingdom. Re Badart and Att.-Gen. v. Campbell, cited above. In re Cigala one of the original trustees was an Italian, though at the time of the decision all the trustees were English. In several of the cases the judges refer to the settled money being in the British funds, or in some other way having a kind of local situation in the United Kingdom, as for example by the residence of the debtor from whom the trustees would have to recover it. But in no case has the succession duty been held to be incident on that ground, where the trustees or one or more of them were not British, and the principle of re Cigala, in which the duty was held to attach on the devolution of an interest in foreign funds held by British trustees, should apply to prevent its attaching on the devolution of an interest in British funds held by exclusively foreign trustees. In that case Sir G. Jessel said : " This is not real property, but personal property in the hands of EJnglish trustees, and you cannot get it from them except by an action in England. That is the true test ; in order to recover the property you must come to England." § 109. Any duty which must be paid abroad on the assets of a person whose last domicile was in England must be deemed to be paid out of bis residue, so that his particular legatees will not have to contribute to it, notwithstanding that they would have to do so by the law of the country where the duty is imposed. Peter v. Stirling, 1878, L. R., 10 Ch, D. 279, Malins. Digitized by Microsoft® 122 PRIVATE INTERNATIONAL LAW. Siuce the beneficial interest in the surplus of the deceased's personal property is governed by the law of his last domicile (§ 5-4), and therefore by one law no matter in how many jurisdictions the assets may be found, it might seem to be of no importance out of what assets any of the debts are paid. This however is not always so. Let us suppose that the deceased had immovable property in a country foreign to his domicile, and in which the succession to immovables is held to be governed by the lex situs ; and that a debt of the deceased is paid by the heir of that property, or by a devisee of it taking under a will in which no intention as to the incidence of the debt in question is expressed. Evidently it is only by the lex situs that a debt can be charged primarily' on immovables in exoneration of the personalty. If therefore by the lex situs itself the heir or devisee has recourse against the personalty for the amount of the debt which he has paid, there is no conflict of laws, and it would seem to be clear that he can have his recourse in every jurisdiction in which he can find assets. And so it has been settled in England, after a dispute which it is not easy to understand. But if by the lex situs the debt was charged primarily on tlie immovable, the peculiar succession which the heir or devisee enjoys under that law is limited by that law itself to so much of the immovable as remains after paying the debt. The only law to which he can appeal, because it is the only one by virtue of which he is at all either a beneficial successor or a transferee of the debt, does not enable him to stand against the general succession in the place of the creditor whom he has paid, and there can be no reason for giving him that recourse in any other jurisdiction. This also has been settled in England, and the result is that the right of recourse is in each case determined by the lex situs. Hence : § 110. The right of the heir of foreign immovables, or of their devisee when no intention on the point is expressed by the will, to have recourse against the personal estate in England for the amount of debts of the deceased which he has paid, is determined by the lex situs of the immovables. Recourse allowed where it was allowed by the ii:v situs. Bow.vnan v. Reeve, 1721, Pre. Ch. 577, Macclesfield ; apparently the same case as the Anonymous one in 9 Mod. 66, there dated as of 1723 : Winclulsca v. Garctty, 1838, 2 Keen Digitized by Microsoft® ADMINISTRATION. 123 293, Langdale. In the former case the deceased was domiciled in the situs of the immovables, and in the latter in England. Recourse refused where it was refused by the lex situs (case of Scotch heritable bonds). Druiiiinond v. Dru7nniond, 1799, 6 Bro. P. C. 601, 2 Ves. & Be. 132 : Elliott v. Minto, 1821, 6 Madd. 16, Leach. In the former case the deceased was domiciled in England, but in the latter the domicile is not stated. § 111. The rate of interest with which an executor or adminis- trator will be charged on assets in his hands is not necessarily either that usually given in the forum, or that usuallj' given in the domicile of the deceased, but will be that usually given in the country where the assets have been, supposing of course that there has been no im- proper removal of them from one country to another, or improper retention of them in any country. Malcolm v. Martin, tf^,A Bro. Ch. 50, Arden ; Raymond v. Brodbelt, 1800, 5 Ves. 199, Rosslyn ; Boiirke v. Rickctts, 1804, 10 Ves. 330, Grant. The last case shows that, as a consequence of this rule, where there are assets and executors in two or more countries, the interest which a legatee will get may depend on which country he chooses to sue in. Dtstrihution of the Surplus in an Administration. The beneficial interests according to which the clear surplus of a deceased person's estate is to be distributed are determined, whether in the case of testacy or in that of intestacy, by the law of his last domicile. This maxim was laid down in § 54, as being necessary to the understanding of much that had to follow, for instance the deference paid to the courts and law of the domicile with regard to the grant of probate or administration, and to the validity of wills ; and in the remainder of this chapter we have simply to follow out its conse- quences, being henceforth free from the complications which, before a clear surplus was realised, arose out of the authority over the assets themselves which is allowed in England to the situs. We may notice in passing a question raised by lord Alvanley, in Somervllle v. Somcvvilh, 1801, 5 Ves. 791 : " what would be the case upon two contemporary and equal domiciles, if ever there can be such a case ? " It has remained a speculative one, so far as the experience of the English courts is concerned, and I will therefore not make a Digitized by Microsoft® 124 PRIVATE INTERNATIONAL LAW. § of it, but lord Alvanley's answer may be given. "I think,'' he proceeded, " such a case can hardly happen, but it is possible to sujDpose it. A man born no one knows ■where, or having had a domicile that he has completely abandoned " — I stay to remark on this that it is now settled the domicile of origin reverts on the abandon- ment of an acquired one — "might acquire in the same or different countries two domiciles at the same instant, and occupy both under exactly the same circumstances, both country houses for instance, bought at the same time. It can hardly be said that of which he took possession first is to prevail. Tlien suppose he should die at one, shall the death have any effect ? I think not, even in that case ; and then ex necessitate the lex loci rei slice must prevail, for the country in which the property is would not let it go out of that until they know by what rule it is to be distributed. If it was in this country, they would not give it until it was proved that he had a domicile somewhere." Savigny on the other hand says : " On the death of a vagabond who had no domicile, the law of his origin determines ; and if this too cannot be ascertained, the law of his last residence, that is, of the place where he died." * § 112. The clear surplus of an intestate's personal estate is dis- tributable among the persons, and in the shares, determined by the law of his last domicile. Pipon V. Pipon, 1744, Ambl. 25, Hardwicke ; Thome y. Watkins, 1750, 2 Ves. 35, Hardwicke. The old Scotch authorities on the subject, which appear to have fluctuated, will be found in Bruce v. Bruce, 1790, 6 Bro. P. C. 566, and Balfour V. Scott, 1793, 6 Bro. P. C. 550, the appeals in which cases settled the rule for Scotland in the same sense in which it existed for England. Lord Thurlow's speech m. Bruce v. Bruce will be found in another report, 2 Bos. & Pul. 229, note. § 113. Hence if the intestate leaves immovables in a country foreign to his domicile, the law of which does not admit the applica- tion of the lex domicilii to the succession to immovables, but confers that succession on a peculiar heir, excluding him at the same time from a share in the movables except on condition of bringing into hotchpot or collating immovables, such heir may nevertheless, under * Syst. d. heut. Eilm. rcchts, § 375, note (h) ; Giithrie's translation, p. 223. Digitized by Microsoft® DISTRIBUTION. 125 the lex domicilii, claim his share of the movables in both countries ■without collating the immovables. Balfour v. Scott, 1793, ^ Bro. P. C. 550 ; a Scotch appeal. See also §117. 8 114<. The operation of his will on the clear surplus of a testator's . , pers onal catatc^ is also determmed, so lar as concerns questions other . /«7rr" than those of construction, by the law of his last domicile. Hence ■ if any of his dispositions are invalid by that law, whether as being in excess of the disposing power allowed by it or for any other reason, they will fail of effect, and the same law will determine the destiua- tion of the jiicraonal octato comprised in them. Compare § 80. The right of a widow or child to legitim, and consequently to defeat to that extent any contrary disposition made by the testator, depends on the law of the latter's last domicile, and not on that of the situs of the personal estate. Hog V. Lashley, 1792, 6 Bro. P. C. 577, 3 Hagg. Eccl. 415, note ; house of lords, on Scotch appeal. See also Thornton v. Curling, 1824, 8 Sim. 310, Eldon ; Campbell V. Beaufoy, 1859, Johns. 320, Wood. The validity of a condition in restraint of marriage attached to a legacy depends on the law of the testator's last domicile. Ommatiey v. Bingham, or Sir Charles Douglas'' s case, 1796, 3 Ves. 202, in Bempde v. Johnstone; 5 Ves. 757, in Somerville v. Somervillej 3 Hagg. Eccl. 414, note ; 6 Bro., P. C. 550, in head note to Balfour v. Scott ; Loughborough and Thurlow on a Scotch appeal. The validity of a legacy bequeathed for charitable uses depends on the law of the domicile, so far as the personal estate is concerned : and if the testator leaves immovables in a country foreign to his domicile, the law of which does not admit the application of the lex domicilii to the succession to immovables, and invalidates a charitable legacy under the circumstances of the case, it depends on the law of the domicile whether such legacy will be payable in full so far as the personal estate admits, or will be invalid for the proportion which the testator's property out of which it is not payable bears to that out of which it is payable. Macdonaldv. Macdonald, 1872, L. R., 14 Eq., Bacon. The subject of construction may best be introduced by a quotation from Lord Lyndhurst's speech in Trotter v. Trotter, cited under § 117. " It was stated at the bar," he said, " and I see by the papers it was also argued below, that in cases of this description it is not unreasonable that when any technical points arise in the construction of a will of this description, the court of session should resort to the opinion of lawyers of the country where the will or instrument was executed, but that this only applies to technical Digitized by Microsoft® 12G PRIVATE INTERNATIONAL LAW. expressions : that where a will is expressed iu ordinary language, the judges of the court of Scotland are as competent to put a proper construction upon it as judges or lawyers of the country where the will was executed. But the judges below were not of that opinion ; and it is impossible, as it appears to me, that such an opinion can be reasonably entertained. A will must be inter- preted according to the law of the country where it was made, and where the party making the will has his domicile. There are certain rules of construction adopted in the courts, and the expres- sions which are made use of in a will and the language of a will have frequently reference to those rules of construction ; and it would be productive therefore of the most mischievous consequences, and in many instances defeat the intention of the testator, if those rules were to be altogether disregarded, and the judges of a foreign court which it may be considered in relation to the Avill, without reference to that knowledge which it is desirable to obtain of the law of the country in which the will was made, were to interpret the will according to their own rules of construction. That would also be productive of another inconvenience, namely that the will micrht have a construction put upon it in the English courts different from that which might be put upon it in the foreign country. It appears to me that there is no solid ground for the objection, but that where a will is executed in a foreign country by a person havino' his domicile in that country, with respect to that person's property the will must be interpreted according to the law of the country where it is made. It mnst, if it comes into question in any proceeding, have the same interpretation put upon it as would be put upon it in any tribunal of the country where it was made. It appears to me therefore that the judges were perfectly right in directino' the opinion to be taken of English lawyers of eminence with respect to the import and construction of this will according to the law of England." Lord Lyndhurst here assumed that the will was made in the testator's domicile. If it Avas made in a different country, the English authorities are to the effect that the law of the domicile must prevail, and they press that rule with a stringency scarcely Digitized by Microsoft® CONSTRUCTION OF WILLS. 127 consistent with the broader views on interpretation which have been advanced on pp. 8?pi§. (a /r u>t> The domicile being English a legacy lapsed under the English rule of con- struction, though it would not have lapsed by the law of the country where, and in the technical language of which, the will was made. Anstruther v. Chalmer, 1826, 2 Sim. I, Leach. And formerly it was the law of the testator's last domicile that was meant. But now, through the provision in Lord Kingsdown's act that the construction of a will shall not be altered by reason of any subsequent change of domicile of the person making the same — see § 79 — it has come to be the law of the testator's domicile at the time of making his will which must be referred to for its construction. This I take to be a real improvement, and not to be inconsistent with the general authority of the last domicile of the deceased over the beneficial interest in the clear surplus of his estate. Interpretation being a question of fact, the law which decides on the validity of a bequest when it has been construed may well look beyond itself for aid in construing it. From all this the following rule appears to result. § 11-5. When the English court is called on to construe a will of personal estate, and is not aided by any judgment in the testator's last domicile, as to which see § 55, it will take as its guide the law of the country which was the testator's domicile at the date of the Avill, giving effect to any stringent rules of construction which there exist, and, so far as no such rules exist there, having a reasonable regard to all the circumstances, including any habits or tendency of the courts of that country in the matter of interpretation which may be proved by the evidence of experts. The currency in which a legacy is given must in general be interpreted to be that of the testator's domicile, though the context of the will, or the situation of the funds on which the legacy is expressly charged, may make a difference : Saunders v. Drake, 1742, 2 Atk. 465, Hardwicke ; Pierson v. Garnet, 1786, 2 Bro. Ch. 38, Kenyon, who spoke of the place where the will was made, but that was the same as the domicile ; Malcolm v. Martin, 1789, 3 Bro. Ch. 50, Arden. And if a legacy given in the currency of a foreign domicile has to be paid in England, so much English money must be paid here as if paid in the domicile would there produce the amount in the currency of that country : Digitized by Microsoft® 128 PRIVATE INTERNATIONAL LAW. Cockercll v. Barber, 1810, 16 Ves. 461, Eldon ; Campbell v. Graham, 1830, 1 Ru. & My. 453, Leach, with whom Brougham concurred in opinion, as he stated on the appeal to the house of lords, sub nom. Campbell \. Sandford, 1834, 2 CI. & F. 450. A will was construed by the law of the testator's domicile, on the question whether a legacy given by it was in satisfaction of a debt under a foreign matrimonial contract : Campbell x. Campbell, 1866, L. R., r Eq. 383, Wood. See a peculiar case of construction, not inconsistent with the doctrine of the present § : Bernalw Bcrnal, 1838, 3 M. & Cr. 559, Cottenham. § 116. Together with § 115 may have to be taken a qualification, arising out of the maxim that the admissibility of evidence is governed by the lex fori — see above, pp. 9, 38 — which had best be expressed in the words of lord Brougham on a Scotch appeal. " It by no means follows that where a sentence of a foreign court is offered in evidence in court, the probate for example of an English will, it should not be admitted ; nor do I think it should be denied its natural and legitimate force. But that it must like all other instruments be received njion such proof as is required by the rules of evidence followed by the court before which it is tendered, I hold to be quite clear. It will follow that though a probate strikino- out part of a will would be received, and the court of session would have no right to notice the part struck out, for this would be reversing or at least disregarding the very sentence of the court of probate, yet the non-probate of a person's will would not prevent the court from receiving and regarding that will, if its own rules of evidence did not shut it out. So too it is unnecessary to decide here what would be the course in the Scotch courts in the case of an English will of personalty attested by one witness, after an act should have passed requiring two " — as has since happened. " I think that though it might be admissible in evidence by the rules of evidence which would then govern, yet no effect could be o-iven to its disposition because of the rules of English law requiring two witnesses, that being a requisition not of form, in order to make the paper evidence, but of substance, in order to protect testators on their dying beds." This was applied, in the case where it was said, by holding that the Scotch court could look at a will made by a testator domiciled in England, which had Digitized by Microsoft® CONSTRUCTION OF WILLS. 129 not been admitted to probate in England because it had been revoked by a sub- sequent will there proved, for the purpose of aiding in the construction of a trust deed, or third will, which seems to have been operative in Scotland with regard to money in a Scotch bank : Yates v. Thomson, 1835, 3 CI. & F. 544. Since the law of England is remax'kable for severity in excluding writings as evidence, it is not likely that the English court will be asked to look at a writing excluded by the lex domicilii, even if lord Lyndhurst's doctrine — above, p. 126, that a will ought to " have the same interpretation put upon it as would be put upon it in any tribunal of the country where it was made," say rather " where the testator was domiciled," should not be thought inconsistent with lord Brougham's ruling in Yates v. Thomson, and of superior authority. § 117. If a testator leaves immovables situate in a country foreign to his domicile, and his will is inoperative as to them, but it is contended that by reason of an intention to devise them manifested in it the person who is heir to them by the lex situs is put to elect between them and money given him by the will, the question whether he is so put to elect, being one of the construction and operation of the will as affecting the disposition of the movable estate, falls under §§ 114 and 115. Bradie v. Barry, 1813, 2 V. & B. 127, Grant ; Trotter v. Trotter, 1829, 2 Bl. N. R. 502, 3 Wils. & Sh. 407 : Dewar y, A^itland, 1866, L.Jl., 2 Eq. 834, Stuart. See also §113. iL^^ c4J-hi^,.t^^i, ^^JL - § 122. But English bankruptcy proceedings may be stayed, not- withstanding that the debtor is liable to them under the preceding §§, if it appears that they would be useless, as for instance because all the assets are abroad and in course of distribution by a foreign court. James, in exp. Pascal, 1876, L. R., i Ch. D, 512, § 123. A company which is domiciled in England — that is to say, which derives its incorporation or other legal existence from the law of England, or from British law as connected with England rather than with any other part of the empire — is subject to be wound up in England wherever its business may be ; and if all its business is abroad, that is only an additional reason for winding it up. Re Madrid and .Valencia Railway Company, 1849, 3 De G. & S. 127, Knight-Bruce, affirmed by Cottenham, 1850, 2 H. & G. 169 : Re Factage Parisien Limited, 1864, 34 L. J., N. S., Ch. 140, Romilly: Re Peruvian Railways Company Limited, 1867, L. R., 2 Ch. Ap. 617, Cairns and Turner affirming Halins : Re General Company for the Promotion of Land Credit Limited, 1870, L. R., 5 Ch. Ap. 363, Giffard ; affirmed stib nom. Reuss v. Bos, 1871, L. R., 5 E. & I. A. 176, Hatherley, Colonsay, Cairns. The last case is the authority for the latter part of the §. Giffard and Hatherley appear to have considered that no business carried on abroad could be taken into account under the provision in the companies act 1862, that a company may be wound up by the court when it " does not commence its business within a year from its incorporation, or suspends its business for the space of a whole year;" and Cairns considered that whether this was so or not, a company which only carried on business abroad was one which it was "just and equitable should be wound up," within the spirit of the same act. Halins in this case had refused to make an order for winding up, as a matter of discretion. The business of the General Company for the Promotion of Land Credit had not been carried Digitized by Microsoft® U2 PRIVATE INTERNATIONAL LAW. on in the United Kingdom ; but had it been necessary to define the point, I presume that business in Scotland or Ireland would have satisfied the com- panies act 1862, and have prevented the doctrine of the latter part of this § applying : see what was said by Jessel, alio intuitu, in re International Pttlp and Paper Company, 1876, L. R., 3 Ch. D. 594. § 124. A company which in the sense of § 123 is domiciled out of the United Kingdom may be subjected to winding up proceedings in England, though of course those proceedings cannot be carried so far as to dissolve the company. Re Union Bank of Calcutta, 1850, 3 De G. & S. 253, Knight-Bruce ; British Indian company, and winding up order refused only as a matter of discretion : Re Commercial Bank of India, 1868, L. R., 6 Eq. 517, Romilly; British Indian company, and winding up order made. If the company were incorporated by registration in Scotland or Ireland, the companies act 1862 would make such respective part of the United Kingdom the forum for winding it up. § 12.5. Curators, syndics, or others who under the law of a country where a debtor is domiciled are entitled to administer his property on behalf of his creditoi s, are entitled as such to his chattels personal and choses in action in England. Solomons v. Ross, 1764, I H. Bl. 131 note, justice Bathurst sitting for lord chancellor Northington ; Jollet v. DepontJiieu, 1769, i H. Bl. 132 note, Camden. In Ncal V. Cottingham, 1764, i H. Bl. 132 note, Bowes, lord chancellor of Ireland, made a corresponding decision in favour of English assignees, with the approval of several of the Irish judges. In all these cases the title of the curators or assignees came into conflict with that of an attaching creditor, judgment in the attachment suit not having been signed till after their appoint- ment. During the argument in Folliott v. Ogden, i H. Bl. 132, lord Lough- borough said that he was counsel in Solomons v. Ross, " which was decided solely on the principle that the assignment of the bankrupts' effects to the curators of desolate estates in Holland was an assignment for a valuable consideration." In Alivon v. Ftirnival, 1834, I Cr. M. & R. 277, 4 Tyr. 751, Parke and (?), which was an action by French syndics for a debt due to their bankrupt, the title of the plaintiffs as mandatories without an assignment was recognized ; and although three had been appointed two were allowed to recover, on proof that they could sue in France without the third. The first English case in which the necessity of domicile as a foundation for the foreign title seems to have been considered is re Blithman, 1866, L. R., 2 Eq. 23, a contest between the assignee in a colonial insolvency and the executrix of the insolvent, where Romilly held that the title of the former depended on whether the insolvent was domiciled in the colony. But in a Digitized by Microsoft® FOREIGN BANKRUPTCY: EFFECT IN ENGLAND. 143 similar contest, re Davidson, 1873, L. R., 15 Eq. 383, James decided in favour of the assignee whatever might have been the domicile, because the debtor had been declared insolvent on his own petition. The Scotch authorities had fluctuated with regard to the doctrine of § 125, but the superior title of the assignees in the English bankruptcy of a person domiciled in England, to that conferred by an arrestment in Scotland not completed by decreet before the assignment to them, was established by the court of session in Strother v. Read, 1803, 13 Fac. De. 253. This was followed by Royal Bank of Scotland v. Ctithbert, or v. Slein's assignees, 1813, 17 Fac. De. 72, I Rose 462, in which the same court held that the bankruptcy in England of four partners having as such houses of business both in England and in Scotland, but of whom two were domiciled in England and two in Scotland, passed the movable estate of all in Scotland, so as to preclude a subsequent sequestration in the latter country from having any operation not only on the joint estate of the four, but even on the separate estate of the two whose domicile was Scotch, and who carried on a separate business in Scotland. Afterwards the house of lords in a Scotch appeal; Selkrig v. Davis, 18 14, 2 Rose 291, 2 Dow 230, Eldon ; similarly held that an English bankruptcy was paramount to a subsequent Scotch sequestration, where the bankrupt was domiciled in Scotland but traded both in England and in Scotland. It is unfortunately difficult to discover the precise ground for the decision in Selkrig V. Davis, or for that part of the decision in Royal Bank of Scotlaitd v. Ctithbert with which Selkrig v. Davis corresponded. It can hardly be doubted that in some way or other the ground was the imperial character of the legislation on which an English bankruptcy depended, and that these cases cannot be quoted as authorities for allowing Scotch movables, or therefore English, to pass by a bankruptcy taking place neither in the United Kingdom nor in the debtor's domicile. But since at that time it was agreed that the English bankrupt laws did not design to pass Scotch immovable property, their design to pass Scotch movables could not be inferred from their power to do so ; and if it was pre- sumed that they designed to follow the maxim mobilia segutintur personain, that argument would not apply where the domicile was not English. Probably, if a precise reason had been pressed for, it would have been said that bank- ruptcy in the domicile certainly passed foreign movables, and that when parliament gave a remedy by bankruptcy in other cases it must have intended to equiparate those cases to that of domicile. For the rest, from Selkrig v. Davis and Strother v. Read it further appears that the intimation of the assign- ment to the debtor, which by Scotch law is generally necessary in order to complete an assignee's title to a debt, is not required in Scotland from persons deriving title to a debt under a foreign bankruptcy. Where the order of dates was this : I. act of bankruptcy, to which the English commission related ; 2. application for sequestration, to which the Scotch award related ; 3. English commission (now it would be adjudication of bankruptcy ; 4. Scotch award of sequestration : it was held by the house of lords on a Scotch appeal that the sequestration was prior. Gcddes v. Mowat, 1824, I Gl. & J. 414, Gifford. § 126. But where a particular form of conveyance is necessary, as in the case of money in the public funds, or in that of a legal Digitized by Microsoft® 144 PRIVATE INTERNATIONAL LAW. chose in action only assignable pursuant to the judicature act 1873, s. 25, subsection 6, the foreign law under which the curators syndics or others are entitled cannot supply the want of such conveyance, though it binds the beneficial right. A Scotch sequestration, though under a British act of parliament, did not enable the trustee to sue for a legal chose in action in his own name. Jeffery V. McTag^art, 1817, 6 M. & S. 126, Ellenborough and Abbott. § 127. A curator, syndic, or assignee in a foreign bankruptcy is not accountable in the English court merely because he is in England with funds of the bankruptcy in his hands ; nor will the English court interfere with him unless it be shewn that his absence from the country of the bankruptcy prevents redress being had there. Smith V. Moffatt, 1865, L. R., I Eq. 397, Wood. See as to the parallel cases concerning foreign administrators of the estates of deceased persons, §§ 91—93, pp. 106, 107, above. § 128. An English bankruptcy, or the winding up of a company domiciled in England within the meaning of § 123, carries all the real or immovable property of the bankrupt or company in any part of the British dominions. As to bankruptcy, before the repealing st. 32 & 33 Vict. c. 83, this rested on the st. 12 & 13 Vict. c. 106, s. 142. Now it rests on the generality of the terms in st. 32 & 38 Vict. c. 71, s. 15 — " all such property as may belong to or be vested in the bankrupt at the com- mencement of the bankruptcy, or may be acquired by or devolve on him during its continuance " — combined with the presumption, arising from the more express legislation now repealed, that parlia- ment meant in this case to exercize its power of legislating for all the British dominions. As to winding up, the companies act 1862 does not divest the company of the property in any of its assets, but impresses the whole of its assets with a trust for application in a course of winding up according to the act. See above, p. 134, and what is said under the next §. § 129. An English bankruptcy, or the winding up of a company domiciled in England within the meaning of § 123, carries all the Digitized by Microsoft® ENGLISH. BANKRUPTCY: EFFECT ABROAD. H5 personal or movable property of the bankrupt or company situate or recoverable in any part of the British dominions. This also, as to bankruptcy, rests on the generality as well of the terms in previous acts of parliament as of those quoted under the last § from st. 32 & 33 Vict. c. 71, s. 15, combined with some pre- sumption as to their design for the discussion of which the reader is referred to the remarks on Selkrig v. Davis and Royal Bank of Scotland v. Cuthbert under § 125. Of course also, whatever may have been the original design of the English bankrupt laws, the inference that they are now intended to have the effect here assigned to them, whether the bankrupt be domiciled in Eogland or not, is strengthened by their reenactment since the decision of those cases without sub- stantial variation in this respect. I place under this §, if it needs any support beyond the common operation of English law within England, the case of ^xp. Robertson, 1875, L. R., 20 Eq. 733, Bacon, in which a creditor domiciled in Scotland was ordered to pay over to the trustees in an English liquidation a sum which after its commencement he had received from the liquidating debtor on account. The judge put it on the ground of the creditor's having proved for the residue of his debt, treating proot as a contract that the whole estate should be administered in the liquidation or bankruptcy, which we shall presently see it is not held to be so far as regards non-British immovables, though there can be no ground for excepting im- movables if the liability be not founded on law but on contract. There was some difficulty about the creditor's being subject to the process of the court, but as soon as that was got over the case scarcely needed the application even of this §, for the payment had been made on a cheque presented in England. In exp. Scinde Railway Company, 1874, L. R., 9 Ch. Ap. 557, James and Mellish affirming Malins, and re International Pulp and Paper Company, 1876, L. R., 3 Ch. D. 594, Jessel, creditors of a company in course of winding up in England were restrained, in the former case from attaching its property in India, and in the latter from suing the company in Ireland. In each instance the company was domiciled in England, within the meaning of § 123. If an Indian or colonial company were subjected to a winding up process in England under the doctrine of § 124, it is difficult to suppose that either its movable or its immovable property situate out of England could be strictly considered as passing by such winding up, though it might very likely, for convenience, be administered in the English court as long as there was not a concurrent winding up in the company's domicile. § 130. But when a debtor to one who is a bankrupt in England has paid his debt since the commencement of the bankruptcy under process of law in any country, British or foreign, the trustees in the Digitized by Microsoft® 146 PRIVATE INTERNATIONAL LAW. bankruptcy cannot make him pay it over again, though the creditor who compelled the payment by process of attachment may be ac- countable for it to the trustees. Le Chevalier V. Lynch, 1779, i Doug. 170, Mansfield. § 131. One who is a bankrupt iu England cannot be compelled to make to the trustees an assignment of his immovable property out- side the British dominions, or even of his movable property situate or recoverable in any country in which the title of the trustees to such property is not as fully recognized as in England. Exp. Blakes, 1787, Cox 398, Thurlow, foreign debts : Eldon, in Selkrig v. Davis, 1814, 2 Rose 311, 2 Dow 245, property both immovable and movable. And it would be improper to compel the bankrupt indirectly, by withholding his certificate till he had conveyed his foreign immovables : Parke, in Cockerell v. Dickens, 1840, 3 Mo. P. C. 133. But now let us suppose that a creditor of one who is a bankrupt in England has since the commencement of the bankruptcy obtained payment outside the British dominions, either out of immovable property, or out of movable property the title of the English trustees to which was either not put forward or was not recognized in the country where it was situate or recoverable. The best introduction to the doctrine applicable to such cases will be found in the words used by baron Parke on an appeal from Calcutta with reference to an Indian insolvency, which was confessedly governed by the same principles as an English bankruptcy, both on general grounds of private international law and because the Indian system of insolvency was established by an act of the imperial British parliament. " If the real estate in Java did not pass by the assignment under 9 Geo. 4, c. 73, s. 9 " — the act for Indian insolvencies — " nor could in any way be got hold of and made available by the assignees for the payment of the general creditors, any individual creditor who could obtain it by due course of law would have a right to hold it ; and if he duly proved the debt due to him before he had been paid any part of the debt so proved by means of that estate, he would be entitled to receive the dividends under the insolvent estate until he had been Digitized by Microsoft® ENGLISH BANKRUPTCY: EFFECT ABROAD. 147 paid altogether twenty shillings in the pound, exactly in the same way as if a creditor had had a security on the real estate or personal credit of a third person. In this case he could neither be compelled to refund the money obtained by means of the real estate or the dividends received on the debt, or be restrained from receiving those hereafter to become due. The principle is that one creditor shall not take a part of the fund which otherwise would have been available for the payment of all the creditors, and at the same time be allowed to come in pari passu with the other creditors for satisfaction out of the remainder of that fund : and this principle does not apply where that creditor obtains by his diligence something which did not and could not form a part of that fund." Cockerell v. Lichens, 1840, 3 Mo. P. C. 132. This extract fully sets out the doctrine relating to a fund which even if not taken by the particular creditor would not have been available for the creditors generally, but it was not neces- sary to state as fully the doctrine relating to a fund which might have been so available. The particular creditors were aliens resident out of the jurisdiction. They had not only obtained partial payment out of the insolvent's real estate in Java, but had also commenced proceedings, though they had not so far derived any fruits therefrom, against debtors to the insolvents at Bencoolen, another settlement in the Dutch East Indies. The assignees at Calcutta, in accordance with what is said in the passage extracted, succeeded in stopping their dividends in the insolvency there until they should abandon the proceedings at Bencoolen ; but had the particular creditors been subject to the jurisdiction, and obtained fruits from the proceedings at Bencoolen, the question would have arisen whether the assignees might not have asked to have those fruits paid over, as forming part of the fund which might have been available for the general mass, and which therefore creditors who were themselves subject to the law governing the insolvency ought not to keep out of that mass. We have now to develop the doctrine thus in- troduced. § 132. Any creditor, British or alien, may retain any payment which he can obtain out of the non-British immovables of the bankrupt, and if it is only partial may receive dividends in the L 2 Digitized by Microsoft® 118 PRIVATE INTERNATIONAL LAW. bankruptcy on the residue of his debt pari passu with the other creditors. Cockerell v. Dickens, 1840, 3 Mo. P. C. 98, Parke. The doctrine is thus broadly stated in the English authorities, on the assumption that a foreign bankruptcy would in no country be allowed to operate on immovables : but since this is not quite the fact, the principle laid down by baron Parke should lead to the proposi- tion being restricted to payment obtained out of immovables situate in countries where the English trustees would be unable to get the benefit of them. Coming to the case of movables, let us suppose a country, not ■where the title to them of the trustees in an English bankruptcy is absolutely unrecognized, for there is perhaps no such country, but "where it is postponed to that conferred by an execution or attach- ment subsequent to the bankruptcy. If a creditor obtains payment by such an execution or attachment, it may be said that he has taken a part of the fund which otherwise would have been available for the payment of all the creditors, because, if no one had inter- vened, the trustees could have successfully asserted their title to the movables against that of the bankrupt. It may be answered that other creditors might have intervened, whom the process of the English court could not have reached, and that therefore, if a creditor amenable to the jurisdiction is not allowed to retain the fruits of the pains which he may take in the country supposed, the movables in that country will be enjoyed by those creditoi's only who are not amenable to the jurisdiction. The sufficiency of the answer might depend on the existence and importance of creditors of the latter class in the particular instance, but the courts have not embarked in such an enquiry, and have rather pi-oceeded on lines which may probably be described as in the next two §§. § 133. A British creditor, or one domiciled in England, or one who in his character of creditor must be regarded as English because the debt is owed to a house of business in England of which he is a member, and who after the commencement of an English bankruptcy, and not by virtue of any charge prior to the bankruptcy, obtains Digitized by Microsoft® ENGLISH BANKRUPTCY: EFFECT ABROAD. 149 payment out of the bankrupt's movables in a non-British country, must pay over the amount to the trustees in the bankruptcy, whether or not he seeks to receive dividends on the residue if any of his debt, whether or not the payment was obtained by legal proceedings, and whether or not the title of the trustees was asserted in such proceed- ings if any. § 134. A creditor not being such as is described in the last §, who rafter the commencement of an English bankruptcy, and not by virtue of any charge prior to the bankruptcy, obtains payment out of the bankrupt's movables in a non-British country, must account for such payment if he seeks to receive dividends on the residue if any of his debt, but may otherwise retain it ; and this, whether or not the payment was obtained by legal proceedings, and whether or not the title of the trustees was asserted in such proceedings if any. The leading cases are Hunter v. Potts, 1791, 4 T. R. 182, king's bench, judgment of court delivered by Kenyon ; Sill v. Worswick, 1791, i H. Bl. 665, common pleas, judgment of court delivered by Loughborough ; and Philips v. Hunter, 1795, 2 H. Bl. 402, exchequer chamber, Macdonald, Hotham, Perryn, Heath, Thompson and Rooke, against Eyre ; in all which the assignees in English bankruptcies recovered from creditors the amounts which they had obtained by attachments abroad. In Hunter v. Potts, where the attachment was in Rhode Island, and the assignees had not intervened nor was it proved how their title would have been regarded by the law of that state, lord Kenyon adverted to the residence of the creditor in England and his knowledge of the bankruptcy at the time when he commenced the attachment suit, but mainly rested the judgment on the English domicile of the bankrupts. In Sill v. Worswick the attachment was in the British West Indies, so that the title of the assignees must have been regarded as superior had they inter- vened, and the case might have been put on the proposition expressed in § 129. In fact lord Loughborough considered the English residence of the creditor, and his swearing in England, with knowledge of the bankruptcy, th affidavit by which the attachment suit was commenced, to be sufficient alone to decide the case. He went however more widely into the doctrine than he considered the circumstances to require, and after laying great stress on the bankrupt's domicile he continued : " I do not wish to have it understood that it follows as a consequence from the opinion I am now giving, I rather think that the contrary would be the consequence of the reasoning I am now using, that a creditor in that country " — not the colony but a supposed non-British country — " not subject to the bankrupt laws nor affected by them, obtaining payment of his debt and afterwards coming over to this country, would be liable to refund that debt. If he had recovered it in an adverse suit with the assignees, he would clearly not be liable. But if the law of that country pre- ferred him to the assignee, though I must suppose that determination wrong, Digitized by Microsoft® 150 PRIVATE INTERNATIONAL LAW. yet I do not think that my holding a contrary opinion would revoke the determination of that country, however I might disapprove of the principle on which that law so decided." In Philips v. Hunter the attachment was made in Pennsylvania, and the assignees had not intervened, nor was it proved how their title would have been regarded. The majority of the court adverted in their judgments to the attaching creditor's being a British subject though resident in America, and being a partner in a firm whose only house of busi- ness was in England, where also the other partners were resident, and where the debt of the bankrupts to the firm was contracted ; and they regarded all these circumstances as important. The pith of their opinions is contained in the following sentences. " When the debt therefore was contracted, all the parties were as much subject to the bankrupt laws as to the other laws of England under which they lived and it is on wise principles that sovereign states acknowledge and act according to the different civil relations which subsist between men in their own country." I have ventured in fram- ing the §§ to disregard the place of contracting the bankrupt's debt, and the state of circumstances at the time of contracting it, for those, according to settled maxims of private international law, might affect the substance of an obligation but not the remedy for its breach. Lord Hardwicke had already held that the assignees in an English bankruptcy had a superior title to that gained by arrestment in Scotland after the bank- ruptcy, a proposition which may be referred to § 129 : Mcintosh v. Ogilvie, 1748, 4 T. R. 193 note, where he prevented a creditor by a ne exeat from going to Scot- land in order to make such arrestments; and Captain Wilson's Coj^, another stage in which is reported sub nam. Richardson v. Bradshaw, 1752, i Atk. 128, but in which lord Loughborough's account in Sill v. Worswick, I H. Bl. 692, shows that both lord Hardwicke and the court of session held the assignment to be a superior title to the arrestment. Lord Mansfield however afterwards held at nisi prius that a creditor resident in England could hold against the assignees in an English bankruptcy the fruits of an execution obtained by him after the bankruptcy at Gibraltar : Waring v. Knight, 1765, Cooke's Bank. Laws, 300. And the court of session fluctuated as mentioned on p. 143 : so the whole subject was at sea till the decision of the three leading cases above reviewed. See also Cockerell v. Dickens, as stated at p. 147 with reference to the pro- ceedings at Bencoolen ; and the next §. In exp. Dobree and exp. Le Mcstirier, 1S03, 8 Ves. 82, lord Eldon allowed the hour of the day to be enquired into, for the purpose of determining the priority between an English bankruptcy and attachments in Jersey. § 135. Where the property of the same person, or of a partnership consisting of the same persons though under a different style, is being administered in bankruptcy both in England and abroad, a creditor who has received a dividend in the foreign bankruptcy can receive nothing in the English one until all the creditors have been made equal, notwithstanding that he may have been entitled to priority by the law of the foreign bankruptcy. Digitized by Microsoft® BANKRUPTCY: PARTNERS: DOUBLE PROOF. lol Exp. Wilson, 1872, L. R., 7 Ch. Ap. 490, James and Mellish : Exp. Banco de Portugal, 1879, L. R., 11 Ch. D. 317 ; James, Baggallay and Bramwell. It was said in exp. Wilson that this case was the same in substance as that of a creditor obtaining payment abroad by execution after the commencement of the English bankruptcy ; but an Enghsh creditor who did so would be subject to the severer rule of § 133, and it doe^not appear tha t the cred itors in exp. fr//^<.« were not English. (L^^ ^^i^^"---^^— /^ ^SmT. § 136. Where a person is a bankrupt in England, and his partners reside abroad, whether in or ont of the British dominions, and are not bankrupt, any creditor, British or alien, may retain any payment which he can obtain from the firm abroad, and if such payment is only partial may receive dividends in the bankruptcy on the residue of his debt fari passu with the other creditors. Brickwood v. Miller, 18 17, 3 Mer. 279, Grant. "Equality of distribution," the judge said, " cannot possibly be attained." § 137. Where one or more persons are bankrupt in England, and the property of a firm in which he or they are partners together with others is also under administration in bankruptcy abroad, whether in or out of the British dominions, the question whether a creditor who proves against the firm abroad can also prove against the partner or the smaller firm in England is to be decided according to the English rules as to double proof Exp. Chevalier de Mello Mattos,re Vanzeller, 1834, i M. & A. 345, Brougham affirming court of review : exp. Goldsmid, 1856, Knight-Bruce and Turner, and 1857, Turner. Knight-Bruce's difference in the latter case was as to the English rules. § 138. The law of the bankruptcy, that is of Englaad, governs the mode in which the trustees in an English bankruptcy hold what- ever foreign property of the bankrupt, movable or immovable, they obtain. Therefore they hold it subject to all equities against the bankrupt which are not impeachable under the bankrupt laws them- selves, and if he had entered into a binding contract to give security on it there will be a good security as against the trustees, though the security has not been completed by the law of the place where the property is situate or recoverable. Exp. Holthausen, 1874, L. R., 9 Ch. Ap. 722, James and Mellish. Digitized by Microsoft® 152 PRIVATE INTERNATIONAL LAW. § 139. The validity of a debt being established by the lex loci contractus or other relevant law, the order of priority in which it ranks in bankruptcy administration depends on the law of the bank- ruptcy, lex loci concursvs or lex fori. Exp. Melbourn, 1870, L. R., 6 Ch. Ap. 64, Mellish and James ; Thurbiirn v. Steward, 1871, L. R., 3 P. C. 478, Cairns. The English doctrines which have thus been passed in review will be found to present much similarity to those prevalent in France. In each country the title of the bankruptcy trustees of the debtor's foreign domicile may be made available as paramount to that of a par- ticular creditor attempting to take by subsequent execution or attach- ment, and, in the absence of a domestic bankruptcy, as carrying the debtor's property in the respective country, though in England with an exception as to his real estate. But in each country it is a matter of daily occurrence to declare the bankruptcy of a debtor not domiciled in it, and in France the cases where this maybe done are not limited by the condition that there shall be no bankruptcy pending in the domicile, though it would seem that in England such a proceeding would leave nothingbut the English real estate for a subsequentEnglisb adjudication to operate on. Further from either than these systems are from each other stand on the one side the German law permitting execution notwithstanding the declaration of a foreign bankruptcy, and on the other the efforts made in Italy to maintain the unity of bankruptcy as advocated by Burgundus, Rodenburg, and Savigny. It may be found surprising that the English system should have gone as far as it has in support of the authority of the domicile in this matter, when it is remembered that in the matter of succession on death, in which the continental views were beyond all comparison more uniform in its favour, we have limited the authority of the domicile to the bene- ficial surplus of the personal estate, and in that part of the matter which alone resembled bankruptcy we have established separate administrations with differing priorities among the creditors of the succession. There were however two reasons : in bankruptcy the ecclesiastical courts were not present to lay hold of hona notabilia, and commercial convenience was present to plead in favour of unitj^ Digitized by Microsoft® BANKRUPTCY. 153 of administration. Convenience will probably decide whether that unity should be advanced or restricted, or whether nothing should be done but to regulate it within something like the extent which it has in this country. Regulation in any case it certainly wants, and the extreme divergence of the existing views on the subject must con- vince all that neither judicial decision nor isolated legislation is likely to afford a remedy, that in fact order can only be established by inter- national treaties and national legislation to give effect to them. If ihe British government should take part in the negotiation of such treaties, it will have to give its serious attention to the necessity that English law should recognize the personality of a partnership. Digitized by Microsoft® CHAPTER VII. MOVABLES. We have now gone througli marriage, death, and hankruptcy, the three principal cases in which the conception of a person's fortune, or at least of the movable portion of it, as an entirety, and necessarily therefore as connected with his person, is forced on us by circum- stances. We must now consider the rights enjoyed in individual articles of property, movable or immovable, and the title to those rights. The law as to individual movables, as well as that on entire movable fortunes, has been widely considered to depend on the person of their owner, on account of a general connection supposed to exist between them and him, independent of special circumstances. It therefore forms a convenient passage between the cases we have hitherto examined and that of immovables, for which no such general connection has been asserted except by the more extreme advocates of the influence of nationality on private law, whose views however have not to this extent been followed even in the Italian code (see above, pp. 30, 31). The general connection which has been supposed to exist between movables and their owner has been expressed in the maxims nomina creditoris ossibus inherent, and mobilia sequuntur personam. The former, on the face of it, contemplates only debts, with regard to which, when we speak of the property in them, all that can be meant is the right of action for them, whether vested in the owner by their original creation or by their voluntary or involuntary assignment. Now such rights have always been con.sideved to depend mainly on the lev loci coiitracius, with perhiips some modification from the lex fori. Therefore such a maxim a.s nomina creditoris ossibus in hcv rent can hardly have been intended to assert atiy connection between the Digitized by Microsoft® MOVABLES. 155 species of property it deals with and the owner's person, except for the purpose of those cases which suggested dealing with his fortune as an entirety. It amounts to no more than saying that in such cases, which are those of the so-called universal assignments, debts fall under the personal and not under the real statute ; and it cannot be quoted in support of any doctrine as to the law governing par- ticular assignments of movables. The other maxim, however, mohilia sequuntur personam, cer- tainly may apply, and has been intended to apply, to corporeal chattels, and to assert that the transfer of property in them, individually and not as parts of an entirety, depends on the personal law of the owner. "Some are of opinion," says Story, "that all laws which regard movables are real ; but at the same time they maintain that by a fiction of law all movables are supposed to be in the place of the domicile of the owner. Others are of opinion that such laws are personal, because movables have in contemplation of law no situs, and are attached to the person of the owner wherever he is ; and, being so adherent to his person, they are governed by the same laws which govern his person, that is, by the law of the place of his domicile" {Conflict of Laws, § 377). Thus each of two different views as to the nature of laws and the ground of their international acceptance, being completed by its appropriate fiction, has been made to lead to the same result. That result was also arrived at by lord Loughborough in a third mode, treating the doctrine that movables follow the person not as assigning them a fictitious locality, either in the owner's domicile or in the place where he may happen to be, but as denying to them all locality. "It is a clear proposition," he said, "not. only of the law of England, but of every country in the world where law has the semblance of science, that personal property has no locality. The meaning of that is, not that personal property has no visible locality, but that it is subject to that law which governs the person of the owner. With respect to the disposition of it, with respect to the transmission of it either by succession or the act of the party, it follows the law of the person. The owner in any country may dispose of his personal property. If he dies, it is not the law of the country in which the property is, but the law of the country of which he was Digitized by Microsoft® 156 PRIVATE INTERNATIONAL LAW. a subject, that will regulate^the succession. For instance, if a foreigner having property in the funds here dies, that property is claimed ac- cording to the right of representation given by the Jaw of his own country " (Sill v. Worswick, 1791, 1 H. Bl. 690). The larger part of these remarks applies to the so-called universal assignments, and the case of succession furnished a very inapt parallel for any operation of the personal law on particular assignments, since the English rules on that case, as we have seen, limit the authority of the personal law to the beneficial surplus, and are strict in requiring that title to the movable items composing the succession shall be made in accordance with the law which governs in their situation. But in spite of this, it is plain that lord Loughborough intended to assert the law of the person as the rule for the disposition of particular movables. A rule which has been reached by such various technical roads may be supposed to be dictated in reality by some strong substantial motives. One ground on which the law of a person may claim to regulate his movable property was stated by the majority of the court in Philips V. Hunter (1795, 2 H. Bl. 406). In the summary of their reasons which is given us, after noticing the claim of the lex situs founded on the protection which that law affords to the rights of ownership, they are made to observe that " the country where the proprietor resides, in respect to another species of protection afforded to him and his property, has a right to regulate his conduct relating to that property. This protection, afforded to the property of a resident subject which is situated in a foreign country, is not imaginary but real. The executive power of this kingdom protects the trade of its subjects in foreign countries, facilitates the recovery of their debts, and if justice be delayed or denied the king by the intervention of his ambassadors demands and obtains redress." But the occasional pro- tection thus afforded has only to be named, in comparison with the continual protection on which the enjoyment of propeiiy depends, to show how little it can weigh in determining the law to be applied. It is moreover a protection, not against the justice of the country to which the proprietor sends his ships or his merchandize, but against the possible failure of that justice, and therefore presupposes its course as the rule. Digitized by Microsoft® MOVABLES. 157 Again, the doctrine that the law of the alienor should regulate the alienation of his movables appears to have been supported by a feeling thus expressed by lord Kames : " the will of a proprietor or of a creditor is a good title jure gentium, that ought to be effectual everywhere " {On Equity, b. 3, c. 8, s. 4). But lord Kames, although he thus mentions proprietors as distinct from creditors, scarcely applies his view to more than the assignment of debts. And by the jus gentium he meant very much what the Roman praetor meant, a selection of elements common to different national laws, so that the reason he gives does not follow the track which is followed in common by all doctrines of private international law, namely that of selecting a particular law, and not common elements out of different laws. No doubt the interests of commerce require that great freedom of disposition should be allowed to proprietors, and this consideration speaks in favour of the validity of an alienation made in the manner prescribed by the law of the alienor's domicile, but not less so in favour of the validity of one made in the manner prescribed by the law of the place of sale. Indeed, notwithstanding the frequent assertions of the lex domicilii as governing movables, it is the forms of the place of sale which have been most commonly employed, and on which even the jurists who assert the lex domicilii have practically laid the most stress. The point oftenest at issue is whether a title is fully created without delivery. On the one hand, under the Code Napoleon, art. 1138, the property is transferred by the contract of sale ; and by the law of England, followed in many colonies and American states, the purchaser is only bound to take possession within a reasonable time, or, if the goods are at sea at the time of the sale, within a reasonable time after their arrival in port. If he complies with this condition, English law holds his title to be superior to that of subsequent purchasers or creditors who by greater diligence may have anticipated him in taking possession. On the other hand, the Prussian code of 1794 and that of Louisiana, with some other laws which are founded on the Roman, award the property to the one who first gains possession on a lawful title, without regarding the priority of the titles, or whether laches is imputable to the claimant who has been outstripped. Again, a mortgage, by English law, is Digitized by Microsoft® 158 PRIVATE INTERNATIONAL LAW. usually created in the form of a transfer of property, defeasible or redeemable on payment of the debt ; but in most other laws mortgage is a proceeding quite different from the transfer of property. Hence it may not only be discussed whether, in countries where delivery is necessary to complete a sale, a foreign sale can be complete without delivery, but also whether, even if that be so, a foreign mortgage can give a good title without delivery through being in the form of a sale. Now Story says that to hold delivery to be necessary on a sale of chattels, because such is the law of the place where they may happen to be, " would most materially impair the confidence which the commercial world have hitherto reposed in the universal validity of the title acquired under a bill of lading" (§ 394). But when bills of lading and dock warrants are regarded as negotiable repre- sentatives of the chattels to which they relate, the lex situs is not waived in favour of the lex domicilii, but, if it is waived at all, it is so in favour of the lex loci actus, as governing the transfer of such instruments by indorsement or otherwise. On the whole, the arguments which have been used in support of the maxim mohilia sequuntur personam, understood as regulating dealings with movables by the personal law of their owner, cannot be pronounced satisfactory ; and the reader will be prepared to find that in the present century the current of authority, out of England, has set strongly towards the application of the lex situs to movables as well as to immovables, in all cases except those of the so-called universal assignments. How far the same may be said of the English authorities will be afterwards considered, but it will be convenient to introduce the foreign view by a quotation from Foelix, on account of the very practical character of that writer. " We have seen," says Foelix — Traits du Droit International Privd, § 62 — " that the rule according to which movables are governed by the law of the domicile of the person to whom they belong rests on the intimate relation which exists between movables and the person of their owner, on a fiction of law which deems them to exist in the place of domicile of the latter. Thence it follows that that rule cannot be applied except to those circumstances or acts in which movables only appear as an accessory of the person, for example, to the case of succession ah Digitized by Microsoft® MOVABLES. 159 intestato, to that of dispositions made by last will, or to that of such dispositions inter vivos as express or tacit marriage contracts. The rule does not apply to any case in which the movables have no intimate relation to the person of the owner, for example, when the property in movables is claimed and disputed, when the maxim that en fait de meubles possession vaut litre is invoked, when the question is about a right of pledge, a claim to preferential payment, process of execution, the inalienability of movables, their confiscation, escheat of a movable succession to the public treasury, or lastly a prohibition against exporting movables. In all these cases the law of the place where the movables are actually found must be applied, for the fiction which has been mentioned gives place to the fact (cesse par le fait). For example," continues Foelix in a note, "a contract concluded abroad, by which the owner of a movable actually in France should grant a right of pledge over it (art. 2073 and following ones of the Code civil), would have no effect in France if the pledge had not been delivered to the creditor (art. 2076), although this condition might not be required by the law of the owner's domicile." In this manner the distinction is plainly drawn between the cases in which a man's property is con- sidered as an entirety, grouped round his person as a centre, and those in which the articles which compose it are separately considered. The doctrine of Savigny is similar. After stating that "the capacity of a thing to become subject to private property is to be judged by the law of the place at which the thing is situated," and that " the same rule applies as to the admissibility or restriction of the acquisition by occupation of property in things of many kinds," of which he gives as an example " laws as to the royalty on amber and on many kinds of minerals," he proceeds thus. " In the forms of alienation — i.e. of the voluntary transmission of property to another person — very different rules of law occur : and on the principle above considered we must apply the rule of law in force at the place where the thing is situated, without regard to the domicile of the one or of the other person, and without regard to the place where the contract is entered into. Thus, in Roman law, alienation depends on the delivery of the thing ; in the Prussian law likewj.se on delivery. In Digitized by Microsoft® 1«0 PRIVATE INTERNATIONAL LAW. the French law, on the contrary, the transference of the property is effected by the mere contract If a Parisian sells his fur- niture situated in Berlin to a Parisian in Paris, the property is transferred only by tradition ; but if, conversely, a Berliner sells his goods situated in Paris to a Berliner in Berlin, the mere contract transfers the property It will suffice to bring this rule into operation if the continuance of the things at a place should be only transient and very short ; for in every case the transference of the property depends on a momentary act, and therefore fills no long space of time. It will be different in the exceptional cases in which the present situation of the things is so indeterminate that the persons acting cannot be held to have any certain knowledge of it. In such cases we shall have to regard as the place where the thing is situated that at which it is destined first to remain, which will often be the domicile of the present owner, the seller The acquisition of property by prescription is essentially different from the acquisi- tion by tradition, in being effected not by a momentary fact but by one extending over a longer period of time. In regard to immov- able things, the application of the law of the place where the thing is situated is quite undisputed. On the contrary, opinions are very much divided in respect to the prescription of movables. But here the question is specially important, because the laws of different countries vary exceedingly. The Roman law requires possession for three years, the Prussian for ten. The French requires no con- tinued possession, but excludes with the very beginning of it the vindication of the former owner,* with an exception in the case of lost and stolen things, the protection of which however ceases with the expiry of three years. By this last rule the French law, in its practical results, approximates to the Roman. It is here precisely that the application of the lex rei sitce appears especially certain, from the circumstance that the foundation of all prescription is con- tinuing possession ; but possession, as being essentially a relation of facts, is, with even less doubt than any real right, to be judged by the lex rei sitce. A question may still arise where the situation of the movable things, during the period of prescription, has been • En fait de meubles, la possession vaut titre. Cod. K"ap., Art. 2279. Digitized by Microsoft® MOVABLES. 161 within different territories. There can be no doubt that all these periods of possession must be added together. The term of the prescription however, and the complete acquisition of the property, must be judged by the law of the place at which the thing is last found, because it is only at the expiry of the whole period that the change of property takes place ; before, it has only been in prepa- ration. When property has been acquired by prescription according to this law, it must be recognized in every other country, although the law of that country should require a longer period." * The doctrine of Foelix and Savigny is also that of both the supreme and the state courts in the United States, as appears from their decisions mentioned by Wharton {Conflict of Laws, 1872), who sums up thus. " We may therefore hold it to be law in the United States that an assignment made in one state of personal property situated in another, such property not being in transit or following the owner's person, passes no title to such property as against at- taching creditors of the assignor, such creditors being domiciled in the'latter state, when such assignment is invalid by its laws :" § 353. The exception of property in transit or following the owner's person is not to be found in the cases cited by Wharton, but has been introduced by him in imitation of the exception which we have seen admitted by Savigny, where "the present situation of the things is so indeterminate that the persons acting cannot be held to have any certain knowledge of it." Neither do the American judges seem to lay any stress on the domicile of the attaching creditor, though in the reasons which they give for adopting the lex situs for movables the protection of the citizens of their own states holds a prominent place. The leading authority is the Louisiana one of Olivier v. Tcwnes, 1824, 2 Martin, N. S., 92, in whicb Mr. Justice Porter delivered the opinion of the court. " We have presented," he said, " the case of a creditor attaching property of his debtor before it was transferred by sale and delivery," this being a remedy to which a creditor would in that state of facts be clearly entitled by Louisiana law. But, continued the judge, "the position assumed in the present case is that by the laws of all * Syst. d. heut, Ebm. reohts, § 367 ; Guthrie's translation, p. 138 — 141. M Digitized by Microsoft® 1G2 PRIVATE INTERNATIONAL LAW. civilized countries the alienation of movable property must be determined according to the laws rules and regulations in force where the owner's domicile is situated : hence it is insisted that as by the law existing in the state where the vendor lived no delivery was necessary to complete the sale, it must be considered as complete here, and that it is a violation of the principle just referred to to apply to the contract rules which are peculiar to our jurispmdence, and different from those contemplated by the parties to the contract. We readily yield an assent to the general doctrine for which the appellee contends. He has supported it by a variety of authorities drawn from different systems of jurisprudence. But some of those very books furnish also the exception on which we think this case must be decided, namely that ' when those laws clash and interfere with the rights of the citizens of the countries where the parties to the contract seek to enforce it, as one or other of them must give way, those prevailing where the relief is sought must have the preference.' Such is the language of the English book to which we have been refeiTed." It is unfortunate that the court did not rather deny the general doctrine contended for by the appellee. In doing so they would have been in harmony with the main current of legal opinion in the world, and their decision in favour of the attaching creditor would probably not have excited the antagonism which has been expressed to it in England and by Story. But it had little chance of escaping that antagonism when under the name of an exception, it took away almost all possible application from the rule which it nominally admitted, and this avowedly for the convenience of the citizens of Louisiana. Yet the judgment is not without a trace of the true distinction between the cases, as those of succession, in which property is grouped round the person of its owner, and those, as of alienation, or of special claims against it, in which it is considered independently of its ownei-. After noticing that "personal property must be distributed according to the law of the state where the testator dies," the learned judge added, " but so far as it concerns creditors it is governed by the law of the country where the property is situated. If an Englishman or Frenchman dies abroad and leaves effects here, we Digitized by Microsoft® LAW MARITIME. 163 regulate the order in which his debts are paid by our jurisprudence, not that of his domicile.'' It will, I think, be found that the weight of later Euglish autho- rity is in favour of the doctrine of Foelix, Savigny, and the United States courts ; but before examining the cases from which that conclusion may be drawn, another law or supposed law must be mentioned which in the case of one class of movables, ships, has sometimes been regarded as paramount to all those yet considei-ed, lex situs, lex domicilii, and lex loci contractus or loci actus. This is the general law maritime, on which the following case may be cited as a leading one. " A ship belonging to a British owner at Liverpool, having been taken by alleged pirates, and recaptured by one of her majesty's ships of war after her master had been killed, was placed in charge of a master of the royal navy to bring to Liverpool. Having suffered considerable damage, he put into the island of Fayal, and petitioned the director of the customs for an official survey. Three were made. The report was to the effect that the ship could be repaired for about ^300. The master being dissatisfied obtained a private survey, which resulted in a report that the ship was unseaworthy and should be condemned. The director of the customs then, on the petition of the master, decreed the sale of the ship by public auction, and gave official notice thereof according to the custom of the place. She was purchased by a Portuguese merchant, who immediately repaired her and sent her with a cargo to Bristol, where she was arrested by the original owner in a cause of possession. Held, i. The master had the authority of an ordinary master, and no more. 2. The validity of the sale must be tried by the law maritime. 3. By the law maritime, as well as by the law of England, the sale of a ship by a master, though bona fide, can be justified only by urgent necessity. 4. With respect to ships, the lex loci con- tractus cannot prevail if opposed to the law maritime. 5. The circumstances of the case do not show an urgent necessity for the sale ; and 6. The sale was invalid, and the ship must be restored to the original owner with costs." [Mar- ginal note, verbatim.'] The Segredo, otherwise Eliza Cornish, 1853, Spinks, • Eccl. & Adm. 36, Lushington. The law which Dr. Lushington thus thought himself bound to apply is described by him as follows. " First, it strikes me that the law which I must seek to administer, if I am able to discover it, is the law maritime ; a law which has been often adverted to by Lord Stowell and by others whose lights I seek to guide me, but which has been defined by none. Perhaps it is not possible to define it with great accuracy, because the law of almost every foreign country M 2 Digitized by Microsoft® 164 PRIVATE INTERNATIONAL LAW. in some part differs from that of other foreign countries. Still it is an expression in common use, and I apprehend it is intended to convey the meaning that it is the law which generally is practised by maritime nations." (CT. ;?., p. 45.) And the learned judge proceeded to distinguish it from the respective laws of England and of the island of Fayal. Further on, he referred to it as " the present mari- time law of the civilised world." {U. 8., p. 56.) The learned judge then asked himself whether he could adopt the law of Fayal " on the principle of the lex loci contractus ? In what way," said he, " does the lex loci contractus in the case of a sale of a ship entitle itself to be so admitted ? If such general proposition could be entertained, the law relative to the sale of ships would be a law varying with the law of each individual country wherever the sale happened to take place ; in fact there would be no general maritime law at all, but a law to be enquired into in every case where the transfer took place in a foreign country. I should have one law to look for at Fayal, another in our own colonies, another in Demerara, another in Trini- dad, another in French colonies, another in England. Now I know of no right which the purchaser of a ship in a foreign country, such ship not belonging to a subject of that country, has to call for the interposition of the lex loci contractus, save indeed in one case only, where the title is derived from the decree of a competent court administering the law in its own jurisdiction, and by its decree con- ferring a title. Now had the ship been purchased under the decree of a court of admiralty, directing her to be sold in a case within its jurisdiction, or the law of a court resembling our own court of exchequer, I should have hesitated long before I disputed that title." {U.S.,-p 57.) After enlarging on the last point. Dr. Lushington concluded his argument on it thus : '' I wish it to be understood that in the event of a title being given by an admiralty court having jurisdiction, or a court of common law, I do not preclude myself from considering that to be a valuable title. Again, I should consider this : supposing a vessel was sold by decree of the commissioners, or the court of exchequer, for forfeiture, that I should hold a good title, if such a case should occur. Supposing a vessel sold in a foreign country Digitized by Microsoft® LAW MARITIME. 165 under the law prevailing in cases of insolvency or bankruptcy, I should hold that also to be a good sale. But I wish it to be under- stood that I go on the ground that nothing short of that appears capable of justifying a sale and making a good title." And after expressing his consent to the principle " that the lex loci contractus generally governs the validity of every contract," he referred for certain exceptions to a note of Mr. Brodie in his edition of lord Stair's Institutes. " There appear to me," said Lushington, "according to his," Brodie's, "judgment, several reasons why the lex loci contractus is not always applicable. He says this : ' A distinc- tion is ever to be attended to between the case of a party casually entering a foreign country and that of one who resides in it, and the distinction is particularly strong in regard to an individual who, as master, has the charge of a vessel in a foreign port.' Then he states he is under these circumstances likely to be ignorant of the law of the country, and not to be too tenaciously bound. Then there is another distinction, and that by far the most important. 'The contract,' says Mr. Brodie, ' in such cases is made with the ship- master, who acts as the implied mandatory of the owner ; and the effect of the transaction must greatly depend on the extent of his authority. Now it is true that as a person who has been appointed to an office must be presumed to be invested with the usual powerp, so restrictions upon the ordinary authority will not be effectual against another party who has not been apprized of them ; yet it will be observed that since it is the duty of those who deal with an agent to make themselves acquainted with the extent of his powers, whether expressed or fairly implied from his office, so the presumed mandate here must be measured either by some general principle of maritime law, or by the law of the country to which the ship belongs. Such a general principle of maritime law would of itself, though in a different way, tend in my apprehension to exclude the lex loci ; but there is no such universally received principle, and the more positive exclusion of the principle of the lex loci is the conse- quence ; ' and then he goes on to state what the English law of hypothecation is, and how we should apply it." {U. S., p. 58, 69.) The opinions expressed by Dr. Lushington in the case of the Digitized by Microsoft® 166 PRIVATE INTERNATIONAL LAW. Segredo may therefore be summed up as follows. (1) A decree in rem of a court of admiralty or of common law, or a sale made in a bankruptcy, binds the title to a ship as well as to any other movable, the jurisdiction of the court of bankruptcy, or of the court decreeing in rem, being of course assumed to be established. (2) The autho- rity of an agent to sell or hjrpothecate a ship cannot be derived from the lex situs or lex loci contractus, but may be derived not only from his instructions, or from the law of the country to which the ship belongs, but also from the law maritime, contrary to Mr. Brodie's opinion, who held that no such law can be appealed to, as none is universally received. (3) Except in the cases mentioned under (1), to which the learned judge would no doubt have been ready to add that of a sale under the authority of a court of probate or administration, a sale under public authority in the situs leaves it still necessary to examine the authority of the person who assumes to sell. The other parts of these propositions will have to be further considered in due place, but with regard to the notion of a general maritime law as actually in vigour for any purpose, the opinion of Mr. Brodie may at once be accepted. If the idea were admitted, the actual determination of such a law would encounter the difficulty which theologians have found in applying the maxim quod semper, quod ubique, quod ab om/nibus. In fact however, the conception which has almost universally been formed of private international law is that of choosing in each case between different national laws, not that of setting up a body of doctrine in the form of a law but without any national legal sanction. When "the general law maritime, as it is administered in England by courts of admiralty," is mentioned, those terms must be taken to describe a certain part of the law of England, not derived from any specially English custom or legislation, but which, so far back as it can be traced in our law, possessed legal sanction over all or most of those tracts which were included within the horizon of our early lawyers. Coming now to the doctrines received in England on the effect of different judgments aud laws on the property in movables, I shall begin with that of judgments in rem,, because it appears to be better settled than is the case with questions about the effect of laws Digitized by Microsoft® MOVABLES : JUDGMENTS IN REM. 167 which in the particular instance have not been embodied in any such judgment, not that the authority of a judgment in rem appears to rest on any principle not involved in the larger class of questions. § 140. The property in a movable will be held in England to be such as the judgment in rem of a court within the jurisdiction of which the movable was situate has decided it to be. The dis- tinctive mark of a judgment in rem, on a movable is that it disposes of the thing itself, and not merely of the interests which any parties have in it. It is immaterial whether the judgment does this (1) by vesting the property at once in a party as against all the world, as a condemnation in a revenue cause vests the property in the crown, or the sentence of a court of admiralty in a matter of prize vests the property in the captors ; or (2) by decreeing or confirming the sale of the movable in satisfaction of a money demand which it adjudges to have been a lien on the thing itself, and not merely on the interests of any parties in it; or (3) by decreeing or confirming the sale of the movable by way of admi- nistration, in matters of bankruptcy or succession on death. The second case is easily distinguished from that of a sale under execu- tion, in which only the interest of the debtor is intended to be disposed of; and the characteristic of the third case is that the court claims to act on one of the so-called universal assignments, and therefore to conclude even those who may not accept the permission to come in and take the benefit of the proceedings. The leading authority is Casing ue v. Imrie, i860, 8 C. B., N. S., i ; Erie, Williams, Willes, Keating: reversed, i860, 8 C. B., N. S., 405 ; Cockburn, Wightman, Channell, Hill, Blackburn, Martin, Bramwell : reversal affirmed, 1870, L. R., 4 E. & I. A. 414 ; Hatherley, Chelmsford, Colonsay ; in accordance with the opinion of Blackburn, Bramwell, Mellor, Brett and Cleasby, and of Keating, who departed from his previous opinion in deference to the judgment on appeal in Cammell v. Sewell. The last named case was decided in 1858, 3 H. & N. 617, by Pollock, Martin and Channell ; and affirmed in i860, 5 H. & N. 728, by Cockburn, Wightman, Williams, Crompton and Keating, Byles dis- sentient. The definition given in the § of a judgment in rem on a movable is in accordance with all the judicial opinions in Castrique v. Imrie, except that the French judgment there in question was held by Williams, Willes and Keating not to be in rem, merely from their taking a different view as to tlie facts of the French proceedings. The third case of judgments iti rem men- Digitized by Microsoft® 168 PRIVATE INTERNATIONAL LAW. tioned in the § was noticed, so far as concerns sales in bankruptcies, by Lushington in the Segredo : see above, pp. 164, 166. In Cajnmell v. Sewell the question was about the right gained to some deals, the cargo of a vessel wrecked on the coast of Norway, by purchase at a sale in that country held under the authority of the captain, and confirmed in the same country in a suit brought by the agent of the underwriters to have the deals delivered up in specie. The case was decided in the lower court on the ground of this Norwegian judg- ment, Martin, on behalf of Pollock and Channell as well as of himself, describing it as being in the nature of one in rem on account of the prayer for specific delivery ; but the circumstance that the underwriters, plaintiffs in England, were privy to it was dwelt on as an element in its conclusiveness, notwithstand- ing that a judgment in rem is conclusive against all the world. On the appeal a clearer view was taken of the nature of judgments, and the decision in favour of the purchaser was put on the ground of the sale being a good transfer by the law of Norway, which was the situs of the deals. Blackburn, delivering the opinion of the judges in Castrique v. Im.rie, said : " We may observe that the words as to an action being in rem or in perso7iam, and the common statement that the one is binding on third persons and the other not, are apt to be used by English lawyers without attaching any very definite meaning to those phrases. We apprehend the true principle to be that indicated in the last few words quoted from Story. We think the enquiry is first, whether the subject matter was so situated as to be within the lawful control of the state under the authority of which the court sits ; and secondly, whether the sovereign autho- rity of that state has conferred on the court jurisdiction to decide as to the disposition of the thing, and the court has acted within its jurisdiction. If these conditions are fulfilled, the adjudication is conclusive against all the world." L. R., 4 E. & I. A. 429. These words are valuable as expressing the principle on which the international validity of a judgment in rem rests, as well as the condition for such validity, namely that the movable shall have been within the territorial jurisdiction of the court pronouncing it. In Simpson v. Fogo, i860, i J. & H. 18 ; 1863, i H. & M. 195 ; Wood; a New Orleans judgment came under consideration in peculiar circumstances. A British ship, belonging to Liverpool, was mortgaged in English form to a Liver- pool bank, while she was at sea, and therefore when there was no lex situs to compete with the law of the owners' domicile as to the sufficiency of the mort- gage. Afterwards unsecured creditors of the mortgagors attached her at New Orleans, where delivery is necessary to perfect a real right in a movable, and she was sold under decree in the suit so commenced, the mortgagee intervening and ineffectually claiming possession. The mortgagee, whose debt exceeded the value of the ship, sued the purchaser in England, whither she had been brought, and recovered her ; the purchaser however being allowed a lien for what, in the distribution of the proceeds of sale at New Orleans, had been paid to certain creditors who had a real right under the law of that place, by virtue of which they might have arrested the ship. It was even admitted by the vice- chancellor that had the ship been sold in a suit commenced by their arresting it, the property would have passed : I H. & M. 248. Full justice was therefore done to the real rights conferred by the lex situs, or recognized by the Court of the situs. The sale under decree in an attachment suit passed only the debtor's interest in the movable, and whatever controversy might be raised as to its Digitized by Microsoft® MOVABLES : LEX SITUS. 169 validity against the mortgagee on the ground of his intervention, it at least had no validity against him on the footing of a judgment in rem. See Blackburn's remarks in Castrique v. Imrie, L. R., 4 E. &" I. A. 436. We now come to the effect of laws independent of their embodi- ment m judgments in rem. Having seen lofd Blackburn tracing the respect due to such judgments to the sovereign authority of the state within which the movable is situate, we shall be prepared to find an equal respect paid to the will of the same authority when manifested in the simpler form of a law. And we shall not be disappointed, if the next section truly expresses the state of the English decisions, as I believe it does. § 141. Questions as to the transfer or acquisition of property in corporeal movables, or of any less extensive real rights in them, as pledge or lien, are generally to be decided by the lex situs. If the question refers to a ship which was at sea at the moment of the alleged transfer or acquisition, it must be decided by the personal law of the owner, that is, of the person from or against whom the transfer or acquisition is alleged to have taken place : that law will operate either as the lex situs, on the ground of the fiction which makes ships a part of the territory ascertained by their flag, or in its own character of the personal law, in obedience to which alone the person can lose his right when no lex situs is applicable against him. It would however be pedantic to apply the general doctrine so as to bring in the law of a casual and temporary situs, not contemplated by either party in the dealing under considera- tion, as in the case of goods which at the moment of the dealing may be on board a ship of a third country, or temporarily ware- housed in a port of a third country. See Savigny as to this : above, p. 160. The English authorities in support of this view begin about as far back as those quoted in pp. 155, 156, in favour of the law of the owner's person. " A delivery by the consignor of goods on board a ship chartered by the con- signee is a delivery to him, and the consignor cannot afterwards stop them in transitu. But where the delivery was made on board such a ship in Russia, and by a law of that country the owner of the goods, in case of the bankruptcy Digitized by Microsoft® 170 PRIVATE INTERNATIONAL LAW. of the vendee, may sue out process to retake his goods on board a ship &c., and retain them till payment ; and the owners, hearing of the insolvency of the vendee, applied to the captain on board of whose ship the goods had been de- livered to sign the bill of lading to their order, which he complied with without the necessity of suing out process ; held that this was a substantial compliance with such law, and that the captain on his arrival here was bound to deliver the goods to the order of the vendors, and not to the assignees of the vendee who had become bankrupt." Inglis v. Usherwood, 1801, i East 515 ; Kenyon, Grose, Lawrence, Le Blanc. Kenyon and Lawrence spoke of " the transaction" being in Russia, which might have referred to the contract of sale ; but Grose said " the delivery here was made in Russia," thus bearing out the reference to that point in the marginal note, which I have copied verbaiiin. No judge alluded to the vendors' domicile. It appears therefore that the question, at what moment the property in the goods was indefeasibly transferred, was decided on the lex situs. " The captain of a ship has no authority to sell the cargo, except in cases ot absolute necessity ; and therefore, where in the course of a voyage from India the ship was wrecked off the Cape of Good Hope, and some indigo which was part of the cargo was saved, and the same was there sold by public auction, by the authority of the captain acting bona fide according to the best of his judg- ment for the benefit of all persons concerned, but the jury found there was no absolute necessity for the sale : Held that the purchaser at the sale acquired no title, and the indigo having been sent to this country, the original owners were entitled to recover its value." Freemaii v. East India Company, 1822, 5 B. & Aid. 617 ; Abbott, Bayley, Holroyd, Best. Best said, speaking of the pur- chaser's knowledge of the circumstances, " supposing the' law of Holland," which was in force at the Cape, " to be, as it is stated to be, the same as the law of England, this knowledge will prevent the purchaser protecting himselt under a sale in market overt." On this Mr. Justice Crompton remarked in Cammell v. Sewell, " in the case of Freeman v. The East India Company the court of king's bench appear to have assented to the proposition that the Dutch law as to market overt might have had the effect of passing the property in such case, if the circumstance of the knowledge of the transaction had not taken the case out of the provisions of such law : " 5 H. & N. 745. Cammell v. Sewell has already been noticed : above, pp. 167, 8. In the court below, Pollock said, although his opinion in that respect was not adopted as the ground of the judgment : " If personal property is disposed of in a manner binding according to the law of the country where it is, that disposition is binding everywhere.'' 3 H. & N. 138. On the appeal Crompton, delivering the opinion of all the court except Byles, said : " The conclusion which we draw from the evidence is that by the law of Norway the captain, under cir- cumstances such as existed in this case, could not, as between himself and his owners or the owners of the cargo, justify the sale, but that he remained liable to them for a sale not justified under the circumstances ; whilst on the other hand an innocent purchaser would have a good title to the property bought by him from the agent of the owners. It does not appear to us that there is any thing so barbarous or monstrous in this state of the law as that we can say that it should not be recognized by us. Our own law as to market overt is analogous ; and though it is said that much mischief would be done by uphold- Digitized by Microsoft® MOVABLES : LEX SITUS. 171 ing sales of this nature, not justified by the necessities of the case, it may well be that the mischief would be greater if the vendee were only to have a title in cases where the master was strictly justified in selling as between himself and the owners. If that were so, purchasers, who can seldom know the facts of the case, would not be inclined to give the value, and on proper and lawful sales by the master the property would be in great danger of being sacrificed." 5 H. & N. 743. This brings out a distinction which was not adverted to in tlxe, Segredo (above, p. 163), and possibly may not have arisen on the facts of that case, the law of Fayal having been very imperfectly proved in it. A law by which the owners are not bound cannot confer an authority on the captain as against them ; but notwith- standing this the lex situs may, if it pleases, confer a title to the movable on the purchaser. The question of an agent's authority belongs to the law of contract ; the question of a purchaser's title belongs to the law of property, and must be ultimately decided by the law which governs property, although that law may make the authority of the selling agent, as determined on principles applicable to contract, an element in its decision. Returning to the authorities for § 141, Crompton said further, in Camntell v. Sewell : " Many cases were mentioned in the course of the argument, and more might be collected,*ln which it might seem hard that the goods of foreigners should be dealt with according to the laws of our own or of other countries . Amongst others our law as to the seizure of a foreigner's goods for rent due from a tenant, or as to the title gained in them, if stolen, by a sale in market overt, might appear harsh. But we cannot think that the goods of foreigners would be protected against such laws, or that if the property once passed by virtue of them it would again be changed by being taken by the new owner into the foreigner's own country." He then quoted with approval Pollock's dictum in the court below, and added : " We do not think that it makes any difference that the goods were wrecked, and not intended to be sent to the country where they were sold. We do not think that goods which were wrecked here would on that account be less liable to our laws as to market overt, or as to the land- lord's right of distress, because the owner did not foresee that they would come to England." Byles did not dissent on the ground of the owner's lex domicilii, but because the " alleged law of Norway" seemed to him to be " of an alarming nature," " and at variance with the general maritime law of the world, at least as understood in this country." Cockburn added to his concurrence in Crompton's judgment a remark which, as to the last mentioned law, placed him on the side of Brodie as against Lushington : " The law of nations cannot determine the question, for the international law is by no means uniform as to the powers of a master, as abundantly appeared from the various codes which Digitized by Microsoft® 1V2 PRIVATE INTERNATIONAL LAW. were brought to our notice during the argument." 5 H. & N. 744, 5, 7, 50. Pollock's dictum was quoted with approval by Bramwell in Castrique v. Imrie, 8 C. B., N. S., 430 ; and Blackburn, delivering to the house of lords the opinion of the judges in the same case, adverted to it thus. " In the case of Cammell V. Sewell a more general principle was laid down, namely that ' if personal pro- perty is disposed of in a manner binding according to the law of the country where it is, that disposition is binding everywhere.' This we think as a general rule is correct, though no doubt it may be open to exceptions and qualifications ; and it may very well be said that the rule commonly expressed by English lawyers, that a judgment in rem is binding everywhere, is in truth but a branch of that more general principle." L. R., 4 E. & I. A. 429. In Coote V. Jeekes, 1S72, L. R., 13 Eq. 597, Bacon, it was held that the English bills of sale act does not apply to a biU of sale of goods in Scotland, given in England by an English debtor to an English creditor. In Liverpool Marine Credit Cojnpany v. Hunter, 1867, L. R., 4 Eq. 62, Wood; affirmed 1868, L. R., 3 Ch. Ap. 479, Chelmsford ; it was decided that domiciled Englishmen will not be restrained from attaching ships at New Orleans because justice will not be done there to domiciled English mort- gagees, and that bonds given by such mortgagees at New Orleans for the purpose of obtaining the release of the ships may be sued on in England. It must be observed that according to the allegations made in this case and in Simpson v. Fogo (above, p. 168), the courts at New Orleans go so far beyond the doctrine mentioned above, pp. 161, 2, as to disregard transfers and pledges of movables made without delivery, although complete before the arrival of the movables in Louisiana. For the present purpose, attention must be drawn to Wood's expression of respect to foreign statute law, " however harsh and arbitrary it may be," though he " was particularly anxious to draw a distinction between judicial procedure and the statute law of a foreign state : " L. R., 4 Eq. 68. Also to Chelmsford's reassertion of the old doctrine of Loughborough, in these terms ; " the transfer of personal property must be regulated by the law of the owner's domicile, and if valid by that law ought to be so regarded by the courts of every other country where it is brought into question : " L. R., 3 Ch. Ap. 483. It seems impossible, in the face of the other authorities here collected, to accept this rule further than it has been admitted in framing § 141. When a foreign ship is sold under such circumstances that the purchaser does not get a good title independent of a personal equity against the vendor, the lex loci contractus must determine whether the foreign owner has so acted as to prevent his disputing the purchaser's title. Hooper v. Gmnm, ATLellan v. Gumm, 1867, L. R., 2 Ch. Ap. 282, Chelmsford and Turner, in the latter case affirming Wood, in the former reversing him on the question of fact. § 142. The forwm for the recovery of a debt presents much analogy with the situs of a corporeal movable, and notice to the debtor of the assignment of a debt presents much analogy with the delivery of a corporeal movable to the transferee of it. As there are laws by which delivery is not necessary to complete the transfer of a corporeal movable, so there are laws, like that of England, by which, Digitized by Microsoft® MOVABLES: INCORPOREAL RIGHTS. 173 although the debtor will be discharged if he pays the transferor of a debt before receiving notice of the transfer, and although the transferee, suing for the debt before such notice has been given, perhaps in a certain form, may have to use the name of the transferor and be exposed to any defence which would be good against the transferor, yet the transfer will be so far complete by assignment without notice that notice 'pendente lite will prevent the debt from being recovered by a posterior assignee or attaching creditor. And as there are laws by which delivery is necessary to complete the transfer of a corporeal movable, so there are laws, like that of Scot- land, by which the assignment of a debt without notice to the debtor is so ineffectual that notice pendente lite comes too late. Con- sequently opinions analogous to those on the law which should govern the transfer of a corporeal movable have been entertained on the law which should govern that of a debt. Lord Karnes (see above, p. 157) and Story {Conflict of Laws, § 397) hold that the assignment of a debt, complete without notice by the law of the creditor's domicile, must be held complete everywhere. This question could hardly arise in England as between persons claiming under earlier and later assignments, the English law not requiring notice as between such parties ; and the whole subject of the transfer of debts may therefore, for our purposes, be postponed till it can be con- sidered in connection with the international law of obligations. Where a right is claimed by way of real privilege or lien on a chose in action, there is an English case which maintains the lex fori. A citizen of the United States shipped at San Francisco as second mate on board an American ship bound for England, and became master during the voyage by reason of successive deaths. On his proceeding in the court of admiralty against the freight for wages due to him, it was held that his claim was governed by the lex fori and not by the lex loci contractus of his engage- ment as mate, and that the former was to be found in the Merchant Shipping Act, and not in the law maritime as previously administered in England. The Milford, 1858, Swabey 362, Lushington. The same great lawyer expressed his adherence to that judgment in The Jonathan Goodhue, 1859, Swabey 526 ; but PhiUimore, in The Halley, 1S67, L. R., 2 A. & E. 12, remarked : " I must say that the reasoning of the learned judge which led to the decisions in these cases was never satisfactory to my mind, and I am glad to learn that in a more Digitized by Microsoft® 174 PRIVATE INTERNATIONAL LAW. recent case mentioned to me by Mr. Clarkson the learned judge expressed himself wiUing to reconsider the principle of these decisions." The opinion of Lushington must, however, be deemed to have remained such as he expressed it, and to have been in favour of the lex fori as deciding on the existence of an incorporeal real right. It is true that he based it on the rule " that the remedy must be according to the law of the forum in which it is sought " : Swabey 366. But that rule, in its other and more familiar applications, refers to the form of the remedy, or at the utmost to its existence as depending on laws of procedure, which statutes of limitation are generally considered in England to be, not to its existence as depending on that of a right. To apply the rule in the manner in question in The Milford was really to attribute to the forum for an incor- poreal real right a legal weight corresponding to that of the situs for corporeal movables. The subject of the §, however, yet requires elucidation by English authorities. § 143. The rule that the lex situs governs the property in movables, as developed in the preceding part of this chapter, applies in general to the beneficial interest as well as to the legal property ; but in cases falling under the so-called universal assignments, the personal law may bind the beneficial interest, while the lex situs must he complied with as to the legal property, as in the case of § 126. The English rules as to succession on death (§§ 54, 57, 58, 102) present a third variety, the personal law not being allowed to govern even the entire beneficial interest in the movables, but only that in the surplus remaining after the payment of the debts of the deceased. We now pass to questions concerning the international character of special classes of movables. § 144. A British ship is British ten-itory so long as she is sailing on the high seas, or in a foreign tidal river below all bridges, although in the latter case, if she is a private ship, the state to which the river belongs may have concurrent jurisdiction. If she belongs to an English port, the law applicable in consequence of her being British territory is that of England. Regina v. Lopez, 1858, i D. & B. 525 ; Regina v. Sattler, 1858, i D. & B. 539 ; decided together by Campbell, Cockburn, Pollock, Coleridge, Wightman, Erie, Williams, Martin, Crompton, Crowder, Willes, Watson, Channell and Byles. The Queen v. Anderson, 1868, L. R., i C. C. R. 161 ; Bovill, Channell, Byles, Blackburn, Lush. These were cases of crimes committed on board British ships, and in the last case the ship was sailing in a foreign tidal river. Digitized by Microsoft® MOVABLES: POLITICAL RIGHTS. 175 Marshall \. Murgatroyd, 1870, L. R., 6 Q. B. 31 ; Blackburn and Lush ; order of affiliation under English law, against the putative father of a child born at sea on board a British ship belonging to Liverpool, sustained. See the American case of United States v. Hamilton, 1816, i Mason 152, Story. "The admiralty," that eminent judge said, "has never held that the waters of havens where the tide ebbs and flows are properly the high seas, unless those waters are without low-water mark. The common law has at- tempted a still more narrow construction of the terms.'' For a precise examination of the question what constitutes a British ship, the reader is referred to the usual treatises on the British law of shipping. § 145. Although a foreign sovereign or state is certainly entitled to protection in England for civil rights, whether of property or of obligation, and whether, in the case of a sovereign, they belong to him in his priva,te or in his public character, it is doubtful how far a foreign sovereign or state is entitled to protection in England for political rights, even though pecuniary profit may be derivable from them. In other words, it is doubtful whether a political right can be considered in England as a chattel or movable, on the ground that pecuniary profit may be derived from it. In Emperor of Austria v. Day and Kossuth, 1861, 2 Giff. 628, Stuart ; 3 D. F. J. 217, Camp- bell, Knight-Bruce and Turner ; this question arose on the emperor's seeking an injunction to restrain the infringement of his exclusive right of issuing paper currency to circulate within his dominions. Stuart granted the injunction as in support of a right, without thinking it necessary to found it on the pecuniary value of that right, but all the judges on the appeal differed from him as to this. Campbell and Knight-Bruce sustained the injunction on the ground of the pecuniary value of the right to the plaintiff. Turner thought it not sustainable on that ground, but sustained it on the ground of " the injury to the subjects of the plaintiff by the introduction of a spurious circulation." Lord Campbell noticed as follows another kind of political rights productive of pecuniary profit, which will meet us again when considering the international validity of con- tracts. " A more specious objection was rested on the class of cases in which it has been held that we take no notice of the ' revenue laws ' of foreign countries, so that an injunction would certainly be Digitized by Microsoft® 176 PRIVATE INTERNATIONAL LAW. refused to a foreign sovereign who should apply for one to prevent the smuggling of English manufactures into his dominions to the grievous loss of his fisc. But although from the comity of nations the rule has been to pay respect to the laws of foreign countries, yet, for the general benefit of free trade, ' revenue laws ' have always been made the exception ; and this may be an example of an excep- tion proving the rule." (U. S., p. 241.) Digitized by Microsoft® CHAPTER VIII. IMMOVABLES. It has already been noticed, p. 9, that the principle of the lex situs, or of the real statute, was eagerly seized on in England, and received there its utmost development. Accordingly, in stating the English doctrines on the subject of immovables, we shall merely have to expand that principle into a series of propositions supported by authorities among which there is little conflict. What doubt there is turns more on the question of jurisdiction than of law. The principle of the forum situs, in its application to the land itself, is incontrovertible. Since only the authorities that exist on the spot can employ force to give possession or take it away, it would be idle for any foreign jurisdiction to make a direct attempt to determine the possession of land, or even the property in it, which would be unmeaning if disconnected from all immediate or future right to possession. This indeed would be too idle for a distinct proposition to be here framed by way of negativing it. But an indirect attempt may be made by a foreign jurisdiction to determine the possession or the property in land, by compelling one who is personally subject to its authority to employ those possessory or proprietary rights, which he possesses in the f(yrum situs, in such a manner as to give effect to a determination which in itself would be nugatory. The reason- able principle appears to be that this should not be attempted on the mere ground of the personal jurisdiction, but only when some- thing has been done by which the personal jurisdiction is called into action on the ground of obligation which properly belongs to it, and the determination as to the foreign land is necessarily incident to the determination which has to be made about the obligation. But it N Digitized by Microsoft® 178 PRIVATE INTERNATIONAL LAW. will be easily seen that in the application of this principle there may be some amount of delicacy ; and then there are the' cases which arise when the immovable right in question is not one to the property or possession of the land itself. § li6. All questions concerning the property in immovables are decided by the lex situs. § 147. Interests in land which are limited in duration, whether for terms of years, for life, or otherwise ; interests in land which are limited in their nature, as legal (ex jure Quiritiuvi — Gains) or beneficial {in bonis — Gains) ; servitudes, charges, liens, and all other dismemberments of the property in land ; are immovables as well as the land itself § 148. So long as money produced by sale or otherwise from immovables would, in their situs, be considered to represent the immovables and be subject to the same rights, it must be considered to represent them, and be subject to the lex sit^is, in every jurisdic- tion in which it may happen to become administrable. Compensation awarded under the act for the abolition of slavery : Forbes v. Adams, 1839, 9 Sim. 462, Shadwell. These three §§ contain the general English doctrine on the subject of the law which must govern immovables. The applications which are made of that doctrine in England to particular questions will be presented in separate §§, on account of their variety and importance. In the arrangement of those §§ it will be found that the cases which illustrate the immovable character attributed to dismemberments of the property in land, and in certain cases to money (principles of §§ 147, 148), and those which illustrate the application of the lax situs to what are admitted to be immovables (principle of § 146), run very much into one another ; and that the cases which illustrate the question of jurisdiction run very much into those which illustrate that of the law. § 149. A rent charge issuing out of land in England is an im- movable, and when a British statute makes it liable to legacy duty "as personal estate," it is liable to such duty notwithstanding that Digitized by Microsoft® IMMOVABLES : HERITABLE BONDS. 179 the deceased owner was domiciled abroad, and the movables left by him are consequently not liable to such duty. ' Chatfield v. Berchtoldt, 1872, L. R., 7 Ch. Ap. 192, James and Mellish reversing Bacon, 1871, L. R., 12 Eq. 464. § 150. When security is given on immovables for a debt which is also personally due, the lex situs of the immovables decides whether the debt is to be considered an immovable, that is, as an alienation of so much of the value of the immovables on which it is secured, or as a mere debt with collateral security. The case is presented by a Scotch heritable bond, in which the debt, though personally due as well as secured on the land, descends to the creditor's heir of immovables, and the debtor's heir of im- movables cannot claim exoneration out of the debtor's movables. Hence : Where the creditor is domiciled in England, and makes a will which is n- effectual to pass Scotch immovables, the debt descends to his Scotch heir : Johnstonev. Baker, 1817, 4 Madd. 474 note, Grant ; Jerningham v. Herbert, 1829, 4 Russ. 388, Tam. 103, Leach ; Allen v. Anderson, 1846, 5 Ha. 163, Wigram. And where the debtor is domiciled in England, his Scotch heir is still unable to claim exoneration out of his personal estate : Drummond v. Drum- mond, 1799, house of lords on Scotch appeal, Robertson on Personal Succession, p. 209; Elliott \. Minto. 1821, 6 Madd. 16, Leach. See above, § no. § 151. Only if a separate security be taken in another country for the same debt, the last § will not apply, because the lex sittbs of the immovable security will be unable to affect the entire character of the debt. Where an English security was taken for a debt secured by a Scotch heritable bond, the debt passed to the creditor's legatee, notwithstanding that the will was ineffectual to pass Scotch immovables : Buccleugh v. Hoare, 1819, 4 Madd. 467, Leach, who exercised his personal jurisdiction over the creditor's Scotch heir by declaring him a trustee for the legatee; Cust \. Goring, 1854, 18 Beav. 383, Romilly. § 152. No law as to the mode of satisfying debts and legacies which may prevail in the country where the estate of a deceased person is being administered, not even if he was domiciled there, can N 2 Digitized by Microsoft® 180 PRIVATE INTERNATIONAL LAW. throw on his immovables a heavier burden in respect of his debts or legacies than is thrown on them bj the lex situs. Harrison v. Harrison, 1872, Selborne, James and Mellish, and 1873, Selborne and Mellish, reversing Romilly, 1872, whose attention had not been called to the point ; L. R., 8 Ch. Ap. 342. § 153. If a contract is void by the lex loci contractus, an immov- able security given for it will be void also, notwithstanding that the contract would not have been void by the lex situs of the security. Richards v. Goold, 1827, I Molloy 22, Hart. § 154. Terms of years in English land, though personal estate by English law, are recognized in England as being immovables for the purposes of private international law, subject however to § 159. The Thellusson act applies to a disposition of leaseholds for years in England by a testator domiciled in Ireland : Freke v. Carbery, 1873, L. R., 16 Eq. 461, Selborne. The succession to leaseholds for years in Ireland, on the death of an owner domiciled in Italy, depends on the law of Ireland, and administration will be granted accordingly : Re Gentili, 1875, !''• L- ^-j 9 -Eq. S41, Allen. § 155. All questions concerning a restraint on the alienation or disposition of immovables are to be decided by the lex situs ; whether the restraint be general or special, and, if special, whether directed against alienation or disposition in certain modes, as by will, or in favour of certain persons, as between husband and wife, or for certain purposes, as charitable purposes ; and whether the restraint be total, or limited to a certain proportion of the value. The mortmain act applies in restraint of the disposition of English land, even though the charitable purpose is to be executed abroad : Curtis v. Hutton, 1808, 14 Ves. 537, Grant. It may here be mentioned, though not falling strictly under the §, that in administering the estate even of a testator domiciled abroad, the English court will not give effect to a bequest of personalty, tending to bring English land under a charitable trust contrary to the mortmain act : Att.-Gen. v. Mill, 1827, 3 Russ. 328, Lyndhurst ; affirmed, 1831, 2 D. & Q. 393, Lyndhurst. Also that foreign immovables are regarded by the English court as pure personalty, for the purposes of the mortmain act : Beaumont v. Oliveira, 1868, L. R., 6 Eq. 534, Stuart. § 156. No guardian, curator, committee of the estate, or assignee in bankruptcy, either appointed by a foreign jurisdiction or holding Digitized by Microsoft® IMMOVABLES : MARRIAGE, ETC. 181 the office by virtue of a foreiga law, has any authority with regard to the English real estate of his minor, lunatic or bankrupt. The proceeds of land belonging to a Chilian lunatic, sold under the partition act 1868, were not payable to his Chjlia.n curaior ad do?ia : Gritnwoodw. Bartels, 1877, 46 L. J., N. S., Ch. 788, Hall. § 157. In the absence of express contract, marriage produces its effect on the English real estate of either consort, whether acquired before or during the marriage, according to English law alone, what- ever may be the matrimonial domicile or the place of contracting the marriage. § 158. English real estate descends on intestacy according to English law, whatever may have been the personal law of the intestate. See §§ 168, 169. § 159. No limited interest, charge, or other dismemberment of the property in English land can be created ; nor any English immovable, including a term of years, conveyed inter vivos ; nor any English real estate devised by will ; except in the form required by English law for such respective purpose. But a term of years in English land will pass to the executor or the administrator with the will annexed, and, subject to the claims of creditors, to the legatee, under any will that satisfies the conditions required for the formal validity of a will of personal estate, as to which see above, § § 74 — 86. English real estate only passed by a will with three witnesses, when that was the English form for the purpose, although the will was made beyond sea : Coppin v. Coppin, 172^, 2 P. W. 291, King. § 160. No general rule can be laid down for the construction of contracts, wills, or other dispositions concerning immovables. A strin- gent rule of construction existing by the lex situs of the immovables concerned will of course prevent any instrument from affecting the immovables except in accordance with it, but, otherwise, a reasonable regard must be had to all the circumstances, including the Jocns con- tractus OT actus, and the national character or domicile of the parties, testator, or other disponer. The following cases have arisen, where not otherwise mentioned, as to the currency or place of payment intended, where a will or settle- Digitized by Microsoft® 182 PRIVATE INTERNATIONAL LAW. ment has charged money on land situate in a country different from that in which the will or settlement was made, or in which the testator or settlor was domiciled. Phipps V. AngUsea, 1721, i P. W. 696, 5 Vin. Abr. 209, Parker ; Wallis v. Brightuuell, 1722, 2 P. W. 88, Macclesfield; Lansdowne v. Lansdowne, 1820, 2 131. 60, Eldon and Redesdale. In all these cases the decision was in favour of the currency of the testator's or settlor's domicile, but the payment to be in the situs of the land charged. In Holmes v. Holmes, 1830, i Ru. & My. 660, Leach, the testator was domiciled at the date of his wiU in the same country in which the land he charged with an annuity was situate, and the decision was in favour of the then currency of that country, though both that currency and his domicile were changed before his death. The following cases have arisen on the question whether slaves, live stock, and other movables necessary to the enjoyment of an estate, passed by a devise in which the testator only mentioned the estate ; and it was held that they did so, conformably to the understanding prevailing in the country where the estate was situate. Licshington v. Sewell, 1827, I Sim. 435, Hart ; Stewart v. Garnett, 1830, 3 Sim. 398, Shadwell. In the latter case the testator was domiciled in the country where the estate was situate, but not so in the former. § 161. The term of prescription with regard to the property in immovables depends on the lex situs. Beckford-\. Wade, 1805, 17 Ves. 87, judgment of privy council delivered by Grant : no exception in favour of absentees, even though they have never been in the situs, unless express. In Re Peat, 1869, L. R,, 7 Eq. 302, James, money arising from the sale of land in India, and in Pitt v. Dacre, 1876, L. R., 3 Ch. D. 295, Hall, rents and profits of land in Jamaica, happened to be administrable in the English court, and claims on them were determined according to the law of prescription of the situs whence they had been produced. § 162. A proprietor of foreign immovables, or person interested in such, may be compelled by the English court, if it has personal juris- diction over him, to dispose of his property or interest in them so as to give effect to any obligation relating to them which arises from, or as from, his own contract or tort ; and that obligation will not be measured by the lex situs of the foreign immovables to which it relates, but in accordance with the rules of private international law on obligations arising from, or as from, contract or tort. " If indeed Digitized by Microsoft® IMMOVABLES: EQUITIES. 183 the law of the country where the land is situate should not permit, or not enable, the defendant to do what the court might otherwise think it right to decree, it would be useless and unjust to direct him to do the act ; but when there is no such impediment the courts of this country, in the exercize of their jurisdiction over contracts made here, or in administering equities between parties residing here, act upon their own rules, and are not influenced by any consideration of what the effect of such contracts might be in the country where the lands are situate, or of the manner in which the courts of such countries might deal with such equities." The quotation in the § is from lord Cottenham's judgment in exp. Pollard, 1840, Mont. & Ch. 239 (p. 250), 4 Deacon 27 ; in which case a contract for security on land in Scotland, in the form called in England an equitable mortgage, was enforced against the debtor's assignees in bankruptcy, as representing his person, although ineffectual in itself by Scotch law. Arglassev. Muschamp, 1682, i Vern. 75, Nottingham ; bill to be relieved of a charge on plaintiff's land in Ireland obtained by fraud. Angus v. Angus, ^Ti7i West's cases temp. Hardwicke, Hardwicke ; bill for possession of land in Scotland, on ground of fraud. Penn v. Baltimore, 1750, i Ves. Sen. 444, Hardwicke ; specific performance of agreement for settlement of boundaries in the American colonies. Cranstown v. Johnston, 1796, 3 Ves. 170, Arden ; Jackson V. Petrie, 1804, 10 Ves. 164, Eldon ; White v. Hall, 1806, 12 Ves. 321, Erskine ; bills against creditors charged with fraud in obtaining judicial sales, in the forum situs, of estates in the West Indies. In the first case, Sir R. P. Arden made the decree declaring the defendant a trustee of the estate he had acquired, " without saying that this sale would have been set aside either in law or equity there," that is, in the forum situs j and added, " I will lay down the rule as broad as this : this court will not permit him to avail himself of the law of any other country to do what would be gross injustice : " 3 Ves. 183. Caod v. Cood, 1863, 9 Jur. N. S. 1335, Romilly : a proprietor of land in Chili decreed a trustee, and to do all things necessary for giving effect to a contract of sale which the Chilian courts had adjudged not to exist, and enjoined from further proceeding in those courts. To this § belong also actions against the trustees of settlements or other deeds, to carry the trusts into execution, where foreign immovables are included in them. In such cases, as well as in all others under the § where it may be necessary, receivers will be appointed over the foreign immovables : Harrison v. Gurney, 1821, 2 Jac. & W. 563, Eldon ; Clarke v. Ormonde, 1821, Jac. 116, 121, Eldon. In Harrison v. Gurney the trustees, after decree in England, were restrained from proceeding in the forum situs for the execution of the same trusts. ,§ 163. But where the relief which might affect the foreign im- movables is not sought on any ground falling under the last §, the Digitized by Microsoft® 184 PRIVATE INTERNATIONAL LAW. Englisb court wiU decline to make its mere personal jurisdiction over the defendant a ground for determining the right either to the property or the possession of foreign immovables, but may perhaps assume to determine such right on the ground of movable property being mixed up in the same proceedings. An action will not lie in England for the partition of foreign land : Carteret v. Petty, 1676, 2 Sw. 323 note, 2 Ch. Ca. 214, Finch. Or to try the validity of a will of foreign land : Pike v. Hoare, 1763, 2 Eden 182, Henley. Or to establish a charge on foreign land on the ground of the proprietor having acquired it with notice of a contract or attempted disposition in which he was neither party nor privy: Norris v. Chambres, 1861, 29 Beav. 246, Romilly ; affirmed, 1861, 3 D. F. J. 583, Campbell. Prima facie, an injunction cannot be obtained against proceedings in the forum situs with regard to immovables : Moor v. Anglo- Italian Bank, 1879, L. R., 10 Ch. D. 681, Jessel. And see Norton v. Florence Land and Ptiblic Works Company, under § 165. But the doctrine of this § does not seem at one time to have been firmly held. No ground but that of the personal jurisdiction appears for the decrees in Archer v. Preston, cited with approval by Nottingham in Arglasse v. Muschamp, 1682, I Vern. 77 ; Kildare v. Eustace, 1686, I Vern. 419, Jeffreys, Beddingfield and Atkins ; and lord Anglesey's case, mentioned by Hardwicke as a decree of his own settling boundaries in Ireland, in Penn v. Baltimore, I Ves. Sen. 454. Something may have been due in these decrees to the superior authority which the English courts then exercized over Ireland, to lands in which they all re- lated ; but in Foster v. Vassall, 1747, 3 Atk. 589, Hardwicke put the colonies on the same footing as Ireland ; and Nottingham had decided Carteret v. Petty, which also related to land in Ireland. The report of Roberdeau v. Rous, 1738, I Atk. 543, Hardwicke, is scarcely intelligible except as to the point mentioned under § 166. With regard to the last clause of the §, in Bunbury v. Bunbury, 1839, i Beav. 318, Langdale aflSrmed by Cottenham, the defendants were taking proceedings in Demerara to establish there a claim to a certain interest in land there, con- tending that the land had been brought by the lex situs into community between husband and wife. The plaintiff sought that a settlement and will made by the husband, which if the defendants were right could only affect his interest in the land, should be carried into execution with regard both to the land as a whole and to some movable property. And they succeeded in getting the defendants restrained from prosecuting any proceedings in Demerara, on terms no doubt, but that does not affect the principle. In Hope v. Carnegie, 1866, L. R., i Ch. Ap. 320, Turner affirming Stuart, and Knight-Bruce dissenting, where also both movables and foreign immovables were involved (see albove, § 99), the proceed- ings as to the latter in the forum situs were restrained, because it was not proved that they could be carried on as to the latter alone. In Tulloch V. Hartley, 1841, i Y. & C, C. C. 114, Knight-Bruce, a decree appears to have been made for payment of legacies and annuities out of land in Jamaica, and that for that purpose the boundaries of the testatrix's estates in Jamaica might be ascertained, and if necessary settled by commissioners ap- pointed by the Englbh court of chancery. Digitized by Microsoft® IMMOVABLES : REDEMPTION, FORECLOSURE. 185 § 164. The redemption or foreclosure of mortgages of foreign lands deserves separate notice. The fact that a debt is secured by such a mortgage can be no objection to taking the accounts between a debtor and creditor, and decreeing payment by the former of the balance found due from him, in any court having personal jurisdiction over him. Nor would it be inconsistent with § 103 that on payment by the debtor of the amount found due from him, the creditor should be decreed, by any court having personal jurisdiction over him, to reconvey the land or otherwise clear it of the mortgage. But that foreclosure should be decreed on the debtor's failure to pay would appear to be contrary to § 163, and it can hardly be supposed that the foTUtn situs of the security would allow any authority to such a decree, if by the lex situs the mortgage was still redeemable, and proceedings were taken to redeem it. Nevertheless, the practice in England is to decree foreclosure of mortgages of foreign lands. Toller V. Carteret, 1705, 2 Vern. 494, Wright ; Paget v. Ede, 1874, L. R., 18 Eq., 118, Bacon. A bill for the redemption of a mortgage of foreign land has not only been entertained, but an injunction granted in support of it against a proceeding to foreclose the mortgage in the forum situs, on the ground that the accounts could be more conveniently and satisfactorily taken in England. Beckfordx. Wade, 1822, i S. & St. 7, Leach. And Sir L. Shadwell expressed the opinion that, on a bill for re- deeming a mortgage of foreign land, the lex situs should be applied. In Bent v. Young, 1838, 9 Sim. 180, at p. 190. This seems to be generally correct, for otherwise the bare personal jurisdiction might take from the defendant immovable property indefeasibly vested in him by the lex situs, which would be con- trary to § 163 : see § 165. But that reason would not apply, and Shadwell would probably not have expressed the same opinion, where the defendant was bound by some special contract, not merely an incident to the security, so as to bring § 162 into play. Digitized by Microsoft® 186 PRIVATE INTERNATIONAL LAW. § 165. Where a proprietor of foreign immovables, or person interested in such, is not under any obligation relating to them from, or as from, his own contract or tort, and yet the jurisdiction is enter- tained, it must be determined according to the lex situs whether he is bound to give effect out of his property or interest to any contract relating to them, or attempted disposition of them, of or by third parties, on the ground of his having acquired his property or interest with notice of such contract or attempted disposition, or on any other ground. In Martin v. Martin, Bell v. Martin, 1831, 2 Ru. & My. 507, Leach, a con- tract on marriage; in Waterhouse y. Stansfield, 1851, 9 Ha. 234, and 1852, 10 Ha. 254, Turner, a contract for security; and m Hicks v. Powell, 1869, L. R., 4 Ch. Ap. 74i,Hatherley affirming Giffard, an unregistered conveyance ; were held to be not enforceable again st third parties, because not enforceable against them by the lex situs. And in Nortoji v. Florence Land and Public Works Cotnpany, 1877, L. R., 7 Ch. D. 332, Jessel, it was not only held that the question whether a contract for security on foreign land was enforceable against third parties de- pended on the lex situs, but also that the pendency of a suit in the sitits in which the question might be determined was a conclusive objection to enter- taining the claim. In Nelson v. Bridport, 1846, 8 Beav. 547, Langdale, an attempt had been made to dispose of foreign immovables by wiU in a line of settlement, through the device of charging the successor named by the will with a trust. He was com- pellable to execute the trust as far as was possible consistently with the lex situs, being bound quasi ex contractti by his acceptance of the succession ; but having done so, and having thereby acquired a limited interest which by a change in the lex situs was made an absolute one, he was not compellable to employ that ab- solute interest in executing the trusts any further, but might retain it for himself. § 166. Where a money demand is made in a court having personal jurisdiction over the defendant, it is no objection to the demand that it is in any way connected with foreign immovables. Carteret v. Petty, 1676, 2 Sw. 323 note, 2 Ch. Ca. 214, Finch ; account of waste between tenants in common of Irish land. Roberdeau v. Rous, 1738, I Atk. 543, Hardwicke ; account of rents and profits between tenants in common of land in St. Christopher's. Bay ley v. Edwards, 1784, Thurlow, stated in another case of the same name, 3 Sw. 703 ; account of produce of land in J amaica during possession under a will. Lastly, some points which rather belong to English law in the special sense than to private international law, even as forming a part of English law, may be conveniently mentioned in this chapter. Digitized by Microsoft® ENGLISH LAND, LEGITIMACY. 187 § 167. The British sovereign or government must be deemed to be present in every part of the British empire, so that the fact of the sovereign or of a department of government being a necessary party cannot found jurisdiction in England for a suit concerning land in any other part of the empire. Re Holmes, 1861, 2 J. & H. 527, Wood ; Reiner v. Salisbury, 1876, L. R., 2 Ch. D. 378, Malins. § 168. In order that one may iuherit English real estate, he must both be legitimate in accordance with the doctrines of private inter- national law with regard to legitimacy, as to which see above, pp. 83 — 87, and have been born after an actual marriage between his parents, as distinguished from a marriage antedated by a presump- tion or fiction of law; that is, he must not have been legitimated j3er subsequens m.atrimonium, even in a country where such legitimation proceeds on a presumptive or fictitious antedating of the marriage. Birtwhistlev. Vardill, 1826, 5 B. & C. 438 ; Abbott, Bayley, Holroyd, Little- dale : 1830, 2 CI. & F. 571, 9 Bl. N. R. 32 ; opinion of judges to same effect delivered to house of lords by Alexander: 1835, 2 CI. & F. 582, 9 Bl. N. S. ^o ; opinion of Brougham delivered to the effect that the status of legitimacy is suffi- cient, Lyndhurst and Denman reserving their opinions, and appeal ordered to be further argued before the judges : 1839, 7 CI. & F. 895, opinion of Tindal, Vaughan, Bosanquet, Patteson, Williams, Coleridge, Coltman, Maule, Parke and Gurney delivered to house of lords by Tindal, to effect of § : 1840, 7 CI. & F. 940, judgment of house of lords affirming decision moved by Cottenham, Brougham not opposing though not satisfied. In connection with this great case it will be useful to read the Scotch appeal of Fenton v. Livingstone, 1859, 3 Macq. 497 ; Brougham, Cranworth, Wensleydale, Chelmsford. The doctrine of § 168 has often been represented as an appli- cation of the maxim that the lex situs governs immovables. By virtue of that maxim, it is said, he who will inherit English land must prove himself heir by the law of England in the special sense, and therefore legitimate by the law of England in the special sense, which law knows nothing of legitimation per subsequens matri- Tnoniuin. Were succession to personal estate in question, he need only prove himself legitimate by the law of England in the larger sense, which, by virtue of the maxim mobilia sequuntur personam, Digitized by Microsoft® 188 PRIVATE INTERNATIONAL LAW. refers legitimacy when movables are concerned to the personal law, and so in that case adopts as a part of itself the legitimation per subsequens matrimonium which the personal law confers. This is very plausible, but on examination two serious difficulties will be found in it. First, as already pointed out on p. 83, it is thinking in a circle to refer legitimacy to the personal law, since a decision on the legitimacy of the individual is often necessary in order to ascertain his national character or domicile, on which his personal law depends. The question of legitimacy always turns on the legal appreciation of various facts, and what alone private international law gives or can give is an appropriate rule for the legal appreciation of each of those facts separately. Next, if it be laid down that when immovable property is under consideration legitimacy is to be referred to the lex situs, it follows for the same reason that this can have no other meaning than that all the various facts on which it depends are in that case to be appreciated by the lex situs. But then we are led far beyond the question of birth before or after actual marriage. The validity of a marriage even preceding the birth is a necessary element of legitimacy, and this in its turn may depend on the validity of a divorce from an earlier marriage ; so we are obliged to ask, where can we stop in applying the lex situs ? Thus the plausible theory which has been mentioned turns out to be unsatisfactory in its application both to personal and to real estate. Lord Brougham was deeply impressed with the impossibility of stopping at any given point in the application of the lex situs to the circumstances on which legitimacy depends, and urged it strongly in Birtwhistle v. Vardill as a reason for requiring no other quality of legitimacy in an English heir of real estate than that which forms a part of his purely personal status. The truth appears to be that there neither is, nor with any con- venience can there be, any such thing as legitimacy by the lex situs or by any one other law ; that what private international law gives is, and unless excessive difficulties are raised must only be, a personal status of legitimacy, depending on the total result obtained by appre- ciating each fact in the case according to the law appropriate to it. And that therefore it is a misleading contrast, when the question is Digitized by Microsoft® ENGLISH LAND, LEGITIMACY. 189 put as between determining legitimacy by this or that law ; that the true contrast is between accepting and rejecting the personal status of legitimacy as sufficient when the inheritance of English land is in dispute. Birtwhistle v. Vardill should therefore be considered as being what the judges seem to have considered it as mainly being, a decision that a special rule of English law requires birth after mar- riage as an additional condition for such inheritance. In this it is most likely that they were historically accurate, and it is remarkable that d'Argentrd gives a general character to a very similar rule. Nullus princeps, says he, legitimat personam, ad succedendum in bona alterius territorii : Comm. in Patrias Britonum Leges, art. 218, gl. 6, no. 20. The rule is not the same, for the canon law on legiti- mation was too widely received for a rule intended to meet a conflict of laws arising out of its rejection to be framed in such general terms. The context shows that d'Argentrd was thinking of the effect of a foreign judicial sentence of legitimacy, but the case is suffi- ciently analogous. Supposing however that the feudists of all countries were agreed that either a foreign sentence of legitimacy, or a foreign legitimation not arising from any law equally existing in the situs, should not entitle any one to succeed to immovables, this, notwithstanding the agreement, would from its nature be only a rule of the special law of each country, and not a rule for choosing be- tween different special laws, or therefore a rule of private inter- national law as we understand it. § 169. A person who by virtue of § 168 is unable to inherit English real estate is also incapable of transmitting English real estate by inheritance except to his own issue. Jie Don, 1857, 4 Drew. 194, Kindersley. Digitized by Microsoft® CHAPTER IX. GENERAL NOTIONS ON JUEISDICTION. In the course by which, commencing with Chapter III, we have hitherto travelled through the English doctrines on private inter- national law, we have first considered the status of persons, then the cases which bring prominently forward the conception of various rights of property and obligation as forming a group with the person of their owner as its centre, and lastly rights of property themselves. In other words, we have covered the proper ground of what in the ancient nomenclature of the science are called the personal and real statutes, and we must presently enter on the subject of obligation. Now a statute which disposes of a man's personal condition by reason of his conduct or that of others, as by declaring* him married or legitimate by reason of his or his parents' having gone through a certain ceremony, or which disposes of things, including incorporeal rights, on the occasion of such acts or omissions as those which con- stitute testacy, intestacy, or conveyance, is essentially different from a statute which imposes a duty on the ground of contract or tort. In the former cases, a condition or a thing is disposed of, and although active duties may arise out of the condition, the duty which arises in relation to the thing is merely the negative one of not disturbing the enjoyment of its property by the person in whose favour the law has disposed of it. In the latter case, there is nothing to be disposed of, but the active duty of giving, doing or furnishing — dare, facere, prcBstare — is imposed on the party. The laws which deal with the former cases proceed on the ground of an authority in relation to the condition or the thing, as being physi- cally within the territorial limits of the laws, or as being connected, by widely received traditions or conventions, with the regions Digitized by Microsoft® LAW AND JURISDICTION. 191 respectively circumscribed by those limits. The laws which deal with the latter case proceed on the ground of an authority over the agent, including in that term the party who is guilty of an omission to act. But where authority over an agent is concerned, law and jurisdiction are but two aspects of it. We have seen, p. 16, that international rules of law were often deduced from international rules of jurisdiction by force of the maxim si ibi forum, ergo et jus. The justification of that proceeding may be put as follows. First, tradition, convention, or the necessity of the case, points out the jurisdiction in which a determination ought most properly to be had, or can only be had effectively ; secondly, the persons who are concerned in the determination have not, in general, any reason for claiming that that jurisdiction should follow any law but its own ; thirdly, if the matter arises incidentally in another jurisdiction, the certainty which is so important in law requires that it shall be determined as it would be determined in what may be called the primary juris- diction. This statement suits all the cases, but the second link may be put more strongly in the case of obligation than in that of a con- dition or a thing. In the case of an obligation, the matter about which a determination is sought has no existence independent of the law of that which is the primary jurisdiction for enforcing it. That conclusion is involved in the jurisdiction being the primary one. If the authority to which the defendant is rightfully subject imder the circumstances does not consider him to be liable, he is not liable, and there is no more in the case. Of course this must be taken with the qualification that rules for the choice of law on questions of obliga- tion may still survive through the force of tradition, although the rules of jurisdiction out of which they arose may have become obso- lete, or that such rules of law may have been adopted in countries which never adopted the rules of jurisdiction out of which they arose. Such consequences flow naturally from the recognition of a juridical community of nations, but do not affect the principles on which such a community is based. And the qualifications, no less than the doctrine which they qualify, prove the necessity that before entering on the rules for the choice of a law with regard to obliga- tions, the student should be introduced to the history of the doc- Digitized by Microsoft® 192 PRIVATE INTERNATIONAL LAW. trines which have prevailed in Europe about jurisdiction. In that part of the sketch which concerns the Koman system, I shall follow the authority of Savigny, in the eighth volume of his great work on the modern Roman law. In the empire of Justinian, obligations of whatever nature or wherever contracted might be put in suit in the forvutn rei, the per- sonal forum of the defendant. This was, for an Italian, either that of the civitas or respublica of which he was a municeps* or that of the place in which he was domiciled. For the whole of Italy was divided into civitates having original jurisdiction, of one of which every Italian was a member by municipal citizenship, which in- volved subjection to the jurisdiction of that community — forum originis — although he might be domiciled in another such civitas or in a province, and if he were so was subject also to the jurisdiction of his domicile. In principle, the plaintiff had his choice whether to sue in the forum originis or the forum doTnicilii of the defendant, but it is likely that by some express provision, now lost, he was pre- cluded from choosing the former except when the defendant was to be found in the territory to which he belonged by origo. Even however if this was not so, the plaintiff must generally have pre- ferred the forum domicilii, for his own convenience. See above, p. 25. But since the provinces, being subject to the imperial governors, did not contain civitates with original jurisdiction, at least until in late times something of the kind arose in the authority of the de- fensores, a provincial had no other personal forum than his domicile, except so far as he had a forum, originis at Eome, through the edict of Caracalla which extended the Roman citizenship to all the free subjects of the empire. The Roman citizenship had long before been enjoyed by all Italians, through the lex Julia, so that for such of them as did not belong immediately to Rome, but primarily to some other Italian respublica, there existed two citizenships, besides a domicile possibly different from either. As to these Italians, and the provincials after the edict of Caracalla, express texts of the Corpus * Ch'ix ie only used of a Eoman citizen, in opposition to Minus and peregrinws ; but municeps is used of every municipal citizen, whether of a mv/iicipium or of a (olonia, either being a respublica. A oolonia however is not included in munieipium. Digitized by Microsoft® FORUM CONTRACTUS IN ROMAN LAW. 193 Juris show that they could not be sued at Rome in virtue of their citizenship unless actually there, and even then with many excep- tions, known collectively as the jus domum revocandi ; which is the ground for presuming, as above mentioned, that a similar protection existed against all drawing of defendants to answer out of their domicile on the ground of citizenship. Besides the forum rei, the Roman law allowed to the plaintiff the option of suing in the proper jurisdiction of the obligation, for which forum, contractus and rei gestae are modern terms applied more widely than to the particular cases they would seem to indicate. " This jurisdiction," says Savigny, " is to be held as founded in the following cases : — " I. At the place which is specially fixed for the fulfilment of the obligation by the intention of the parties, whether it be so fixed by the verbal indication of some place or other," as in the famous law contaxisse unusquisque in eo loco intelligitur in quo ut solveret se obligavit — Dig. 44, 7, 21 — "or because the act which is to be brought about by the obligation can possibly be performed only at a single place," as in a contract for the sale or lease of land or houses, which implies the delivery of possession. "II. Failing the appointment of a place of fulfilment, this juris- diction may be founded by the fact that the obligation arises out of the debtor's course of business, which is fixed at a particular place."* Examples : The tutela over persons not sui juris, and every kind of curatela. The management of another person's aifairs : whether of all his affairs, by a general agency or attorneyship, or of a certain class of them, as of a manufacture or commercial undertaking : and whether in consequence of a contract — opercB locatce, or Tnandatum not having for its object a single transient affair ; or quasi ex contractu, as proceeding from the will of one party only— ^ego- tiorum gestio, also when not having a single transient affair for its subject. Lastly, one's own regular banking and commission business — argentaria. In many cases falling under this second head ♦ Guthrie. It would be not less accurate, and would suit many of the examples better, to say, as I formerly translated it : " the jorisdiction can be founded on the circumstance that the obligation arises from the transaction by the defendant of affairs connected with a determinate spot." Digitized by Microsoft® 194 PRIVATE INTERNATIONAL LAW. the jurisdiction founded on the transaction of affairs coincides with that founded on the domicile, but they may be distinct. "III. The jurisdiction is also fixed by the place where the obliga- tion arises, if that coincides with the domicile of the debtor." That is, the jurisdiction is then founded on two gi-ounds, and if through the debtor's removing or dying the domicile of his heir or his own new domicile becomes the forum on one of those grounds, he or his heir must still submit to the jurisdiction of the old forum on the other ground. " IV. The place where the obligation arises can also found juris- diction even if it be away from the domicile of the debtor, if the circumstances create an expectation that its fulfilment shall also be at the same place." " Such an expectation is created by one who establishes away from his domicile a commercial business of some duration, and in doing so makes arrangements from which it may be inferred that he will deliver the goods which he there sells in the same place. He thus subjects himself to the special forum of the obligation at the place where the contract is entered into. This is laid down minutely by Ulpian, and that, while warning against the unconditional assumption of jurisdiction merely because a contract is concluded at any place. He justifies this warning by mentioning the case of a person who enters into a contract while on a journey, and of whom it certainly will not be asserted that he subjects himself to jurisdiction at the place of the contract.* " But such a trading relation is to be regarded only as an example, not as the exclusive condition, of a forum of the obligation. For if contracts are concluded during a residence away from the domicile, it is necessary to deduce from the substance of them what notions as to their fulfilment the parties may probably have entertained. If therefore a public officer in consequence of his official duties, or a deputy to a legislative assembly, stays for months at the same place. * The reference is to Dig. 5, 1, 19, § 2. Durisnm.um est qnotquot locu qnis navi- gans vcl iter faciens delatus est, tot locis se defendi. At si quo constitit, non dico jure domicilii, sed tabernulam, pergulam, horreiim, armarium, officinam conduxit, iiique distraxit, egit, dcfendere se eo loci debebit. Digitized by Microsoft® FORUM CONTRACTUS IN ROMAN LAW. ' 195 and there contracts debts connected with his daily subsistence, there is no doubt as to the establishment of the special forum of the obligation. So likewise if debts are contracted for similar purposes during a residence at a watering-place. If on the contrary, during such a residence at baths or a watering-place, contracts as to mer- cantile affairs are entered into of which the further development can be expected only at the domicile, such a jurisdiction at the place where the contract is entered into must be denied. As all here depends on the probable purpose of the parties, a very short residence may in some circumstances suffice to found that jurisdiction. It will be held to exist as against a traveller who refuses to pay his reckoning in a tavern, since in such matters immediate payment is the universal practice, and may therefore be expected by every one. Thus every- thing depends on the relation in which the nature and length of the residence stand to the substance of the obligation." " V. If none of these conditions exists, the forum of the obligation is at the domicile of the debtor." Examples : Contracts made by persons travelling, so far as they do not fall under IV. The action for restitution of the dos, which must be brought at the husband's domicile, and not at the place where the dotal contract was concluded. The case of a manufacturer who sends round an agent to get orders, for the contract is then fulfilled at the seat of the manufacture by despatching the article, as is shown by the fact that from that moment the Roman law put the article at the risk of the buyer, although the property, requiring delivery for its transfer, did not pass till the arrival of the article at its destination. "All these cases, however various they appear, and however accidental their connection may seem, yet admit of being reduced to a common principle. It is always the place of fulfilment that determines the jurisdiction, either that expressly fixed (No. I), or that which depends upon a tacit expectation (Nos. II — V.). .In both cases a volimtaiy submission of the defendant to this jurisdiction is to be assumed, unless an express declaration to the contrary excludes it."* * From I, on p. 193, to this point, all is taken or abridged from Savigny, Syst. d. heut. Kom. reohts, § 370. The passages within inverted commas are as in Guthrie's translation, pp. 160 — 164. o 2 Digitized by Microsoft® 196 • PRIVATE INTERNATIONAL LAW. "The special jurisdiction founded by a delict is unknown to the earlier Roman law, and first arose under the empire. It then found such general acceptance that it was afterwards, even in positive enact- ments, placed in the same rank as the forum domicilii, contractus, rei sitae. It would be a mistake however to regard this forum as merely a particular form of the forum of the obligation, of the so-called forum contractus. For the forum delicti does not arise by a presump- tive voluntary subjection, and therefore the limitations above laid down for the forum of the obligation do not hold good in respect to this. To found this jurisdiction neither domicile nor any other external accessory circumstance is necessary, but it arises from the commission of the delict itself, even at an accidental and temporary residence. This jurisdiction is thus of a very peculiar character, since it is established not by voluntary but by necessary subjection, which however is an immediate consequence of the violation of right of which the delinquent has been guilty. The jurisdiction of the delict is moreover just as little exclusive as that of the contract, but the plaintiff has always his choice between this special one and the general jurisdiction founded on the domicile of the debtor " The question has been raised whether the forum of the obligation extends merely to those actions which arise out of the natural develop- ment of the obligation, and therefore lead to its fulfilment, or also to those which have the opposite direction, seeking the dissolution of the obligation, or to reverse that which has already taken place towards its fulfilment. As a general rule, the first and more limited application of this jurisdiction can alone be admitted. The second and more extensive application can occur only exceptionally, and in the smaller number of cases in which the dissolution of the obligation has a common origin with its beginning, as when the dissolution of an obligation created by contract is derived from a collateral contract added to it " The jurisdiction of the obligation can be made effective only if the debtor is either present in its territory or possesses property there, in which last case the decree against him will be enforced by missio in possessionem. By the older Roman law this alternative condition is unquestionable. By the terms of a law of Justinian we might Digitized by Microsoft® FORUM CONTRACTUS IN MIDDLE AGES. 197 regard it as abolished. But this law is expressed so generally and indefinitely, and mixes up the various jurisdictions so indiscriminately, that the intention to change the former law cannot with any certainty be inferred. Hence too a decretal has paid no regard to it, but adheres to the older Roman law, even to the very phrases. The pre- ponderance of modern practice " — Savigny is not speaking of the practice under modern codes or other legislation, but of that under Roman law where still received — "the preponderance of modern practice has followed this opinion, so that the jurisdiction of the obligation cannot be made effectual against an absent person by the mere requisition of a foreign court. It is not to be denied that by this restrictive condition the forum of the obligation loses a great deal of its importance." * Of the opinions opposed to the above system of Savigny, that which has been most influential in practice is the one, commonly diffused in the middle ages, that the place of contracting an obliga- tion — locus celebrati contractus, or ubi verba proferuntur — and not that destined for its fulfilment, for the most part determined the special jurisdiction in Roman law. In support of that view some words of Ulpian's were cited : proinde et si merces vendidit certo loci, vel disposuit, vel comparavit, videtur, nisi alio loci ut defen- deret convenit, ibidem se defendere. Big. 5, 1, 19, § 2. But this is only the commencement of the passage in the course of which Ulpian warns the reader against the unconditional interpretation of those words, and more fully develops his thought as quoted above, p. 194. Another citation made with a similar purpose was a frag- ment of the work of Gains on the edictum provinciale : At ubi quisque contraxerit. Contractum autem non utique eo loco in- telligitur quo negotium gestum sit, sed quo solvenda est pecunia. Dig. 42, 5, 3. The latter part of this fragment is identical in effect with the law contraxisse, quoted above, p. 193; and it must be taken as a commentary explaining the former part, at uhi quisque con- traxerit. But the whole came to serve the opinion in favour of the locus celebrati contractus through treating the former part as laying * SaTJgny, Syst. d. heut. Eom. rechts, § 371 ; Guthrie's translation pp. 171—174. Digitized by Microsoft® 198 PRIVATE INTERNATIONAL LAW down a rule, and the latter part, with the law contraxisse, as merely providing an exception to that rule in the case of an express contract to pay money in a certain spot, locus solutionis. The general Prus- sian law of civil procedure was drawn up in accordance with these ideas, and laid down that the forum, contractus was at the place, when there was any such, determined by the contract for its fulfil- ment ; if there was none so determined, then at the place where the contract acquired its binding force : part 1, tit. 2, § 149. The opinion however has gained ground that the place of fulfilment, whether determined by the contract or only to be inferred from the nature of the case, furnishes the true forum of the obligation ; and the law of civil procedure enacted in 1876 for the German empire establishes it without distinction as the proper alternative to the forum rei : § 29. There was on the continent one great exception to the Roman system. The forum contractus, whether loci celehrati contractus or loci solutionis, was not received in France during the middle ages. The seigneurs had patrimonial rights of administering justice, and in the royal courts the emoluments of justice were considered as forming for the judges a kind of property, on account of the venality of their ofiices. Consequently the trial in the defendant's domicile, being less the right of the defendant than of the judge, could not be waived by the former, either through his submission when sued elsewhere or through his previous consent in contracting ; and both the seigneurs and the royal courts were authorized to reclaim their justiciables, even when the tribunal seized of the cause was incompetent on the ground of domicile alone, being by Roman principles competent in respect of the matter. The disregard of the interest of the parties which was thus shown was covered by a maxim of decorous sound, that since jurisdiction belongs to public law individuals cannot defeat it.* It was only by the ordinance of commerce of 1673 that & forum contractus was introduced, and then only in actions within the attributions of the juges et consuls, the plaintiff being allowed his choice between the domicile of the debtor, the place where the pro- mise was made and the goods supplied, and that where the payment * Henrion de Pansey, de I'Autorite Judiciaire en France, 3"'« Edition, t. I, pp. 370, 371. Digitized by Microsoft® FORUM CONTRACTUS IN FRANCE. 109 was to be made : tit. 12, art. 17. Art. 420 of the modern code of civil procedure, which applies only to the tribunals of commerce, is substantially a reenactment of the article of 1673 ; but in those matters which in France are called civil the forum, contractus is still unrecognized by legislation, except so far as an indirect recognition may be found in the power of a party to an act to elect, by a clause of the act, a domicile for all proceedings relating to it in a place other than his true domicile : Code Nap., art. 111. On the other hand, the Code Napoleon, art. 14, authorizes Frenchmen to sue foreigners in France, even though not residing there, and even on obligations contracted abroad ; thus introducing the novel conception of a per- sonal forum of the plaintiff, on the ground that a citizen is entitled to demand justice of his state. In consequence of the state of things in France with regard to the forum, contractus, BouUenois points out that the maxim of the lex loci contractus did not there possess that which elsewhere was its chief base, and, instead of admitting it as a rule, he prefers to con- sider separately the motives of decision for each of the cases usually included under it. It has already been noticed — above, p. 17 — that a tendency existed among the greater French lawyers to regard a custom less as a law than as a clue to the intention of the parties, and to allow the custom of the situs to be ousted by the custom of the domicile introduced by the presumed intention. Very naturally, under the circumstances which have now been mentioned, the custom of the domicile tended to prevail also over that of the place of con- tract. Thus the Digest says, si fundus venierit, ex consuetudine ejus regionis in qua negotiu/m gestum, est pro evictione caveri oportet: 21, 2, 6. This was generally understood of the custom of the place of sale, but Dumoulin denied the application of the rule to a vendor and purchaser of one country who happen to contract in another, and considered that the custom of their common domicile, as being that of which they were both aware and which neither can have intended tacitly to reject, should determine the vendor's obliga- tion in the matter.* * See Boullenois, Traits do la personnalite et de la rdalit^ des Lois, t. 2, p. 453 et leg;. Digitized by Microsoft® 200 PRIVATE INTERNATIONAL LAW. Passing now to our own side of the channel, we find ourselves in the midst of quite a different state of things. At the commencement of legal memory the superior courts already possessed an original jurisdiction coextensive with the realm : there were no such local jurisdictions within England as could require any rules by which to distinguish, on the ground of domicile, place of contract or otherwise, the cases which fell under one of them from those which belonged to another. There was indeed room for such considerations in deter- mining what causes the one national or royal jurisdiction would entertain, as contrasted with those which it would hold to belong only to foreign courts, but certain very peculiar doctrines prevented their being much attended to. At common law, it was necessary that the writ by which the action was commenced should be served on the defendant personally and within the realm : hence, if the defendant was out of the realm, there were no means of obtaining a judgment against him on the ground of his domicile or allegiance being English. On the other hand, if the writ was personally served within the realm, a judgment could be obtained against the defen- dant even though his domicile and permanent allegiance were foreign, probably because the temporary allegiance which even a passing stranger was deemed to owe was regarded as a sufficient foundation for the forum rei. Thus domicile, a subject of such importance in the eyes of the Roman, and on the continent of the mediasval lawyer, had no place at all within the purview of the English common lawyer, nor was it taken into account when the processes of distringas and outlawry were applied against defendants on whom personal service could not be efiected. And when the writ of subpoena was invented, and the jurisdiction of the court of chan- cery based on its service within the realm, although the service was allowed to be made either personally or by producing the writ at the defendant's dwellinghouse to some one whose duty it would be to communicate the fact to him, it not being necessary in the latter case that the defendant should be within the realm at the time, yet it was not required that such dwellinghouse should be his domicile. Thus a suit in chancery was free from the necessity of personal service, which had been found so inconvenient in actions at law, but the Digitized by Microsoft® VENUE IN ENGLAND. 201 conception of domicile was as far from being entertained as before, either to restrict the power of proceeding against persons casually present or having a dwellinghouse in England, or to found a power of proceeding against persons domiciled in England, but neither present nor having a dwellinghouse there. Not every action however, for which the writ could be served within the realm, could be tried in England. At common law there were rules of venue, that is, of the locality from which a jury ought to be summoned to try a question of fact ; and these rules, though perhaps devised for no other purpose than to portion out the business as to which the competence of the superior courts was undisputed, reacted on that competence by limiting it to actions for which a venue could be assigned. The classification of personal actions was into local and transitory. The former were those, such as trespasses to land, of which the causes could not have occurred elsewhere than where they did occur. The venue for actions of this class was the county (in- cluding of course the city of London, though not a county) in which the cause occurred : hence for local actions it was necessar}', besides personal service on the defendant within the realm, that the cause should have occurred in England. Transitory actions were those of which it was said that the cause might have occurred anywhere, as a personal injury or a breach of promise, and for these the venue was said to be arbitrary, that is, the plaintiff might lay the venue in any county he pleased. The real place of occurrence therefore might have been abroad, quite as well as in a diiferent county from that iu which the venue was laid, and, if the wi'it was personally served in England, there was no further condition to satisfy. In chancery as there was no jury there was no venue, and no formal requisite the necessity of complying with which might restrain the competence as to suits even connected with land ; and to this cause it may be attributed that at one time the court was far from holding firmly the doctrine expressed in § 163, that its mere personal jurisdiction over the defendant ought not to be made a ground for determining the right to the property or possession of foreign immovables. See above, p. 184. Legal principle applied spontaneously by the courts appears to Digitized by Microsoft® 202 PRIVATE INTERNATIONAL LAW. have modified the original English rules of competence in two ways only. One was the establishment in chancery of the doctrine just referred to : the other was a rule laid down by Eyre and Mansfield at common law, that to prevent a failure of justice a person might be compelled to answer for a local cause of action arising abroad.* But the competence both of the court of chancery and of the courts of common law, with regard to matters and defendants in some way connected with the realm, was extended by statute, or by orders made under statutory authority, at various times from the reign of George the second downwards. To trace the steps of this develop- ment would be out of place here, because it was not connected wdth the growth or reception of the maxims of private international law. The ideas which governed it were not very similar to those which on the continent produced the rules of jurisdiction which in their turn gave birth to rules of law ; and, had those ideas been different, the statutory development of jurisdiction in England did not begin till the maxims of private international law had to a large extent been imported. English notions on jurisdiction were in the main unsuit- able, and the small portion of them which was not unsuitable came too late, for framing in this country rules of law out of rules of juris- diction, by virtue of the principle si ibi forum ergo et jus. The general notions on jurisdiction which have been surveyed in the present chapter will illustrate that process as it took place on the continent, and give an insight into the meaning and scope of the rules of law which resulted from it, a meaning and scope which often clings to them as adopted in England, though it did not arise and indeed could not have arisen here. * See lord Mansfield's judgment in Mostyn v. Fairigas, 1775, Cowp. 161, at pp. 180, 181 ; also the note beginning on p. 210, below. Digitized by Microsoft® CHAPTER X. JURISDICTION IN ENGLAND, AND EXTEBRITORIALITY. Indeed, while the detailed history of jurisdiction in England belongs only to the antiquities of English law and not to the subject of this book, because unconnected with the growth or reception of the maxims of private international law, there is another reason why even the present state of jurisdiction in England may seem to have little concern with my subject. It is very common for the courts of a country to entertain actions under circumstances in which they would not admit that the jurisdiction was sufficiently founded to entitle the judgment of a foreign court, pronounced under similar circumstances, to be recognized as internationally binding. For example, the personal forum of the plaintiff introduced by art. 14 of the Code Napoleon — see above, p. 199 — and copied in other countries whose legislation is based on that code, is not even in France con- sidered to possess any international validity, and no authority is allowed there to a judgment pronounced in one of those other countries on the ground of it. Hence the true question for private international law in the matter of jurisdiction is not what actions are entertained by the courts of a given country, but in what cases those courts will recognize foreign judgments, which with regard to English practice will be considered in another chapter. The former question is as much one of national law in the special sense as is the question whether the law of any country contains peculiar provisions about aliens. It has however interest enough in connexion with our subject to make it worth while to present here the leading rules of jurisdiction, such as they exist in England since the fusion of the superior courts of common law and equity, and even to number them Digitized by Microsoft® 201 PRIVATE INTERNATIONAL LAW. as § §. For fuller details the reader must be referred to the usual treatises on the Supreme Court of Judicature, or on the acts and orders which regulate it. § 170. Nothing in the acts and orders regulating the Supreme Court of Judicature restrains that court from entertaining any action in which the writ has been personally served on the defendant within the realm, and it must be considered to inherit all the power of entertaining such actions which was possessed by the superior courts of common law and equity. On the other hand, its power of entertaining them has been set free from all restraint of local venue, by the following provisions : "There shall be no local venue for the trial of any action, but when the plaintiff proposes to have the action tried elsewhere than in Middlesex, he shall in his statement of claim name the county or place in which he proposes that the action shall be tried, and the action shall, unless a judge otherwise orders, be tried in the county or place so named. Where no place of trial is named in the state- ment of claim, the place of trial shaU, unless a judge otherwise orders, be the county of Middlesex. Any order of a judge as to such place of trial may be discharged or varied by a divisional court of the High Court." Order XXXVI, rule 1. See above, p. 201, as to the ancient operation of local venue in limiting the jurisdiction of the courts of common law. But the personal jurisdiction which tbe English court claims by virtue of the service of the writ within the realm will be restrained in its exercize by the doctrine of § 163. That doctrine, which was gradually elaborated in the court of chancery, is now acknowledged by the Supreme Court, as will be seen from the authorities cited under the § referred to. § 171. " fl) No service of writ shall be required when the defen- dant by his solicitor agrees to accept service and enters an appear- ance. (2) When service is required, the writ shall whenever it is practicable be served in the manner in which personal service is now made ; but if it be made to appear to the court or to a judge that the plaintiff is from any cause unable to effect prompt personal service, the court or judge may make such order for substituted or Digitized by Microsoft® PERSONAL AND OTHER SERVICE. 205 other service, or for the substitution of notice for service, as may seem just." Order IX, rules 1 and 2. The language of Order IX, rule 2, requires some explanation. In § § 172, 173, 174, we shall see modes of service, other than personal, given in certain cases. The name " substituted service," however, is not used for these, which are regarded as exceptions to the maxim of requiiing personal service on defendants, but for the modes of bringing the writ to the defendant's knowledge in cases where that maxim is supposed to apply but personal service is impracticable; such as service at his late dwellinghouse, with or without advertise- ment, and so forth. The cases to which the maxim of requiring personal service on a defendant is supposed to apply, and in which therefore the occasion for substituted service may arise, are : (1) Those of all persons within the realm, not falling under § 172, 173 or 174. Cook V. Dey, 1876, L. R., 2 Ch. D. 218, Hall. (2) Those of all British subjects out of the realm, not falling under § 172, 173, or 174, but falling under § 175 or § 176. Bramwell, in Great Australian Gold Mining Company v. Martin, 1877, L. B., 5 Ch. D. 17. The substitution of notice for service is the name for the mode of bringing the writ to the knowledge of a foreign defendant out of the realm, in cases not falling under § 172, 173 or 174, but falling under § 175 or 176. Westman v. Aktiebolaget Ektnans Mekaniska Snickarefabrik, 1876, L. R., I Ex. D. 237 ; Kelly, Bramwell, Amphlett : Padley v. Camphausen, 1878, 10 Ch. D. 550 ; Jessel, Baggallay and Thesiger, affirming Hall. Lastly, personal service, service under § 172, 173 or 174, substi- tuted service, and notice substituted for service have all the same effect. § 172. " (6) Where parties are sued in the name of their firm, the writ shall be served either upon any one or more of the partners, or, at the principal place within the jurisdiction of the business of the Digitized by Microsoft® 206 PRIVATE INTERNATIONAL LAW. partnership, upon any person having at the time of service the control or management of the partnership business there ; and, subject to the rules hereinafter contained, such service shall be deemed good service upon the firm. (6a) Where one person, carrying on business in the name of a firm apparently consisting of more than one person, shall be sued in the firm name, the writ may be served at the piincipal place within the jurisdiction of the busi- ness so carried on, upon any person having at the time of service the control or management of the business there ; and, subject to any of the rules of the Supreme Court, such service shall be deemed good service on the person so sued." Order IX, rules 6 and 6a. A person resident abroad may be sued under the latter rule, if he carries on business in England in the name of a firm apparently consisting of more than one person. CNeil v. Clason, 1876 ; 46 L, J., N. S., Q. B. D. &c., 191 ; Coleridge and Pollock affirming Cleasby. No doubt a person resident abroad, but being a partner in a firm carrying on business in England, may be sued under the former rule. § 173. " Service of a writ of summons in an action to recover land may, in case of vacant possession, when it cannot otherwise be effected, be made by posting a copy of the writ upon the door of the dwellinghouse or other conspicuous part of the property." Order IX, rule 8. § 174. "(10) In admiralty actions in rem, service of a writ of summons against ship, freight, or cargo on board, is to be effected by nailing or affixing the original writ for a short time on the mainmast or on the single mast of the vessel, and, on taking off the process, leaving a true copy of it nailed or affixed in its place. (11) If the caro-o has been landed or transhipped, service of the writ of summons to arrest the cargo and freight shall be effected by placing the writ for a short time on the cargo, and on taking off the process by leaving a true copy upon it. (12) If the cargo be in the custody of a person who will not permit access to it, service of the writ may be made upon the custodian." Order IX, rules 10, 11, 12. § 175. " Service out of the jurisdiction of a writ of summons or notice of a writ of summons " — see § 171 as to the substitution of notice for service — " may be allowed by the court or a judge : Digitized by Microsoft® SERVICE ABROAD. 207 (1) Whenever the whole or any part of the subject-matter of the action is land or stock or other property situate within the jurisdiction, or any act, deed, will or thing affecting such land, stock or property : and (2) Whenever the contract which is sought to be enforced or rescinded, dissolved, annulled or otherwise affected in any sucli action, or for the breach whereof damages or other relief ai'e or is demanded in such action, was made or entered into within the juris- diction: and (3) Whenever thei'e has been a breach within the jurisdiction of any contract wherever made : and (4) Whenever any act or thing sought to be restrained or removed, or for which damages are sought to be recovered, was or is to be done or is situate within the jurisdiction." Order XI, rule 1. The sub- divisions are not numbered in the rule. " Whenever any action is brought in respect of any contract which is sought to be enforced or rescinded, dissolved, annulled or otherwise affected in any such action, or for the breach whereof damages or other relief are or is demanded in such action, when such contract was made or entered into within the jurisdiction ; or Whenever there has been a breach within the jurisdiction of any contract wherever made : " [That is to say, in all cases falling under subdivision (2) or (3) of the previous rule :] " The judge, in exercizing his discretion as to granting leave to serve such WTit or notice on a defendant out of the jurisdiction, shall have regard to the amount or value of the property in dispute or sought to be recovered ; and to the existence in the place of residence of the defendant, if resident in Scotland or Ireland, of a local court of limited jurisdiction having jurisdiction in the matter in question, and to the comparative cost and convenience of proceeding in England or in the place of such defendant's residence : And in all the above mentioned cases no such leave is to be granted without an affidavit stating the particulars necessary for enabling the judge to exercize his discretion in manner aforesaid, and all such Digitized by Microsoft® 208 PRIVATE INTERNATIONAL LAW. other particulars, if any, as he may require to be shown." Order XI, rule lA. It has been said that the contract to be " affected," in § 175, (2), need not be that on which the action is brought, but may be one the performance of which would be a wrong to the plaintiff, which performance therefore he brings his action to prevent : Harris v. Fleming, 1879, L. R., 13 Ch. D. 208, HaU. This interpretation however appears to be strained, and the cases for which it was intended to provide, so far as they may comprize any cause of action which could fairly be made a subject of English jurisdiction, must fall under sub- division (3) or (4) of § 175, according as the plaintiff's right is founded in contract or in tort. In the case itself the learned judge noticed that sub- division (3) would have sustained his judgment as well. § 175, (2), does not permit service of a writ or of notice out of the jurisdiction on a person not party or privy to the contract mentioned in that subdivision. McStephens v. Carnegie, 1880, W. N. 1880, pp. 11, 51 ; Jessel, Brett and Cotton, reversing Bacon. Damage done to an English ship on the high seas is not done within the jurisdiction, so as to make § 175, (4), applicable. Re Smith, 1876, L. R., i P. D. 300, PhiUimore. In The Queen v. Keyn, 1876, L. R., 2 Ex. D. 63, where a foreign ship came into collision through negligence with a British ship, and the latter was sunk and a passenger drowned, Denman (pp. loi — 108) and Coleridge (p. 158) were of opinion, in opposition to the majority of the court, that the offence of manslaughter was committed on board the British ship. If this view were adopted, and combined with that of § 144, that a British ship on the high seas is British territory, an inference might be drawn that the tort committed on the high seas by coming negligently into collision with an English ship was committed within the jurisdiction, for the purpose of § 175, (4). But Re Smith shows for torts, as the opinion of the majority of the court in The Queen v. Keyn showed for offences, that the place to be considered is not that where the act was completed, but that where the actor was. Order XI, rule lA, guiding to some extent the exercize of the discretion given by Order XI, rule i, was made in consequence of the dissatisfaction caused in Scotland by the latter rule as it stood alone. Exp. McPhcdl, 1879, L. R., 12 Ch. D. 632, Jessel. § 176. " In probate actions service of a writ of summons or notice of a writ of summons may by leave of a court or judge be allowed out of the jurisdiction." Order XI, rule 2. § 177. " (1) Where a defendant is or claims to be entitled to con- tribution or indemnity, or any other remedy or relief over against any other person ; (2) Or where from any other cause it appears to the court or a judge that a question in the action should be determined not onlv as between the plaintiff and defendant but as between the plaintiff, defendant, and any other person, or between any or either of them ; Digitized by Microsoft® SERVICE ABROAD. 209 The court or a judge may, on notice being given to such last men- tioned person, make such order as may be proper for having the question so determined." Order XVI, rule 17. The subdivisions are not numbered in the rule. § 178. " If a person not a party to the action, who is served as mentioned in rule 18 " — the rule giving a part of the mechanism for a notice under rule 17, (1); above, § 177 — "desires to dispute the plaintiff's claim in the action as against the defendant on whose behalf the notice has been given, he must enter an appearance in the action within eight days from the service of the notice. In default of his so doing he shall be deemed to admit the validity of the judgment obtained against such defendant, whether obtained by consent or otherwise : provided always that a person so served and failing to appear within the said period of eight days may apply to the court or a judge for leave to appear, and such leave may be given upon such terms, if any, as the court or a judge shall think fit." Order XVI, rule 20. It is only in principle, and not with regard to the precise term of eight days, that § 178 applies to persons served out of the jurisdiction. In any case of the service of notice out of the jurisdiction under § 177, a time for appearance will be fixed under Order XI, rule 4, for which, as well as for all the other mechanism of English jurisdiction, the reader is referred to the usual treatises. Swansea Shipping Company v. Duncan, 1876, L. R., i Q. B. D. 644; Jessel, Kelly, Mellish, Denman. This case also decided that the whole causes of action between the plaintiff and defendant, and between the defendant and the person served with notice under § 177, (i), need not be identical. § 179. " If a person not a party to the action, served under these rules " — this includes both subdivisions of rule 17 ; above, § 177 — " appears pursuant to the notice, the party giving the notice may apply to the court or a judge for directions as to the mode of having the question in the action determined ; and the court or judge, upon the hearing of such application, may, if it shall appear desirable so to do, give the person so served liberty to defend the action upon such terms as shall seem just, and may direct such pleadings to be delivered, or such amendments in any pleadings to be made, and generally may direct such proceedings to be taken and give such directions, as to the court or a judge shall appear proper for having Digitized by Microsoft® ^ 210 PRIVATE INTERNATIONAL LAW. the question most conveniently determined, and as to the mode and extent in or to which the person so served shall be bound or made liable by the decision of the question." Order XVI, rule 21. Note on Actions for Trespass to Foreign Soil. In the case of the M. Moxham, commenced in the court of admiralty but heard in the Supreme Court after the fusion, a British ship had damaged by collision a pier on the coast of Spain, and the parties had entered into an agreement that the dispute thence arising should be tried in England ; lord justice James observed that, but for such agreement, " very grave diflSculties indeed might have arisen as to the jurisdiction of this court to entertain any action or proceedings whatever with respect to injury done to foreign soil : " 1876, L. R., I P. D. 109. We have seen in § 170 that nothing in the acts and orders regulating the Supreme Court is opposed to such an action, when the writ is served in England : on the other hand there is nothing in those acts or orders that expressly gives the jurisdiction, and the question whether it exists must therefore be decided on a consideration of the powers of the courts from which the Supreme Court inherits. In Skinner \. East India Company, 1665, cited to lord Mansfield in Mostyji V. Fabrigas, Cowp. 168, the king in council propounded to the judges the question " whether Mr. Skinner," who claimed in respect of damage done in foreign and uncivilized regions, " could have a full relief in any ordinary court of law." And they answered " that his majesty's ordinary courts of justice at Westminster can give relief for taking away and spoiling his ship, goods and papers, and assaulting and wounding his person, notwithstanding the same was done beyond the seas. But that as to the detaining and possessing of the house and islands in the case mentioned, he is not relievable in any ordinary court of justice." Lord Mansfield however mentioned a previous action before himself against Captain Gambier, for pulling down houses in British though uncivilized regions, in which an objection founded on the same citation was made, but a case was produced in which lord chief justice Eyre had overruled the objection ; continuing, " and I overruled the objection upon this principle, namely that the reparation here was personal and for damages, and that otherwise there would be a failure of justice ; for it was upon the coast of Nova Scotia, where there were no regular courts of judicature, but if there had been Captain Gambier might never go there again ; and therefore the reason of locality in such an action in England did not hold. I quoted a case of an injury of that sort in the East Indies, where even in a court of equity lord Hcirdwicke had directed satisfaction to be made in damages." Anno 1775, Cowp. 180. It would seem then that in the opinion of Eyre and Mansfield a local action for a cause arising abroad was admissible in spite of the rules of venue ; always, I imagine, sup- posing that the defendant was either a British subject or resident in England, for otherwise the reason for relaxing the rule of venue would fail, since he might be sued in his own country. But in Doulson v. Matthews, 1792,4 T. R. 503, which was an action for expel- ling the plaintiff from his dwellinghouse in Canada, Kenyon and Buller decided against the plaintiff solely on the ground of the distinction between transitory Digitized by Microsoft® EXTERRITORIALITY. 211 and local actions, tl\e wisdom or policy of which BuUer said it was too late to question. In these circumstances it appears that two courses are open. It may be held, on the authority of Skinner v. East India Company and Doulson v. Matthews, that actions for trespass to foreign soil were to the last inadmissible in the common law courts, and this merely on account of a rigid rule of venue ; and then the conclusion will be that there is nothing to oppose the admission of such actions in the Supreme Court, there being in it no local venue. But it may also be held, on the authority of chief justice Eyre and lord Mansfield, that the objection from venue to actions for trespass to foreign soil had no claim to prevail at common law so far as to defeat the ends of justice; and then the conclusion would probably be that the objection should be dealt with in the Supreme Court on the same substantial grounds on which those judges dealt with it at common law. Either way, it may be inferred that there is not now any absolute impediment in all cases to actions for damage done to foreign soil. Exterritoriality. But to the foregoing rules, which determine the actions that will be entertained by the English court, there is a class of exceptions that it especially belongs to our subject to notice, because they are not only directly connected with international law, but are also admitted in all countries on similar principles and with the same or nearly the same limits. These are the exceptions made in favour of states, of sovereigns, and of ambassadors or other persons charged with diplomatic missions. They are grounded on the independence and dignity of the states or sovereigns and of the diplomatists who represent them, and on the necessity of preventing the public busi- ness the latter have to transact from being impeded by the annoyance and loss of time which lawsuits would occasion ; and any violation of the immunities which they create would be regarded as a high breach of public international law. In former times they were carried to an extravagant extent. An ambassador's residence was in most countries an asylum even from criminal justice, and sometimes large franchises were enjoyed by the quarter of the city in which it stood. A fiction, the practical scope of which must not be extended beyond what there is positive authority for in each matter, treated such a residence, and that which a sovereign might occupy while abroad, as forming part of the ambassador's or of such sovereign's countiy, and therefore as being without the territory in which it lay Digitized by Microsoft® ^ 2 212 PRIVATE INTERNATIONAL LAW. in fact. And the name of exterritoriality, derived, from that fiction, has become attached to the whole class of exceptions from rules of jurisdiction now in question. From a general point of view it may be said that so far as a state, or a person within the exception of exterritoriality, is liable to be sued at all, there is no forum, rei gestce, and the forum rei is to be found within the state itself, or in the proper country of the person. But the exception of exterritoriality does not extend to the foruvi rei sitcB, for no country can be expected to renounce the determina- tion of the property in its soil. The doctrines established in England are as follows. § 180. Foreign states, and those persons in them who are called sovereigns, whether their title be emperor, king, grand-duke, or any other, and whether their power in their states be absolute or limited, cannot be sued in England on their obligations, whether ex contractu, quasi ex contractu, or ex delicto : Except that probably a maritime lien may be enforced in an action in rem. against a ship belonging to a foreign sovereign in his private character and employed in commerce. This, if it be so, is an excep- tion to the rule, for a maritime action in rem, is not the less brought against the owners of the ship in question, because all possible owners are concluded by it as well as any parties who may be named or who may appear, or because the writ may be served as mentioned in § 174 ; nor can the action have any other ground than that of an obligation on the owners, whoever they may be. But there may not be the same objection to suing a foreign sovereign in that manner, and in a matter unconnected with his public character, which there would be to serving on him a writ or notice of a writ. Maritime liens are not enforceable against foreign ships of war : The Consti- tution, 1879, L. R., 4 P. D. 39, Phillimore — a case of salvage, and the immunity extended to a cargo with the care and protection of which the foreign govern- ment stated that it had charged itself for public purposes. In the case of The Charkieh, 1873, L. R., 4 A. & E. 59, which was a claim for damage against a ship belonging to the khedive of Egypt and employed in commerce, Sir R. Phillimore decided in favour of the plaintiffs on the grounds that the khedive was neither sovereign nor semi-sovereign, and that even a sove- reign would not have enjoyed immunity under the circumstances. In the case of The Parlement Beige, 1879, L. R., 4 P. D. 129, which was a claim for damage Digitized by Microsoft® EXTERRITORIALITY: SOVEREIGNS. 213 against a public Belgian ship, the same judge decided in favour of the plaintiffs on the ground that she was mainly employed in commerce. But this was reversed by James, Baggallay and Brett, who held that they were precluded from enquiring into the facts of her employment by the declaration of the king of the Belgians that she was in his possession as sovereign and was a public vessel of the state : Times of 28 Feb. i88o. § 181. To the rule laid down in § 180 an exception appears to have existed in the case of a foreign sovereign who was also a British subject. The duke of Cumberland having become king of Hanover in 1837, an ineffectual attempt was made to sue him in this country for what was held both in the court of chancery and in the house of lords to be an act of state. But lord Langdale said " I am of opinion that his majesty the king of Hanover is and ought to be exempt from all liability of being sued in the courts of this country for any acts done by him as king of Hanover, or in his character of sovereign prince, but that, being a subject of the queen, he is and ought to be liable to be sued in the courts of this counti-y in respect of any acts and transactions done by him, or in which he may have been engaged, as such subject " : Buke of Brunswick v. King of Hanover, 1844, 6 Beav. 57. On the appeal in the same case lord Brougham remarked " it is not at all necessary to say that supposing a foreign sovereign, being also a naturalized subject in this country, had a landed estate in this country, and entered into any transactions respecting it, as a contract of sale or mortgage ; it is not necessary to say that a court of equity in this country might not compel him specifically to perform his contract " : 1848, 2 H. of L. 24. And lord Campbell added, " if he," the king-duke, " had been a trustee of a marriage settlement while he resided within this realm, and had become liable in the execution of the trust which he had undertaken and which he was not properly executing, I am by no means prepared to say that the court of chancery would not have had jurisdiction over him " : ih., p. 25. But it is now scarcely possible that a foreign sovereign should be also a British subject, for if a British subject accepted a foreign throne he would surely by such acceptance "voluntarily become naturalized " in the state of which he was sovereign, and thereby lose his British nationality in pursuance of the Naturalization Act 1870, s. 6. Nor tiould a foreign sovereign satisfy the conditions Digitized by Microsoft® 214 PRIVATE INTERNATIONAL LAW. necessary for being naturalized in this country without a special act of parliament, which he could have no motive for seeking, since if he desired to hold land in England he could now do so as an alien. If a foreign sovereign received a conveyance of land in England, and entered into possession of it, it cannot be imagined that a plaintiff, claiming such land by a superior title, would be unable to obtain judgment and dehvery in England ; or that a mortgagee of English land could not have his usual remedies in England because the mortgagor was a foreign sovereigu. The exception of exterritoriality, as above remarked, does not apply to the forum rei sitoe ; and the court would probably request the foreign office to give the sovereign such information by diplomatic means as would be equivalent to serving notice of the writ under § 175, (1). But however it may have been formerly, in the case of a sovereign holding English land as a natural-born or naturalized British subject, it is clear that a foreign sovereign holding such land as an alien could not be compelled by an English court specifically to perform a contract for the sale or mortgage of it. § 182. But a foreign state or person entitled to the privilege of exterritoriality, bringing an action in England, will be bound as a private corporation or person would be bouud, to do complete justice to the defendant with regard to the matters comprized in the action, and will be subject to all cross actions, counterclaims, defences and steps of procedure, which as between private parties would be competent to the defendant for the purpose either of obtaining such complete justice or of defending himself against the plaintiff's claim. It was the old maxim of the court of chancery that he who seeks equity must do equity ; and Paulus says qui non cogitxir in aliquo loco judicium pati, si ipse ibi agat, cogitur excipere actioiies et ad eundem judicem mitti : Dig..5, 1, 22. In Hulletv. King of Spain, 1828, i D. & CI. 169, Redesdale and Lyndhuist affirming the latter, it was decided that a foreign sovereign might sue in a court of equity. It had been objected that " by no possibility can process be issued with effect, or equity done, or a decree enforced against him " ; but Lyndhurst said, •' when he sues here as a plaintiff the court has complete control over him, and may hold him to all proper terms.'' A cross-bill was then filed, and it was decided that the king must answer it personally on oath : King of Spain v. Digitized by Microsoft® EXTERRITORIALITY: CROSS ACTIONS. 215 Hullet, 1833, 1 CI. & F. 333 ; Plunket, Wynford and Brougham, affinriing the latter. In Rothschilds. Queen of Portugal, 1839, 3 Y. & C. Exch. 594, Alderson, a bill of discovery against a foreign sovereign was allowed in a court of equity, in aid of the defence to an action by her at law. In Colombian Government v. Rothschild, 1826, l Sim. 94, it was held by Leach that a foreign republic must sue in chancery in the name of an official on whom process could be served on the part of the defendant, and who could be called on to answer a cross-bill. But it was afterwards established that a republic recognized by the British Government might sue in its own name, and the court would take care that proper means of discovery were afforded : see Prioleau v. United States of America, 1866, L. R., 2 Eq. 659, Wood ; United States of America v. Wagner, 1867, L. R., 2 Ch. Ap. 582, Chelmsford, Turner and Cairns, reversing Wood, L. R., 3 Eq. 724; Republic of Liberia v. Imperial Bank, 1873, L. R., 16 Eq. 179, Malins ; Republic of Peru v. Weguelin, 1875, L. R., 20 Eq. 140, Hall ; Republic of Costa Rica v. Erlanger, 1875, L. R., i Ch. D. 171, James, Mellish and Black- burn, reversing Malins. The court will take judicial cognizance whether a foreign state, suing in its own name, is recognized by the British Government : City of Berne v. Bank of England, 1804, 9 Ves. 347, Eldon. Passing now beyond questions of procedure, the liability of a foreign state or sovereign suing in England, to respect all just defences and to do complete justice to the defendant with regard to the matters comprized in the action, is illustrated by United States of America v. Prioleau, 1865, 2 H. & M. 559, Wood; United States of America v. Macrae, 1867, L. R., 4 Eq. 327, Wood, partly reversed by Chelmsford, L. R., 3 Ch. Ap. 79. § 183. In connection with the rule laid down in § 180, a doctrine must be mentioned which may be best introduced by quoting the words of lord Langdale with reference to the court of chancery. "There have been cases in which, this court being called upon to distribute a fund in which some foreign sovereign or state may have had an interest, it has been thought expedient and proper, in order to a due distribution of the fund, to make such sovereign or state a party. The effect has been to make the suit perfect as to parties, but, as to the sovereign or state made a defendant in cases of that kind, the effect has not been to compel or attempt to compel such sovereign or state to come in and submit to judgment in the ordinary course, but to give the sovereign an opportunity to come in to claim his right, or establish his interest in the subject matter of the suit. Coming in to make his claim, he would, by doing so, sub- mit himself to the jurisdiction of the court in that matter ; refusing to come in, he might perhaps be precluded from establishing any claim to the same interest in another form. So where a defendant in this country is called upon to account for some matter in respect of Digitized by Microsoft® 216 PRIVATE INTERNATIONAL LAW. which he has acted as agent for a foreign sovereign, the suit would not be perfect as to parties unless the foreign sovereign were formally a defendant, and by making him a party an opportunity is afforded him of defending himself instead of leaving the defence to his agent, and he may come in if he pleases. In such a case, if he refuses to come in, he may perhaps be held bound by the decision against his agent." BuJce of Brunswick v. King of Ranover, 1844, 6 Beav. 39. So far as this doctrine is sound, it applies now to the supreme court ; and it certainly is sound as to the first portion, which deals with cases where the court is called on to distribute a fund. The second portion however, which deals with cases where persons have acted as agents for foreign sovereigns, ought to have been expressed in a more guarded manner. If the plaintiff can estabhsh a right in the nature of property or hypothecation to the money or things which the agent holds in his hands within the realm, the matter falls under the same principle as the class of cases in which the court has to distribute a fund. There is in fact a fund within the jurisdiction, the rights in which the court cannot refuse to declare and carry into effect, without a denial of justice similar in kind to that which would take place if the court refused to deliver land to one claiming it by a title superior to that of a foreign sovereign, or to foreclose a mortgage of land against a foreign sovereign. And there would be this further circumstance in favour of exercizing the jurisdiction, that it would be unnecessary to sue the foreign sovereign, because the movables could be reached through the agent, who would be protected against his principal by the judgment. But if the plaintiff only claims by virtue of an obligation alleged to exist on the part of the foreign sovereign or state, he can no more pursue that claim indirectly through the agent than he could do so directly ; and he is defeated by the refusal or omission of the foreign sovereign or state to appear and consent to be bound. Attempts were made in the following cases to apply the latter part of lord Langdale's doctrine, as quoted in § 183; but in none of them was relief ulti- mately obtained, it being held in all that no right in the nature of property or hypothecation to the money or things in the agent's hands had been established. SmM V. Weguelin, 1869, L. R., 8 Eq. 198, Romilly: Larivih-e v. Morgan, Digitized by Microsoft® EXTERRITORIALITY: AMBASSADORS. 217 decided in favour of the plaintiff by Malins and on appeal by Hatherley, 1872, L. R., 7 Ch. Ap. 550, but reversed on further appeal, 1875, L. R., 7 E. & I. A. 423, by Cairns, O'Hagan and Chelmsford : Twycross v. Dreyfus, 1877, L. R., 5 Ch. D. 605 ; Hall, affirmed by Jessel and James. In Gladstone v. Musurus Bey, 1862, I H. & M. 495, Wood, the plaintiffs obtained an interim injunction against the Bank of England as stakeholders, but the case is not traceable further. In Gladstone v. Ottoman Bank, 1863, i H. & M. 505, Wood, the plaintiffs did not rely on any right to money or things in England, but attempted in vain to restrain the Ottoman Bank from enjoying in Turkey the benefit of an act of state of the Turkish sultan, which they alleged was in violation of their rights. They must have equally failed, as the judge pointed out, if they had made a similar complaint of a British act of parliament. In Vavasseur v. Krup;p, 1878, L. R., 9 Ch. D. 351 ; Jessel, affirmed by James, Brett and Cotton ; a foreign sovereign was allowed to remove certain shells, which were his property, out of the country, notwithstanding that the plaintiff claimed to have them destroyed in protection of his patent, infringed by the sovereign's agent. § 184. " All writs and processes that shall at any time hereafter be sued forth or prosecuted, whereby the person of any ambassador or other public minister of any foreign prince or state, authorized and received as such by her majesty her heirs or successors, or the domestic or domestic servant of any such ambassador or other public minister, may be arrested or imprisoned ; or his or their goods or chattels may be distrained, seized or attached ; shall be deemed and adjudged to be utterly null and void to all intents, constructions and purposes whatsoever." St. 7 Anne, c. 12, s. 3. " Provided and be it declared that no merchant or other trader whatsoever, within the description of any of the statutes against bankrupts, who hath or shall put himself into the service of any such ambassador or public minister, shall have or take any manner of benefit by this act." lb,, s. 5. This is the statute passed in consequence of the Russian ambassador having been taken from his coach and imprisoned by a private suitor, and its third section, above quoted, has always been deemed to be merely declaratory of the common law. So far indeed as concerns an ambassador or public minister himself, the immunity extends further than is expressed in that section. Not only is his person privileged from arrest, and his goods or chattels from seizure, but he cannot be sued at all, even for the purpose of obtaining against him Digitized by Microsoft® 218 PRIVATE INTERNATIONAL LAW. a judgment -wbicli may be enforced by execution after be has ceased to be entitled to the privilege. Magdahna Steam Navigation Company v. Martin, 1859, 2 E. & E. 94; Campbell, Wightman, Erie, Crompton. Nor can he be made a defendant as representing his sovereign or state, with the view of giving him an opportunity to appear and defend the rights of such sovereign or state, when they may be adjudicated on pursuant to lord Langdale's doctrine quoted in § 183. Gladstone v. Mnstiriis Bey, 1862, I H. & M. 495, Wood. Nor, when a foreign sovereign or state is made a defendant in such a case as last mentioned, can the writ be served on the ambassador or minister as a means of bringing it to the knowledge of such sovereign or state. Stewart v. Bank of England, 1876, W. N. 1876, p. 263, Jessel. So far as concerns the servants mentioned in the statute, the following quotations illustrate the principles of decision. " To constitute a person domestic servant it is not essential to show that he resides in the house, but if you had shown that this party was a chorister, and in such a situation that the Bavarian ambassador required his attendance from time to time in order to assist in the performance of the religious service of the embassy, I should consider that he was on this ground entitled to some of the privileges of a domestic servant " : Bayley, in Fisher v. Begrez, 1832, i C. & M. 124. Holland spoke to the same effect, adding, what no doubt Bayley also meant, "if such person attends at the chapel": ib., p. 127. " Although he says that he is liable to be called on at any time, he does not show that he has ever actually been called upon by the ambassador to perform any services": Bayley, in Fisher v. Begrez, 1833, 2 C. & M. 243. By the term " domestic," which is distinguished in the statute from " domestic servant," any person belonging to the family or suite of the ambassador or minister must be understood. And it is the doctrine of public international lawyers, though no occasion for applying it seems yet to have arisen in England, that the privilege accorded to the family, suite and servants is that of the ambassador or minister, who may waive it for them, unless indeed they have not Digitized by Microsoft® EXTERRITORI-ALITY : AMBASSADORS. 219 been appointed by him but by his sovereign or state, but who cannot waive his own privilege, because it concerns the dignity of his govern- ment and the convenient transaction of its affairs. It is laid down by similar authority that where an ambassador or minister is a subject of the country in which he is accredited, he enjoys the privilege of exterritoriality only in what relates to his public functions. § 185. Consuls and their family and servants are not entitled to the benefit of § 184. Barbuifs Case, 1738, Forrester's Cases temp. Talbot, 281, Talbot. Digitized by Microsoft® CHAPTEE XL TORTS. When damages are claimed in respect of what is alleged to be a tortious act or omission, the selection of a law by which to decide is free from all question about the voluntary submission of the parties to the law of any country, such as arises in cases of contract, because there has been no dealing in which the parties have concurred. Another contention may be made, suggested by or imitated from what takes place in contract, namely that the defendant has volun- tarily submitted himself to the law of the country in which he has acted or omitted to act, either by the very act or omission, or, if he does not belong to that country, by having entered it. But such reasoning would prove too much, for it would equally cut all the knots of private international law by referring every question to the special laws of the country where the fact which gave rise to it occurred. The truth is that by entering a country, or acting in it, you submit yourself to its special laws only so far as legal science selects them as the rule of decision in each case. Or, more truly still, you give to its special laws the opportunity of working on you to that extent. The operation of the law depends on the conditions, and where the conditions exist the law operates as well on its born subjects as on those who have brought themselves under it. The international law of torts may therefore best be considered inde- pendently of the ideas suggested by contract, and previously to that part of the subject. Starting from the fact that according to the general notions on jurisdiction the forum delicti and the forum rei are equally compe- tent in cases of tort, we have to enquire which of them is the primary Digitized by Microsoft® TORTS. 22^ urisdiction ; not in the historical sense, in which we have seen on p. 196 that the forwm rei is the older, but in the sense of being the more appropriate, and therefore of not being obliged to take any law but its own into consideration. (See page 191.) The forum delicti appears to be entitled to that rank, because the injured person may fairly desire the quickest and easiest redress, without having to follow the wrongdoer to his own country ; also because one of the main objects of law is to maintain the peace within a given territory, and therefore to afford judicial redress for such conduct as, without it, would tend to provoke a breach of the peace. But if the plaintiff choose the forum rei, can he claim that the decision there shall be the same as it would have been in the forum delicti ? It will pro- bably be found that to secure certainty is the leading motive for following in other jurisdictions the law which would have been applied in the primary one ; but this means certainty in the mutual dealings of men, and the motive has little application to the case of a tort, where necessarily there has been no such dealing. A law which gives damages for a wrong must proceed on grounds of justice or public expediency, and if the personal law of the defendant refuses damages which the lex loci delicti commissi would give, the former in adopting the latter, would receive a shock that may well be thought to outweigh in importance the disappointment which a refusal would cause to the plaintiff, even supposing that he has not had an opportunity of suing the defendant with effect where the act complained of was done. On the other hand, if the personal law of the defendant would give damages for what the lex loci delicti com- missi regards as a justifiable act, the defendant may plead that if his act disturbed the social order of any country it was that of the country where it was committed, the law of which therefore is the best authority on the subject. This reasoning tends to the conclusion, which we shall see has been adopted in England, that the lex fori and lex loci delicti com- m^issi must concur in order that an act or an omission may be deemed tortious. On the continent there is no general agreement. Savigny maintains the exclusive authority of the lex fori, " both positivelv and negatively, that is, for and against the application of a law which Digitized by Microsoft® 222 PRIVATE INTERNATIONAL LAW. recognizes an obligation arising out of a delict."* His reason is that all laws relating to delicts have such a close connection with public order as to be entitled to the benefit of what I have called the reser- vation in favour of a stringent domestic policy : above, p. 39. M. Charles Brocher, on the contrary, maintains the authority of the lex loci delicti commissi in terms which would appear to be exclusive, were it not that he goes on to claim for the judge the right of taking considerations of public order into account ; and the result at which he would practically arrive would probably not be very different from that which prevails in England, f § 186. No act can be treated in England as a wrong on the part of any defendant in whom it is not a wrong by the law of the country where it was done, whether that law did not regard him as a wrong- doer at the time, or whether he has since been enabled to justify it in that country by the enactment of an indemnity. It was decided in Regina v. Lesley, i86o, Bell C. C. 220 ; Erie, Wightman, Williams, Watson, Hill ; that a justification under the sovereign authority of the place where the fact was committed is a sufficient answer to a criminal prosecution for assault and false imprisonment abroad. For civil purposes the second case put in the §, which carries the first with it a fortiori, was decided in an action for damages against a late governor ol Jamaica, whose proceedings in time of insurrection had been covered by a colonial act of indemnity : Phillips v. Eyre, 1869, L. R., 4 Q. B. 225 ; Cock- burn, Lush, Hayes ; affirmed 1870, L. R., 6 Q. B. i ; KeUy, Martin, Channell, Pigott, Cleasby, Willes, Brett. Cockburn, delivering the judgment of the court below, said ; " it appears to us clear that where by the law of another country an act complained of is lawful, such act, though it would have been wrongful by our law if committed here, cannot be made the ground of an action in an English court " : u. s., p. 239. And Willes, delivering the judgment of the appeal court, said ; " the act must not have been justifiable by the law of the place where it was done" : u. s., p. 29. In Hart v. von Gnmpach, 1873, L. R., 4 P. C. 439, Montague Smith, an action for damages incurred by an alleged libel in China, which failed because there was a sufficient defence by English law, the question was noticed and reserved, whether proof that the communi- cation was privileged by the law of China would have been a sufficient defence (pp. 464, 5). We must conclude that it would have been so. In the M. Mox- ham, 1876, L. R., i P. D. 107 ; James, Mellish, Baggallay; reversing PhUli- more, 1875, ib. 43 ; a British ship by negligent sailing damaged a pier on the coast of Spain, and it was said that by Spanish law the master and mariners * Syst. d. heut. Ebm. rechtg, § 374 ; Guthrie's translation, p. 206. t NouTeau Traits de Droit International Priv6, p. 315. Digitized by Microsoft® TORTS. 223 were liable, but not the ship or her owners. It was held that if that were so the latter would not be liable in England. " Whatever is a justification in the place where the thing is done ought to be a justification where the cause is tried," had already been said incidentally by lord Mansfield in Mostyn v. Fabrigas, 1775, Cowp. 175. Dobree v. Napier, 1836, 2 Bing. N. C. 781, Tindal and (?), was an action against a British admiral in the Portuguese service, for damages incurred through the seizure of a British ship in Portuguese waters for breach of blockade and carriage of contraband during a civil war in Portugal. The ship was con- demned by a Portuguese court as lawful prize, and the English court gave its judgment in favour of the admiral on the ground that that sentence was con- clusive proof of her having been rightly taken. The case is sometimes quoted in support of the doctrine of the present §, but the fact of the capture having been made in Portuguese waters is only noticed as a part of the answer to the argument that the defendant's Portuguese service was a breach of the foreign enlistment act. § 187. Neither can any act be treated as a wrong in Eniyland which is not such in the defendant by the principles of English law, notwithstanding that the defendant is liable by the law of the country where the act was done. But " the English court admits the proof of the foreign law ... as one of the facts upon which the existence of the tort, or the right to damages, may depend " — " as in the case of a collision on an ordinary road in a foreign country, where the rule of the road in force at the place of collision may be a necessary in- gredient in the determination of the question by whose fault or negligence the alleged tort was committed " — " and it then applies and enforces its own law so far as it is applicable to the case thus established." The passages which in the § are placed between inverted commas are taken from the judgment of the court in The Halley, 1868, L. R., 2 P. C. 193, Selwyn (pp. 203, 4). It was there held that the compulsory employment of a pilot was a sufficient answer on the part of shipowners, to a claim for damages occasioned by a collision which, through the pilot's fault, took place in the territorial waters of a country by the law of which compulsory pilotage furnishes no such defence : reversing Phillimore, 1867, L. R., 2 A. & E. 3. § 188. But the last § must be understood without prejudice to this, that an act may be treated as a wrong in England which is not such in the defendant by English law otherwise than as adopting some rule of public international law. In The Nostra Signora de los Dolores, 1813, Dodson 290, Scott, a part Digitized by Microsoft® 224 PRIVATE INTERNATIONAL LAW. owner of a privateer was held liable for her acts, although by English law in the narrower sense he would not have been so liable, because his name did not appear in her register. § 189. If an act is not justifiable by the law of the country where it was done, and damages can be recovered for it consistently with the principles of English law, it is no answer to a civil action in England that by the lex loci delicti commissi civil proceedings are not allowed to be taken for the act in question unless criminal pro- ceedings accompany or have preceded them, for this is a matter which relates to the form of the remedy, and is therefore governed by the lexfo7'i. Scott V. Seymour, 1862, i H. & C. 219 ; Pollock, Martin, Wilde ; affirmed by Wightman, Williams, Crompton, Willes, Blackburn. § 190. But what if an act be not justifiable by the law of the country where it was done, and yet damages are not recoverable for it at all by that law, although the principles of English law would grant them ? This question is not likely to arise in criminal cases where real pecuniary damage is done, because the law of England is not more liberal than other laws in granting civil remedies as well as criminal ones for such wrongs. But there are countries, as France, in which no damages are allowed to be claimed on the ground of illicit intercourse, the investigation which would arise being thought hurtful to public morality; and there are probably countries in which redress of a penal nature, but not by way of damages, may be obtained for slight assaults or other personal injuries not resulting in real pecuniary loss. The question was suggested by the pleadings in Bcott V. Seymour, but was not properly raised by them, and the point •was consequently discussed there but not decided. Wightman thought that an action would lie in this country by one British subject against another, for an assault committed where the redress that could be obtained was only penal and not by way of damages, but Williams was not prepared to assent. Blackburn doubted whether in such circumstances no damages would be " recoverable for an assault however violent," but was " disposed to think that the fact of the parties being British subjects would make no difference." 1862, i H. & C. 234, 5, 7. Lord Mansfield said in Mostyn v. Fabrigas : " if two persons fight in France, and both happening to be casually here one should bring an action of assault against the other, it Digitized by Microsoft® TORTS. 225 might be a doubt whether such an action could be maintained here, because, though it is not a criminal prosecution, it must be laid to be against tlie peace of the king ; but the breach of the peace is merely local, though the trespass against the person 'is transitory. Therefore, without giving any opinion, it might perhaps be triable only where both parties at the time were subjects .... Can it be doubted that actions may be maintained here not only upon con- tracts, which follow the persons, but for injuries done by subject to subject ? " 1775, Cowp. 176, 179. Since the peace of the king was admittedby Mansfield to be local, it is not in it that he can have seen the reason for thinking that actions for injuries done by subject to subject might be more favourably con- sidered than other actions for injuries done abroad ; and as it is not now necessary to mention such peace in the pleadings of a civil action, it need not be further discussed in this connection. In a case in which the English court would entertain an action for divorce by the husband, it can scarcely be supposed that the corespondent could escape paying damages on the ground that the adultery was committed in a country where they are not recoverable for it, if at least it was committed at a time when the English domicile or residence on which the jurisdiction for divorce is founded (above, §§ 40, 41) already existed. Such adultery would be an injury to a conjugal relation deemed to be entitled to protection in the English court. But then the damages in respect of it, being merely an incident to the proceeding for divorce, could scarcely be drawn into precedent in support of a recovery in an independent action for an injury done abroad. It is probably the better opinion that no such independent action would lie where damages were not granted by the lex- loci delicti commissi, whether the parties were British subjects or not, there being no family relation that could claim the protection of English law, and no civil right acquired by the plaintiff in the primary jurisdiction. § 191. So far as the doctrines stated or considered in the previous § § do not interfere, an action for tort may be brought in England, and an injunction granted even against a foreigner who is in England. Caldwell v. Vanvlissengen, 1851, 9 Hare 415, Turner. § 192. In cases of collision at sea, the owners of the delinquent ship may plead a limitation of their liability to the value of the ship and freight when it is accorded to them by the law of their flag. This follows either from considering the law of the delinquent ship as the le.x loci delicti commissi, in accordance with the fiction by which a ship is deemed to be a part of the territory indicated by her flag, or from holding that there is no local law, and that therefore the defen- dants are subject to no obligation not imposed on them by their personal law. In General Iron Screw Collier Company v. Schurmanns, i860, 1 J. & H. 180, Wood, the British limitation of liability was applied in favour of a British ship Digitized by Microsoft® 9 226 PRIVATE INTERNATIONAL LAW. against a Dutch one, the collision having taken place within three miles from the coast of England. In TheAinalia (Call v. Papayamii), 1863, 1 Mo. P. C, N. S., 471, judgment affirming Lushington pronounced by Chelmsford, the British limitation of liability was applied in favour of a British ship against a Belgian one, the collision having taken place in the Mediterranean. In Cope V. Doherty, 1858, 4 K. & J. 367, Wood ; affirmed, 1858, 2 D. J. 614, Knight-Bruce and Turner ; it was held that the British limitation of liability did not apply to the case of a collision between two American ships more than three miles from the British coast. This must be taken to be clear, but Wood said that if it had been averred and proved that the American law was the same as ours, he would have been competent to apply it as between Americans, but he must still have refused the limitation of liability to the delinquent Americans as against any British part owners of the American ship which was sunk : 4 K. & J. 391. The idea appears to have been that the British limitation of liability was accorded by an act of parliament which the learned judge con- strued as not meant to apply to collisions beyond the three-mile limit, outside which therefore the old rule of unlimited liability remained. But, supposing that it remained outside that limit as a rule of British law, the question how it could bind American delinquents seems to have been overlooked. Calling it " the general law " conduced to this result ; but it should always be asked, " whose law, the law of what power, do you mean by the general law ? " See above, p. 166. § 193. But the owners of the delinquent ship cannot plead a limitation of liability to the value of the ship and freight which is accorded by the law of the plaintiffs' flag but not by that of their own flag. The Carl Johan, 1821, Stowell ; cited in The Dundee, i Hagg. Adm. 113, and in The Girolamo, 3 Hagg. Adm. 186 ; British limitation of liability not applied in favour of Swedish ship against British. Lord Stowell said that if the law of Sweden had adopted a similar limitation of liability, it would have applied on the ground of mutuality. It would then have applied as being the law of the defendants' flag, but the remark points out the objection, from want of mutuality, to allowing the defendant to invoke the law of the plaintiff. § 194. In cases of collision at sea, the compulsory employment of a pilot will exempt the owners in an English court from liability for damage caused by his fault, whatever be the flags and the laws of them, on the ground that no act can be treated as a wi'ong in England which is not such in the defendant by the principles of English law. See § 187. The Christiana, 1828, 2 Hagg. Adm. 183, Robinson : The Vernon, 1842, I W. Rob. 316, Lushington, who put the case on the ground of the lex fori governing the remedy, which maxim properly relates to the form of the remedy Digitized by Microsoft® COLLISION AT SEA. 227 and not to the substance of the right. See the remarks on The Milford, above p. 174. In The Neptune the Second, 1814, Dods. 467, Scott, and The Girolatno, 1834, 3 Hagg. Adm. 169, Nicholl, the coUisions occurred in British territorial waters, and foreign ships were held liable notwithstanding compulsory pilotage, in the former case apparently on the ground that the master was at fault as well as the pilot, and in the latter certainly on that as one of the grounds. There was also some doubt on the then statutes, whether the exemption from liability applied in the court of admiralty or only at common law, but it is difficult to believe that every expression attributed to Sir W. Scott in The Neptune the Second is correctly reported. § 195, When two ships are in danger of collision at sea, the rule of the road to be followed by each is that which is common to their flags, or if at the time no rule is common to their flags, then the old rule which was once common to them. The question about the application of the British statutory rule of the road at sea differs considerably as well from that about the application of the British statutory limitation of liability to the value of the ship and freight, as from that about the application of the British statutory exemption from liability on the ground of com- pulsory pilotage. From the nature of the case, any rule of the road at sea must apply to both or neither of the ships which are approaching each other, while there is no impossibility in the different parties to a collision being bound by different laws with regard to the existence of liability as depending on other considerations than the rule of the road, or with regard to the measure of liability supposing it to exist. See the quotations in § 187 from the judgment of the privy council in The Halley. Also it is a fact, and not a hasty generalization, that there was once a rule of the road at sea common to all the maritime populations of Europe. When therefore the legislature either of the United Kingdom or of any other country alters its rule of the road, it must be presumed, in the absence of expression, to intend that the old rule shall be left standing even for its own subjects, under all circumstances in which the other party to a possible collision does not possess the new rule, and the legislature in question could not claim to impose it on him. In The Dumfries, 1856, Swabey 63, Lushington held that the old rule, and not the British statutory one, applied as between a British and a Danish ship. The decision was reversed on the facts, 1856, Swabey 125, judgment of the Digitized by Microsoft® ^ 228 PRIVATE INTERNATIONAL LAW, privy council delivered by Patteson ; the Dumfries being held to have been in the wrong, even supposing the act of parliament applied, as to which no opinion was given. In The Zollverein, 1856, Swabey 96, Lushington, a Russian ship was not allowed to defend herself against a British one by the latter's violation of the British rule. In The Chaiicellor {Williams v. Gulch), i86r, 14 Mo. P. C. 202, Romilly, the inapplicability of the British rule as between a British and an American ship was conceded. In The Repeater v. The Braga or Krageroe, 1865, 14 L. T., N. S., 258, Kelly, the court of admiralty of Ireland applied the British rule as between a British and a Norwegian ship, the latter being bound by virtue of a convention between the king of Norway and the queen. In The Eclipse and The Saxonia {Hamburgh American Steamship Company V. North 0/ Scotland Banking Company), 1862, 15 Mo. P; C. 262, i Lush. 412 ; judgment affirming Lushington delivered by Romilly ; the British statutory rule was held not to apply as between a British and a foreign vessel in collision at sea within three miles from the coast of England, not even in the Solent, between the Isle of Wight and the mainland of Hampshire. § 196. Where the defendant has tortiously had the use of the plaintiff's money or property in a given country, interest on the value must be allowed according to the rate of that country, and judgment given for the sum which will produce the amount in that country at the rate of exchange. Ekins v. East India Company, 17 18, i P. W. 395, Cowper : affirmed, 1718, 2 Bro. P. C. 382. See below, §§ an and 212. After the slave-trade had been prohibited by British legislation, but while there were still countries which had not prohibited it, a class of cases used to arise out of injuries done at sea by British officers to subjects of those countries, in the course of attempts to suppress slavetrading by them. The actions were held to lie, because the old rule of public international law permitting the slave- trade remained in force in favour of such plaintiffs, and was to that extent a rule of English law ; so that the case fell under § 188, and was not inconsistent with the doctrine in § 192, that where there is no local law a defendant can only be liable according to his personal law. Madrazo v. Willes, 1820, 3 B, & Al. 353 ; Abbott, Bayley, Holroyd, Best. Digitized by Microsoft® CHAPTER XII. CONTRACTS. We now come to the doctrines accepted in England on that part of private international law which relates to contracts, and they may- be entered on without further preface than what has been said in Chapter IX as to the general theory of jurisdiction and its relation to law, and what has been said in Chapter II as to modern con- tinental doctrines on the Foryns of acts, other than judicial ones, and the Intrinsic validity and effects of contracts. Formalities of Contracts, § 197. Subject to § 198, the formalities required for a contract by the law of the place where it was made are sufficient for its external validity in England. GuJpratte v. Young, 1851, 4 De G. & S. 217, Knight-Bruce. See above, on p. 66, that learned judge's approval, exceptional for England, of the principle of the lex loci actus. § 198. But a contract, although externally perfect according to the law of the place where it was made, cannot be enforced in England unless evidenced in such manner as English law requires. This doctrine is based on the maxim that the lex fori governs procedure, but it is far from being universally received abroad, the evidence of a contract being often deemed indistinguishable from it form. Indeed to say that a contract may be validly made without writing, but that it cannot be enforced unless evidenced by writing, appears to be a distinction without a difference, at least when the law of only one countg^^i^^c^oy^ide^d 230 PRIVATE INTERNATIONAL LAW. have a meaning when two legal systems are considered, as in this §, though even then the truth will be that while the lex loci contract as deems the contract to be both valid and enforceable, the lex fori ignores it altogether. The opinion of Boullenois was that the mode of proof, as for example whether by oral testimony or by writing, depended on the law of the place of contract, as being part of the vinculum obligationis ; * and the provision of the Italian code to the same effect may be seen above, p. 38. Savigny says : " The authority of merchants' books as evidence is to be judged accord- ing to the law of the place where the books are kept. Their probativeness indeed appears to belong to the law of process, and hence to be properly subject to the lex fori. But here it is in- separably connected with the form and effect of the judicial act itself, which here must be regarded as the preponderating element. The foreigner who deals with a merchant belonging to a place where mercantile books are probative subjects himself to its local law." t This reasoning might be admitted so far as to receive the evidence of such books on the strength of the lex loci con- tract as ; and to do so would simply amount to regarding the merchant who made the entry in his book as constituted by the lex loci contractus the agent of the other party, empowered to reduce the contract for him into writing in a certain way. But it would still remain that if oi'al evidence were offered which the lex fori excluded, such exclusion, being founded on the desire of preventing perjury, might claim to ovei'ride any contrary rule of the lex loci contractus, not only on the ground of its being a question of procedure, but also because of that reservation in fa\'our of any stringent domestic policy which controls all maxims of private international law. Evidence by writing must be furnished, where required by the 4th section of the statute of frauds, though the kx loci contractus does not require it. LcrouX V. /!roiL'H, 1852, 12 C. B. 801 ; Jervis, Maule, Talfourd. " Traite do la pcrsonnalitu et dc la rtnlitii dcs Loix, t. 2, p. 4.')'J. t Syst. d. )ieut. Ebm, rcchts, § 381 : Guthric'a traublation, p. I'dO, '■ The juridical act " mcansi only " the transaclion," which is so called liccauNC it is of a nature to produce legal consequences, Digitized by Microsoft® FORMALITIES OF CONTRACTS. 231 § 199. The formalities required for a contract by the law of the place where it was made are necessary for its validity in England. " The plaintiff cannot recover upon a written contract made in Jamaica, which by the laws of that island was void for want of a stamp." This is the marginal note of A Ives v. Hodgson, 1797, 7 T. R. 241, in which Kenyon said : " then it is said that we cannot take notice of the revenue laws of a foreign country ; but I think we must resort to the laws of the country in which the note was made, and unless it be good there it is not obligatory in a court of law here." In Bristow v. Sequeville, 1850, 5 Exch. 275 ; Pollock, Rolfe, Alderson, Piatt ; there was no question of proving the contract, but only of proving that the case provided for by the contract had arisen through the fact of a certain payment having been made, and a receipt was allowed to be used as evidence which could not have been so used where it was given for want of the stamp required in that country. The case therefore rested on the maxim that the lex fori governs procedure, and did not raise the point of this §. But Rolfe said ; "the marginal note of Alves v. Hodgson is perfectly correct, although I cannot help thinking that there must be some mistake in the report of the case I agree that if for want of a stamp a contract made in a foreign country is void, it cannot be enforced here. But if that case meant to decide that where a stamp is required by the revenue laws of a foreign state before a document can be received in evidence there, it is inadmissible in this country, I entirely disagree." And Alderson said : " if by the law of a foreign country a document is only inadmissible for want of a stamp, it is a valid contract, and receivable in evidence in another country." There need be no doubt about the accuracy of the report oi Alves v. Hodgson, lord Kenyon, as above quoted from it, points out so clearly that the question to try was whether there was an obligation by the lex loci contractus, and implies so clearly that such an obliga- tion was equally absent whether the promissory note by which, if at all, it was constituted, was called void or inadmissible by that law. Grant that certain evidence may be read, it misses the mark if it only proves that a certain trans- action tock place, and not that an obligation arose on that transaction by the appropriate law. " I should clear!^ aold that if a stamp was necessary to render this agreement valid in Surinam, it cannot be received in evidence without that stamp here. A contract must be available by the law of the place where it is entered into, or it is void all the world over." EUenborough, in Clegg v. Levy, 1812,3 Camp. 167. An annuity granted in England, and secured on land in Ireland, was void in Ireland if it did not comply with the formalities required by the English annuity act : Richards v. Goold, 1827, i Molloy 22, Hart, who said that "a contract void by operation of law in the place where it is made cannot be set up in any other place." I have underlined the words in these judgments which are inconsistent with limiting the inefficacy in England to those contracts which are expressly declared void by the lex loci contractus. In James v. Catherwood, 1823; Abbott, Holroyd, Best; receipts given in France, and inadmissible there for want of a stamp, were admitted in order to prove the loan of money. The only reason given was that no notice can be taken of the revenue laws of a foreign country, a reason of which Pollock appeared to approve when he quoted the case in Bristow v. Sequeville, To Digitized by Microsoft® 232 PRIVATE INTERNATIONAL LAW. impose on a defendant an obligation which he never incurred by the appro- priate law of the transaction, on the ground that he would have incurred it if a foreign revenue law had not stood in the way, is something more than not to notice a foreign revenue law. But in the particular circumstances of James v. Cather-ivood proving a contract of loan was perhaps not indispensable. If the defendant detained the plaintiff's money without lawful excuse, there might be an obligation on him by the law of England to restore it, no matter where he received it ; and so the case, like Biistoiv v. Sequeville, might be reduced to the proof of a fact. In Wynne v. Jackson, 2 Russ. 352, a dictum of Leach is reported, "that the circumstance of [certain] bills being drawn [in France], in such a form that the holder could not recover on them in France, was no objection to his recover- ing on them in an English court." It has been assumed in quoting this dictum that the objection of form was the want of a stamp, but it does not appear to have been so, for it is said that the bills were not " in the form required by the French code." The dictum is therefore quite indefensible, and the case appears to have been ultimately decided both by the vicechancellor, and by Eldon on appeal (1826), on the ground of the consideration for which the bills had been given. See the exception which Romilly made to the doctrine of this § in Van Crutten v. Digby, above, p. 66, with what I have there said. iDicrpretation of Contracts. Supposing that a contract satisfies the conditions required with regard to its formalities, it has next to be interpreted, that is, it must he ascertained what tlie parties meant by the words they have used ; then a question may arise whether the meaning of the parties was not prevented by some rule of law from producing a binding obligation, and therefore, in our subject, a question by what national law the legality of a contract is to be determined ; and lastly, if the contract is found to be a lawful one, it will often happen that the parties have expressed no meaning about the particular consequences of it which are under discussion, whence arises in our subject the question by what national law the unexpressed consequences of a contract are to be drawn from it. On interpretation in private international law there is little to be added to what is said above, pp. 67, 68 : see also pp. 125 — 128. § 200. " Where a written contract is made in a foreign country and in a foreign language, the court, in order to interpret it, must first obtain a translation of the instrument ; secondly-, au Digitized by Microsoft® INTERPRETATION OF CONTRACTS. 233 explanation of the terms of art, if it contains any; thirdly, evi- dence of any foreign law applicable to the case ; and fourthly, evidence of any peculiar rules of construction, if any such rules exist by the foreign law. With this assistance, the court must interpret the contract itself on ordinary principles of construction." Lord Cranworth, in Bi Sora v. PJdllipps, 1863, 10 H. of L. 633. It will be observed that in this passage no rule is laid down as to what law is applicable to the case, supposing, for example, that persons belonging to one country contract in a second for the per- formance of certain things in a third. It is not pretended by the learned lord that the law of any of those countries, as such, would govern the interpretation. A consideration of all the facts might lead to the conclusion that words had been used by the parties in the technical sense of this or that law, or it might lead to the conclusion that they had not agreed in any meaning on the point under dis- cussion. And in the latter case the result might be either that there was no obligation on the point, or that an obligation on the point followed, by some law as such, from another point on which the parties had agreed in a meaning. But in every case the interpreta- tion of their meaning would be a question of fact, as it is put above, on p. 67. It is true that in the same case, p. 638, lord Chelmsford is reported to have said : " it is difficult to understand how the construction of a contract can be a question of fact." But he only desired to say that it was not a question to which a witness could be allowed to depose ; that the witnesses could only depose to the more elementary facts which were to guide the court in interpreting the contract for itself. The words which immediately follow in the report — " the construction of a contract is nothing more than the gathering of the intention of the parties to it from the words they have used " — are equivalent to stating that the question is one of fact in the sense here meant. And although lord Chelmsford added — " if the law applicable to the case has ascribed a peculiar meaning to particular words, the parties using them must be bound by that meaning " — the value of that rule can scarcely extend beyond the case in which the whole transaction, and the persons and things concerned in it, belong to a single territory. To apply it further would require Digitized by Microsoft® 234 PRIVATE INTERNATIONAL LAW. the possession of a rule for the selection of a law on interpretation, which it would be a bold undertaking to furnish. In Duncan V. Campbell, 1842, 12 Sim. 616, Shadwell, a deed executed in Scotland, and in Scotch form, was under the circumstances interpreted accord- ing to the technical sense of the words in English law. Intrinsic Validity and Effects of Contracts. Supposing that -a contract satisfies the conditions required with regard to its formalities, and that it has been interpreted so far as the meaning of the parties has been expressed in it, there remain the questions which have been described on p. 232 as those of its legality and unexpressed consequences, and on p. 35 as those of its intrinsic validity and effects. Another term which is sometimes used, the obligation of a contract, will include them all. At this point begins the competition between the lex loci celehrati contractus and the la.w of the place of fulfilment, intending by the latter the law of that jurisdiction which would be the formn contractus according to true Roman principles. The dicta of the English judges are mainly on the side of the former, which at the time when the maxims of private international law were imported into this country was almost universally preferred on the continent, under the influence of mistaken views as to the forum contractus in Roman law. Also the maxim of the lex loci celebrati contractus coincides with that of the lex loci actus with regard to the formalities of contracts, and even with regard to their interpretation, so far as any one may be disposed to attribute a binding authority to the technical sense of words : consequently, the lex loci actus being little known in England, our judges were led to see the operation of the lex loci celehrcdi contractus in those parts of the subject too, and were thereby confirmed in their adherence to it where it no longer ran parallel to the lex loci actus, but competed with the law of the place of fulfilment. But the reasons which plead for the law of the place of fulfilment as in general determining the obligation of a contract are so substantial, resting as they do on the general probability that it is there such obligation will be discussed and enforced, that the Digitized by Microsoft® LEX LOCI CONTRACTUS. 235 English judges have often abstained from actually giving to the place of contract that paramount influence which their dicta ascribe to it. Thus no dictum in favour of the place of contract can be stronger than that of lord justice Turner, in delivering the judgment of the privy council in The Peninsular and Oriental Steam Navigation Company v. Shancl, 1865, 3 Moo. P. C, N. S., 290. " The general rule is that the law of the country where a contract is made governs as to the nature, the obligation, and the interpretation of it. The parties to a contract are either the subjects of the power there ruling, or as temporary residents owe it a temporary allegiance : in either case equally they must be understood to submit to the law there pre- vailing, and to agree to its action upon their contract. It is of course immaterial that such agreement is not expressed in terms ; it is equally an agreement in fact, presumed de jure, and a foreign court interpreting or enforcing it on any contrary rule defeats the inten- tion of the parties, as well as neglects to observe the recognized comity of nations." Yet the same judge immediately proceeded as follows. " Their lordships are speaking of the general rule ; there are no doubt exceptions and limitations on its applicability, but the present case is not affected by these, and seems perfectly clear as to the actual intention of the contracting parties. This is a contract made between British subjects in England, substantially for safe can-iage from Southampton to Mauritius. The performance is to commence in an English vessel, in an English port ; to be continued in vessels which for this pui-pose carry their country with them ; to be fully completed in Mauritius ; but liable to breach, partial or entire, in several other countries in which the vessels might be in the course of the voyage. Into this contract, which the appellants frame and issue, they have introduced for their own protection a stipulation, professing in its terms to limit the liability which according to the English law the contract would otherwise have cast upon them." According to the French law, in force at Mauritius, a stipulation so limiting the company's liability would be ineffectual ; but the privy council held, reversing the judgment pro- nounced at Mauritius, that it was effectual in the case. " The actual Digitized by Microsoft® 236 PRIVATE INTERNATIONAL LAW. intention of the parties," said Turner, " must he taken clearly to have been to treat this as an English contract, to be interpreted according to the rules of English law ; and as there is no rule of general law or policy setting up a contrary presumption, their lord- ships will hold that the court below was wrong in not governing itself according to those rules." Now let us consider what was involved in the case, and in the judgment as above cited. When a contract was entered into which expressly purported to limit the liability of the company, there could be no serious question but that the parties intended to limit the liability of the company. The real question was whether that in- tention was lawful, and therefore effectual, and this depended on whether the law of England or of Mauritius was to govern : nor was any step really gained by pointing out that the parties, so far as they thought of either law, must have intended to adopt the one which would make their contract good, because the lawfulness of this second intention would remain as open to question as that of the intention to limit the liability of the company. The court at Mauritius held that the law of that island governed because it was the place where the carriage contracted for was to end, and in that sense the place of fulfilment. The privy council decided in favour of tlie law of England, but neither substantially nor nominally on the bare ground of its being the place of contract, notwithstanding the strong dictum with which they commence. Substantially, they point out that the fulfilment of the contract was to be the whole carriage, and not merely its termination, and they refer to the English character of the company by calling the contract one made between British subjects : nominally, they build on the presumed intention of the parties to adopt English law. Now if the reader will turn to Savigny's examination of the forum contractus above, pp. 193 — 5, he will see that the case did not fall under I, because among all the places over which the fulfilment was to extend none was specially fixed, but that it fell under II, by reason of the obli- gation arising out of the company's course of business in England, and also under III, hj reason of the English character of the com- pany ; and that on eit.hei" ground Eijgland was the Koman forwn LEX LOCI SOLUTIONIS, 237 contrachis. It may be confidently believed that if it had been the English law which prohibited the limitation of the company's liability, and the French which allowed it, the decision of the privy council would still have been in favour of the English law, and nothing would have been said about the intention of the parties to adopt the law which made their contract good. And dicta of English judges are not wholly wanting on the side of the place of fulfilment, as against that where the contract was made. In Robinson v. Bland, 1760, lord Mansfield said, " the law of the place can never be the rule where the transaction is entered into with an express view to the law of another country as the rule by which it is to be governed : " Burr. 1078. The question was about the lawfulness of the consideration for a bill of exchange drawn by a person in one country on himself in another; and as the law of the latter country was opposed to a recovery on the bill, and there was nothing but the place the bill was drawn on from which to infer a view to that law, lord Mansfield can have meant by " an express view "to it nothing special to the case, but merely that tacit expectation which may always be said to be directed to the place of fulfilment, even when the result of appealing to that place is to defeat the specific intentions of the parties. § 201. Under these circumstances it may probably be said with truth that the law by which to determine the intrinsic validity and effects of a contract will be selected in England on substantial con- siderations, the preference being given to the country with which the transaction has the most real connection, and not to the law of the place of contract as such. But before coming to the cases in which some other country may compete with the place of contract as the truest seat of the trans- action in question, it will be convenient to take the cases in which the lex fori competes with the law prevailing in the unquestioned seat of the transaction. § 202. A contract which is illegal by its proper law cannot be enforced. This follows from the consideration that no obligation can be imposed by the lex fan as such, that is, when the forum is not the proper forum of the transaction. Digitized by Microsoft® 238 PRIVATE INTERNATIONAL LAW, Her is v. Riera, 1840, n Sim. 318, Shad well. A number of cases have decided that the law of , England does not regard it as wrong to violate the laws of a foreign country concerning revenue or trade, and that therefore a contract of which the proper law is that of England may be enforced notwithstanding that it contemplated such a violation. Flanchew. Fletcher, 1779, i Doug. 251, Mansfield and t : Lever v. Fletcher, 1780, Park on Marine Insurances, 8th edn. p. 506, Mansfield : Simeon V. Bazett, 1813, 2 M. & S. 94, EUenborough and ? ; affirmed, 1814, sub nom. Basett v. Meyer, 5 Taun. 824, Thomson and ? : Sharp v. Taylor, 1849, 2 Ph. 801, see p. 816, Cottenham. The justice of this doctrine need not here be considered, because even if admitted it would not lead lo the conclusion that a contract can be enforced here which produced no obligation by its proper law, when the cause of such invalidity was the violation of the trade or revenue laws of the country concerned. This however was done in Boucher v. Lawson, 1735, Cases temp. Hardwicke 85, Hardwicke, Page and Lee ; unless that case can be supported on the ground that a .contract to carry from one country to another properly belongs to the latter country. See § 210. It may here be mentioned that a contract having for its object to revolu- tionize a friendly country, or to supply funds to an insurgent government not recognized by the sovereign of these realms, will not be enforced in England. Jones V. Garua del Rio, 1823, T. & R. 297, Eldon : Eire v. Thompson, mentioned by Shadwell in Taylor v. Barclay, 3 Sim. 222, Eldon : Macnamara v. LfEvreux, 1824, 3 L. J. Ch. 156, Leach: De Wiitz v. Hendricks, 1824, 9 Moore 586, 2 Bing. 314, Best : Tlwmpson v. Bowles, 1828, 2 Sim. 194 — sitd nom. Thompson v. Barclay, 6 L. J. Ch. 93 — Shadwell : Taylor v. Barclay, 1828, 3 Sim. 213, Shadwell. The last case shows that the court will take judicial notice of the fact that the insurgent government has not been recog- nized, notwithstanding that the contrary is averred in tlie pleadings. When in any pleadings a state is mentioned which has not been recognized by the sovereign of these realms, and it may possibly be not an insurgent one but a new state in a region previously uncivilized, the party averring its e.xistence must prove it : Macgregor v. Lowe, 1824, i C. & P. 200, Ry. & ^lo. 57, Abbott. § 203. Where a contract contemplated the violation of English law, it cannot be enforced here notwithstanding that it may have been valid by its proper law. Biggs V. Lawrence, 1789, 3 T. R. 454 ; Kenyon, Ashurst, Buller, Grose ; all however grounding their opinion on the fact that three of the partners who sued lived in England at the time the contract was made : Clugas v. Penaluna, 1791, 4 T. R. 466, where there was a sole plaintiff, resident in the country of the contract, but a British subject ; on which fact Kenyon grounded his opinion, and possibly Grose, while Ashurst and Buller took the broad ground expressed in the § : Waymell v. Read, 1794, 5 T. R. 599, Kenyon, Buller and Grose ; where the plaintiff was not a British subject, and the doctrine of the § was finally adopted. It had been laid down by lord Mansfield in Holman v. Johnson, 1775, Cowp. 341, but could not be applied either there or in Pellecat Digitized by Microsoft® CONTRACT OPPOSED TO ENGLISH LAW. 239 V. Angell, 1835 ; Abinger, Bolland, Alderson, Gurney ; because the delivery of the goods sold was complete abroad, and nothing was done by the seller to assist in smuggling them into England, though he knew the buyer's intention to do so. In the cases before lord Kenyon the seller packed the goods in a peculiar manner, for the purpose of smuggling. In Santos v. Illidge, 1859, 6 C. B., N. S., 841 ; and on appeal, i860, 8 C. B., N. S., 861 ; the action was for the price of slaves sold by a British subject in Brazil, and the question was whether he had been prohibited from selling them by a British act of parliament. If he had, the contract did not contemplate the violation of British law, but was in actual violation of it, and there could of course be no recovery on it in England. It was held incidentally by Bramwell and Blackburn that a right of property acquired in Brazil to slaves there, through a purchase made there and lawful there, must be recognized in England as a valid Brazilian right, capable of existing and being transferred in that country, even though the purchaser, being a British subject, should be held to have committed felony under a British act of parliament in acquiring it : 8 C. B., N. S., 873, 876. Blackburn however thought the point would be ques- tionable " if the vendor was a domiciled British subject." The doctrine, perhaps even without this limitation, seems plain enough ; but the contrary was held by Willes, Williams and Byles in the lower court, and by Wightman and Pollock in the higher court. § 20^!. Where a contract conflicts with what are deemed in Eng- land to be essential public or moral interests, it cannot be enforced here notwithstanding that it may have been valid by its proper law. The plaintiff in such a case encounters that reservatioii in favour of any stringent domestic policy, with which alone any maxims for giving effect to foreign laws can be received : see above, p. 39. § 203 may be referred to the same principle, but the cases in which a breach of English law is contemplated may usefully be kept distinct from those in which English law declines for other reasons to aid a contract. The difficulty in every particular instance cannot be with regard to the principle, but merely whether the public or moral interests concerned are essential enough to call it into operation ; and where a breach of English law is not contemplated, this is necessarily a question on which there is room for much difference of opinion among judges. ^^^^ ■ Suppose an action to be brought here for money won at play, or lent for the purpose of play, where the lex loci contractus gives a right of action. In Robinson v. Bland, 1760, Burr. 1077, Mansfield gave no opinion on the point, no difference between the law of England and the lex loci contractus being established ; but Denison and Wilmot thought the law of England would in any case prevent the recovery. In Quarrier v. Colston, 1842, i Ph. 147, Digitized by Microsoft® 240 PRIVATE INTERNATIONAL LAW, Lyndhurst held that the law of England would not prevent the recovery. In Wynne v. Callander, 1826, i Russ. 293, Gifford, bills accepted abroad for money lost at play in England were held not to be enforceable here, but it does not appear whether this was on the ground of the domestic policy of the hx fo7-i, or on the ground of the lex loci contractus of the consideration for the bills. The English court will not enforce an agreement between husband and wife which contained a stipulation for facilitating proceedings in England for divorce, or, where the parties are British subjects though domiciled abroad, a stipulation as to the custody of the children which they could not have entered into by English law, even though the objectionable stipulations have been carried into effect : Hope v. Hope, 1S57, 8 D. M. G. 731, Knight-Bruce and Turner ; in which case, 1856, 32 Beav. 351, RomiUy had held that the rest of the agreement might be enforced if the objectionable stipulations had been carried into effect. A contract relating to an English litigation being impeached on the ground of champerty, the law of England condemning it prevails over the lex loci contractus supporting it. Grell \. Levy, 1864, 16 C. B,, N. S., 73; Erie, Williams, Willes, and ?. We now come to the cases in which the competition is not between the lex foi'i and the law pi'evailing in a place which is the unquestioned seat of the transaction. § 205. Contracts relating to immovables are governed by theii- proper law as contracts, so far as the lex situs of the immovables does not prevent their being carried into execution. Cavtpbell v. Dent, 1838, 2 Mo. P. C. 292, Lushington. See also above, § 153- § 206. Contracts impeached as violating monopolies. Pattison v. Mills, 1828, i D. & CI. 342 (and sub nom. Albion Insurance Com- pany V. Mills, 3 W. & Sh. 218), Lyndhurst: contract made by a company sustained on ground of lex loci contractus, notwithstanding that in the com- pany's country the contract would have been illegal because of a monopoly enjoyed there by others. § 207. A contract for service belongs, so far as the liability of the hirer is concerned, to the country where it is made and in which the hirer lives, and not to that in which the service is to be rendered. So decided on the question of liability to interest : Arnott v. Rcdfern, 1825, 2 C. & P. 88, Best. § 208. The operation of a contract of affreightment depends on the law of the flag, that is, on the personal law of the shipowner. Digitized by Microsoft® .CONTRACT OF AFFREIGHTMENT. 241 In Lloyd V. Giiiberi a French ship was chartered by her master to a British ■subject, in. a Danish port, for a voyage from a Haytian port to England ; and the question was as to the owners liability to indemnify the charterer against a bottomry bond on ship., freight and cargo, made during that voyage in a Portuguese port. It was decided in 1864, 3.3 L. J., N, S., Q. B. 241, by BIacl<- burn, Cockburn and Mcllor, that the master's authority to bind the owner towards the charterer depended on the law of his flag ; which was in accordance with the decision of Story, as a United States judge, in Pope v. Nickerson, 1844, 3 Story 465. On appeal, 1865, L. R., I O. B. 115, it was decided by Vv'illes, Erie, Pollock, Martin, Keating and Pigott, not only that this was so, but also that the owner could equally have defended himself by the law of his flag if he had been present in the foreign port and made the contract of affreightment himself In the Louisiana cases of Malpica v. McKowii, 1S30, i Louis. 248, opinion of court delivered by Porter, and Arayo v. Ciirreil^ 1S30, i Louis. 52S, opinion of court delivered by Martin, it had also been held that it made no difference whether the contract of affreightment was made by the owner personally or by the master, but that in either case its operation would depend on the lex loci contractics. The master's authority to bind the cargo by a contract of bottomry may also be considered as a result of the contract of affreightment, by virtue of which he receives the cargo on board ; and in Droege v. Siiart, or Tlie Karnak, i S69, L. R., 2 P. C. 505, Erie, it was held, citing Lloyd v. Guibert, that this authority depends on the law of the flag. The master's authority to bind the ship and freight by a contract of bottomry depends on the same principle as the narrower of the two decisions in Lloyd w. Guibert, for he can have no other authority to bind the owner towards the lender than towards the charterer. It has been seen in § 141 that the acquisi- tion of real rights, as those of pledge or lien, even in movables, is generally to be decided by the lex situs. But if a question of agency arises, the lex situs, as remarked on p. 171, cannot confer an authority as against a person who is not subject to it. Tire law of the flag however is of no autliority as against an insurer : Greer v. Poole, 1880, L. R., S O. B. D. 272, Lush and Cockburn. Laydays run from what by the custom of the port of discharge is considered to be arrival. Nordeii Steamship Company v. Dcinpsey, 1876, L. R., i C. P. D. 654 ; Coleridge, Brett, Lindley. This however belongs rather to the interpreta- tion than to the operation of the contract. See on the subject of this § The Patria, 1871, L. R., 3 A. & E. 436, Philli- more, and The Express, 1872, L. R., 3 A. & E. 597, Phillimore. § 209. General average. Owners are bound by a general average adjustment made at the port of destination according to the law of that port ; and so are insurers, so far as the loss incurred by the insured, or to which the insured is obliged to contribute, arose from a peril insured against or its consequences, or from proper endeavours made in order to avert a peril insured against or its consequences : Harris v. Scaratnanga, 1872, L. R., 7 C. P. 481 ; Bovill, Keating, Brett. This, so far as concerns the liability of insurers, agrees with Waipole v. Ewer, 1789, Park on Marine Insurances, 8 edn,, p. 898, Kenyon ; and with the result in Digitized by Microsoft® 2i2 PRIVATE INTERNATIONAL LAV/. Newman v. Casalet, ib., p. 899, BuUer, though there it was put on usage and not on law : but it overrules Power \. Whitviore, 1815,4 M. & S. 141, Ellen- borough, Le Blanc and Bayley ; in which no usage was proved, and the law was held to be that an insurer is only bound by a general average stated according to his lex loci contractus. § 210. The contract of a carrier to carry passengers or goods from one country to another. As to illegality of charge on the ground of inequality. Erie, and perhaps also Keating, seem to have considered that this would depend on the lex loci contractus, and not on the law of the carrier's country', 'in Brmiley v. South Eastern Raihuay Company, 1862, 12 C. B., N. S., 63 : but it was not necessary to decide the point. As to legality of stipulation limiting liability. Lex loci contractus, v.here the contract is made in the proper country of the company vifhich is the carrier : Peninsular and Oriental Steam Navii^ation Company v. Shand, 1865, 3 Moo. P. C, N. S., 272, Turner. See above, p. 235. In Cohen v. South Eastern Railway Company, 1877, L. R., 2 Ex. D. 253, the company made the contract abroad, in a country the \a.\v of which was held to be the same on the point as that of the company's country ; but had it been necessary to choose between them, Baggallay leant to the lex loci contractus, and Mellisli to the law of the company's country, talcing into account that the other party belonged to the same country, while Brett leant to the latter law without referring to that circumstance. § 211. Interest will be given by the court according to the law of that country in which the principal ought to have been paid. Champant v. Ranelagh, 1700, Pre. Ch. 1 28, i Eq. Ca. Abr. 289, wrongly reported in 2 Vern. 395, Wright; Ellis v. Loyd, 1701, I Eq. Ca. Abr. 2S9 ; Dungannon \. Hackett, 1702, l Eq. Ca. Abr. 288 ; Stapleton v. Conway, 1750, I Ves. Sen. 427, Hardwicke ; (in Connor v. Bellamont, 1742, 2 Atk. 382, Ilardwicke, it probably appeared that the sum secured by the bond was to be paid in Ireland;) Bodily v. Bellamy, 1760, Burr. 1094, Mansfield, where the distinction is drawn between the interest to be incorporated in the judgment and that which the judgment bears, the latter being governed by the lex fori. In the above cases the question was as to the rate of interest, but the rule is the same when the question is whether compound interest is payable : Fergusson v. Fyjfc, 1S41, 8 C. & F. 121, Cottenham. It must be observed that the lex loci solutionis is not expressly made the ground of decision in all the cases cited in this paragraph, but none of them are inconsistent with its being the ground. See also Cooper y. Waldegrave, under § 213 ; and above, § 196. As all usury laws have been repealed in England, it will be sufficient to refer to the cases in which, while they e.\isted, their operation with regard to contracts connected in some way with other countries was considered, without attempting to extract general rules from them. If the validity of a contract as affected by a foreign usury law had to be considered, much might depend on the precise Digitized by Microsoft® JUDGMENT FOR FOREIGN DEBT. 243 character of the law, Dewars. Span, 1789, 3 T. R. 425 ; Kenyon, Ashurst, Biiller, Grose : Harvey v. Archbold, 1825, 3 B. & C. 626; Abbott, Bayley, Littledale ; Anonymous, 1825, 3 Bing. 193, opinion of judges delivered to house of lords by Best: Thompson v. Powhs, 1828, 2 Sim. 194, Shadwell : Exp. . Guilhbcrt, 1837, 2 Dea. 509 ; Erskine, Rose, Cross. § 212. A debt payable abroad being recovered in England, the judgment must be for so much money as, if remitted to tlie country where it ongbt to have been paid at the rate of exchange current at the lime the judgment is recovered, will there produce the amount of the debt. Scott V. Sevan, 1 83 1, 2 B. & Ad. 78, Tentenden, Parke and ?. In Cash V. Kennion, 1804 and 1805, 11 Ves. 314, lord Eldon dwelt on the duty of a person who is bound to pay a certain sum at a certain place on a certain day, to have it there on that day ; and added, " if he fails in that contract, where- ever the creditor sues him, the law of that country ought to give him just as much as he would have had if the contract had been performed." From this the conclusion has been drawn that where the time and place of payment are fixed by contract, the rate of exchange ought to be taken as at the time so fixed : Bert)-ani v. Duhamel, 1S38, 2 Mo. P. C. 212, Pli'skine. But if interest be com- puted at the rate of the place where payment ought to have been made, and then judgment be given for that sum which will produce the amount at the rate of exchange on the date of its recovery, the creditor will receive " as much as he would have had if the contract had been performed." The question in dispute in Bertram v. Duhamel was really one of the measure of damages, as depen- dent on the true appreciation of the transactions. The cases in which the doctrines of this chapter have been applied to bills of exchange and promissory notes may now be conveniently considered together. § 213. The obligation incurred by accepting a bill of exchange or making a promissory note is measured by the law of the place where it is payable. It is a familiar example that the allowance of days of gi-ace is regulated by the law of the place of payment. An acceptance having been vacated by a judgment in the place where the bill was accepted and payable, the acceptor cannot be sued in England : Burrows V. Jamincau, 1726, King ; Moseley i, Scl. Ca. in Ch. 69, 2 Eq. Ca. Abr. 524, Strange 733. The law by reason of which the acceptance was vacated is differently stated in different reports. On default of payment by the acceptor, he is liable to pay interest at the rate fixed by the law of the place where the bill was payable : Cooper v. IValdegravc, 1840, 2 Beav. 2S2, Langdale. See above, § 211. In Chapman v. Cotirell, 1865, 3 H. & C. S65, a promissory note was made at Florence, but dated in London, and delivered in London to the payee by the n 2 Digitized by Microsoft® 241 PRIVATE INTERNATIONAL LAW. maker's agent. For the purpose of jurisdiction, under an enactment now super- seded by § 175, Martin, Bramwell and Channell held that the contract was made in London by the delivery there. § 214. Since the drawer or indorser of a bill of exchange, and the indorser of a promissory note, are sureties for the due performance of the obligation incurred by accepting or making it, the law of the place where the bill or note is payable according to the terms in which it is drawn or made, as regulating such due performance, indirectly affects their obligation by affecting that of the acceptor or maker. During the war of 1870 — i between France and Germany, and the subse- quent troubles in France, French laws enlarged the time for the payment and protest of bills. Everything being rightly done after the expiration of the enlarged time, those who had drawn and indorsed in England bills payable in France remained liable on them. Rouqiiette v. Overmann, 1875, L. R., 10 Q. B. 525, Cockburn, Lush and Quain. In Allen v. Kemble, 1848, 6 IVIo. P. C. 314, Pemberton Leigh, where the acceptor had a right of set off by the law of the country in which the bill was payable, the same right was allowed to the drawer and indorser on the ground of the law of the country in which they had respectively drawn the bill and indorsed it, which so far as concerned their obligation was contrasted in the judgment with the law determining an acceptor's obligation. But set off is not a modification of the defendant's obligation, but a matter incident to the enforcement of it, and therefore belongs to the lex fori ; so that if the acceptor had been himself the defendant he could only have enjoyed it on the ground of the lex fori, not on that of the law of the place where tlie bill was payable. Tlie decision was liowever right, because the drawer and indorser Avere sued where they became parties to the bill, so that the law of that place was in fact the lex fori. See Cockburn in Roiiqnette v. Overmann, u. s., p. 540 ; and the remarl-cs on Gibbs v. Fremont, below, p. 248. In Allen v. Kenible, u. s., the bill was addressed by the drawer to the acceptor at his residence in one country, and made payable by the acceptor in another country. It is no doubt true, as noticed in the judgment, that such an alteration could not affect the obligation either of the drawer or of any one who had endorsed the bill before it was made. § 215. In case of failure by the drawee to accept a bill of exchange, or of failure in payment by the acceptor of a bill of exchange or the maker of a promissory note, the necessity and sufiiciency of a demand or protest, in order to charge any other party to the bill or note, is determined by the law of the place where it was payable. So also a notice of dishonour given according to the law of that place will be sufficient. Digitized by Microsoft® BILLS OF EXCHANGE. 2-15 This is a consequence of the principle of the lex loci actus. Under whatever law the drawer or indorser became a party to the bill or note, so far as his liability depended on acts to be performed at the place where it was payable, he was bound to expect that those acts would be performed in accordance with the law of that place and not otherwise. A snare would be laid for the last holder of the instrument, if he had to follow the directions of any other law with regard to what he has to do there in order to preserve his recourse against previous parties. The authorities may be conveniently taken together with those for the next §. § 216. But when an indorser has been made duly liable on a bill or note, the notice which he must give to his indorser, or to the drawer if there be no intermediate party, depends on the law govern- ing the contract made by the indorsement to him or by the drawing. The drawer of the bill, and each indorser of the bill or note, contracts with the next following party to pay him on due notice of the liability being given ; and such notice must be measured by the law of the contract, whenever no question arises about the formalities to be observed in a particular place. The case of § 215 arose in Rothschild v. Ciirrie, 1841, i Q. B. 43, 4 P. & D. 737 ; Denman, Littledale, Williams, Coleridge ; and was decided in accord- ance with the §, though all the reasoning in the judgment cannot be accepted. It arose again, and was decided in the same way on good grounds, in Hirsch- feld V. Smith, 1866, L. R., i C. P. 340 ; Erie, Byles, Keating, Smith. In Rouquette v. Overmann, mentioned above under § 214, the discussion did not turn only on the substantial question of the enlargement of time for payment, but also on the formal question of the sufficiency of the demand, protest and notice, as not having been made and given within the original time ; and so far as the case turned on that point it is an authority for § 215. The whole doctrine of §§ 215 and 216 was applied in Home v. Rouquette, 1878, L. R., 3 Q. B. D. 514 ; Brett, Bramwell, Cotton. § 217. In Home v. Rouquette, quoted under the last §, a further question which did not then arise was noticed, and the decision of it reserved. When an indorser has been made duly liable on a bill or note, and the indorsement to him was governed by a different law from that governing a still earlier indorsement, or from that govern- ing the drawing of the bill, and he seeks to charge such earlier Digitized by Microsoft® '-M(i PRIVATE INTERNATIONAL LAW. indorser or the drawer, passiDg over his immediate indorser, by what law must the sufficiency of the notice he is to give be measured ? This question involves that of the interpretation of the contracts made by drawing a bill and putting it in circulation and by in- dorsing a bill or note ; and it is not the only one depending on the interpretation of those contracts, or on that of the acceptor's or maker's contract, to which the English authorities give no clear answer. For instance, do parties to a bill or note, so far as their liability depends on an indorsement made by a third party, contract to pay one who takes by an indorsement valid according to its own law, or one who takes by an indorsement valid according to the law of their contract ? The question arises on instruments indorsed in blank in France, where such an indorsement does not transfer the property in a bill or note, though it does so by Eaglish law. In Trimbcy v. Vignic;-, 1834, i Bing. N. C. 151, 4 Mo. & Sc. 695, Tmdal and ?, which was an action against the maker of a promissory note payable in France and indorsed there in blank, the judgment was for the defendant, but it does not appear with certainty whether the French law was adopted on the ground of the place of indorsement or on that of the place of payment. In Lcbel v. Tucker, 1867, L. R., 3 O. B. 77, IMellor and Lush, which was an action against the acceptor of a bill payable in England and indorsed in France in blank, the judgment was for the plaintiff. In Bradlatigh v. De Rin, 1868, L. R., 3 C. P. 538, which was also an action against the acceptor of a bill payable in England and indorsed in France in blank, JNIontague Smith delivered an opinion in favour of the plaintiff, but Bovill and Willes decided against him on grounds which pointed to the place of indorsement, although they distinguished the case from Lcbclw. Tucker on the ground of the place of drawing, on which neither llellor nor Lush had relied. Story (Conflict of Laws, § 316 a) pronounces in favour of the law of the place of indorsement, which seems to be right. The indorser can be expected to follow only his own lex actus. § 218. In §§ 216 and 217 mention has been made of the law governing the drav/ing and putting in circulation of a bill, or the indorsement of a bill or note. This will in general be the law of the place where the bill or note was signed by the drawer or indorser, but if the instrument after being so signed is sent to the taker in another country, the contract, being only coiripleted by the taking, is one of the latter country. Hornc v. Rauquctte, 1878, L. R., 3 O. B. D., point as to the indorsement to Digitized by Microsoft® BILLS OF EXCHANGE. 247 Monforte ; Brett, p. 515; Bramwell, p. 521; Cotton, pp. 523, 4. See also Chapman v. Cottrell, quoted under § 213. § 219. On the dishonour of a bill of exchange either by non- acceptance or by non-payment at maturity after acceptance, the holder is entitled, as dama.q-es due in the latter case from the acceptor and in both cases from the other parties to the bill as guarantors, to the amount of the bill, with interest from the time and at the rate of the place when and where it was payable or would have been so if accepted, and with his costs. He may have recourse to reexchange : that is, he may draw a new bill at sight, on the drawer or any indorser of the original bill, for such a sum that, if sold at the place where the original bill -was payable, it will produce the above amount. The drawer of the new bill, receiving it with the original bill, will become entitled to the latter on paying the former ; and will then be able to recover what he has so paid from the acceptoi', if any, of the original bill, o.s damages which he in his turn has incurred by its dishonour. If no new bill be drawn, still the theory of reexchange determines the amount which the holder can recover from the drawer or an indorser, and ^','hich the drawer or an indorser can recover over from the acceptor, if &ny, supposing that he has himself paid it or that it has been demanded of him and he is liable to pay it. If the contract of the drawer, or of the indorser to whom the holder has recourse, is governed by a law — see § 218 as to this — which fixes a certain percentage on the amount of the original bill in lieu of what would be the actual amount of the redraft on the theory of reexchange, or in lieu of any ingredient entciing into that amount, then, whether a new bill bo drawn or not, such law v/ill determine the liability of the drawer or of such indorsei'j and that of the acceptor in recovery over. Francis v. Rticker, 1768, Ambler 672, Camden ; Aurioi v. Thomas, 17S7, 2 T. R. 52, Buller and Grose ; Walker v. Hamilton, 1S60, i D. F. J. 602, Campbell, Knight-Bruce and Turner ; Suse v. Pompe, i860, 8 C. B., N. S., 538, Byles, Erie and ? ; Re General South American Company, 1877, L. R., 7 Ch. D. 637, Malins. The party who sues the acceptor need not have paid the re- exchange, if it has been demanded of him and he is liable for it : De Tastet v. Baring, 1809, 11 East 265, EUenborough and?. Napier ■•i. Schneider, j8io, 13 East, 420,?, if that case was not a mere action against the acceptor by a Digitized by Microsoft® 248 PRIVATE INTERNATIONAL LAW. holder to whom, recourse had not been had, and Woolsey v. Crawford, 1810, 2 Camp. 445, EUenborough, are not law. Wliere the bills dishonoured had been drawn by a firm in one country on itself in another country, and remained in the hands of parties to whom they had been given by that firm in the first country in connection with transactions which did not contemplate their payment in the other countr)-, the holders were not entitled to damages in the nature of reexchange from the firm as drawers, but could only treat the bills as promissory notes, or resort to the rights which had been suspended by taking them : IVillans v. Aycrs, 1877, L. R., 3 Ap. Ca. 133, Colvile. In Gibbs v. Fre7nont, 1853, 9 Exch. 25, Alderson, Martin and .', it was held that the drawer of a bill dishonoured by non-acceptance is liable to pay interest to the holder only at the rate of place of drawing. No attempt was made to distinguish the case of non-acceptance from that of dishonour by non-payment, or to deny that interest at the rate of the place of payment is the true measure of the damages incurred in cither. But for the usual doctrine that the drawer guarantees the acceptance and payment, there was substituted the doctrine that he gives an order for payment, and contracts that if such order should not pro- duce the desired effect he will pay the amount of the bill in the place of draw- ing. Such a doctrine is inconsistent with the v^fhole theory of reexchange, and not merely with that part of it which relates to the rate of interest ; and it is inconsistent with the first of the two grounds on which Rouquette v. Overiiiann was decided, § 214. The court, in deciding Gibbs v. Fremont, v/as influenced by the dicta in Allen v. Kcmblc, as to which, see above, under § 214. In Auriol V. Thomas, u. s., Buller observed that the interest covered by a fixed rate for reexchange would be that allowed where the bill was payable. Obligations quasi ex contractu. § 220. An obligation quasi ex contractu, like one arising from tort, is occasioned by the act of one party ; but it resembles obli- gations by contract in that the act which occasions it is a lawful one. We have seen on p. 193 that in Eoman law the special forum of an obligation qioasi ex contractu is at the place with which the act that occasions it has the most real connection, and there can be little doubt that the proper law of such an obligation ought generally to be drawn from the same place. For example, any liability under which a husband may lie for the antenuptial debts of his Avife is an obli- gation quasi ex contractu. The act which occasions it is the marriage, and this has the most real connection with the matrimonial .domicile, as well otherwise as because the law of that place deter- mines the effect of the marriage at least on the wife's movable property, and a liability for her antenuptial debts cannot fairly be imposed on the husband except in return for an interest which the Digitized by Microsoft® OBLIGATIONS QUASI EX CONTRACTU. 249 law may give him in her property. But the same way of thinking which upon the obligation of contracts sets up the lax loci celebrati contractus against the lex loci solutionis here sets up the place of celebrating the marriage, as that where the act occasioning the obli- gation quasi ex contractu happened to occur, instead of the domicile with which that act has the most real connection. In De Greiichy v. Wills, 1879, L. R., 4 C. P. D, 362, Grove and Lopes, where a man domiciled in England was also married there after the passing of the Married Women's Property Act 1870, he was held not liable, beyond the assets derived through his wife as mentioned in the act, for antenuptial debts contracted by his wife in Jersey ; but Lopes thought that notwithstanding his English domicile he would have been further liable if the marriage had taken place in Jersey, and Grove thought that perhaps he would have been. Digitized by Microsoft® CHAPTER XIII. TEANSFEE AND EXTINCTION OF OBLIGATIONS. The maxim unumquodque dissolviiur eodem modo quo colligaiur has alv/ays caused a feeliog that the questions what law governs the creation of an obligation, and Avhat law governs its extinction, must be in some way related to one another ; but various and even con- fused opinions have been held as to the nature and extent of the relationship. One source of perplexity has been the attempt to dis- tinguish between an obligation and the right of action on it, as if the obligation or vlnculutn juris, which arises on the occasion of a contract or a tort; was any thing else than the right of action. In the case of a proprietary right a distinction more or less similar may be understood. Wherever physical possession is possible, the law has to deal with an enjoyment which can exist independently of it, and it must choose to whom it will appropriate that enjoj'ment by maintaining or putting him in possession. Then, the enjoyment of the prefeiTed claimant being protected against disturbance by any one whatever, the right which he is said to have is distinguishable from his power of suing the actual disturber, if any, and that power is a true remedy given for the protection of the right. Often a pro- prietary right is disconnected from the right of immediate possession, but if the ideas involved in it are thoroughly followed out possession will always be found to lie at the bottom of them, so long as a corporeal thing, movable or immovable, is concerned. Hence a law which ordains a term of prescription Avith regard to the property in such a thing is correctly expressed if it purports to bar the right, and when the right is gone there can be no longer a remedy. But in a claim on contract or tort, expectation may exist independently of the law but not enjoyment. The law has not to choose to Avhom it will Digitized by Microsoft® PROPERTY AND OBLIGATION. 251 give the right, but whether it will give the right. And the right when given is good only against the contractor or tortfeasor. The right of action against him is not distinguishable from any larger right existing in the case, nor is it a remedy given for the protection of any larger right, but it is the whole of the right. Hence a law which ordains a term of prescription with regard to claims on contract or tort is usually and correctly expressed as barring the action : when the action is gone there is no obligation left. A right being once given on the occasion of a contract or tort, such right may partake of the nature of property as forming part of the wealth of the person in whose favour it exists : thus it may if the law permits be transferred, or transmitted on death to successors. But in whatever degree it resembles property in relation to third parties, it remains obligation as between the person clothed with the right on the one hand, and the contractor or tortfeasor and his representatives on the other hand. Even in such cases as those of patents and copyrights, where the law creates in one party a property, often of considerable value, by .enacting that certain conduct in other parties shall be deemed a tort, the first party's right of action against those others is the subject of the property and not a remedy for the protection of it. Between corporeal and incorporeal things there is this inevitable difference, that while property in the former is the legal regulation of an enjoyment existing independently of the law, property in the case of the latter presupposes the creation by law of the thing of which it is the regulated enjoyment, and that thing is a right but not property. From the principle that in cases of contract and tort the right of action is itself the vincuhwi juris, the consequence follows that when an obligation is spoken of as governed by the lex loci contractus or solutionis, or by the lex loci delicti commissi, this can only be under- stood as meaning that its existence at any moment is refen-ed to such respective law. The nature of an obligation would be ignored if we supposed that its original creation could be separately referred to its proper law, so that it might thenceforward have an independent existence on which another law might seize, and transfer it or enforce it. If the lex fori professes to allow the transfer of an obligation the Digitized by Microsoft® 252 PRIVATE INTERNATIONAL LAW. existence of which it refers, say for example to the lex loci contractus, when that law does not permit such transfer, what it really does is to create a new obligation between one of the contractors and the transferee. Or if the lex fori professes to enforce an obligation the existence of which it refers to the lex loci contractus, after it has ceased to be enforceable by that law, what it really does is to create a new obligation between the plaintiff and the defendant. Whether or not the proceeding is justifiable is a question which may not be concluded by such an analysis, but it is also a question which cannot be intelligently discussed unless the true nature of the proceeding be disclosed by such an analysis. And the true answer appears to be that there is no justification for creating such new obligations, while on the other hand the lex fori may have good reasons for declining to enforce an obligation which in the forum contractus or delicti commissi may be still enforceable. For instance, a statute of limitations may be based on the danger of perjury, which has a, better chance of success when the antiquity of the claim renders the pre- servation of the evidences relating to it less probable ; and in such a case the principle which permits the assertion of any stringent policy of the lex fori might fairly be applied. Transfer of obligations. § 221. When an obligation is assignable by its proper law, lex loci contractus or solutionis or lex loci delicti commissi, the assignee may sue on it in England. luMs V. Dunlop, 1 800, 8 T. R. 595, (.?) ; action of assumpsit, the consideration being tlie assignment of a Scotch bond: O'Callaghan v. Thomond, 1810, 3 Taunt. 82, (?) ; action on an Irish judgment assigned in accordance with Irish law. An English promissory note payable to bearer is transferable for English purposes by delivery in a foreign country, no matter whether by the law of that country it is transferable or not : De la Chawneite v. Bank of England, 1831, 2 B. & Ad. 385 ; Tenterden, Littledale, Park, Patteson. § 222. When an obligation is not assignable by its proper law, lex, loci contractus or solutionis or lex loci delicti commissi, an assignee cannot sue on it in England, at least except subject to all the defences Digitized by Microsoft® TRANSFER OF OBLIGATIONS. 253 which might have been made to a suit by the original party. To that extent it maybe said that there is no real assignment, but merely a question of the name in which the suit is brought. It has been decided that the Enghsh act of parliament, by virtue of which promissory notes made payable to bearer or to order are transferable, applies to foreign notes : Milne v. Graham, 1.823, i B. & C. 192, (?) ; Bentley v. Norlhouse^ 1827, Mo. & Ma. 66, Tenterden. But it did not appear in these cases that the notes were not transferable by the laws of the countries where they were payable. The § is therefore submitted on the ground of principle unopposed by authority. It has been held in Louisiana that the indorsee of a promissory note, by the proper law of which the maker can use against an indorsee all the defences he could use against the payee, must submit to the same defences though by the law of Louisiana such a note is negotiable : Orv v. Winter, 1826, 4 Mar. N. S. 277, opinion of court delivered by Porter. Extinction of Obligations. S 223. An obligation cannot be enforced in Endand after it has S &' been barred by the English statute of limitations, notwithstanding that it has not been barred according to its proper law. British Linen Company v. D7-itmmond, 1 830, 10 B. & C. 903, Tenterden : Pardo V. Biiigliam, 1868, L. R., 6 Eq. 485, Romilly ; and 1869, L. R., 4 Ch. Ap. 735, Hatherley. The same principle was involved in Ruckmaboye v. Mottichinid, 1853, 8 Mo. P. C. 4, 5 Mo. I. A. C. 234 ; where it was decided that a British court of justice established in India, by applying the English statute of limitations to actions on contracts between Gentoos, did not violate the provisions of a charter requiring that the Gentoo laws of contract should be observed between Gentoos. A corresponding determination to that of the § was made for Scotland in Don V. Lippmann, 1837, 5 C. & F. i, Brougham. In the Scotch case of Campbell m. Stein, 1818, 6 Dow. 116, Eldon, it had been recognized as law "that where the merchant creditor resides in England and his debtor in Scotland, the latter may plead" the Scotch prescription : p. 134. In Don v. Zz)^/;«a««, Brougham, referring to this, said : " why is it that the law of the domicile of the debtor was there allowed to prevent the plaintiff from recovering ? It was because the creditor must follow the debtor and must sue him v/here he resides, and by the necessity of that case was obliged to sue him in Scotland. In that respect therefore there was in that case no difference between the lex loci solutionis and the lex fori" : u. s., p. 19. But somewhat inconsistently lord Brougham is made in the same page to say of Campbell v. Stein, " that case cannot be re- conciled with the principle that the loctts solutionis is to prescribe the law." If it be true, as it is, that in the case of a general account, with no particular locus solutionis other than the debtor's domicile, the locus solutionis and that domi- cile agree, it must surely follow that a decision based on the one is at least reconcilable with the other. Digitized by Microsoft® 254 PRIVATE INTERNATIONAL LAW. The last § may very well be justified on the principle stated above, p. 252, that although the lex fori cannot properly create a new obligation after the one which arose by the contract or tort has ceased to exist, it may yet regard its statute of limitations as a stringent rule of domestic policy, in obedience to which it may decline to give effect to that obligation even while existing. But the English and Scotch decisions cited in support of the § do not place it on that ground, but on the extremely questionable one that the term of prescription of an obligation always depends on the lex fori. Accordingly the following §, which is justifiable on that ground alone, if at all, rests on authority as yet uncontradicted in England. § 224. An action can be brought in England on a contract or tort so long as an obligation resulting from such contract or tort would not have been barred by the English statute of limitations, notwith- standing that the obligation which in fact resulted from it has been barred according to its proper law, lex loci contractus or solutionis or lex loci delicti commissi. Hnber v. Steiner, 1835, 2 Bing. N. C. 202, 2 Scott 304, Tindal and (?) : Harris v. Quine, 1869, L. R., 4 O. B. 653 ; Cockburn, Blackburn, Lush, Hayes. A corresponding doctrine to that of the § was laid down for Scotland by Cottenham in Fergusson v. Fyffe, 1841, 8 C. & F. 121 ; " the EngUsh statute of limitations is irrelevant"; p. 140. It Avould not fall within the scope of this work to examine in detail the various opinions entertained in foreign countries on the subject of the last two § §. The old continental authorities were very much divided between the law of the forum and the special law of the obligation, as determining the time of prescription ; and some who admitted the authority of the latter law in the matter of prescription, when it resulted from the fact that the parties to a contract had named a place for its performance, did not allow any authority in that matter to the lex loci contractus as such. There was afterwards a time when the courts of cassation or appeal in the principal con- tinental countries so generally agieed in referring the prescription of obligations to their special law, in every case, and whether the term thence arising was longer or shorter than that of the forum, that that doctrine, which had also the great autlioi'ity of Savigny in its favour. Digitized by Microsoft® EXTINCTION OF OBLIGATIONS. 265 might be called the usual European one. But the later continental decisions are again discordant. Story pronounces for the lex fori with a positiveness which he does not always show where the writers who preceded him are so divided, but he mentions with apparent approval a distinction which must be noticed here, because Tindai quoted it from him, also with approval, in Huber v. Steiner. " Suppose," says Story, " the statutes of limitation or prescription of a particular country do not only extinguish the right of action, but the claim or title itself, ipso facto, and declare it a nullity after the lapse of the prescribed period ; and the parties are resident within the jurisdic- tion during the whole of that period, so that it has actually and fully operated upon the case ; under such circumstances the question might properly arise whether such statutes of limitation or prescription may not afterwards be set up in any other country to which the parties may remove, by way of extinguishment or transfer of the claim or title." (Conflict of Laivs, § 582.) It has been shown in the intro- ductory paragraphs of this chapter that the distinction between the title and the right of action belongs to property and not to obligation ; and the case before the supreme court of the United States which Story quotes as an authority that " the bar of a statute extinguish- ment of a debt, lege loci, ought equally to be held a peremptory ex- ception in every other country" — Shelby v. Grey, 11 Wheaton 361 — was one concerning the property in a slave. Coming now to the extinction of obligations by discharges under bankrupt laws, similar arguments to those which have been used on the subject of prescription would seem to show that an obligation which has been discharged under the bankrupt law of its special forum, or in other words under its special law, ought to be regarded everywhere as discharged ; and that there may bo reasons why an obligation ought no longer to be enforced, after its discharge has been pronounced even by some other law than its special one. For example, a discharge under the bankrupt law of the forum will be analogous to the expiration of the term allowed by the lex fori for bringing an action. If the discharge or the limitation be expressly extended by the lex fori to all debts, the court will in either case be positively bound to apply such law : if it be a matter of inference Digitized by Microsoft® 256 PRIVATE INTERNATIONAL LAW. ■whether the law was meant to extend to foreign claims, the reasons for presuming such an intention will be about equally strong in the case of bankruptcy as in that of prescription. A system of bank- ruptcy which draws the debtor's foreign property within its adminis- tration so far as it is able, and admits foreigu claims to proof, cannot in fairness refuse to the debtor its protection against the further prosecution of foreign claims. But what if the discharge be under the bankrupt law of the debtor's domicile, such being neither the forum in which it is pleaded, nor tlie special forum of the obligation ? If an international system were established by which a bankruptcy in the debtor's domicile drew with it the administration of all his property, wherever situate, and the equal distribution of the mass among all his creditors, and by which a bankruptcy taking place in any other forum was not permitted to have any operation as to pro- perty situate out of its territory, it would be reasonabls to allow a universal efficacy to the discharge of a debtor under tlie bankrupt law of his domicile. We have seen in chapter VI how widely the actual state of things differs from this ideal ; but just as a rather va^ue feeling exists in favour of the unity of administration by a bankruptcy in the domicile, so also a rather vague feeling exists in favour of the universality of a discharge by a bankruptcy in the domicile. The English doctrines are as follows, i^remising, as in chapter VI, that insolvency, sequestration, or v/hatever else the local name may be, and compositions with creditors operating under any such laws, are here included under bankruptcy. § 225. The discharge of an obhgation under a bankruptcy of the debtor in its special forum — locus contractus or solutionis, or locus delicti commissi— will be deemed to discharge him from it in England. Ballaniine v. Golding, 1783, i Cooke's Bankrupt Laws, 8th edn., p. 487, Mansfield : PoiUr v. Broivn, 1S04, 5 East 124 ; EUcnborougli, Lawrence, Grose, Le Blanc : Quclinv. Moisson, 1828, l Knapp 266, (?) : Garaincr \\ Houghton, 1862, 2 B. & S. 743; Cockburn, Wightman, Crompton, Blackburn. Lord Ellen- borough, in the second of these cases, reported lord Mansfield as having laid down in the first " that what is a discharge of a debt in the country where it was contracted is a discharge of it everywhere." Cooke had reported him as Digitized by Microsoft® EXTINCTION OF OBLIGATIONS. 257 saying that " where there is a discharge by the law of one country it will be a discharge in another," which being cited to the court of king's bench in Pedder V. Macmaster, iSoo, 8 T. R. 609, Le Blanc and (?), they were naturally at a loss to know on what principle lord Mansfield had really proceeded, and gave a decision inconsistent with the §. § 226. But the discharge of an obligation under a bankruptcy of the debtor in a country Avhich was not its special forum will not be deemed to discharge him from it in England, unless the bankruptcy took place either in the debtor's domicile or under the provisions of an act of the parliament of Great Britain and Ireland. Quin V. Keefe, 1795, 2 H. Bl. 553, Eyre and BuUer : Smith v. Buchanan, 1800, I East 6 ; Kenyon, Lawrence, Grose, Le Blanc : Lewis v. Owen, 1821, 4 B. & Al. 654, (?) : Phillips V. Allan, 1828, 8 B. & C. 477 ; Bayley, Holroyd, Littledale ; all however agreeing that it might have made a difference if the plaintiff had sought to share in the distribution of the defendant's estate under the foreign bankruptcy: Barlley y. Hodges, 1861, i B. & S. 375, Wightman and Black- burn. In all of these cases the bankruptcy appears to have been founded on a real connection of the debtor with the country where it took place, but in none of them did it appear that the debtor was domiciled in that country ; and in Bartley v. Hodges Blackburn said of the colonial law granting the discharge in question, "it does not bind here in a case where neither the plaintiff nor the defendant is domiciled in the colony." I have therefore deemed it necessary, in framing the §, to reserve the case of a debtor discharged by the bankruptcy lav/ of his domicile ; but it is impossible to read the judgment of Kenyon in Smith V. Buchanan without seeing that he regarded the bankrupt's domicile as unimportant. § 227. Where a bankruptcy takes place in any part of the British dominions under the provisions of an act of the parliament of the United Kingdom of Great Britain and Ireland, it will be presumed that parliament intended to give to discharges under such bankruptcy an operation coextensive with its authority, and such discharges will therefore operate in every British court, irrespective o1^ the special forum of the obligation discharged. Cases on the extent of a discharge under the bankrupt law of England. Odwin V. Forbes, 1817, Buck 57, privy council on appeal from Demerara : Edwards v. Ronald, 1830, i Knapp 259, privy council on appeal from Calcutta, judgment delivered by Lyndhurst : Ellis v. McHenry, 1871, L. R., 6 C. P. 228; Bovill, Willes, Keating, Brett ; where it was held that a composition deed operating under the bankrupt law of England might have been pleaded in Canada to an action for a Canadian debt. But a discharge in an English bank- ruptcy does not take away the jurisdiction already acquired by a colonial court Digitized by Microsoft® & 2.).S PRIVATE INTERNATIONAL LAW. to punish the debtor for offences committed against the insolvent law of the colony : Gill v. Barron, 1868, L. R., 2 P. C. 157, Kelly. Cases on the extent of discharges under the bankrupt laws enacted for other British countries by the imperial parliament. Philpotts v. J?eeei,'i8ig, i Br. & Bi. 294, Dallas and (?) ; law enacted for Newfoundland, and expressly discharg- ing from debts contracted in Great Britain or Ireland. In Sidaway v. Hay, 1824, 3 B. & C. 12, Abbott, Bayley and Holroyd ; law enacted for Scotland ; and in Ferguson v. Spencer, 1840, i M. & Gr. 987, Tindal, Bosanquet and (?) ; law enacted for Ireland ; the operation of the discharge was arrived at by inference, and the result was in accordance with the §. Digitized by Microsoft® CHAPTER XIV. DOMICILE. We have seen that in the Eoman empire every one might be sued in his domicile for all personal matters, and no one could be sued elsewhere for any such matter except in its special forum or in the place to which he belonged by citizenship, the power of suing him in the latter places being further restricted by the condition of his being actually in them, or, in the case of the special forum of an obligation, possessing property there. Thus the notion of domicile did not originate in the jus civile, to which men became subject by enjojnng Roman citizenship. On the contrary it was a notion strongly contrasted with that of citizenship, and as its legal import- ance was derived from the natural equity of not drawing defendants away from their homes to answer suits, it was referred to the jus gentium. Hence as much as possible of fact and as little as possible of technicality "was allowed to enter into the determination of domi- cile, a mode of viewing the subject which was strongly reinforced by its connection with the liability to municipal burdens ; domicUium re et facto transfertur, nooi nuda contestatione, sicut in his exigitur qui negant se posse ad munera ut incolas vocari : Dig. 50, 1, 20. Hence also it was admitted that a man might have more than one domicile : Dig. 50, 1 ; 1. 5, 1. 6, § 2, and 1. 27, § 2. And we should perhaps best mark the difference between the ancient Roman and modern English notions if in the Corpus Juris we translated domicilium by residence, rather than by a word which in English is exclusively technical. We have seen too that, down to the commencement of the modern movement for attaching importance in private matters to political nationality, domicile did not cease on the continent of Europe to be Digitized by Microsoft® s 2 260 PRIVATE INTERNATIONAL LAW. the chief criterion of the territorial jurisdiction to which a man was personally subject, and therefore also, since the continent has been parcelled out among different territorial laws, the chief criterion of the territorial law to which he was personally subject. But the last circumstance reacted on the legal notion of domicile. The certainty of a man's capacities, rights and duties is not necessarily impaired by his being liable to suit, or to bear municipal burdens, in each of several jurisdictions, but it would be destroyed if the law of more than one jurisdiction could be applied to determine his capacities, rights and duties. Hence the diversity of territorial laws which arose in the middle ages engendej-ed the personal statute, and this tended to establish a more technical and exclusive notion of domicile than had previously been entertained. Lastly we have seen that domicile was unknown in old English law as the foundation of jurisdiction, and has not even now been made the foundation of English jurisdiction on obligations; that its notion was imported into this country from the continent after it had there become a determining element in questions of law, and was so imported because some intercommunion with the continent in ques- tions of law had become a necessity. Hence in England we have chiefly to do with the most technical and exclusive aspect of domicile. As a matter of historical fact, we only know domicile because, when and so far as we borrowed the personal statute, we found that some- thing called domicile was established as its criterion ; and to this day we know it little further or otherwise, as will appear from the foHovi'- ing sketch of the extent to which rules chosen with reference to the persons, and not to the other circumstances involved in a case, have been established in England. It is doubtful whether the personal statute, that is to say whether any rule depending only on circumstances relating to the person, is applied to capacity as depending on age or on coverture by marriage : above, §§ 2, 3. Guardians, curators and committees, deriving their authority from the personal statute or jurisdiction of a minor or lunatic, are certainly recognized in England to some extent, perhaps more freely as concerns the estate than as concerns the person : S8 6 — 10. The personal statute must be satisfied as to the capacity '^^ ^ Digitized by Microsoft® ^ ^ DOMICILE. 261 of persons who many in England, except as regards certain causes of incapacity which are not deemed by us to fall within the intercom- munion of private international law: §§ 17 — 22. The law of the matrimonial domicile is allowed to operate on the movable property of a married couple, very much as on the continent : §§ 32 — 37. In suits for divorce and other matrimonial causes it is not established to be an object that the status of the parties should be regulated by a personal statute, or consequently by any rule which will ensure their having the same status everywhere. It is doubtful whether residence, untechnical and unexclusive, is not as good a foundation as a technical and exclusive domicile, both for the entertainment of such suits in Eng- land and for allowing validity in England to foreign sentences in such suits: §§40 — 47. The personal law of a father is idlowed to decide as to the legitimation of his children by his marriage after their birth, but with some exceptions, and with some peculiarity about the date at which that personal law is to be taken: §§ 49 — 53. The personal statute or jurisdiction of a deceased person, whether testator or intes- tate, has no direct influence on the title to the movable property left by him in England : §§ 57, 68. But it is allowed a great deal of in- direct influence on such title: §§ 59 — 70, 77. On the other hand the personal statute or jurisdiction of a deceased person is allowed as full and direct authority as on the continent with regard to the validity of his will of movables, and, whether he died testate or intestate, with regard to the beneficial interest in the surplus of his movable property after payment of his debts, and to taxation levied on such beneficial interest : §§ 54—56, 74—86, 97, 98, 106—109, 112—117. Foreign curators, under a bankruptcy in the personal jurisdiction, are entitled to the bankrupt's movables in England : §§ 125, 126. With regard to an English bankruptcy, the domicile of the debtor has something to do with his liability to adjudication; §§ 119 — 121; and the personal law of a creditor has something to do with his power of holding in England a payment which he has obtained out of the bankrupt's movable property abroad; §§ 133, 134. Questions as to the transfer or acquisition of the property in ships at sea are generally to be decided by the personal law of the party from or against whom the transfer or acquisition is alleged to have taken place ; § 141, Tbere Digitized by Microsoft® 262 PRIVATE INTERNATIONAL LAW. is a vague impression that the personal law of a bankrupt, with domicile for its criterion, may have something to do with the inter- national effect of a discharge given him in his bankruptcy from obligations of which the special forum was elsewhere : § 226. Summing up, the personal statute or law, with domicile -as its criterion, is certainly applied in England to some extent or other with regard to guardianships, the capacity to marry, the effect of marriage on property, the legitimation of children by the subsequent marriage of their parents, the succession to movable property on death, and the transfer of propertj'- not at the time within any terri- torial jurisdiction ; there is considerable authority for its application to the capacity for other contracts than that of marriage ; and with regard to the beneficial succession on death to movable property, after payment of debts, it is allowed without dispute to cover the whole ground. Authority, greater or less, is allowed in England to the acts of a foreign personal jurisdiction with regard to guardian- ships and curatorships, divorce, succession on death and bankruptcy ; but in some of these cases the authority for domicile, as the criterion of the personal jurisdiction to which such authority is allowed, is not very strong. And that the exercize of jurisdiction in England should be thought to depend on domicile is a circumstance not found in many causes except matrimonial ones, and even with regard to them the weight of authority is at present against it. The great prepon- derance of law over jurisdiction in the purposes for which an English lawyer has to do with domicile needs no further illustration. This being so, the notion which an English lawyer must form of domicile is very much as follows. Certain questions are decided according to laws chosen with reference to the persons, and not to the other circumstances, involved in them. This method of pro- ceeding has come to us in the course of events, and is recommended by various solid motives, such as the welfare of the civil society with which a person is most intimately connected, the wishes or inten- tions which from his connection with a certain civil society he may be presumed to entertain, and the necessity of choosing some general rule for numerous particulars which are closely concerned with each other. Every person is therefore treated as a member of some one Digitized by Microsoft® DOMICILE. 263 civil society, governed by one body of civil law, which is adopted when a law having reference to his person is sought. These civil societies are not necessarily territorial. They were not such when, after the fall of the Roman empire, Romans, Franks, Bui-gundians and so forth were governed by their respective laws within the same territory ; and they are not now such in the east, where, whether the soil be subject to Turkish, British, Chinese or any other rule, we generally find persons of different races, political nationalities and religions living together under different laws, protected by consular capitulations or by a tolerant sovereignty. But in Christendom each civil society is now a territorial one, whether its territory be coinci- dent with that of a political society, as in the case of France, or be included with others in that of a political society, as England and Scotland are included in the British empire. And the tie by which a person is attached to a civil society is or includes domicile. Within Christendom, every person is a member of that civil society in the territory of which he is domiciled ; in the east, every person is a member of that civil society, existing in the territory in which he is domiciled, which his race, political nationality or religion deter- mines. The former case is exemplified in an English, Scotch, or French domicile ; the latter in an Anglo-Indian or Anglo-Turkish domicile. To determine in this manner, or contribute to deter- mining, a person's civil society, domicile must at least differ fron^ residence in being limited to a single territory ; and it may advan- tageously differ further from residence, through a wider scope of motives being taken into account for its ascertainment. In deciding whether an Englishman had transferred his residence to Naples, it might be considered whether he went there for pleasure, health or business, and what was the prospect of his return ; but it would hardly be considered what he thought about law, or whether he thought any thing about it. But in deciding whether he has trans- ferred his domicile to Naples, expectations may be disappointed in a manner not necessary for any useful end, and therefore cruelly dis- appointed, if his intention either to retain the law of England as his personal law, or to acquire that of Italy, be disregarded. There is another respect in which domicile, even when mentioned Digitized by Microsoft® 264 PRIVATE INTERNATIONAL LAW. in connection with jurisdiction, may be contrasted with residence. Every common word must undergo some amount of definition on being adopted as a term of art, and in the present instance this is the case in a remarkable degree. It needs only to reflect on the number of cases in which in common parlance it would be said that a person had no fixed residence at all, in order to see that, on being adopted as the base for comprehensive rules, the notion of residence must be made to start from an origin imposed by law, such as the residence of a man's father, after which a man's own changes of resi- dence may be investigated as matters of fact, but the assumption of which will prevent his being ever without a technical residence. So much technicality as is involved in this and other necessary defi- nition domiciltum could not but have even as belonging to the jus gentium, and it was not intended to exclude it by the sugges- tion that in Roman law we might translate that word by residence. But as the term domicile is not used by us in a popular sense, and on the other hand it conveys to an English lawyer what domicilmm did not convey to a Roman, selection of law and consequent unity, it is most convenient, in speaking of modern things, to use residence in none but the popular sense, and throw on domicile the whole weight of the technical meaning. " Residence and domicile are two perfectly distinct things. It is necessary " in the administration of the law that the idea of domicile should exist, and " that the fact of domicile should be ascertained, in order to determine which " of two municipal laws may be invoked for the purpose of regulating the " rights of parties. We know very well that succession and distribution depend " upon the law of the domicile. Domicile therefore is an idea of law. It is " the relation which the law creates between an individual and a particular " locality or country. To every adult person the law ascribes a domicile, and " that domicile remains his fixed attribute until a new and different attribute "usurps its place." Lord Westbury, in Sell v. Kennedy, i86S, L. R., i S. & D. A. 320. In CO loco singulos habere domicilium non ambigil>ii\ iihi gnis larem ac fortit- nariim suarum siimmavi constituit, mide rurstis non sit discessnrus si niliil avocet, iinde cum profectiis est percgrinari videtur, giio si rediit peregrinari jam destitit. Code, 10, 39, 7. This is a time-honoured quotation, but it can hardly be called a definition, however beautifully it may express the common notion of home or residence. § 228. To every person not sui juris, and to every person su* juris Digitized by Microsoft® DOMICILE. 265 until he has acquired another domicile as hereinafter mentioned, the law of England attributes a domicile, or the membership of some one civil society. The domicile so attributed to a person at his birth is called that of origin, or the original or native domicile. See above, pp. 24 — 31, as to the modern movement on the conti- nent towards the identification of civil societies with political ones, in other words towards the substitution of political nationality for domicile. § 229. A person sul juris can change his domicile, or the civil society of which he is a member, by establishing his residence, with a sufficient character of permanence, in the territory of that civil society of which he desires to become a member, or, in the east, in the territory on which that civil society exists. A domicile which results from establishing a residence is called an acquired domicile, or one of choice. See above, p. 263, for the reason of the difference here made with regard to the east. § 230. But change of residence without an intention to change the civil society will not change the latter, that is the domicile, even although the person contemplates his new residence as permanent. Thus if an Englishman goes to reside at the Cape of Good Hope on account of his health, being also persuaded that his health will never again permit him to live in England, and intending to end his days at the Cape, he will nevertheless retain his English domicile, and if he dies intestate his property will be distributed according to English law, unless he intended to become a Cape colonist in the fullest sense of the term. It is not meant by this that there must be any distinct contemplation of a change of law, but that there must be distinctly that which has been described as an intention to settle in the new country, or to emigrate from the old one, or quatenus in illo exuere patriaTn, taking patria in the civil and not in the political sense. This § may be referred to as the doctrine of Moorhouse v. Lord, since it was laid down in that case by lords Cranworth and Kings- down. The common continental and older English doctrine is dif- ferent, attaching full legal effect to a change of residence, irrespective of any intention on the part of the person in question to become what may be called a settler in, or countryman of, the new Digitized by Microsoft® 266 PRIVATE INTERNATIONAL LAW. country. On that footing, § § 229 and 230 may be replaced by the following. § 229A- a person sui juris changes his domicile, or the civil society of which he is a member, by establishing his residence, with a sufficient character of permanence, in the territory of another civil society, or, in the east, in the territory on which that civil society exists. A domicile which results from establishing a residence is called an acquired domicile, or one of choice. The older doctrine attaches most importance to the authority and welfare of the society to which a person belongs by residence, a welfare which it cannot be denied may in some cases suffer, if the reluctance or hesitation of a resident to identify himself with the society is allowed to exempt him from subjection to its laws. Sup- pose for example that domicile were established as the basis of jurisdiction for divorce, as well as the test of the prohibited degrees in marriage : the country with which a person was most intimately connected by residence might well object to its laws on those subjects not being applied to him, because he came there from a country with which he desired to retain his civil connection. The newer doctrine attaches most importance to preserving the liberty and giving effect to the wishes of persons. Indeed it may be said to supplement the liberty of living abroad by liberty in living abroad. Let us suppose "the case of a person wishing to settle permanently in a country different from that of his domicile, but to retain as regards testa- mentary and matrimonial matters, and as regards civil status gene- rally, the law of the country that he leaves " : Wickens, in Douglas V. Doxiglas, 1871, L. E., 12 Eq. ()4i4. In expressing § 230 the term " to settle " has been used in what I think is its common sense, that of establishing one's self in a country with all one's belongings, so as to become a member of its society, and found a family there if anywhere. If any one wished to do this, and at the same time retain the law of another country, he would, like many men, be wishing for incompatible things, and the doctrine of Moorkouse V. Lord would certainly not help him. But if Sir J. Wickens be understood as putting the case of a man who merely wished to establish his. own personal residence in a country different from that Digitized by Microsoft® MOORHOUSE V. LORD. 267 of his domicile, and that permanently, at the same time deprecating any severance of his family relations from his domicile, then so to live abroad, while preserving the law of his old country as that by which, on his intestacy, his movable property should be distributed among his kindred, very likely still resident there, is just what the doctrine of Moorhoiose v. Lord would permit, the older doctrine refusing it. With regard to the historical connections of the two doctrines, it needs scarcely be remarked that that of Moorhouse v. Lord neither arose nor could have arisen on the ancient footing of domicile being residence viewed technically for the purpose of jurisdiction. And with regard to the other ancient significance of domicile, namely its relation to municipal burdens, the notion that these could be escaped in a new actual residence, by protestations of clinging morally to the / ^^j^^ old one, is ■ m p i iMnily condemned in a passage of the Digest quoted ^ jfi^ i;^^ above on p. 259. But when law came to be determined by domicile, and after a further delay of centuries two other conditions were com- bined with this, a vast increase in the habitual displacement of persons, and a growing reluctance to defeat their reasonable wishes by technical rules, it appears to me that the doctrine of Moorhouse v. Lord was inevitable. And that corresponding views with regard to the change of domicile have not arisen on the continent appears to me due to the movement there in favour of political nationality as the test of personal law. That system, so far as it permits a man to live abroad while retaining his old law through not procuring himself to be naturalized, operates as another mode of satisfying those requirements of the age which are now in question. It is unnecessary to quote the English authorities which supported the doctrine of § 229A while it was undisputed. One of tliem however may be given as being very express, and at the same time one of the last before the doctrine of § 230 was announced. In HosJdns v. Matthews, 1856, 8 D. M. G. 13, Turner said : " In this case I find nothing in the evidence to show that Mr. Matthews, wlien he left England, was in any immediate danger or apprehension. He was no doubt out of health, and he went abroad for the purpose of trying the eifect of other remedies and other climates. That he would have preferred settling in England I have little doubt, but I think he was not driven to settle in Italy by any urgent necessity. I think that in settling there he was exercizing a preference and not acting upon a necessity, and I cannot venture to hold that in such a case the domicile cannot be changed. If domicile is to remain Digitized by Microsoft® 268 PRIVATE INTERNATIONAL LAW. unchanged upon the ground of climate being more suitable to health, I hardly know how one could stop short of holding that it ought to remain unchanged also upon the ground of habits being more suitable to fortune. There is in both cases a degree of moral compulsion." Knight-Bruce dissented, which he could scarcely have done except on the footing of § 230, but without giving detailed reasons. He said however : " the whole of the evidence being considered, it does not appear to me to be proved that at any time after the year 1838 Jlr, Matthews acquired a Tuscan domicile, or relinquished or lost his English domicile, or intended to acquire a Tuscan domicile, or to relinquish or lose his English domicile.'' The intention to transfer one's domicile is without im- portance, if its transfer is effected by law on the residence being transferred both in intention and in fact. Then, in 1858, Cranworth said in Whicker v. Hume: "I think it is not inexpedient on questions of this sort to say that I think that all courts ought to look with the greatest suspicion and jealousy at any of these questions as to change of domicile into a foreign country. You may much more easily suppose that a person having originally been living in Scotland, a Scotchman, means permanently to quit it and come to England, or vice versa, than that he is quitting the United Kingdom in order to make his permanent home where he must for ever be a foreigner, and in a country where there must always be those difficulties which arise from the complication that exists, and the conflict, between the duties that you owe to one country and the duties which 5'ou owe to the other. Circumstances may be so strong as to lead irresistibly to the inference that a person does mean qiiateinis in illo cxnere patriam. But that is not a presumption at which we ought easily to arrive, more especially in modern times, when the facilities for travelling and the various inducements for pleasure, for curiosity or for economy, so frequently lead persons to make temporaiy residences out of their native country." 7 H. of L. 159. These remarks are very pertinent on the footing of § 230, for it is much less likely that a man should intend to transfer all his civil ties to a country politically foreign than to another member of the same empire. But they would scarcely be pertinent if the only intention necessary to be proved was that which is involved in a change of residence, the law then superinducing the transfer of domicile, for it is every day's experience that men readily establish their pei^manent residence in countries politically foreign. If the conflict foreshadowed by lord Cranworth became at all serious, the residence could as easily be changed again ; but the possibility of this, without an expectation of it, would not preserve the domicile of origin on the old theory. The new doctrine, thus preluded to, was distinctly announced in Moorhousc V. Lord, 1863, 10 H. of L. 272. Cranworth said that Mr. Cochrane " eventually established himself in a house or apartments which he took unfurnished, and for which he got expensive furniture, meaning if you please to live there always. But then that does not change the domicile. In order to acquire a new domicile, according to an expression which I believe I used on a former occasion, and which I shall not shrink on that account from repeating, because I think it is a correct statement of the law, a man must intend quatenus in illo cxuere pairiam. It is not enough that you merely mean to take another house in some other place, and that on account of your health or for some other reason you think it tolerably certain that you hfid better remain there all the days of your lifq, Digitized by Microsoft® MOORHOUSE V. LORD. 269 That does not signify. You do not lose your domicile of origin or your resumed domicile merely because you go to some other place that suits your health better, unless indeed you mean either on account of your health or for some other motive to cease to be a Scotchman, and become an Englishman or a Frenchman or a German. In that case, if you give up everything you left behind you and establish yourself elsewhere, you may change your domicile. But it would be a most dangerous thing in this age, when persons are so much in the habit of going to a better climate on account of health, or to another country for a variety of reasons, for the education of their children, or from caprice or for enjoyment, to say that by going and living elsewhere, still retaining all your possessions here, and keeping up your house in the country as this gentleman kept up his house at Clippens, you make yourself a foreigner instead of a native. It is quite clear that that is quite inconsistent with all the modern improved views of domicile." And Kingsdown said : " Upon the question of domicile I would only wish to say this, that I apprehend that change of residence alone, however long and continued, does not effect a change of domicile as regulating the testamentary acts of the individual. It may be and it is a necessary ingredient. It may be and it is strong evidence of an intention to change the domicile, but unless in addition to residence there is intention to change the domicile, in my opinion no change of domicile is made. I think the distinction which has been taken by my noble and learned friend in the chair'' (Cranworth) " is a perfectly sound one. The same has been adverted to by Dr. Lushington in the case of Hodgson v. De Beauchesne. A man must intend to become a Frenchman instead of an Englishman." Kingsdown then went on to say : " I can well imagine a case in which a man leaves England with no intention whatever of returning, and not only with no intention of returning but with a determination and certainty that he will not return. Take the case of a man labouring under a mortal disease. He is informed by his physicians that his life may be prolonged for a few months by a change to a warmer climate, that at all events his sufferings will be mitigated by such change. Is it to be said that if he goes out to Madeira he cannot do that without losing his character of an English subject, without losing the right to the intervention of the English laws as to the transmission of his property after his death, and the construction of his testamentary instruments? My lords, I apprehend that such a proposition is revolting to common sense and the common feelings of humanity." It must be admitted that so revolting a conclusion cannot fairly be charged even on the old doctrine. The case put would amount to the " immediate danger or apprehension," the " coo-ent necessity," contemplated and reserved by Turner, as above quoted from Hoskins v. Matthews. An intention to die in a country is hardly one to reside there. Also in Hodgson v. De Beauches?ie, 1858, 12 Mo. P. C. 285, though Lushington said much about the necessity of intention in order to a change of domicile, I fail to find clear proof that he meant this of an intention to live in the new country as a settler and countryman ; indeed I rather think that he meant an intention merely to live in it. But when law is delivered in a public speech, the illustrations and citations which accompany it must not be pressed too closely. The most authoritative part of lord Kingsdown's speech in Moor- house V. Lord is his approval of the distinction which lord Cranworth drew in favour of " modern improved views of domicile.'' Digitized by Microsoft® iio Private international law. In Sharpe v. Crispin, 1869, Wilde (Penzance) said : " It was ably and forcibly argued that George said nothing and did nothing in the course of his life from which the court could infer a deliberate resolve on his part to sur- render his Portuguese domicile and replace it by an English one. That such an inference could alone in the eye of the law destroy his domicile of origin is apparent from the numerous authorities which exist on this subject, confirmed as they are by the decision of the house of lords in the case of MoorJiouse v. Lord." L. R., i P. & M. 616. On the other hand, in the same year, Westbury said in Udiiy v. Udiiy : " Domicile of choice is a conclusion or inference which the law derives from the fact of a man fixing voluntarily his sole or chief residence in a particular place, with an intention of continuing to reside there for an unlimited time." L. R., i S. & D. A. 458. In the same case Westbury corrected the impression that by the doctrine of MoorJioitse v. Lord it had been intended to substitute political nationality for domicile, as an element in private law. In Douglas Y. Douglas, iZyi, L. R., 12 Eq. 617, Wickens contrasted the two doctrines, and was unable to satisfy himself that that of Moorliouse v. Lord is the law of England, though he would have liked to do so. He appears however to have considered that that doctrine refuses to admit a change of domicile without the person having distinctly contemplated a change of law, which is not how I understand it, as has been seen from the form of § 230. The distinction may be fine, but I submit that it is real. For example, of two Englishmen, who , establish their residences in Portugal, the one may cling to the English society he can find there, and may strive to maintain an English feeling in his children, by having them educated in England and otherwise ; the other may by prefer- ence cultivate Portuguese society for himself and his family, and bring up his children as Portuguese. Neither may have thought of law till the occasion arrived, but when it came to the marriage of his children, the one would pro- bably expect his authority with regard to it to be measured by English law, the other by Portuguese. And the doctrine of Moorhouse v. Lord, as I understand it, would not refuse to admit the change of domicile in the latter case. Before entering on the detailed rules for the ascertainment of domicile, so far as any such can be given, the general view of domi- cile entertained in England, as equivalent to or carrying with it the membership of a certain civil society, may be completed by examining whether and how that view is affected when another country comes into consideration in which political nationality plays the part in private law that in England is assigned to domi- cile, or in which it makes a difference v/hether a foreigner has had the authority of the government for establishing a domicile. See above, p. 28. § 231. If an establishment be made in any country in such manner that by English law it would fix the domicile there, still no effect Avhich the law of that country does not allow to it can be allowed to Digitized by Microsoft® boMlciLE. 271 it in tte cliavactet oi domicile in England. In other words, no one can acquire a personal law in the teeth of that law itself. Collier\. Rivaz, 1841, 2 Cur. 855, Jenner ; Bremer v. Freeman, 1856, Deane 192, Dodson ; in which cases it was held that according to English principles on domicile a testator had acquired a domicile in a foreign country, and that the effect of applying English principles on wills to that state of his domicile would have been to invalidate his will, contrary to the law of that country, which the court refused to do. See above, § 83. Bremer v. Freeman was reversed on appeal, 1857, lo Mo. P. C. 306, Wensleydale ; it being held that to invalidate tlie will was not contrary to the law of France, in which country the testatrix, without authority from the French government, had acquired a domicile according to English principles. In Hamilton v. Dallas, 1875, L. R., I Ch. D. 257, Bacon, where also a domicile according to English principles had been acquired in France without government authority, it was similarly held that there was no difference between the laws of England and France as to the effect of such domicile in the particular case. § 232. But if an establishment be made in England in such manner as by English law to fix the domicile there, its full effect according to English law will be allowed to it in England, notwith- standing that the country which the person has abandoned may claim to determine his personal law according to his continuing political nationality. I submit this § on the ground of principle. There seems to be no reason why a person sxvi juris should not acquire a new personal law, with the consent of that law and in its country, although his former personal law may object to the change. In Brunei v. Brunei, 1871, L. R., 12 Eq. 298, Bacon, the circumstance that the deceased had satisfied the conditions under which the French code declares the French character to be lost, without foreign naturalization, was treated as an argument in favour of his having acquired an English domicile. Uules for the Ascertainment of Domicile. § 233. The original domicile of a child born in wedlock to a living father is the domicile of its father at the time of its birth. § 234. The original domicile of a child born out of wedlock is the domicile of its mother at the time of its birth. Westbury, in Udny v. Udny, 1869, L. R., i S. & D. A. 457. Digitized by Microsoft® 272 PRIVATE INTERNATIONAL LAW. § 235. If and as soon as a child born out of wedlock is legitimated, being a minor, the domicile of its father at the time of such legitima- tion becomes its domicile. § 236. The original domicile of a child both whose parents are un- known is the place of its birth, or, if that too be unknown, the place where it is found. The place thus indicated is that on which the duty of maintaining and educating the child is incumbent, and since his personal ties must be formed by such maintenance and education his personal law will naturally follow. Moreover there is no place to compete. § 237. The domicile of a legitimate or legitimated unmarried minor follows that of his or her father, and the domicile of an un- married minor born out of wedlock and not legitimated follows that of his or her mother, through all the changes of such respective domicile. § 238. The law or jurisdiction of the father's last domicile pro- vides for the guardianship, after his death, of his legitimate or legiti- mated unmarried minor children. A guardian, whether appointed by the father under that law or by that law or jurisdiction itself, cannot change his ward's domicile except so far as he may be per- mitted to do so by the terms of his appointment, or by the law or the public authority under which he holds his office. Only if the mother is the guardian, and the appointment or law under which she holds expresses nothing contrary, the unmarried minor's domicile will follow the changes of hers, so long as she does not change her domi- cile with a fraudulent view to the minor's succession. Such fraud however will be presumed, if no reasonable motive can be assigned for the change of her domicile. And where the mother's nominal guardianship is controlled by a court which regards itself as being the real guardian, like the English High Court in the chancery division, she will not have even this limited power of changing her children's domicile. These principles regulate the domicile of a posthumous child, as well as that of a child whose father died after its birth or legitimation. It is believed that the § is in accordance, so far as those authorities go, with Potinger v. Wightman, 1817, 3 Mer. 67, Grant, in which case there is a valuable Digitized by Microsoft® RULES FOR DOMICILE. 273 argument by Sir S. Romilly and Swanston, with many references ; Lyndhurst in Johnstone v. Beattie, 1843, 10 C. & F. 66 ; Campbell in the same case, ib., pp. 138—140; and Wilde in Sharpe v. Crispin, 1869, L. R., i P. & M. 617. But I have stepped beyond those authorities in treating the case of the mother as a special one of guardianship, in taking the law of the father's last domicile as the governing principle for the whole, and in connecting posthumous children with the rest of the §. § 239. The domicile of a lunatic who has become such after attain- ing his majority is not changed by a change in that of the person who has his legal custody. It remains that which it was at the com- mencement of his lunacy. In Bempde v. Jolmstone, 1796, 3 Ves. 198, Loughborough doubted whether residence in a country as a lunatic might not be added to previous residence in the same country for the purpose of fixing the domicile there. In Sliarpe v. Crispin, 1869, Wilde appeared to be distinctly inclined towards the doctrine of the § ; L. R., i P. & M. 6i8. In Hepburn v. Skirving, 1861, 9 W. R. 764, Stuart, the point scarcely arose. Dicey maintains the doctrine of the §, but quotes some American cases to the contrary : Law of Domicile, p. 132. § 240, But the domicile of a son who has never been of sound mind since attaining his majority continues to follow the changes of his father's domicile. The incapacity of lunacy is in this case a mere prolongation of the incapacity of minority. Sharpe v. Crispin, 1869, L. R., i P. & M. 6u, Wilde. § 241. The domicile of a wife, not judicially separated a mensa et tow, is that of her husband. The only serious doubt as to this is whether even a judicial separation a mensa et toro enables her to establish a separate domicile. The point, which is involved in the case of the Princess Bibesco, on which a whole literature has arisen on the continent, did not occur in DolpJiin v. Robins, but Cranworth appeared to think that the wife is so enabled, and Kingsdown distinctly thought the contrary : 1859, 7 H. of L. 416, 420. Cranworth even suggested that the wife might be entitled to establish a separate domicile " where the husband has abjured the realm, has deserted the wife and established himself permanently in a foreign country, or has committed felony and been transported : " ib., p. 419. Phillimore inclined towards the separate domicile of a wife either judicially separated or entitled to a judicial separation or divorce, but on grounds which appear to confound domicile with residence : in Le Sueur v. Le Sueur, 1876, L. R., I P. D. 141 ; as to which case see above, p. 77. From Williams v. Dormer, 1851, Fust, and 1852, Dodson, 2 Robertson 505, it appears that a wife judicially separated a mensa et toro will not be deemed to Digitized by Microsoft® ^ ^"i PRIVATE INTERNATIONAL LAW. be legally resident in the same place as her husband, for the purpose of found- ing jurisdiction against her in a suit of nullity of marriage afterwards brought by him. Domicile is mentioned in Dodson's judgment, but it must not be con- cluded that this is an authority in favour of the power of a wife judicially separated to change her domicile, because the jurisdiction in suits of nullity of marriage is not held in Engla;nd to turn on domicile. See above, § 45, with the errata and addenda relating to it. We now come to the change of domicile by persons siii juris. This suljject was introduced in §§ 229, 2-30 and 229a, so far as necessary for explaining the doctrine of Moorhouse v. Lord, the acceptance or rejection of which underlies the whole subject. The establishment of a residence in the new country was consequently there assumed, but sucli an establishment is not always necessary, and it is the §§ which now follow that must be looked to for a full state- ment of the law. § 242. Men, unmarried women, widows, divorced women, and possibly wives judicially separated a mensa et toro—see the last § as to this — being of full age and of sound mind, change their domiciles by a combination of intention and fact, uuimo et facto as it is said. If it is asked whether the condition of full age is necessary in the case of those who have once been emancipated by marriage, the answer will be that this must depend on the personal law. A minor who on marriage is relieved by the law of his country from all incapacity will, of course, be as capable for the purpose of changing his domicile as for any other purpose. Such however is not the law of England. Forbes V. Forbes, 1S54, Kay 341, at p. 355 ; Wood. § 243. For a change of domicile, the intention which is in general necessary is that of establishing in the new country a residence with a sufficient character of permanence, together, if the doctrine of MoorJiouss V. Lord be followed, with that of settling in the new country as a member of its civil society, or, if it be an eastern country, as a member of one of the civil societies there existing. See above, pp. 2r).3-270, as to the precise nature of the latter intention. But when the domicile -which is abandoned was itself acquired by choice, the intention may be limited to that of abandoning it, since if no intention be directed towards any other countiy, the domicile of Digitized by Microsoft® CHANGE OF DOMICILE. 275 origin will be reacquired by reverter on the occurrence of the necessary fact, which it will presently be seen consists merely in leaving the country in which a domicile had been acquired. From the necessity of intention it follows that domicile cannot be changed by any residence not resulting either from a choice im- mediately applied to the residence, or from a duty freely undertaken, as in the case of § 25d. Not by lying in prison : Burton v. Fisher, 1828, Milward 183, Radcliff. But where the intention is proved, the motive for it is of no importance. Turner, as quoted above on pp. 267, 268, is in accordance with the current of authority in rejecting as irrelevant all enquiry into ''moral compulsion." The very distinction which he drew would probably have been better put on the ground that going to die in a country is not going to reside there, than on any difference between preference and necessity. § 244. The fact necessary for a change of domicile is in general merely that of leaving the old country, but if the domicile in the old country was one of origin, there must be the further fact of arriving in the new country. The actual duration of residence in the new country may be important as evidence of intention, but is never im- portant as a legal condition of the change of domicile. An ineffectual attempt to leave a country is not a sufficient fact ; Re Raffend, 1863, 3 S. & T. 49, Cresswell. The combination of §§ 243 and 244 leads to the following rules for different cases. (1) Change from domicile of origin to one of choice. If the person dies at sea, or otherwise in itinere between the old country and the new, his last domicile is that of origin. I do not know that the case has arisen, but I have incorporated the point in § 244 because the general tenour of the authorities convinces me that it would be so decided. (2) Intentional resumption of the domicile of origin, after possess- Digitized by Microsoft® 276 PRIVATE INTERNATIONAL LAW. ing a domicile of choice. In the event of death in itinere, the last domicile is that of origin. Re Bianchi, 1862, 3 S. & T. 16, Cresswell. (3) Abandonment of a domicile of choice without a sufficient in- tention being directed towards any other country, and consequent commencement of an unsettled life. The domicile of origin reverts on the abandonment of the domicile of choice, and continues during the unsettled life. Udny V. Udny, 1869, L. R., i S. & D. A. 441 ; Hatherley, Chelmsford, Westbury, Colonsay. This case overruled Mitiiroc v. Douglas, 1820, 5 Madd. 379, Leach ; and was followed in King v. Foxwcll, 1876, L. R., 3 Ch. D. 518, Jessel. (4) Change from one domicile of choice to another. In the event of death In itinere,, the last domicile is the one towards which the l^erson is journeying. Leach, in Munroe v. Douglas, 1820, 5 JNIadd. 405 ; approved by Wood in Forbes v. Forbes, 1854, Kay 354. This part of Leach's doctrine does not seem to have been censured in Uiiny v. Udny. § 245. Where a person's domicile has been changed under § 235, 237, 238, 240, or 241, between the date of his birth and that when he first acquired the power of changing his domicile for himself, it is the domicile attributed to him by law at the latter date which must be understood as his domicile of origin, in applying §§ 243 and 244, or the rules (1), (2) and (3) following them. Whenever the domicile of origin is expressly defined, no larger meaning is given to it than that of the domicile attributed by law at birth, as in § 228. But the principles on which the doctrines of §§ 243 and 244 have been founded by the authorities for them appear to require this extension of the meaning of the term " domicile of origin," as employed in those authorities. § 246. Since there is always a domicile to start from when the domicile of a person Hid juris is in dispute, the burden of proof lies on the party asserting the change of domicile. § 247. And this burden will be less easily satisfied where the new Digitized by Microsoft® DOMICILE: PERMANENCE. 277 domicile alleged is politically foreign to the old one, than when the contest lies between two countries equally British. Cranworth, in Whicker v. Hume, as quoted above, p. 268. But consider the suggestion I have there made, that this is only true on the footing of the doctrine of Moorhouse v. Lord. § 248. With regard to what in §§ 229, 229a and 243, has been called a residence with a sufficient character of permanence, this ex- cludes all contemplation of any event on the occurrence of which the residence would cease. The old English doctrine was that all desire or intention of return to the old country was not excluded, if only the event on which the return depended was highly uncertain and regarded as remote. Thus the domicile might be changed by residence abroad for the sake of health, if such recovery as to permit return was very improbable, notwithstanding the desire to return in case of recovery. Or it might be changed by residence abroad as a merchant, with the intention of remaining till a fortune should be made and then returning. Thurlow in Bruce v. Brtice, 1790, 2 Bos. & Pul. 230, note; Lushington in Anderson v. Laneumlle, 1854, 9 Mo. P. C. 334; Campbell in Aikman v, Aikman, 1861, 3 Macq. 858. But the doctrine of the § is not only a necessary consequence from that of § 230, but has been adopted in modern times even by judges who have not declared their adhesion to the latter doctrine. Chelmsford in Moorhouse v. Lo7'd, 1863, 10 H. L. 285, 286: Martin and Channell, but not Pollock, in Re Capdevielle, 1864, 2 H. & C. 985 : Romilly in Jopp V. Wood, 1864, 34 Beav. 88, and Knight-Bruce and Turner in the same case, 1865, 4 De G. J. & S. 616 — if indeed Martin, Channell and Knight-Bruce are not to be considered as adopting even the distinctive doctrine of Cranworth. See above, p. 268, as to the last named of the three. In Doucet v. Geoghegan, L. R., 9 Ch. D. 441 ; Mahns, 1877, affirmed in 1878 by Jessel, James and Brett ; a Frenchman was held to have acquired an English domicile, notwith- standing " some declarations in casual conversations of an intention to return to France when he had made money enough." But the case rather proves that such declarations cannot " outweigh all the acts of a man's life and every docu- ment executed by him," than that an intention to return after making a fortune, if sufficiently proved, would be still held not to prevent a change of domicile. § 249. :^eve;-tl}eless a residence ip India fpr flaercaptile purposes, Digitized by Microsoft® 278 PRIVATE INTERNATIONAL LAW. not having a prefixed duration, still produces an Anglo-Indian domi- cile, although the intention in such cases is almost always to remain only till a fortune is made and then to return to Europe. This rule was originally established on the footing of the old doctrine men- tioned under the last §, and it has survived as an exception to the new doctrine. Cranworth and Chelmsford themselves, in Moorlioicse v. Lord, admitted the Anglo-Indian domicile of a Scotchman who had gone out to India in the civil service of the East India Company; lo H. L. 281, 284; though his corre- spondence " showed that he never had any intention of remaining in India longer than to make his fortune, when he would return to Scotland ; " Kindersley, in Allardice v. Onslow, 1864, 10 Jur. N. S. 352. There Kindersley observed that the argument in favour of the retention of the domicile of origin was stronger in the case of one who went out in the service of a com- pany having its head quarters in London, than in that of one who went out for private speculation ; and he decided in favour of the Anglo-Indian domicile of a Scotchman in the latter predicament. 1 1 must be admitted that there are strong reasons of convenience in favour of the Anglo-Indian domicile in these cases. Since the Anglo-Indian law is nearly the same as that of England or Ireland, the decision in its favour makes little or no difference if the domicile of origin was in England or Ireland, except so far as to exempt the person's succession from the home legacy duty. And where the domicile of origin was Scotch, the merchant, if he should ever return to Europe, is just as likely to settle in England as in Scotland ; while if attributing a Scotch domicile to him should make it neces- sary to apply Scotch law in India, that would be even more inconve- nient than it is found to be to apply it in London, there being so much less opportunity there of obtaining accurate information about it. § 250. Where a question of domicile turns on disputed intention, the declarations of the person in question are admissible as evidence, whether they were made orally or are contained in private writings or legal documents. If living, he may testify as a witness to his in- tentions. But it will be permitted to question the sincerity of such declarations or testimony, or the accuracy of the deponent's memory as to his intentions at a former time. And it must always be care- Digitized by Microsoft® DOMICILE: DECLARATIONS: CRITERIA. 2(9 fully considered whether the intentions which the declarations or testimony tend to prove are such as are really important. Thus, if the doctrine oi Moorhouse v. Lord be rejected, a sincere and express declaration of an intention to retain an old domicile, made with full understanding of the point involved, may be overruled by evidence of the declarant's intention to pass the rest of his days in another country. The case just put occurred in lie Steer, 1S58, 3 H. & N. 594; Pollock, Bramwell, Watson. See declarations of intention dealt with in Crookenden V. Fuller, 1859, i S. & T. 441, Cresswell ; and in Doitcet v. Geogliegan, quoted above, p. 277. The person whose domicile was in question was examined as a witness to his intentions in Maxwell v. McCliirc, i860, 3 Macq. 852, 6 Jur. N. S. 407 ; and in Wilson v. Wilson, 1872, L. R., 2 P. & M. 435, in which case Wilde avowed that, on the strength of the party's testimony, he had come to a different conclusion as to his domicile from that to which he should have come in its absence. " The question is here not so much whether the circumstances of his English residence tend to prove English domicile as whether, the man swearing to his intention to create an English domicile, there are such circum- stances on the other side as warrant the court in throwing over his oath and disbelieving him : " ib., p, 445. § 231. Acts implying a choice of domicile stand on the same footing as oral or written declarations ; for example, marrying or making a will in such manner that the validity of the marriage or the will depends on the domicile being in a certain country. Doucetw. Geogliegan, 1878, L. R., 9 Ch. D. 441, Jessel and James. We now come to the criteria that are commonly referred to as between two residences, in order to determine, or aid in determining, towards which residence such intention as is deemed to be important in a case of domicile was directed. § 252. The residence of a man's wife and family is the most im- portant among the external criteria of his domicile, but is not always decisive. Forbes v. Forbes, 1854, Kay 341, Wood : Plait v. A it. -Gen. 0/ New South Wales, 1878, L. R,, 3 Ap. Ca. 336, Peacock. And this criterion is not the less important because the residence may have been chosen at the wife's wish, and be supported by her fortune : Aitchison v. Dixon, 1870, L. R., 10 Eq. 5S9, James. See under § 254. Digitized by Microsoft® 280 PRIVATE INTERNATIONAL LAW. § 253. A merchant's town house is a more weighty criterion than his country house, but the country house of a landed proprietor not engaged in trade is a more weighty criterion than his town house. Ardeti (Alvanley) in Soiiierville \'. Somerville, 1801, 5 Ves. 789. § 254. If a person exercizes political or municipal functions in a certain place, this furnishes an important argument as against a place where he does not possess or neglects to exercize them. Kindersley in Drevon v. Dreiwn, 1864, 34 L. J., N. S., Ch. 137. In Maxwell V. McClure, i860, Campbell referred to this argument as one of those for affirming a decision of the Court of Session, by which the domicile was determined adversely to the criterion in § 252 : 1^6 Jur. N. S. 408, and 3 Macq. 859. § 255. No great weight is attached to the circumstance of a person's residing in lodgings or in a house of his own. Langdale in Whicker v. Hume, 1851, 13 Beav. 395 ; Cranworth in the same case, 1858, 7 H. L. 157. § 256. Importance has been attached to the following criteria. Length and continuity of residence. Lushington in Hodgson v. De Beavchesne, 1858, 13 Mo. P. C. 328, 330. Naturalization in the new country. This was probably the circumstance which chiefly outweighed the evidence ot an intention to return in Stanley v. Bernes, 1830, 3 Hagg. Eccl. 373, Nicholl, and 1831, ib., p. 447, before the delegates. In which country a person has his children educated, in the absence of special reasons for his choice. Kindersley in Drevon v. Drevon, 1864, 34 L. J., N. S., Ch. 139. Marrying a daughter, apprenticing a son, and buying a partnership for him in the new country. Stevenson v, Masson, 1873, L. R., 17 Ecj. 78, Bacon, Digitized by Microsoft® DOMICILE: CRITERIA: SERVICE. 281 Removal of the remains of deceased children to the new country, James in Haldane v. Eckford, 1S69, L. R., 8 Eq. 642. In which country a testator directs his property to he invested, and from which country he chooses the trustees of his will and the guardians of his children. Kindersley in Drevon v. Drevon, 1864, 34 L. J., N. S., Ch. 136. " By her will she left her property to English trustees, and to be administered according to English law : " Pollock in Att.-Gen. v. Wahhtatt, 1864, 3 H. & C. 387. It is evident that all arguments drawn from the conduct of the person whose domicile is in question with regard to his children, though not unimportant on any theory, must have a peculiar im- portance on the footing of the doctrine of Moorliouse v. Lord. § 257. A domicile in any part of the British dominions is not changed by employment in the service of the British crown, whether military, naval or civil, even though such employment in- volve residence elsewhere, with the exception however as to India expressed in § 259. On the other hand, such service is no ob- stacle to the acquisition of any domicile not inconsistent with its duties. So far as the question of domicile lies between two British places, these rules follow from the circumstance that the service of the crown involves no lasting tie to one part of the British do- minions rather than to another. A British domicile was retained, notwithstanding employment elsewhere in the service of the crown, in Dalhotisie v. McDoitall, 1840, 7 C. & F. 817, Cottenham and Brougham, military; Brown v. Smith, 1852, 15 Beav. 444, Romilly, naval ; Re Patten, i860, 6 Jur. N. S. 151, Cresswell, naval ; and Att.- Gen. v. Rowe, 1862, I H. & C. 31, Pollock, Bramwell and Wilde, civil. One British domicile was exchanged for another during employment in the service of the crown, in Tovey v. Lindsay, 18 13, i Dow. 133, Eldon, military ; and Re Smith, 1850, 2 Robertson 332, Fust, civil. And when one of the places in question is politically foreign, the person residing there in the diplomatic or consular service of the British crown, the rule that a previous British domicile is uot Digitized by Microsoft® 282 PRIVATE INTERNATIONAL LAW. necessarily lost by such residence still applies. If the service be diplomatic, it might perhaps be deemed incompatible with its duties to acquire the foreign domicile ; see § 261 ; but there would seem to be nothing to prevent a person in the consular service from acquiring a domicile, if so minded, in the country where he is employed, it being of frequent occurrence that foreigners are chosen for such employment in their respective countries. " I take it to be clear that a person domiciled in England, and going abroad either as an ambassador or consul, would not in any way by the fact of his residence in a foreign country alter his domicile But if already there domiciled and resident, the acceptance of an office in the consular service of another country does nothing to destroy the domicile." Wilde, in Sharpe v. Crispin, 1869, L. R., i P. & M. 613, 617. See also Lushington in Maltass v. Maltass, 1844, i Robertson 79; Fust in Gout v. Zimmermann, 1847, 5 X. of C. 445 ; and the next §. § 258. Neither is a domicile, previously enjoyed in any part of the British dominions, necessarily affected by diplomatic or consular em- ployment in the British dominions on behalf of a foreign state. Heath v. Samson, 1S51, 14 Beav. 441, Romilly ; Att.-Gcn. v. Kent, 1862, I H. & C. 12, Pollock, Martin, Bramwell, Wilde; both cases of diplomatic employment, and the last establishing that its acceptance did not prevent the person's movable property from being subject to legacy duty on his death, as in any other case of a person dying domiciled in England. § 259. But residence in India in the special Indian service of the crown, as formerly in the service of the East India Company, whether military, naval, or such civil service as is usually entered on as a profession for life, produces an Anglo-Indian domicile. This exception to the general rule in § 257 is parallel to the ex- ception made by § 249 to the general rule in § 248. Both are survivals of the old doctrine that the domicile was changed by a residence abroad of indefinite and presumably long duration, notwithstanding the distinct contemplation of return ; and both have in their favour the reasons of convenience mentioned on p. 278. An Anglo-Indian domicile was never acquired by emplo)-- ment in the mercantile marine of the East India Company, in which the engagement involved no permanent obligation to serve in the East Indies, but usually terminated with the voyage. Digitized by Microsoft® DOMICILE : SERVICE. 283 Aiimativ. Aikman, 1861, 3 Macq. S55, Campbell, and 880, Wensleydale. Nor by the acceptance of liigli ofSce ia India comparatively late in life. Att.-Gen. v. Rotve, 1862, i H. & C. 31, Pollock, Bramwell and Wilde. But the authorities quoted for § 249 show that so far as an Anglo-Indian domicile was ever acquired by service it is so still. § 260. An officer who has acquired an Anglo-Indian domicile pursuant to § 259, but has attained a rank at which he is per- mitted to reside where he pleases, is not prevented from changing his domicile, at least to another British territory, by the liability to be ordered back to India under which he lies as long as he retains his commission. Wood in Forbes v. Forbes, 1854, Kay 359 : Att.-Gcn. v, Pot linger, 1 861, 6 H. & N. 733 ; Pollock, Martin, Bramwell. § 261. The point reserved in § 260, whether in the case there put the domicile of a country politically foreign to England can be acquired, equally ai-ises in the case of other persons in British service whose duties are not such as to preclude their in fact re- siding abroad. In all these cases the question whether the resi- dence is accompanied with a sufficient intention of permanence for the acquisition of domicile must be the same for a foreign as for a British country, and will include considerations as to the proba- bility of the person being recalled to the active performance of his duties, and as to the conduct he would pursue in such an event, as for example by giving up his service rather than obey the call, by obeying it but leaving his family in his adopted country in the hope of his speedy return, and so forth. The issue must be joined on whether the intention necessary for the acquisition of domicile implies such feelings towards the adopted country that, by a pre- sumption juris et de jure, holding them towards a foreign country cannot be imputed to a person still remaining in British service. The affirmative of that proposition is scarcely intelligible except on Digitized by Microsoft® 284 PRIVATE INTERNATIONAL LAW. the footing of the doctrine of Moorhouse v. Lm^d, and even on that footing it seems that, so long as private persons are allowed to change their personal law without changing their political na- tionality, the possession of a grade in the public service may be an argument against the probability, but not against the permis- sibility, of its holder doing the same. What has been said under § 257 about the diplomatic and consular services may here be com- pared. Certainly the diplomatic service presents a much stronger case than any other against the acquisition of a foreign domicile. The fiction that the hotel of an embassy is a part of the soil of the ambassador's country would formerly, no doubt, have been used as an argument against the existence of the fact which is no less neces- sary than the intention ; but if the question should now arise, it will probably be discussed on real and not on fictitious gi-ounds. In Hodgson V. Dc Bcauchcsne, 1858, Lushington said that "a settled domicile in a country imports an allegiance to the country, very different from a mere obedience to its laws during a temporary residence" : I2 Mo. P. C. 319. It may have been on this passage that Kingsdown founded his opinion that the views of himself and Cranworth were anticipated in that judgment : see above, p. 269. In the same page Lushington said : "we do not think it necessary for the decision of this case that we should lay down as an absolute rule that no person, being colonel of a regiment in the service of the East India Company and a general in the service of her majesty, can legally acquire a domicile in a foreign country. It is not necessary for the decision of this case to go so far ; but we do say that there is a strong presumption of law against a person so circumstanced abandoning an English domicile and becoming the domiciled subject of a foreign power.'' In President of the United States of Atnerica v. Drummond, 1864, 33 Beav. 449, Romilly said with reference to a person about whose origin and antecedents nothing was known : " he obtained a com- mission in the English army, which would give him an English domicile." This may be admitted under the circumstances, and probably was not meant to be applied further. A peer of the United Kingdom is not prevented by his parliamentary or other political duties from acquiring a domicile in a country politically foreign : Hamilton v. Dallas, 1875, L. R,, i Ch. D. 257, Bacon. § 262. A political refugee retains his domicile, unless he settles in a new country abandoning the hope of return. De Bonneval v. De Bonneval, 1838, i Curt. 856, Jenner ; Re D'OrUans, 1859, I S. & T. 253, Cresswell. This § results as well from ^ 248 as from the doctrine of Moorhouse v, Lord. Digitized by Microsoft® DOMICILE : WAR. 285 Trade Domicile in Time of War. The student must be cautioned against confounding the trade domicile, by which the belligerent or neutral chai-acter of property is determined for the purposes of maritime war, with the subject of this chapter. The two are distinguished by Dr. Lushington in Hodgson v.De Beauchesne, 1858, 12 Mo. P. C. 313. As illustrations of the difference it may be mentioned that " a man may have mercan- tile concerns in two countries, and if he acts as a merchant of both he must be liable to be considered as a subject of both, with regard to the transactions originating respectively in those countries : " Sir W. Scott, in The Jomje Klassina, 1804, 5 C. Rob. 302. Also tliat " the party becomes clothed with a new character from the period when he first takes steps animo removendi to abandon his former domicile, and animo manendi to acquire a new one : " Lushington in The Baltica, 1855, Spinks, Adm. 267. The subject of this kind of domicile will not be pursued further here, because it belongs to public international law, and enough has been shown to enforce the impropriety of arguing from the one domicile to the other on any point. Digitized by Microsoft® CHAPTEE XV. BRITISH NATIONALITY. Although political nationality is of little importance to private international law as professed and applied in England, the rules on which it depends are of interest in connection with our subject, in view of the growing tendency on the continent to substitute it for domicile as the criterion of the personal statute and jurisdiction. Unfortunately those rules are far from being the same in all coun- tries. They result almost everywhere from a conflict between the feudal principle of allegiance determined by birth on the soil, and the Roman principle of citizenship determined by descent ; but the respective proportions in which those principles are combined, and the methods used for combining tliem, differ widely. All that will be done here will be to exhibit the rules now in force as to the British character and its loss. It will be superfluous constantly to repeat the word " political : " if " nationality " or '' character " could leave a doubt, " British " would prevent it, since the civil character may be English, Scotch or other, but not British, the empire having no common civil law. Natural-born Suhjeds at Common Laiv. § 263. British nationality results from birth in the British do- minions, except in the case of a child born to an enemy father at a place in hostile occupation. At common law the British character was imposed, and not merely offered for acceptance. ^Encas Macdonald's Case, 174.7, '8 State Trials 857, Lee ; where the prisoner, who was carried to France in his early infancy, and had resided there till he came over and took part in the rebellion of 1745 under a French Digitized by Microsoft® NATURAL-BORN SUBJECTS. 287 commission, tlie two countries being tlien at war, was convicted of high treason, but pardoned on conditions. " But if enemies should come into any of the king's dominions, and surprize any castle or fort, and possess the same by hostility and have issue there, that issue is no subject to the king though he was born within his dominions, for that he was not born under the king's ligeance or obedience." In Calvin's Case, 7 Coke 1 8 a. § 26-i. "Many times ligeauce or obedience without any place within the king's dominions may make a subject born. . . . Therefore if any of the king's ambassadors in foreign nations have children there of their wives, being Englishwomen, by the common laws of England they are natural-born subjects." In Calvin's Case, 7 Coke 18 a. The condition that the wives are to be Englishwomen is cer- tainly now superfluous ; see § 276. And it is doubtful whether it was necessary even in Coke's time : Bacon v. Bacon, 1641, Cro. Car. 601, Brampston, Croke and Berkley. Children born in foreign parts, in lawful wedlock, to British soldiers or sailors on service, or to British ambassadors, may still sometimes claim British nationality under this § where the fathers were naturalized British subjects, or where for any other reason § 265 does not apply. Xatural-horn Subjects by Statute. As to the act 25 Edw. 3, st. i, see Doe v. Jones, 1791, 4 T. R. 300 ; Kenyon, Ashhurst, Grose. § 265. "All children born out of the ligeance of the crown of England or of Great Britain, or which shall hereafter be born out of such ligeance, whose fathers were or shall be natural-born subjects of the crown of England or of Great Britain at the time of the birth of such children respectively, are hereby declared to be natural-born subjects of the crown of Great Britain, to all intents constructions and purposes whatsoever." St. 4 Geo. 2, c. 21, s. 1 ; interpreting and substantially repeating st. 7 Anne, c. 5, s. 3. Except such "whose fathers at the time of the birth of such children respectively were or shall be attainted of high treason by Digitized by Microsoft® 288 PRIVATE INTERNATIONAL LAW. judgment outlawry or otherwise, either in this kingdom or in Ireland ; " or whose fathers at the time of the birth of such children re- spectively, by any law or laws made in this kingdom or in Ireland, were or shall be liable to the penalties of high treason or felony in case of their returning into this kingdom or into Ireland without the license of his majesty his heirs or successors, or of any of his majesty's royal predecessors ; [This means, where the penalties in question are incurred by and for the return, not where the return might make it possible to enforce them for some other fact by which they had been incurred: Fitch v. Wcbcr, 1847, 6 Ha. 51, Wigram.] " or whose fathers at the time of the birth of such children re- spectively were or shall be in the actual service of any foreign prince or state then in enmity with the crown of England or of Great Britain." St. 4 Geo. 2, c. 21, s. 2. There is probably also another exception to the rule laid down in st. 7 Anne, c. 5, s. 3, and st. 4 Geo. 2, c. 21, s. 1. For st. 13 Geo. 3, c. 21, recites that " no provision hath hitherto been made to extend farther than to the children born out of the ligeance of his majesty, whose fathers were natural-born subjects of the crown of England or of Great Britain " ; and lays down in s. 1 that " all persons born or who hereafter shall be born out of the ligeance of the crown of England or of Great Britain, whose fathers were or shall be by virtue of" st. 4 Geo. 2, c. 21, s. 1, " entitled to all the privileges of natural-born subjects of the crown of England or of Great Britain are hereby declared and enacted to be natural-born subjects of the crown of Great Britain to all intents constructions and purposes whatsoever, as if he and they had been and were born in this kingdom." The recital pre- ceding the enactment is correct, but the reference which in the en- actment itself is made to st. 4 Geo. 2, c. 1, is incorrect, for the fathers in question had not been declared to be entitled to all the privileges of natural-born subjects, but to be natural-born subjects. And the enactment was superfluous unless the legislature considered that st. 7 Anne, c. 0, and st. 4 Geo. 2, c. 21, when they declared certain children to be natural-born subjects to all intents whatso- Digitized by Microsoft® NATURAL-BORN SUBJECTS. 289 ever, contained an exception of the intent of figuring as natural- born subjects in a further application of those acts of parliament to their own children. But if the legislature of 13 Geo. 3 did so con- sider, it may be argued that it intended the same exception to be contained in its own enactment ; and then § 265 must be read with this further exception : Except also those children neither whose fathers nor whose paternal grandfathers were born within the British dominions. In 1795 Frederick Christian Rynhart, great-grandson of Godert de Ginkel first earl of Athlone, was admitted to his seat in the Irish house of lords although no one of the family had been born in the United Kingdom ; but it does not appear that there had been any report on his case by the attorney- general. Journals of Irish house of lords, 10 March 1795 ; evidence of Rt. Hon. C. W. W. Wynn before Commons' select committee on laws affecting aliens, 1843, p. 69 ; 2 Lodge's Peerage of Ireland 157. This precedent, for v/hat it is worth, is opposed to the necessity of the last exception ; and in the report of the committee Just named, p. x, it is stated that, on a case raising the question in connection with the title to land, five of the most eminent lawyers in the country advised one way and five the other. In the first edition of this book, p. 23, I pointed out the possibility that the last exception might not be sustained. This being quoted in a report of the committee on foreign affairs of the United States' house of representatives, Sir A. Cockburn wrote, with reference to the passage as quoted, " there is no foundation whatever for such a notion:" Nationality, 1869, p. 94. On a different page I had mentioned the case of the Athlone Peerage and the opinion of the five lawyers. Naturalization, Denization, and Resuinption of Br Hi sh Nationality. § 266. British nationality is acquired either by naturalization, and this either through a special act of parliament or under the Natural- ization Act 1870, or by denization. " An alien to whom a certificate of naturalization is granted shall in the United Kingdom be entitled to all political and other rights powers and privileges, and be subject to all obligations, to which a natural-born British subject is entitled or subject in the United Kingdom, with this qualification, that he shall not, when within the limits of the foreign state of which he was a subject previously to obtaining his certificate of naturalization, be deemed to be a British subject unless he has ceased to be a subject of that state in pursuance Digitized by Microsoft® 290 PRIVATE INTERNATIONAL LAW. of the laws thereof, or in pursuance of a treaty to that effect." Naturalization Act 1870, s. 7. § 267. Letters of denization may be granted by the crown. The difference between their effect and that of naturalization is that a denizen becomes a British subject from the date of the letters but not as from that of his birth, while a naturalized person is placed in the United Kingdom in a position equivalent to that of a natural- born subject, as has been seen in the last §. This difference was important so long as aliens could not take or hold land, for a denizen, the defect of heritable blood not being cured in him, could not in- herit land, nor could his issue born before his denization inherit it from him. The only practical difference now remaining appears to be that no person born out of the British dominions, though "made a denizen, except such as are born of English parents, shall be capable to be of the privy council, or a member of either house of parliament, or to enjoy any office or place of trust either civil or military, or to have any grant of lands tenements or hereditaments from the crown to himself or to any other or others in trust for him " : st. 12 & 13 W. 3, c. 2, s. 3. § 268. The conditions for naturalization under the act of 1870 are that the alien, " within such limited time before making the appli- cation as may be allowed by one of her majesty's principal secretaries of state, either by general order or on any special occasion, has resided in the United Kingdom for a term of not less than five years, or has been in the service of the crown for a term of not less than five years, and intends when naturalized either to reside in the United Kingdom or to serve under the crown." The secretary of state may refuse the application without assigning any reasons. Naturalization Act 1870, s. 7. § 269. A natural-born subject who has become an alien under § 271, 273, or 279, or under § 276 if a widow, may be readmitted to British nationality under the same conditions as are required for naturalization, except that residence in any British possession will be equivalent to residence in the United Kingdom ; and there will be the same discretion, the governors of British possessions enjoying that discretion therein like the secretary of state in the United Digitized by Microsoft® NATURALIZATION : EXPATRIATION. 291 Kingdom. The readmission will only operate from its date, and will be subject to a qualification similar to that mentioned in § 266. Naturalization Act 1870, s. 8. § 270. The legislature of any British possession may make laws " for imparting to any person the privileges or any of the privileges of naturalization, to be enjoyed by such person within the limits of such possession." Naturalization Act 1870, s. IC. Generally, the question of a person's being a British subject or an alien must be decided by the law of the. United Kingdom ; but if he thus prove to be an ahen, his rights and those of others will be affected by that fact to the extent and in the manner determined by the law of that part of the British dominions which is concerned. Donegani v. Donegani, 1835, 3 Knapp 63, Shadwell ; Re Adam, 1837, i Mo. P. C. 460, Erskine. If a qualified naturalization should be conferred by a colonial law under this §, its operation would be in effect the same as though privileges were given in the colony to aliens under certain conditions. Declarations of Alienage and Expatriation. § 271. "Any person who by reason of his having been born within the dominions of her majesty is a natural-bom subject, but who also at the time of his birth became under the law of anv foreign state a subject of such state, and is still such subject ; " also " any person who is bom out of her majesty's dominions of a father being a British subject ; " may, if of full age and not [an infant, lunatic, idiot or married woman], make a declaration of alienage," " and from and after the making of such declaration shall cease to be a British subject." — Naturalization Act 1870, s. 4, the words in brackets from s. 17. § 272. British nationality acquired by naturalization is also lost by making a declaration of alienage, where this country has a con- vention with the country of origin, permitting the s^ibjects of that country who have been naturalized as British subjects to divest themselves of that status. Naturalization Act 1870, s. 3. ■ § 273. Any person not an infant, lunatic, idiot or married woman, loses his British nationality by voluntarily becoming naturalized in V 2 Digitized by Microsoft® 292 PRIVATE INTERNATIONAL LAW. a foreign state, while in that state. Naturalization Act 1870, ss. 6, 17. § 274. If a person entitled to make a declaration of alienage under § 271 omits to do so, but proves by his conduct that he chooses his foreign nationality ; or if a person entitled to make a declaration of alienage under § 272 omits to do so, but proves by his conduct that he desires to divest himself of the status of a British subject ; and if in either case the foreign country in question accepts the person as its subject, but without naturalizing him, so that § 273 does not apply : it may be proper to treat the person as an alien for the pur- poses of public international law. DrttnimoncCs Case, on the award of the commissioners for liquidating the claims of British subjects in France, 1834, 2 Knapp 295, Shadwell. See the Countess de Con-duay's Case, on the same award, 1834, 2 Knapp 364, Parke, as to the circumstances under which the protection due to a British subject may be claimed by one not strictly such. But he must still be considered as a British subject, for the purpose of transmitting that character to his children under any statute. Fitch V. Weber, 1847,6 Ha. 51, Wigram. § 275. The loss of British nationality does not discharge from any liability in respect of any act done before such loss. Naturalization Act 1870, s. 15. Effect of the Family on Nationality. § 276. " A married' woman shall be deemed to be a subject of the state of which her husband is for the time being a subject." Naturalization Act 1870, s. 10, (1). § 277. " AVbere the father, or the mother being a widow, has obtained a certificate of naturalization in the United Kingdom, every o^ child of such father or mother who during infancy has become resi- dent with such father or mother in any part of the United Kingdom shall be deemed to be a naturalized British subject." Naturaliza- tion Act 1870, s. 10, (.5). Digitized by Microsoft® NATIONALITY : CHILDREN : CESSION. 293 § 278. " Where the father, or the mother being a widow, has ob- tained a certificate of readmission to British nationality, every child of such father or another who during infancy has become resident in the British dominions with such father or mother shall be deemed to have resumed the position of a British subject to all intents." Naturalization Act 1870, s. 10, (4). § 279. "Where the father being a British subject, or the mother being a British subject and a widow, becomes an alien in jDursuance of" § 271, 272, 273 or 27C, or of this §, "every child of such father or mother who during infancy has become resident in the country where the father or mother is naturalized, and has according to the laws of such country become naturalized therein, shall be deemed to be a subject of the state of which the father or mother has become a subject, and not a British subject." Naturalization Act 1870, s. 10, (3). Transfer of Nationality in cases of Cession. § 280. The cession of a British territory, or the acknowledgment of its independence, causes the loss of their British nationality by all persons domiciled within it at the date of the cession. Doe V. Acklam, 1824, 2 B. & C. 779, Abbott and (?). § 281. Unless they transfer their domicile to some territory which remains British, either within the time limited for that purpose by the treaty, or immediately, if no such time be limited. Doe V. Mulcaster, 1826, 5 B. & C. 771, Abbott, Bayley and Holroyd ; Doe v. Arkwright, 1833, 5 C. & P. 575, Parke ; Jephson v. Riet-a, 1835, 3 Kn. 130, Erskine. The judgment in Re Bruce, 1832, 2 C. & J. 436, 2 Tyr. 475, Bayley and Lyndhurst, is expressed as if the court thought that a youth, who was nine- teen at the date of the acknowledgment of the independence of the United States, could elect his nationahty either then or on attaining his majority two years afterwards, the treaty limiting no time. But this can scarcely be so, and the question in the case did not require such a decision. Digitized by Microsoft® CHAPTEE XVI. CORPOEATIONS ANB PUBLIC INSTITUTIONS. Besides the natural persons with whom we have hitherto been chiefly concernpd, private international law has to do with those arti- ficial persons to which the law of every country gives a technical existence. One class of these is composed of corporations, in which natural persons called corporators or members, and their successors, are united as a body having legal personality and perpetual succes- sion. The general rule of Roman law appears to have been that three members were required for a corporation ; Neratius Priscus tres facer e existimat collegium, et hoc magis sequenduTn est : Dig. 50, 16, 85. But a corporation was not dissolved by being reduced to a single member ; sed si universitas ad unum redit, magis adinit- titur posse eum, convenire et conveniri, cum jus omnium in unum, reciderit et stet nomen universitatis : Dig. 4, 4, 7, 2. In England however we are familiar with corporations never having more than one member, corporations sole as distinguished from corporations aggregate. Another class of artificial persons was presented in Roman law, and is presented now in that of many countries, by insti- tutions for public purposes, as colleges or hospitals, enjoying legal personality without so much as a single corporator, and therefore said personce vice fungi. In England we do not possess this kind of artificial person, the property of such institutions being always vested either in corporations or in unincorporated trustees. With regard to both classes the same international principles rule. The regulation of an.y artificial person, in matters concerning only itself or the rela- tions of its members, if any, to it and to one another, must depend on the law from which it derives its existence. That law is its per- sonal law, or in other words it is domiciled in the country of that law. Digitized by Microsoft® CORPORATIONS : CHARITIES. 295 If in other countries it enters into relations with outside parties, the first question to be asked is whether by the laws of those countries it is permitted to do so in its artificial character. In case of the affir- mative, its dealings with outside parties must stand on the same footing as those of a natural person domiciled abroad. If its artificial personality is not recognized for the purpose in question, no natural person can be liable on the dealing except on the ground of agency or of holding out ; and on discussing any such gi-ound it must be borne in mind that the corporators, if any, and as such, associated together on the footing of no other law than that of the domicile of the corporation. The desirableness of treating in one place the questions which arise out of administration in bankruptcy has led us to consider certain applications of these principles, in § § 123, 124. No more direct con- sequence can be drawn from the principles than that a company which derives its incorporation or other legal existence from another law than that of England cannot be dissolved in an English winding up, though the previous st&,ges of such a winding up may be employed for the purpose of making its English property available for the pay- ment of its debts. In pursuing further the subject of artificial persons, we will commence with a § relating to those public insti- tutions which in most countries are organized as or by means of such persons, and the rest of the chapter will relate chiefly to corporations. § 282. Where the English court, in administering a will, finds that money is given for a charitable purpose intended to be domiciled abroad, it must first be assured that the purpose can be lawfully accomplished in the country in question, and then it will hand over the money to the trustees or other parties indicated by the testator, to be applied by them subject to the law and jurisdiction of that country. The court will not settle a scheme for the government of the foreign charity. Provost of Edinburgh v, Aubery, I7S4, Ambler 236, Hardwicke ; Oliphant v. Hendrie, 1784, i Bro. C. C. 571, Thurlow ; Att.-Gen. v. Lepine, i8i8, 2 Sw. i8r, I Wils. Ch. 465, Eldon, reversing Grant, who in 181 5 had settled a scheme, 19 Ves. 309; Minet v. Vulliamy, 1819, i Russ. 113, note, Plumer ; Emery v. Hill, 1^26, I Russ. J 12, Gifford ; Mayor of Lyotts v. East India Cojnpany, Digitized by Microsoft® 296 PRIVATE INTERNATIONAL LAW. 1836, I Mo. P. C. 175, I Mo. I. A. C. 175, Brougham ; Att.-Gen. v. Sturgc, 1854, 19 Beav. 597, Romilly ; New v. Bonaker, 1867, L. R., 4 Eq. 655, Malins. In Mayor of Lyons v. East India Company Brougham said : " the court has gone further of late years than Lord Hardwicke thought he could in Provost of Edinburgh v. Aubery, for he then held that he could give no directions as to the distribution " : i Mo. P. C. 295, i Mo. I. A. C. 293. But this was founded on a misapprehension as to Oliphant v. Hendrie, and as to a certain case of Cadell v. CrarJ referred to in the argument of Att.-Gen. v. Lepijie before the master of the rolls ; and on a strange and peculiar case of Att.-Gen. v. City of London, 1790, 3 Bro. C. C. 171, i Ves. Jun. 243, Thurlow. Brougham, in the course of the same judgment, thus gave the reason of the general rule. " The objection in the ordinary case to ad- ministering a foreign charity under the superintendence of the court is this : those who are engaged in the actual execution of it are beyond the court's control, and those who are within the jurisdiction are answerable to the court for the acts of persons as to whom they can derive no aid from the court. Such an office will not easily be undertaken by any one, and its duties cannot be satis- factorily performed ; at least the party must rely more on the local, that is the foreign, authorities for help, than on the court to which he is accountable." I Mo. P. C. 297, I Mo. I. A. C. 295. § 2S3. The English court will not interfere in the internal disputes of foreiga corporations. Sudlow V. Dutch Rhenish Railway Company, 1855, 21 Beav. 43; Romilly, who pointed out that all the court could do for the plaintiff would be to make a declaration in his favour, which would be inoperative in the country where the company was established. In Lewis v. Baldwin, 1848, 11 Beav. 153, Langdale, the bill appears to have proceeded also on matters not internal to the Irish railway company, and it was open to the court in the further progress of the suit to abstain from deciding the internal matters. In Pickering v. Stephenson, 1872, L. R., 14 Eq. 322, Wickens, the company, though Turkish, was managed in England, and it does not seem to have been strenuously argued that the Turkish courts had exclusive jurisdiction. For the credit of the company it may not have been desirable to take such a line ; and it was at least held that Turkish law governed. § 284. A foreign corporation is not liable to income-tax on its entire profits, as a " person residing within the TJnited Kingdom," notwithstanding that it has a branch house of business in London, and that the regular meetings of its shareholders are held in London ; but it is liable to income-tax on the profits arising from the business carried on by it in England, as a natural person residing abroad would be. Att.-Gen. v. Alexander, 1874, L. R., 10 Exch. 20 ; Kelly, Cleasby, Amphlett. See Gilbcrtson v. Fergusson, 1879, L. R., 5 Ex. D. 57 ; Huddleston and Digitized by Microsoft® CORPORATIONS. 297 Pollock, Kelly dissenting ; a peculiar case with regard to income-tax on dividends paid in the United Kingdom on shares in a foreign company. § 285. An English, Scotch or Irish corporation is liable, to income- tax on its entire profits, as a "person residing within the United Kingdom," notwithstanding that all its business is carried on abroad, and that subsequently to its incorporation it has been registered abroad. Ceseiia Sulphicr Company Limited v. Nicholson, and Calcutta Jute Mills Company Limited v. Nicholson, decided together in 1876, L. R., i Ex. D. 428, by Kelly and Huddleston. The latter, it is true, said that the incorporation of a company was not conclusive of its residence, and that the true question was " where the real business is carried on " ; but the reasons he gave for thinking that the real business of the companies in question was carried on in England merely amounted to their government being in England, particularly noticing the situation of the registered offices, which however was necessarily in the United Kingdom as a condition of incorporation under the companies acts. § 286. There is no technical objection to suit in England by a foreign corporation or other artificial person. It may sue, subject to the question whether the local law of the transaction authorized it to act in its corporate or other artificial character. Dutch West India Company v. Henriques, 1724, Strange 612, C. P. ; 1728, Strange 807, Lord Ray. 1532, B. R. ; 1730, Strange 808, Lord Ray. 1535, H. of L. : Dutch East India Company v. Henriques, 1728, Cooke's Rep. of Pr. Ca. in C. P. 44 : National Bank of St. Charles v. De Bernales, 1825, i C. & P. 569, Ry. & Mo. 190, Abbott. The first and third cases show that, where there is a question about the corporate name, the identity of the corporation is treated as a question of fact. It is needless to quote later authorities in support of the §, but it must be observed that all the cases I know are those of corporations ; still, a hospital or college entitled persona: vice fungi would clearly fall within the same principle. § 287. It may be questioned how far the laws of the United King- dom allow a corporation deriving its artificial personality from a foreign or colonial authority to cany on business in the United Kingdom, so as to acquire a right of suit on contracts entered into in the course of such business. There are businesses essentially of an international character, such as that of a common carrier between two countries ; and it would not be possible universally to refuse to a railway or steamboat company. Digitized by Microsoft® 298 PRIVATE INTERNATIONAL LAW. incorporated in one of those countries for such a purpose, the right to have an ofEce in the other country, and to contract there with refer- ence to the purpose of its existence. In states where the govern- ment is entrusted with a discretion as to granting or refusing to foreign corporations the right to act within the territory, such right might in certain cases be refused even to a company desiiing to act as a commoa carrier between that territory and another. But where, as in England, the government has no such discretion, the courts of law can only act on general rules, and there would be extreme incon- venience in their laying down a general rule of exclusion for the case of trades which necessarily involve two coimtries in the sphere of their operations. This would be to invite measures of retorsion against English companies similarly circumstanced abroad. On the other hand, the companies act 1862 provided that thence- forth no association of more than ten persons should be formed for the business of banking, or of more than twenty persons for any other business, " unless it is registered as a company under this act, or is formed in pursuance of some other act of parliament or of letters patent, or is a company engaged in working mines within and subject to the jurisdiction of the stannaries :" s. 4. And there bad previously been legislation of a similar kind. Is it possible to suppose that parliament, while on the one hand strictly limiting unincorpo- rated associations, and on the other hand strictly regulating domestic incorporation, intended to leave the whole field of English business open without regulation to associations possessing foreign incorpora- tion? If not, is the construction of an act of parliament elastic enough to allow a distinction, certainly not deducible from its words, to be drawn between trades which necessarily involve two countries in the sphere of their operations, and other trades ? Again, if the judges are constitutionally authorized to draw such a distinction, could it without the aid of parliament be made sufficiently definite and certain in practice 1 In Ncii'by v. Van Oppen and Coifs Patent Firearms Manufacturing Com- pany, 1872, L. R., 7 O. B. 293 ; Cockburn, Blackburn, Mellor, Quain ; a United States' corporation, carrying on business in England "just as an English corporation might do," was allowed to be sued on a contract made in England in the course of such business. " We see from this case," said Black- Digitized by Microsoft® FOREIGN CORPORATIONS. 299 burn in delivering the judgment of the court, "that there is at least one American corporation that has set up a branch business here, and there will probably soon be more." Yet the only points argued, or noticed in the judg- ment, were that a foreign corporation could not be sued in an English court at all, and that if suable the defendant corporation had not been properly served. No doubt it may be said that the defendant corporation could not repudiate the lawfulness of the business it had carried on, but that no remark should have . been made on the lawfulness of that business, when the probable frequency of the case was adverted to, may be taken as proof that no doubt about it had oc- curred to the judges. In Bank of Montreal v. Bethune, 1836, 4 Upper Canada K. B. 341, Robinson, Sherwood and Macaulay; and in Genesee Mutual Insurance Company v. Westman, 1852, 8 Upper Canada Q. B. 487, Robinson, Burns and Draper ; it was held that a bank incorporated in Lower Canada, and an insurance company incorporated in New York, could not sue on contracts made by them in Upper Canada in the course of carrying on business there. In each case it was considered that the company was acting beyond the powers given by its charter, the true construction of which limited the business of the company to the country where it was granted ; but Robinson and Sherwood plainly intimated their opinion that even in the absence of this point the common law of England, as the law of Upper Canada, would have refused to a foreign corporation the power of carrying on business within the territory. § 288. Personal rights, not involving the question of authority to act in England in the artificial character, are enjoyed in England by foreign corporations or other artificial persons, the same as by foreign natural persons. Right to protection of trademark : Collins Company v. Brown, 1857, 3 K. & J. 423, Wood; Collins Company v. Reeves, 1858, 4 Jur. N. S. 865, Stuart. § 289. When the members of a corporation are not individually liable for its acts by the law from which it derives its personality, they cannot be sued in England for any acts done by it where it has authority to act in its corporate chalracter. General Steam Navigation Company v. Guillou, 1843, ^ ^I- ^ W. 877 ; Abinger, Alderson, Parke, Gurney. § 290. A foreign corporation may be served out of the jurisdiction with notice of a writ, as well as a foreign natural person. Westman v. Aktiebolaget Ehnans Mekaniska Snickarefabrik, 1876, L. R., I Ex. D. 237 ; Kelly, Bramwell, Amphlett : Scott v. Royal Wax Candle Com- pany, 1876, L. R., I Q. B. D. 404 ; Cockburn, Quain, Pollock. Digitized by Microsoft® 300 PRIVATE INTERNATIONAL LAW. § 291. A foreign corporation may be served with a writ within the jurisdiction, if it carries on business there and has there an ofEcer "in the nature of a head officer, whose knowledge would be that of the corporation," and on whom the writ is served. Newby v. Van Oppen and Colt's Patent Firearms Manttfacturing Company, 1872, L. R., 7 Q. B. 293 ; judgment of himself, Cockburn, Mellor and Quain, delivered by Blackburn. The quotation in the § is from the judgment, p. 296. In Carron Iron Company v. Maclaren, 1855, H. L. 416, Cranworth and Brougham, St. Leonard's dissentient ; reversing the same case, sub nom. Maclaren v. Stamton, 1852, 16 Beav. 279, Romilly ; and in Mackereth v. Glasgow and South Western Railway Company, 1S73, L. R., 8 Exch. 149, Bramwell, Cleasby and Pollock ; the service was held bad on the question of fact as to whether the business in England and the officer served there were of sufficient importance. In the first of those cases Cranworth did not discuss that question, thinking, as also did Brougham, that even if the service was good there was a substantial want of jurisdiction to grant the injunction appealed from, by which a Scotch corporation was restrained from proceeding in Scotland against the Scotch property of its deceased debtor, on the ground that a decree for the administration of his will had been made in England, where the deceased was domiciled. See § 99. Digitized by Microsoft® CHAPTER XVII. FOREIGN JUDGMENTS AND PROCEEDINGS. § 292. The judgment of a competent foreign court, by which a party is personally condemned to pay a certain sum, may be sued on in England as a new cause of action in the nature of those called simple contracts. Formerly there was a fiction that the defendant had promised to pay the amount, for which promise the judgment was held to be a sufficient consideration ; and he was not allowed to dispute that fiction, if all the circumstances concurred which were necessary to make the judgment a siifficient consideration. Hence the action might be either debt or indebitatus assumpsit : Walker v. Witter, 1778, I Doug, i ; Mansfield, Willes, Ashhurst, BuUer. But now the writ may be simply indorsed thus : " The plaintiff's claim is £1,000, upon a judgment of the , Court in the empire of Russia." Supreme Court of Judicature Act 1875. § 29.3. Or without being made the subject of a personal action, the simple contract debt created by a foreign judgment may be enforced against assets in England in the same way as an English debt. Dupleix V. De Roven, 1706, 2 Vern. 540, Cowper. § 294. And in the admiralty division of the high court, as formerly in the court of admiralty, effect can be given m rem to the sentence in rem of a foreign court having admiralty jurisdiction or what is equivalent thereto. Also, if the writ is indorsed as on a personal sentence, still effect in rem may be given if it appears that the pro- ceedings abroad were on a maritime lien, naturally leading to a sentence in rem. Digitized by Microsoft® 302 PRIVATE INTERNATIONAL LAW. " 'Tis a ruled case that one judge must not refuse, upon letters of request, to execute the sentence of another foreign Judge, when the persons or goods sentenced against are within his jurisdiction ; and if he do, his superior must compel him to it ; else it is a sufficient ground for reprizals against the territory" : Sir Leoline Jenkins, 1667, in Wynne's Life of Jenkins, vol. 2, p. 762. In arguing Jurado v. Gregory^ 1670, i Ventris 32, king's bench. Finch, after- wards lord Nottingham, said with the approval of the court "that where sentence is obtained in a foreign admiralty one may libel for execution thereof here, because all the courts of admiralty in Europe are governed by the civil law, and are to be assistant one to another, though the matter were not originally determinable in our court of admiralty." Sir R. Phillimore, sitting in the admiralty division of the high court, said : " I am of opinion that it is the duty of this court to act as auxiliary to the Portuguese court, and to complete the execution of justice which, owing to the departure of the ship, was necessarily left unfinished by that court. In other words, it is my duty to place the English court in the position of the Portuguese court after its sentence has been given against the defendants.'' The City of Mecca, 1879, L. R., 5 P. D. 28 ; at p. 32, after quoting Jenkins and Finch as above, and other old authorities. The Portuguese court was in this case a tribunal of commerce. In most continental countries foreign judgments are not treated as new causes of action, but are admitted to execution, or declared executory as it is called, after a special proceeding for that purpose. It would seem from the language of Jenkins and Finch that in the ancient forms of the English court of admiraltj'' the mode of proceed- ing on a foreign sentence was somewhat similar ; and what has been said above, p. 131, as to the ancient cooperation of the courts of dif- ferent countries in bankruptcies, may be compared. The English courts of common law and equity i\ever joined in any such system of express cooperation, but their doctrine that foreign judgments created new debts or causes of action led to results to a large extent similar, and like questions arose under each system as to the conditions of the validity of foreign judgments, and as to the right or duty of examining them before directly or indirectly enforcing them. 8 295. The foreign judgment in personam which is to be sued on or otherwise enforced as above shown must be such as lays on the defendant a present duty to pay. If in its own country it cannot be executed pending the time allowed for appealing, or pending an appeal, it cannot be enforced in England during the interval ; but if there is no such stay of execution in its own country the pendency of an appeal will not be a bar to an action in England, though it may Digitized by Microsoft® ENFORCING FOREIGN JUDGMENTS. 303 afford ground for the equitable interposition of the English court to prevent the possible abuse of its process, and on proper terms to stay- execution in the action. No action, where the foreign judgment could be executed in its own country, pending the appeal, only subject to security being given for repayment in case of reversal: Patrick v. Shedden, 1853, 2 E. & B. 14; Campbell, Wightman, Crompton. Where nothing was shown as to effect of appeal in country of judg- ment, appeal no bar, but might afford ground, &c. : Scott v. Pilkington, 1862, 2 B. & S. II ; Cockbum, Crompton, Blackburn. See also Alivoti v. Furnival, 1834, I C. M. & R. 297, Parke and (.?). § 296. Also the duty to pay laid on the defendant must be a duty to pay in settlement of the cause of action. A foreign order to pay a sum of money into court, to be disposed of according to a judgment thereafter to be given, cannot be enforced in England. Paul ^. Roy, 1852, 15 Beav. 433, Romilly. § 297. And a foreign collateral order to "pay the costs of any pro- ceeding cannot be enforced in England. Sheehy v. Professional Life Assurance Company, 1857, 2 C. B., N. S. 211 ; Cresswell, Cockburn, Crowder. § 298. Although a foreign judgment which awards costs while disposing of the cause of action may be enforced in England for the costs. Russell V. Smyth, 1842, 9 M. & W. 810 ; Abinger, Parke, Alderson, Rolfe ; where the costs were given in a foreign suit for divorce. § 299. The foreign judgment must be for a sum certain. And therefore, if any costs are to be deducted from the sum awarded by the judgment, they must have been taxed in the foreign court before it can be sued on : Sadler v. Robins, 1808, i Camp. 253 ; EUenborough, Grose, Le Blanc, Bayley. But since the original cause of action is not deemed in England to emerge in a foreign judgment, if the latter be for a sum certain with liberty to the defendant to establish a counterclaim, it will none the less be evidence in England in favour of the plaintiff, though the defendant may have ground to apply for a stay of proceedings in order that he may establish his counterclaim abroad according to the liberty reserved : Hall y. Odber, 1809, ii East 118; same four judges. Digitized by Microsoft® 30i PRIVATE INTERNATIONAL LAW. § 300. Coming now to the question of competence reserved in § 292, a court within the jurisdiction of which the defendant has expressly elected a domicile, with a view to legal proceedings relating to certain matters, is competent for such proceedings. Vallee v. Dumergue, 1849, 4 Exch. 290 ; Alderson, Pollock, Rolfe, Piatt. It is of course only a particular case of this, if the defendant has become party to an instrument by which his domicile, for the purpose of the obligations thereby created, is declared to be at a certain spot, in default of his electing another : Copin V. Adamson, 1874, L. R., 9 Exch. 345, Kelly, Amphlett & Pigott ; 1875, L. R., I Ex. D. 17, Cairns, Blackburn & Brett. § 301. But where by the proper law of a contract, lex loci con- tractus or solutionis as the case may be, a party to the contract is deemed to elect a certain domicile for legal proceedings relating to it, it is doubtful whether the court of that domicile, as such, is competent. In Meeus v. Thellusson, 1853, 8 Exch. 638 ; Pollock, Parke, Martin ; leave to amend a replication was granted, though the amendment would have been use- less except on the footing of the affirmative of this question, which however had not been argued. The question arose again in Copin v. Adamson, quoted under the last §, but became unimportant by reason of the decision on the point there mentioned. Kelly was for the affirmative, in the particular case of the contract made by taking shares in a company, and Cairns, though the question was not argued on the appeal, seems to have inclined to the same opinion ; but Amphlett and Pigott maintained the negative. The general case appears to me not to be distinguishable from that of § 303, for if the lex contractus does not otherwise carry with it Xh^ forum contractus, it can scarcely do so the more because it appoints a certain place, as a domicile deemed to have been elected, at which notices with a view to proceedings in the forum contractus may be served. And the particular case does not appear to me to be distinguishable from the general one. § 302. It may probably be considered as now settled that the forum rei is admitted in England as a sufficient ground of compe- tence for a foreign judgment which it is sought to enforce, whether that forum be grounded on political nationality ; on domicile in the ■ sense, admitting but of one domicile, in which it must be taken when used as the criterion of personal law ; or on domicile in the looser sense in which it may be taken in those countries which are familiar with it as the ground of jurisdiction. " If the defendants had been at the time of the judgment subjects of the country whose judg- Digitized by Microsoft® ENFORCING FOREIGN JUDGMENTS. 305 ment is sought to be enforced against them, we think that its laws would have bound them. Again, if the defendants had been at the time when the suit was commenced resident in the country, so as to have the benefit of its laws protecting them, or as it is sometimes expressed owing temporary allegiance to that country, we think that its laws would have bound them." Blackburn, delivering the judg- ment of himself, Mellor, Lush and Hannen, in Schibsby v. Westenholz, 1870, L. R, 6 Q. B. 161. This doctrine long remained obscure, as might be expected from the fact that the competence of the English courts themselves, with regard to personal obhgations, has never been based either on alle- giance or on domicile. In the older cases, where the foreign judg- ment had been pronounced against an absent defendant, the endea- vour was to determine in each instance whether it was agreeable to natural justice that the defendant should be held to be bound. In Buchanan v. Rucker, 1807, i Camp. 63, Ellenborough, and 1808, g Eas* 192, Ellenborough and (?), constructive notice was held not to bind one who had never been " present " in the country ; and it may be inferred from some of the expressions used that what was intended was that it should not bind one who had never been " resident " in it. In Cavan v. Stewart, 1816, Star. 525, Ellen- borough said ; " it is perfectly clear on every principle of justice that you must either prove that the party was summoned, or at least that he was once on the island. In the case before lord Mansfield it was in proof that the person leaving the island left an attorney in his place to act for him." Here again it is not certain that " was once on the island " should not be read as " resided once." In Becquetw. MacCarthy, 1831, 2 B. & Ad. 951 ; Tenterden, Parke, and (?) ; the foreign law required the process to be served on a public officer, but made no provision for his communicating with the absent party. This was held sufficient, because " it must be presumed that " the officer " would do whatever was necessary in the discharge of that public duty." Brougham said in Don v Lippmann, 1837, 5 C. & F. 21 : " Becquet v. MacCarthy has been supposed to go to the verge of the law, but the defendant in that case held a public office in the very colony in which he was originally sued." In Obicini v. Bligh, 1832, 8 Bi. 335, where the admiralty court at Malta had given damages and costs against the captor of a ship brought in there, but which did not seem to have been submitted by the captor for adjudication, the proof was defective, but Tindal and Gaselee appear to have considered that it would have been unnecessary to prove actual notice to the captor, because it was his duty to take the cause into the court. In Douglas v. Forrest, 1828, 4 Bing. 686, Best and (?), it would seem to have been held that the domicile of origin is a competent forum, when the defendant retains property there after establishing a domicile elsewhere, perhaps also X Digitized by Microsoft® 306 PRIVATE INTERNATIONAL LAW. subject to the condition that the debt sued for was contracted there. " We confine our judgnaent to a case where the party owed allegiance to the country in which the judgment was so given against him, from being born in it, and by the laws of which country his property was, at the time those judgments were given, protected. The debts were contracted in the country in which the judgments were given, whilst the debtor resided in it." U. s., p. 703. Though allegiance is mentioned it would seem that domicile must have been intended, for the case was one of a judgment recovered in Scotland against a Scotchman who had gone to live in India, so that his British allegiance afforded no ground for suing him in Scotland rather than in the British courts in India. That domicile, coupled with the possession of property in the territory, is a sufficient ground of competence for a foreign judgment, appears to have been assumed by all the judges in Cowan v. Braidwood, 1S40, i M. & Gr. 882, 2 Sc. N. R. 138 ; Tindal, Bosanquet, Coltman, Maule. See § 304, as to the possession of property within the territory, referred to in this case and Douglas V. Forrest, \tx Reynolds y. Fenton, 1846, 3 C. B. 1S7, Tindal, Maule and CressweU, the only point which seems to have been thought material was whether the de- fendant had had the opportunity of defending the foreign suit. § 303. With regard to the forum specicde obligationis, it must be remembered that even according to Roman principles, which are the only ones that can be asserted as possessing any claim to general reception, this forum is not constituted hj the obligation alone, but is subject to th6 condition that the defendant is either present in the territory or possesses property there. See above, p. 196. On the other hand the English courts, which at first did not possess this forum at all, have for some time past enjoyed underact of parliament a jurisdiction over defendants out of the territory, and not possessing property within it, in cases of contracts made in England, and torts and breaches of contract occurring within the jurisdiction. See § 175 for the present form of these statutory provisions. It might there- fore be expected that the older English authorities should be silent about the forum speciale obligationis as a ground of competence for foreign judgments, but that the newer ones should show some disposition to admit that ground without insisting on the Roman limitations. And the facts correspond with such an expectation. Probably the earliest case in which this ground for foreign competence was distinctly considered is Schibsby v. Westenholz, in the judgment in which (see above, p. 305 )it was said : "if at the time when the obligation was contracted the defendants were within the foreign country, but left it before the suit was instituted, we should be inclined to think the laws " [meaning jurisdiction] " of Digitized by Microsoft® ENFORCING FOREIGN JUDGMENTS. 307 that country bound them ; though before finally deciding this we should like to hear the question argued : " L. R., 6 Q. B. i6i. In this case the defendants possessed no property in the country of the judgment, and it may be doubted whether under the circumstances the Roman y&r«w2 contractus would have been in that country, even had they been casually present and made the contract there, although those who systematically defend the importance of the locus celebrati contractus would] answer that query in the affirmative. In Kousillon V. Rousillon, 1880, L. R., 14 Ch. D. 351, where also the defendant possessed no property in the country of the judgment, Fry refused to give effect to a judgment obtained in France, the forum contractus celebrati, without notice to the defendant ; and he mentioned as " a very material circumstance " that the con- tract, " though made in France, was evidently intended to be performed in England " : p. 357. § 304. With regard to the possession of property in the territory, as one of the alternative conditions for putting in force the Roman forum speciale obligationis, I said in 1858 that "the simple rule would be, when that condition is satisfied, to respect the title gained to any property by the plaintiff in the attachment suit, at the same time admitting the payment as a discharge of and protection to the garnishee, but not even then to enforce the judgment in personam for the balance not liquidated by the attachment, because the locus contractus, without either domicile or presence, does not found a purely personal jurisdiction : " Private International Law, p. 368. I understand this to be in substantial agreement with another passage of the judgment in Schibsby v. Westenhoh, 1870, L. R, 6 Q. B. 163. " We should however point out that whilst we think that there may be other grounds for holding a person bound by the judgment of the tribunal of a foreign country than those enumerated in Douglas v. Forrest, we doubt very much whether the possession of property, locally situated in that country and protected by its laws, does afford such a ground. It should rather seem that, whilst every tribunal may very properly execute process against the property within its jurisdiction, the existence of such property, which may be very small, affords no sufficient ground for imposing on the foreign owner of that property a duty or obligation to fulfil the judgment. But it is unnecessary to decide this, as the defendants had in this case no property in France. As to this, see London and Northwestern Railway Company v. Lindsay." The case thus referred to was one on Scotch law, decided in 1858. X 2 Digitized by Microsoft® 308 PRIVATE INTERNATIONAL LAW. Cavan v. Stewart, quoted under § 302, was an action against the garnishee in the foreign suit, and such garnishee was not allowed to plead in answer to his creditor the payment which he had been compelled to make in that suit. It is therefore at variance with the doctrine submitted in this §. § 305. Where the legislation of auy country establishes a forum actoris, that is a jurisdiction founded on circumstances neither per- sonal to the defendant nor connected with the obligation, but personal to the plaintiff — as is done by art. 14 of the Code Napoleon; see above, p. 199 — this will not be considered a sufficient ground ofcom- petence for enforcing such a judgment in England. Schibsby v. Westenholz, 1870, L. R., 6 Q. B. 155; Blackburn, Mellor, Lush, Hannen. Supposing that the court in which the foreign judgment was pro- nounced is not deemed to have been internationally competent on any of the grounds which have been considered, the judgment may yet be enforceable in England by reason of the conduct of the party with relation to the suit in which it was pronounced. § 306. " We think it clear, upon principle, that if a person selected as plaintiff the tribunal of a foreign country as the one in which he would sue, he could not afterwards say that the judgment of that tribunal was not binding upon him." In Schibshy v. Westeiiholz, as quoted in § 302, L. R, 6 Q. B. 161. Where the judgment of a foreign court was pleaded by the defendants in England as conclusive on the plaintiffs, Parke, delivering the judgment of him- self, Abinger, Alderson and Gurney, pointed out that the plaintiffs " did not select" the foreign tribunal, in which case "the determination might possibly have bound them : they were mere strangers, who put forward the negligence of the defendant as an answer in an adverse suit in a foreign country, whose laws they were under no obligation to obey." In General Steam Navigation Com;pany v. Gidllou, 1843, u M. & W. 894. § 307. But does the defendant bind himself by appearing and defending the foreign suit ? " We think it better to leave this ques- tion open, and to express no opinion as to the effect of the appearance of a defendant, where it is so far not voluntary that he only comes in to try to save some property in the hands of the foreign tribunal. Digitized by Microsoft® ENFORCING FOREIGN JUDGMENTS. 309 But we must observe that the decision in De Cosse Brissac v. Rath- bone is an authority that where the defendant volantarily appears, and takes the chance of a judgment in his favour, he is bound." In ScUhsby v. Westenhoh, as quoted in § 302, L. E., 6 Q. B. 162. In De Cosse Brissac v. Rathbone, i86i, 6 H. & N. 301 ; Martin, Channel! and Wilde ; it was averred in the plea which failed that the defendants were possessed of property in the country of the judgment, liable to seizure in case of judgment by default, and that they appeared and defended the suit in order to prevent such seizure. In Molony v. Gibbons, 1810, 2 Camp. 502, EUenborough, the fact that the defendant appeared in the foreign suit by an attorney who made no "defence to it was held reason enough for enforcing the judgment against him. Indeed EUenborough, who in Cavan v. Stewart, as quoted under § 302, appears to have been willing to content himself with proof that the party had been summoned, would a fortiori have been content with proof that he had appeared. A similar remark may be made with regard to the judges who decided Reynolds v. Fenton, also quoted under § 302. On the other hand, see General Steam Navigation Company v. Guillou, as quoted under the last §. And the doctrine suggested by the quotation in the present § appears to be the only logical conclusion from the view that it is not his own opportunity to appear, but the competence of the court, by which a party is bound. § 308. A peculiar case, which may perhaps best be classed as one of competence, is presented when by the law of a company's domicile the shareholders in it are personally liable on its contracts, and a judgment obtained against it may be executed' against any of such shareholders although they were not individually parties to the action. Such a judgment may be enforced in England by action against any shareholder, as if it was a judgment rendered against him by a court to the competence of which he had subjected him- self by accepting shares in the company. Indeed the foreign action may be considered as having been in fact brought against the individual shareholders in a collective name, and on that footing the question of enforcing it in England against a shareholder would be strictly one of competence. Bank of Australasia v. Harding, 1850, 9 C. B. 661 ; Wilde, Maule, Cresswell, Talfourd : Bank of Australasia v. Nias, 185 1, 16 Q. B. 717; Campbell, Patteson, Coleridge, Wightman. It must be observed that the competence which has been spoken of in this chapter is territorial competence, and has nothing to do Digitized by Microsoft® 310 PRIVATE INTERNATIONAL LAW. with the rules by which litigation may be portioned out among different courts existing in the same country, as for instance between the tribunals of commerce and what are called civil tribunals in France. If the foreign suit was not brought in the right court of a country territorially competent, this was matter of defence which ought to have been pleaded in that court : Vanquelin v. Bouard, 1863, 15 C. B., N. S. 34-1 ; pp. 350, 13th plea, 368, Erie, and 374, Keating. And the party is therefore estopped from taking the objection in England, as we shall see in § 309. But since territorial competence is the ground of the duty under which the party lies to obey the foreign judgment, he must be entitled to question that com- petence when an action is brought against him for nonperformance of such duty. Supposing it to be established that the foreign court was com- petent, or that the defendant in England is precluded from objecting to its competence, there arises the question whether its judgment has the force of res judicata. In the continental system of declaring foreign judgments executory, the form of this question is whether such declaration must be preceded by an examination of the sub- stance of the judgment, as to accuracy in fact and law. In the Anglo-American system of suing on a foreign judgment, the form is wliether such judgment is a conclusive proof of the claim decreed for by it, or merely a presumptive one, which the defendant may rebut by showing it to be erroneous in fact or law. The judgments of the several states which composed the old German empire had mutually the force of res judicata, but those of states foreign to that empire had not that force within it. In the Germanic body which was instituted at the Congress of Vienna the system of reciprocity was adopted, so that the judgments of German states, and those of all other states which allowed the force of res judicata to German judgments, but those only, were admitted to execution with- out examination; and the same system prevailed widely over Europe, as for example in Denmark, Switzerland, and the Sardinian and Papal states. In France the practice of the courts has at last settled that every foreign judgment must be examined, though this conclusion, depending on the interpretation of the codes and the Digitized by Microsoft® Ji£S JUDICATA. 311 continuance in force of the 121st article of the ordinance of 1629, was long disputed. In Belgium and Rhenish Prussia, as th6 question rested on the French codes introduced without the ordinance of 1629, foreign judgments were allowed the force of res judAo'ata; except in Belgium French judgments, by the law of 9 September 1814, and in Ehenish Prussia, by the decisions of the courts, judg- ments given against inhabitants of Prussia in countries where Prussian judgments are submitted to examination. In Spain, Sweden and Norway, where neither the foreign judgment is declared executory, as in most continental countries, nor is sued on as in England, but a new action is brought on the original cause, the foreign judgment is treated in such action as at the utmost a pre- sumption favourable to the plaintiff. § 309. In England it is now established, after much uncertainty, that the judgment of a foreign competent court is in general a con- clusive proof of the claim decreed for by it. " Several pleas," said lord Denman, delivering the judgment of himself, Williams, Coleridge and Wightman, in Henderson v. Henderson, 1844, " were pleaded to show that the defendant had not had justice done him in the court of chancery at Newfoundland. This is never to be presumed, but the contrary principle holds unless we see in the clearest light that the foreign law, or at least some part of the proceedings of the foreign court, are repugnant to natural justice ; and this has often been made the subject of inquiry in our courts. But it steers clear of an inquiry into the merits of the case upon the facts found, for whatever constituted a defence in that court ought to have been pleaded there." 6 Q. B. 298. What is here said about repugnance to natural justice refers chiefly to the discussions as to the sufficiency of the mode taken in the foreign court for summoning an absent defendant, which were common before the system of testing the authority of the foreign court ,by fixed principles of jurisdiction had become so far established in England as we have seen it to be. Whenever competence is based on the forum rei or the forum situs,] technical means must be used for conveying notice to an absent defendant, which must sometimes fail of conveying actual notice to him where nevertheless the interests of justice Digitized by Microsoft® 312 PRIVATE INTERNATIONAL LAW. require that the suit should proceed. It is not likely that in any civilized country, such as those between which the rules of private international law apply, these means should be so glaricgly insuffi- cient as to furnish a reason for declining to enforce in England its judgment against an absent defendant, in a case where the court was competent on principles generally recognized. Without however denying that such cases may possibly occur, or forgetting that the reservations of the court in Henderson v. Henderson may receive other applications where the foreign law embodied in the judgment is con- trary to stringent notions of morahty or public policy entertained in England, and still more where the question involves the law or jurisdiction of some state scarcely civilized enough to be admitted within the intercommunion of private international law, it remains that the judgment of the competent court of an ordinary European or American state cannot be questioned in England for error either in fact or in law. This was the doctrine of lord Nottingham, who allowed one partner to charge another with money paid for a partnership debt under a foreign sentence, " the justice whereof," he said, " is not examinable here." Gold v. Canham, 1679, from Nottingham's MSS. in 2 Sw. 325 : S. C, I Ca. in Ch. 311. From Cottington^s case, 1678, same MSS. in 2 Sw. 326, it appears that that great judge was led to this doctrine by the respect due to foreign sentences in matri- monial causes, and to the practice of enforcing foreign admiralty judgments, as to which see above, p. 302. In Sinclair v. Frasei; where the court of session in Scotland had put a party to prove over again a demand for which he had obtained judgment in Jamaica, the house of lords declared "that the judgment of the supreme court of Jamaica ought to be received as evidence prima facie of the debt, and that it lies upon the defendant to impeach the justice thereof, or to show the same to have been irregularly or unduly obtained:" 1771 ; I Doug. 4 a, 20 State Trials 468. Perhaps the terms of this declaration do not imply any greater deduction from the authority of a foreign judgment than is contained in the reservations of the court in Henderson v. Henderson, but it seems to have been understood at the time as allowing an examination without limit, and Mansfield said in Walker v. Witter, "foreign judgments are aground of action everywhere, but they are examinable:" 1778, i Doug. 6. In Galbraith v. Neville, 1789, i Doug. 6, the two systems were put in open opposi- tion, Kenyon saying, " I cannot help entertaining very serious doubts concerning the doctrine laid down in Walker v. Witter, that foreign judgments are not binding on the parties here " ; while Buller said, " the doctrine which was laid down in Sinclair v. Fraser has always been considered as the true line ever since, namely that the foreign judgment shall be prima facie evidence of the debt, and conclusive till it be impeached by the other party." Digitized by Microsoft® RES JUDICATA. _ 313 Since then Mansfield and Buller have been followed by Eyre ; " we receive evidence of what the law of the foreign state is, and whether the judgment is warranted by that law " : in Philips v. Hunter, 1795, 2 H. Bl. 410. By Bayley in Tarleton v. Tarhton, which was an action on a covenant of indemnity applicable to a foreign suit in which a judgment had been obtained against the plaintiff ; " as between the parties to the suit the justice of it might be again litigated, but as against a stranger it cannot" : 1815, 4 M. & S. 23. And at least to some extent by Romilly, in Reimers v. Druce, 1857, 23 Beav. 150. On the other hand Shadwell adopted the doctrine of Nottingham and Kenyon, in Martin v. Nicolls, 1830, 3 Sim. 458. And Brougham's dicta in Houlditch v. Donegall, 1834, 8 Bl. N. R. 301, 2 C. & F. 470, and in Don v. Lippmann, 1837, 5 C. & F. I, though formally in favour of the examinable character of foreign judgments, are such that it may be doubted whether he had more in his mind than the examination of them with regard to competence or sufficiency of notice to the defendant, or to such differences of law as exist between Christian and Mahometan countries. The doctrine of Nottingham and Kenyon was ultimately established by Hetiderson v. Henderson, quoted in the § : Bank of Australasia v. Nias, 1851, 16 Q. B. 717 ; Campbell, Patteson, Coleridge, Wightman : De Cosse Brissac V. Rathbone, 1861, 6 H. & N. 301 ; Martin, Channell, Wilde : and Vanquelin v. Bouard, 1863, 15 C. B., N. S., 341 ; Erie, Williams, Keating : so that it is unnecessary to cite any later authorities. In the two last cases the judgment in question was a foreign one in the strict sense, but although in the first two the judgments were colonial, the language of the court in each of them put colonial and strictly foreign judgments on a par. A doubt was thus settled which might 'i\2L\e.h^e.Ti{av.T\A^A o-ci Hendersons. Henderson, 1843, 3 Ha. 100 — see pp. 117, 118— Wigram, namely whether colonial judgments were not entitled to some higher degree of authority, as being subject to appeal to this country. § 310. It has been said that where English law was properly applicable to the decision of the foreign suit, and the foreign court has mistaken that law, the English court must not enforce its judgment ; also that the same result follows where the foreign court selected, for the decision of the suit before it, the law of a country which was not applicable according to the maxims of private international law received in England. But these views have become discredited in proportion as the idea has gained ground that the obligation to obey a foreign judgment is based on the competence of the court, and that the true subject of inquiry is not whether, on the whole, in the case from time to time presented, it is agreeable to natural justice that the defendant should be held to be bound. The errors referred to may be more easily ascertainable by the English court than other errors of law or fact, but in their relation to the merits of the case they do not seem to differ from other errors. Digitized by Microsoft® 314 PRIVATE INTERNATIONAL LAW. In Arnott v. Redfern, 1825, 2 C. & P. 88, Best's opinion at nisi firius was against enforcing a foreign judgment in the cases here supposed, but on argu- ment pursuant to leave reserved the point proved to be immaterial. In Novelli V. Rossi, 1831, 2 B. & Ad. 757, Tenterden and (?), the defendant was held not to be discharged by a French judgment in his favour in which English law had been mistaken ; but Blackburn in Castrique v. Itnrie, 1870, L. R., 4 E. & I. A. 435, has pointed out that the case might have been argued and decided on other grounds. Romilly in Reimers v. Druce, 1857, 23 Beav. 156, inclined against enforcing a foreign judgment proceeding on what he deemed an erroneous view of private international law, but the point ^vas not material. In Godardv. Gray, 1870, L. R., 6 Q. B. 139, Blackburn and Mellor decided against admitting a mistake of EngKsh law as a defence ; but Hannen was not prepared to decide that such a mistake, appearing on the face of the foreign proceedings, might not be used as a defence by a party who in those proceedings had adduced proper evidence of the EngHsh law. In Meyer v. Ralli, 1876, L. R., i C. P. D. 358, Archibald, Coleridge and Grove, it was admitted by the parties that the foreign court had mistaken its own law, and its judgment was accordingly disregarded. § 311. A foreign judgment would of course not be enforceable in England if it were shown that it had been obtained by fraud. Sinclair v. Fraser, as quoted above, p. 312 ; Blake v. Smith, 1810, 8 Sim. 303, Eldoh ; Bowles v. Orr, 1835, I Y. & C, Exch. 464, Abinger ; Price v. Dewlmrst, 1837, 8 Sim. 279, Shadwell, in which the principle is applied to a decision given by interested persons in their own favour; Ocltsenbein v. Papelier, 1873, L. R., 8 Ch. Ap. 695, Selborne and MeUish affirming Malins. In fact the respect due to an Enghsli judgment is as much forfeited by fraud in procuring it as that due to a foreign one. See the authorities collected in the reporter's note to In7ies v. Mitchell, 1857, 4 Dr. 102. § 312. When the judgment of a foreign court was given as by con- fession, or on an award where the submission to arbitration con- templated the intervention of that court, the questions of competence and res judicata which have been considered in this chapter do not arise, but it must be seen that the judgment was duly confessed, or is in accordance with the submission to arbitration. In fact a claim on such a judgment is a claim on contract. Henley v. Soper, 1828, 8 B. & Cr. 16 ; Tenterden, Bayley, Holroyd, Littledale ; and Alivon v. Furnival, 1834, i C. M. & R. 277, 4 Tyr. 751, Parke and (?) ; judgments on awards. Franklandv. McGtisty, 1830, i Knapp 274, Leach ; judg- ment as by confession, but confession not duly proved. § 313. It cannot be said of the claim for which a foreign judg- ment has been given that transit in rem jndicatam : the plaintiff Digitized by Microsoft® RES JUDICATA. 315 may sue in England on the original cause as well as on the judg- ment, until the latter is satisfied, and it is common in the cases before the judicature acts to find counts on each in the same declaration. Maule V. Murray, 1798, 7 T. R. 470, (?) ; Hall v. Odber, 1809, 11 East 118 ; EUenborough, Grose, Le Blanc, Bayley: Smith v. Nicolls, 1839, 5 Bi. N. C. 208 ; Tindal, Bosanquet and Ersldne, while Vaughan seems not to have been quite of the same opinion : Bank of Australasia v. Harding, 1850, 9 CgB. 661 ; Wilde, Cresswell and Talfourd, Maule doubting : Bank of Australasia v. Nias, 185 1, 16 Q. B. 717 ; Campbell, Patteson, Coleridge, Wightman. W New- land V. Horsman, 1681,2 Ch. Ca. 74, i Vern. 21, according to the former report it was not argued that the foreign sentence excluded the jurisdiction, but only what regard ought to be paid to it ; while if Nottingham thought that the action would not he on the original cause after full determination abroad, as the report in Vernon may indicate, it must be remembered that the foreign sentence was in a court of admiralty : see above, pp. 302, 312. When the foreign judgment has been satisfied by the defendant, it is a satis- faction of the claim on which it was given ; it becomes equivalent to a judgment in his favour, as to which see the next § : Barber v. Lamb, i860, 8 C. B., N. S. 95 ; Erie, Willes, Byles, Keating. § 314. A judgment for the party defendant in England, rendered in a foreign court of competent jurisdiction, and being such that it is conclusive in its own country, is also a conclusive bar to any attempt to reopen the matter in England. Burrows v. Jamineau, 1726, as above, p. 243, and Dick. 48, King; where the party sued on his acceptance in England had been the plaintiff abroad, in a suit to have the acceptance vacated : Plummer v. Woodburne, 1825, 4 B. & C. 625, Abbott, Bayley, and (?) ; colonial judgment not conclusive only because it might have been in the nature of a nonsuit : Ricardo v. Garcias, 1845, 12 C. & F. 368, Lyndhurst, Brougham and Campbell ; not at variance as to the point of the § with the decision of Shad well in the same case, 1844, 14 Sim. 265 : and if the foreign proceedings were in personam, an adverse judgment in them will not the less exclude the plaintiff from proceeding in England in rem; Lushington, in The Criefswald, 1859, Swabey 435. See also General Steam Navigation Company v. Guillou, quoted under §§ 306 and 307, in which case the efficacy of the bar, even had it been properly pleaded, was questioned by the judges on the ground that the foreign court was not competent to bind the party defendant before it, and therefore also not competent for binding any one else towards that party. § 315. Similarly the English court, after a final judgment in favour of a defendant, will restrain the plaintiff by injunction from prose- cuting in another country a suit for the same matter. Boothv. Leycester, 1837, r Keen 579, Langdale. Digitized by Microsoft® 316 PRIVATE INTERNATIONAL LAW. § 316. But a foreign judgment pleaded by the defendant will be subject to question, -with regard to the competence of the court or otherwise, on the same grounds, so far as applicable, on which a foreign judgment sued on by the plaintiff may be questioned. " If the decree of the supreme court " of Newfoundland, " is conclusive upon one party, it must I conceive be conclusive upon both ; and if not conclusive upon both, it ought to be conclusive upon neither : " Wigram, in Henderson v. Henderson, 1843, 3 Ha. 117. § 817. And because the plaintiff has been refused certain relief abroad, it will not follow that he is not entitled to other relief in England on the same facts. Callandar v. Dittrich, 1842, 4 M. & Gr. 68, 4 Sc. N. R. 682 ; Tindal, Coltman, Erskine, Cresswell : relief by way of rescission of contract having been refused abroad, plaintiff may still sue for damages in England on the same facts. See the next §. § 318. " The plea of ves judicata applies, except in special cases, not only to points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercizing reasonable diligence, might have brought forward at the time : " Wigram, in Henderson v. Henderson, 1843, 3 Ha. 115. On the other hand : "It is indeed true that the case made by the second bill," in England, "must be taken to have been known to the plaintiff at the time of the institution of the first," in New South Wales, " and might have been then brought forward, and it may be said therefore that it ought not now to be entertained ; but I find no authority for this position in civil suits, and no case was cited at the bar, nor have I been able to find any, in which a decree of dismissal of a former bill has been treated as a bar to a new suit asking the same relief, but stating a different case giving rise to a different equity:" Westbury, in Hunter v. Stewart, 1861, 31 L. J., N. S., Ch. 346, reversing Wood, 1 H. & M. 226, who had relied on Wigi-am as cited above. What is chiefly remarkable here is that both Wigram and Wood on the one side, and Westbury on the other, treat the question as the same, whether the judgment set up as con- clusive be English or foreign. It will be observed that the case Digitized by Microsoft® LIS PENDENS. 317 before lord Westbury, the same relief prayed on different facts, is the converse of that in § 317, different relief prayed on the same facts. The sentence of a foreign court of admiralty, condemning a ship as enemy's property, is conclusive evidence in favour of the underwriters against the warranty of neutrality : Geyer v. Aquilar, 1798, 7 T. R. 681 ; Kenyon, Ash- hurst, Grose, Lawrence. This point is rather anomalous, with reference to the principles of the doctrine oi res judicata j but it illustrates the identity of treat- ment which that plea receives, whether the judgment invoked be English or foreign. § 319. lAs pendens. When the plaintiff in England has pre- viously for the same cause commenced proceedings in another country which are still pending, there is no general rule that this is an answer to the English action. " The proper course in such cases is to apply here to stay proceedings in one or other of the suits, and the court will upon such an application have no difficulty in putting the plaintiff under terms": Parker in Ostell v. Lepage, 1851, 5 De G. & S. 106. See the same case, 1852, 2 D. M. G. 892, Knight- Bruce and Cranworth. The plaintiff had there obtained a decree for account at Calcutta, but such a decree, until the accounts have have been taken under it, presents only a case of lis pendens and not one of judgment. " As to the inconvenience, considering the difficulties of administering justice between parties occasionally living under the separate jurisdictions, I think the parties ought to be amenable to every court possible, where they are travelling from country to country ; and we must then endeavour to correct the mischief of these double suits as much as we can, by allowing in each country the benefit of all the other proceedings in the other part of the king's dominions " : Camden in Bayley v. Edwards, 1792, 3 Sw. 711, appeal from Jamaica. See Im/ay v. Ellefsen, 1802, 2 East 453, Ellenborough and (?) : Nay lor v. Eagar, 1828, 2 Y. & J. 90 ; Garrow, HuUock, Vaughan : Cox v. Mitchell, 1859, 7 C. B., N. S. 55 ; Erie, Williams, Crowder, Byles : Scott v. Seymour, 1862, I H. & C. 219, Pollock, Martin, BramweU. Wilde, Wightman, Williams, Crompton, Willes, Blackburn: ,The Mali Ivo, 1869, L. R., 2 A. & E. 356, Phillimore: Wilson v. Ferrand, 1871, L. R., 13 Eq. 362, Malins : The Catlerina Chiazzare, 1876, L. R., i P. D. 368, Phillimore. As to the defendant in foreign proceedings commencing proceedings in Digitized by Microsoft® 318 PRIVATE INTERNATIONAL LAW. England having an intimate connection with their subject, see Transatlantic Company v. Pietroni, i860, Johns. 604, Wood ; Law v. Garrett, 1878, L. R., 8 Ch. D. 26, Bacon affirmed by Baggallay, James and Thesiger. The latter case shows that an agreement to refer disputes to a foreign court is an agreement to refer to arbitration within the meaning of the common law procedure act 1854, s. II. If there was only lis pendens abroad at the date of the commencement of the English action, a judgment rendered abroad during the progress of the latter will not be deemed to constitute res judicata; the English court should have been applied to, to compel an election between the two proceedings : The Delta, The Ermi7iia Foscolo, 1876, L. R., i P. D. 393, Phillimore. And it would seem that lis pendens in personam abroad is not a reason for so much as putting the plaintiff zk rem in England to his election : The Bold Bucclejigh, 1 85 1, 7 Mo., P. C. 267, Jervis. As to proceedings in England for the preservation of property pending litiga- tion abroad, see Cruikshank v. Robarts, 1821, 6 Mad. 104, Leach, and Trans- atlantic Company v. Pietroni, as above. § 320. When the English proceedings are the first commenced, " there can be no doubt that the general rule precludes parties from proceeding in any other court for the same purpose for which they are proceeding in this court, whether the other proceedings are taken in this or in any other country ; and if the party conceives there are any circumstances in his case which constitute an excep- tion to the rule, I think that his proper course is not to take pro- ceedings in another court of his own authority, bub to apply to this court for permission to take such proceedings " : Cottenham in Wedderhurn v. Wedderburoi, 1840, 4 M. & Cr. 596. § 321. The authority of a foreign judgment in rem on the pro- perty in a movable has been considered in § 140, p. 167 ; and that of a foreign sentence of divorce in §§ 46 and 47, p. 79. The condi- tions under which authority will be allowed in England to a foreign judgment on the validity of a marriage have not been thoroughly discussed. That such a judgment, by a court " having proper juris- diction," would be conclusive, was said by Hardwicke in Roach v. Garvan, 1748, 1 "Ves. Sen. 159 ; but the opportunity for saying what was proper jurisdiction did not arise. Finch (Nottingham) 's remarks in Cottington's Case, 1678, 2 Sw. 326, are not less vague, and the foreign sentence which gave occasion to them was one of divorce. Simpson in Scrivishire v. Scrimshire, 1752, laid great stress on the forum contractus celebrati ; 2. Hagg. Cons. 408, 419, Digitized by Microsoft® FOREIGN JUDGMENT ON MARRIAGE. 319 And Scott (Stowell) in Sinclair v. Sinclair, 1798, 1 Hagg. Cons. 297, did the same, not however like Simpson on the ground of the supposed competence of the forum, but because " the validity of marriage must depend in a great degree on the local regulations of the country where it is celebrated," which the courts of that country can best appreciate ; and he added that he was "not prepared to say that a judgment of a third country, on the validity of a marriage not within its territories, nor had between subjects of that country " — the italics are mine — "would be universally binding." Probably little importance would now be attached by the English court to the place of contracting a marriage, with reference to the authority of a judgment on it ; but it is not as yet possible to state whether, and if so in what manner, the court would connect such authority with a system of personal jurisdiction. Digitized by Microsoft® CHAPTEK XYIIJ. PROCEDURE. § 322. The procedure of the English court is governed exclusively by English law. That procedure is governed by the lex fori is a maxim of private international law that has never been questioned in theory, though doubts have occurred on some of its applications. Aut qucBris, says Bartolus, de Ids quce pertinent ad litis ordinationem, et inspicitur locus judicii. It would be impossible to import into any court a new system of procedure for every case in which foreign things or acts might be involved, since there would exist neither the machinery nor the minute and curious learning necessary for it. Nor is there any reason why it should be desired to do so, for the principle of enforcing foreign rights, be it comity or justice, can be carried no higher than to place them on a level with domestic rights, entitling the party to the same remedies and subject to the rules incident to those remedies. It remains to mention certain applications of the maxim, and to guard against certain errors which might be made in applying it. § 323. The lex fori determines in what name an action must be brought, so fai' as that question can be separated from the question of the title sued on. See § 126, and the cases on the name in which a foreign republic must sue, under § 182. See also Wolffs. Oxholm, 1817, 6 M. & S. 92, at p. 99; judgment of court delivered by EUenborough. § 324. The term of prescription for personal actions is held in England to depend on the lex fori, but this rule is not universally received, and is questionable in principle : see §§ 223 and 224. Digitized by Microsoft® PROCEDURE. 321 The terra of prescription for immovable property, however, depends on the lex sitiis; § 161. And see pp. 160, 255, as to the prescrip- tion of corporeal chattels. § 325. The lex fori determines whether any particular kind of claim, as that on a bill of exchange, is entitled to the benefit of a special procedure. § 326. The lex fori determines whether any personal constraint can be used, as by arrest or the writ no exeat regno. It was at one time supposed that there ought to be no arrest of the person on a contract the proper law of which gave no such procedure. Talleyrand v. Boulanger, 1797, 3 Ves. 447, Loughborough : Mela'ii v. Fitzjames, 1797, i Bos. & Pul. 138 ; Eyre and Rooke, against Heath, who laid down the true principles ; Eyre, as reported, treats " a personal obHgation" as meaning an obligation on which the person can be arrested ! Flack v. Holm, 1820, i J. & W. 405, 417, 418 ; where Eldon seems to have acted on the same view, with regard to the writ of ne exeat 7-egno. The true view was maintained by Ellenborough in Inilay v. Ellefsen, 1802, 2 East, 455 ; in De la Vega v. Vianna, 1830, i B. & Ad. 284, Tenterden and (?) ; in Brettillot v. Sandos, 1837, 4 Scott 201, Tindal and Vaughan ; and by Chelmsford in Livej-pool Marine Credit Company v. Hunter, i868, L. R., 3 Ch. Ap. 486. § 327. The lex fori determines whether a set-off can be pleaded, this being distinct from any defence to the claim itself that may be available. Allen V. Kemble, 1848, 6 Mo. P. C. 314, Pemberton Leigh ; explained by Cockburn in Rauquette v. Overmann, 1875, L. R., to Q. B. 541. § 328. When, by the proper law of a contract made with an un- incorporated firm, each partner in that firm may be made liable on it in solidum, by some mode of procedure or other, the lex fori determines whether any partner may be sued individually before the others have been sued. Bullock V. Caird, 1875, L. R., 10 Q. B. 276; Blackburn, Mellor, Field. § 329. The lex fori determines the admissibility and force of any particular kind of evidence. See §§-116 and 197 — 199, as to certain questions which arise on the application of this rule. The marginal note of Tulloch v. Hartley, 1841, i Y. & C. Ch. 114, Knight- Digitized by Microsoft® 322 PRIVATE INTERNATIONAL LAW. Bruce, is misleading : tlie emolument and record were an actual conveyance, by the lex situs, which was the proper law to decide that point ; therefore the English law of evidence was not violated. For the general point see Bain v. Whitehaven and Fnrness J unction Rail- way Company, 1850, 3 H. L. i. Brougham ; Abbott v. Abbott, i860, 29 L. J., N. S., P. M. & A. 57, Cresswell ; Finlay v. Finlay, 1862, 31 L. J., N. S., P. M. & A. 149, Cresswell. § 330. The rule of English law, by which a party or witness is excused from disclosing what may tend to expose him to criminal proceedings or to forfeiture, equally applies to cases where the criminal proceedings or forfeiture might be incurred abroad, provided the court be sufficiently informed of the foreign law under which they might be incurred. United States of America v. McRae, 1867, L. R., 4 Eq. 327, Wood, 3 Ch. Ap. 79, Chelmsford; overruling as to the general proposition King of the Two Sicilies V. Willcox, 1851, i Sim. N. S. 301, Cranworth, the particular decision in which case however was admitted in the later one to have been right, because of the want of sufficient information as to the foreign law. § 331. As to the judicial discretion to suspend proceedings in order to have the benefit of the determination of some foreign law or matter by a foreign court, see the judgment of lord Selborne in Phosphate Sewage Comjmvy Limited v. MoUeson, 1876, L. E., 1 Ap. Ca. 787. § 332. The lex fori determines all priorities which in any administration of assets may be allowed to certain classes of creditors or of unsecured debts, the assets being first cleared of all securities affecting them, for the question of security is one of jDroperty. See §§ 102 and 103, the latter being one of those exceptions which are said to prove rules, the priorities following the law of that which is deemed the proper forum for administration instead of that of the actual forum. Also § 139 ; and the rule that a foreign judgment ranks in England with debts by simple contract, in § 292. § 333. The lev fori determines the time allowed for appealing. Lopes v. Burslem, 1843, 4 Mo, P, C. 300, Campbell. Digitized by Microsoft® PROOF OF FOREIGN LAWS. 323 Proof of Foreign Laws. The mode of proving foreign laws, being a part of procedure, depends on the lex fori; but it will be useful here to give the English rules with respect to it. § 334. Foreign law i.s presumed to be the same as English, of course excluding those parts of the latter which only exist as special institutions with special machinery, as bankruptcy: the existence and operation of such institutions in any foreign country and in other respects the difference between foreign and English law, must be averred and proved by any party, plaintiff or defendant, who relies on it. Brown v. Gracey, 1821, Dow. & Ry., N. P., 41 note, Abbott and (?) ; Smith V. Gould, 1842, 4 Mo. P. C. 21, Campbell. The English law lords, on an appeal from Scotland, will take judicial notice of the law of England, and not be bound by the evidence of that law given to the court below : Douglas v. Brown, 1831, 2 Dow. & CI. 171, Brougham. § 33-5. Foreign law, or the difference between it and English law, being a fact in the cause, the jury, if there be one, must judge ■whether it is proved : the judge has only to instruct them the law of what country is the right one to apply. § 336. From the same circumstance, that foreign law or the difference between it and English law is a fact in the cause, it follows that it must be proved afresh whenever relied on, no matter how familiar the court may be with it from the evidence in previous actions. McCormick v. Gayndt, 1854, 5 D. M. G. 278,- Knight-Bruce and Turner. Indeed it would be highly unsafe to assume that the foreign law had not been changed by some new statute or course of decision, § 337. The foreign law must always be proved by the evidence of experts : even when a code or a statute is concerned it is neither sufficient to produce such code or statute, nor is it necessary to pro- duce it when an expert refers to it. " The opinions of persons of science must be received as to the facts of their science. Digitized by Microsoft® ^ ^ 32i PRIVATE INTERNATIONAL LAW. That rule applies to the evidence of legal men, and I think it is not confined to unwritten law, but extends also to the written laws which such men are bound to know. Properly speaking, the nature of such evidence is not to set forth the contents of the written law, but its effect and the state of law resulting from it. The mere contents indeed might often mislead persons not familiar with the particular system of law : the witness is called upon to state what law does result from the instrument. I do not think that the case of treaties is applicable : there no class of persons are so peculiarly conversant with the subject matter as to invest it with the character of a science." Lord Denman in Tlie Baron cle Bodes case, 1844, 8 Q. B. 250. " The question for us is not what the language of the written law is, but what the law is altogethei", as shown by exposition, inter- pretation and adjudication." Coleridge in the same case, p. 265. To the same effect Cottenham, Brougham, Denman, Campbell and Langdale, in T/ie Sussex Peerage case, 1844, 11 CI. & F. 114 — 117. A different opinion was formerlj' entertained as to the mode of proving foreign law contained in written documents . the older authorities are quoted and criticized in The Baron de Bode's case. The judgment of lord Langdale in Nelso?i v. Bridport, 1845, 8 Beav. 527, is worthy of attentive study, with reference to this and other §§ relating to the proof of foreign laws. § 338. The expert by whose evidence a foreign law is to be proved need not necessarily be a judge or lawyer engaged in its practice. " The witness is in a situation of importance ; he is engaged in the performance of important and responsible public duties ; and con- nected with them, and in order to discharge them properly, he is bound to make himself acquainted Avith this subject of the law of marriage. That being so, his evidence is of the nature of that of a judge. It is impossible to say that he is incompetent." Langdale in The Sussex Peerage Case, 1844, 11 01. & F. 134. "He comes within the description of a person peritus virtute o^§icii." Cottenham in the same case, ib. The certificate of the consul-general, or of the diplomatic representative of a country, has been received in proof of the law of that country : AV Donnoy, 1S32, 3 Hagg. Eccl. 767, NichoU ; Re Klingcmamt, 1S62, 3 S. & T. 18, Cresswell. Digitized by Microsoft® PROOF OF FOREIGN LAWS. 325 But the evidence of the following persons is inadmissible. A merchant : Clegg V. Levy, 1812, 3 Camp. 166, EUenborough. A private gentleman : admitted by Wightman in Regina v. Dent, 1843, i C. & R. 97 ; which case Cottenham said was contrary to " the universal opinion both of the judges and the lords," in The Sussex Peerage case, 1844, n CI. & F. 134. A person whose knowledge of the law of a country is derived from having studied it at a university in another country: Bristow v. Sequeville, 1850, 5 Exch. 275, Pollock, Alderson, Rolfe, Piatt; Re Bonelli, 1875, L. R., i P. D. 69, Hannen. § 339. When the experts have given their evidence, the part of the court has been stated by lord Laugdale. " Though a knowledge of foreign law is not to be imputed to a judge, you may impute to him such a knowledge of the general art of reasoning as will enable him, with the assistance of the bar, to discover where fallacies are probably concealed, and in what cases he ought to require testimony more or less strict. If the utmost strictness were required in every case, justice might often have to stand still ; and I am not disposed to say that there may not be cases in which the judge may, without impi-opriety, take upon himself to construe the words of a foreign law, and determine their application to the case in question, especi- ally if there should be a variance or want of clearness in the testimony. In the case of Linda v. Belisario (*), in which the evidence taken upon the interrogatory was not clear and positive, lord Stowell thought that he should not transgress his duty if he looked beyond the evidence, but not farther than the evidence fairly led. And in both the cases of Lindo v. Belisario (*) and Balrymple V. Balrymple (t) I understand him not to have considered any authority opinion or passage not distinctly referred to by the witnesses, and so not to have looked farther than he considered the evidence to have fairly led, and yet to have gone beyond the evidence in considering for himself the effect of the authority referred to, with the view of acquiring for himself notions by which he might be better able to decide upon the effect of the varying or obscure testimony of the witnesses." In Nelson v. Brid/port, 1845, 8 Beav. 537. As soon indeed as it is allowed that foreign law is matter of fact * 179.5, 1 Hagg. Cons. 216. t 1811, 2 Hagg. Coas, 54, Digitized by Microsoft® 320 PRIVATE INTERNATIONAL LAW. to be proved by witnesses, the cei-tainty arises that ia many cases the evidence about it will be obscure or discrepant ; aud in those cases it seems inevitable that not only a judge but also a jury, when a jury is called on to decide, must exercize as much discretion in dealing with the evidence as is here claimed. Chelmsford in DiSora v. Phillipps, 1863, 10 li. L. 640, noticed that the privy- council had since done in Brewer v. Freeman, 1857, 10 Mo. P. C. 306, what Langdale here claimed the right to do ; and he reinforced Langdale's caution against using any source of knowledge beyond the passages referred to by the witnesses. § 340. By an act of 1859, st. 22 & 23 Vict., c. G3, any court within the British dominions may send a case for the opinion of a superior court in any other part of the British dominions, on the law administered by it as applicable to the facts set forth in such case. The parties may pray to be heard before the court whose opinion is asked, and the court which asked the opinion must apply it when obtained ; with the option however, when it has been obtained before trial, of submitting it " to the jury with the other facts of the case as evidence, or conclusive evidence as the court may think fit, of the foreign law therein stated." But the house of lords or privy council, in the event of an appeal to them, will not be bound by any opinion so obtained from any court whose judgments are reviewable by them respectively. § 341. By an act of 1861, st. 24 & 25 Vict., c. 11, any superior court within the British dominions may send a case for the opinion of such superior court, in any foreign state with which her majesty shall have entered into a convention for the purpose, as shall be agreed on in such convention, on the law administered by it as applic- able to the facts set forth in such case. But the court which asked the opinion will not be bound by it, and may return the case, with or without amendment, for further opinion, or similarly consult any other such superior court in the same state, and so from time to time. There is a corresponding provision for the British courts answering cases sent from abroad, Digitized by Microsoft® PROCEDURE. 327 Various. It will be sufficient to refer briefly here to certain topics of pro- cedure -which will be found enlarged on in the statute book or in books of practice. § 342. For the mode of proving (1) Proclamations, treaties, and other acts of state of any foreign state or British colony : (2) Judgments, decrees, orders and other judicial proceedings of any court of justice of any foreign state or British colony : (3) Affidavits, pleadings, and other legal documents filed or deposited in any such court : See St. 14 & 15 Vict., c. 99, s. 7. § 343. For the power of courts in the British dominions to take evidence in suits depending in other parts of the British do- minions, see st. 22 Vict., c. 20, and Campbell v. Attorney-Qeneral, 1867, L. E., 2 Ch. Ap. 571, Turner and Cairns. § 344. As to the mode in which a foreign court ought to act on a requisition addressed to it by the English court, requesting it to summon witnesses and take their examination, see Hitchins v. Eitchins, 1866, L. R., 1 P. & M. 153, Penzance. Digitized by Microsoft® CHAPTER XIX. CONCLUSION. We have now travelled through nearly all that can be found in the English precedents on the subject of this book. The exception is what relates to criminal jurisprudence and extradition, which were shown in the introduction to belong to private international law, but which for English purposes it would scarcely be convenient to include in one work with the civil part of the subject : moreover extradition has been exhaustively treated by Mr. Clarke. However, the authorities with regard to the bearing of foreign penal laws on pro- perty and personal capacity may be cited. § 345. It was said by Loughborough, delivering the judgment of the court in Folliott v. Ogden, 1789, 1 H. Bl. 135, that the penal laws of a foreign country create no personal disability to sue in this, and affect only what can be seized by virtue of their authority ; that a fugitive from them can maintain all his other rights by action in England. And this doctrine was repeated by Buller on the appeal — Ogden v. Folliott, 1790, 3 T. R 733— and by Ellenborough, deliver- ing the judgment of the court in Wolff v. Oxholm, 1817, 6 M. & S. 99. It must therefore be deemed to be the doctrine received in England, and was referred to as such in § 18. But Grose in Ogden V. Folliott, 3 T. R. 735, reduced it within more reasonable limits, saying "that the penal laws of one country cannot affect the laws and rights of citizens of another." As affecting the property of its own subjects, there seems to be no reason why the operation of a foreign penal law should not be admitted, always supposing that it is not one which shocks our national sense of right, as a penalty imposed for religious belief would do, or one to enforce which would be in Digitized by Microsoft® CONCLUSION. 329 fact to take a side ia the internal politics of the foreign country. Even however should this view be accepted, it might still be con- sidered contrary to public policy that where a fugitive from criminal justice had made his escape into British territory, and for any reason was not subject to extradition, he should be unable lawfully to con- tract the tie of marriage. Taking now a general view of the ground thus travelled over, it will be seen that the English jurisprudence on private international law embodies the idea that the civilized world is a united whole, for the acquisition of rights such as modern society depends on ; and that wherever, or under whatever system of law, such rights have been acquired, they should be maintained by our courts when they come before them. This indeed is the idea embodied in the juris- prudence of every civilized country on the subject, though the form of the embodiment is far from being everywhere the same. And so, reverting to the point at which the introduction broke off, it may be said that the notion of comity has again given place to that of justice ; that the notion of a conflict of laws has again given place to that of determining the proper application of each territorial law, so that conflict between them may be precluded by the satisfactory determi- nation of their respective fields. But while in this direction the subject has tended to revert to its older form, in another the depar- ture from that form has been at least maintained. It would now be as idle as ever, perhaps more so, to regard the subject as governed by maxims of universal acceptance, unless one were content with maxims too vague to be of much practical use. Nor does the prospect of arriving at a real international agreement on the subject, by means of doctrinal writing, seem at all more hopeful than at any previous time. The directions in which such a result might be sought for are either historical or theoretical. The only historical direction that any one could think of pursuing is that of the Roman law, not as directly applicable, for it belonged to an empire in which a unity of law had been established, but by starting from its rules on jurisdiction, and assuming that when the most appropriate jurisdiction for each case has been found, the law of that Digitized by Microsoft® 330 PRIVATE INTERNATIONAL LAW. jurisdiction will be applied to it. But the tendency of modern legislation in most countries is towards the enlargement of jurisdic- tion, which is certainly not without its convenience in multiplying the means of redress, but is as certainly unfavourable to that manner of looking at the subject in which jurisdiction might come to be an accepted basis for lav/. And the only theoretical direction in which I have ever seen much hope is that of determining the true law of each matter by means of Mi'. Austin's analysis of the nature of law ; but the more I have reflected on the affairs which courts of justice have to deal with, the more I have come to doubt whether that analysis, accurate though it be as an account of facts, is capable of throwing any light on what the decision should be on points that have not yet taken their place among the facts of jurisprudence. To the English practitioner the difficulty of arriving at an inter- national agreement by doctrinal writing will have but little im- portance, considering on the one hand the binding authority of pre- cedent in our system, and on the other the extent to which the subject is now covered by English decisions. Nevertheless the want of such an agreement is a mischief to commerce and to all other social international relations, and the attention of the government and parliament cannot be too strongly called to the necessity of a remedy, to be applied by conventions confirmed by statute. For that purpose every country will have to surrender some of the rules cherished by its lawyers, and this country no less than others, although the general equity of our jurisprudence is such that I believe I may add, no more than others. In a work intended for students and practitioners, it would be out of place to discuss the particular points of private international law on which England ought to concede, or to require concessions to be made to her. But I will close the volume by mentioning some of the topics on which international agreement appears to be both necessary and attainable. First is the question whether political nationality or domicile should be the test of personal law and jurisdiction, where the fonner test can be applied. Digitized by Microsoft® CONCLUSION. 331 Then comes the establishment of some system of voluntary regis- tration, guarded by whatever conditions may be thought advisable, in aid of the ascertainment of domicile, which must always retain its importance as between territories with different laws comprized in the same empire, even although the first question should be decided in favour of political nationality. A step was taken in this direction by the St. 24 & 25 Vict., c. 121, empowering the government to conclude conventions on the basis of reciprocity, by which residence in the adopted country for one year immediately preceding the death of a testator or intestate, together with the public deposit of a written declaration of his desire to change the domicile, shall be made con- ditions of a change of domicile for all purposes of movable succession. Thirdly, the establishment of common rules as to the jurisdiction which should be charged with administration in bankruptcy, and as to the effect to be given internationally to discharges in bankruptcy, are inferior to no part of the subject in commercial importance. And fourthly there is the question how far different international rules should be maintained for immovable and for movable property. A unity as to marriage and divorce is as important as any topic I have mentioned, but there we touch the point in which modern civilization has during more than three centuries been receding from unity, and perhaps will not regain it without first passing through an even greater diversity. And the list of agreements which are attain- able as well as important is not exhausted. But enough will have been said if the attention of lawyers has been fixed on the necessity of doing something, since it is their opinion which must move and guide in the matter, although treaties and statutes are the instru- ments to be employed. Digitized by Microsoft® Digitized by Microsoft® INDEX OF THE ENGLISH DOCTEINES ON PRIVATE INTERNATIONAL LAW. PAGE ADMINISTRATION OF PEESONAL ASSETS ON DEATI-I. for what English executors and administrators mast account to creditors : §§ 95, 96 108, 109 how surplus after payment of debts is to be dealt with : §§ 97, 9S 110, 111 when proceedings for administration abroad restrained : §§ 99, 100 111, 112 commission to foreign administrators :§101 112 priorities in payment of debts : §§ 102, 103 .... 112, 113 legacy and residuary duty :§§ 106, 107 117,118 recoupment of debts by English personalty to foreign immovables : § 110 122 interest charged on assets : § 111 ... .... 123 sm'plus after payment of debts, in case of intestacy, goes by law of domicile: §§ 112, 113 12i, 125 will operates, as to surplus, by law of domicile ; §§ lli-llT . . 125-129 ALLEGIANCE. /Sfec British Nationality. BANKRUPTCY. conditions for English adjudication :§§ 119-122 . . 139-lil position in England of curators under foreign bankruptcy : §§ 125-127 112-11-1 §156 ... 180 what property passes by English bankruptcy : §§ 128-131 . . Ml-l'ie when creditors of English bankrupt may retain payments received abroad :§§ 132-136 117-151 double proof : § 137 ... 151 equities against bankrupt's property : § 138 . . . . 151 priorities in payment of debts :§139 152 discharges in : §§ 225-227 .... 256, 257 BILLS OP EXCHANGE AND PROMISSORY NOTES. acceptance or making : § 213 213 drawing or indorsing :§ 21i ....... 244,246 demand, protest, notice : §§ 215-217 244, 245 instrument signed in one country and sent to another : § 218 . . 246 damages and re-exchange : § 219 247 BRITISH NATIONALITY. natural-bom subjects at common law :§§ 203, 204 , . . 286,287 Digitized by Microsoft® 334 INDEX. BRITISH NATIONALITY— cOTifomcA natural-born subjects by statute : § 265 naturalization : §§ 266, 268, 270 . denization : § 267 ... . . • readmission to British nationality : § 269 declaration of alienage : §§ 271, 272 . expatriation : §§ 273-275 married women : § 276 minor children : §§ 277-27'.l . in cases of cession of territory : §§ 280, 281 CAPACITY, -as depending on age, whether referred to personal law or to special law of transaction : § 2 as depending on coverture : § 3 . . . ... CHAEITIES : § 282 COLLISION AT SEA. Umitation of liability : §§ 192, 193 . . . . 2 compulsory pilotage ; § 19i . rule of road : § 195 ... PARE 287 289-291 290 290 291 291,292 292 292, 293 293 43 46 295 ,226 226 227 CONTRACTS. formalities governed by Ir.v loci contractvs celehratl: §§ 197, 199 229. 231 suljject to English law of evidence : § 198 . ... 229 interpretation : § 200 validity and effects — laws of place of contract and of place ment ; § 201 . contract illegal by its own law : § 20, contemplating breach of English law : § conflicting with English policy : § 204 relating to immovables : § 1G2 « 205 ... . . 203 ^■iolating a monopoly : § 20G for service : § 207 .... of affreightment : § 208 of a carrier : § 210 . general average ; § 209 interest : § 211 . , . . _ exchange : § 212 . obligations quasi c.c coniractl : § 220 And see Bills of Exchange and Pkomissoey Notes ; Bankeuptcy ; Limitations, Statutes of ; Transfek of Obligations. of fulfil 232 234-237 237 238 239 182 240 240 240 240 212 241 242 243 248 CORPORATIONS, ENGLISH, income-tax ; § 285 207 CORPORATIONS, FOREIGN. internal disputes : § 288 income-tax : § 284 may sue : § 286 whether they may carry on business in England : § 287 their personal rights protected : § 288 . liability of members : § 289 . . 296 296 . . 297 297 . . 299 295, 299 service on them : §§ 230, 231 299. 300 CURATORSHIP. Sec GUARDIANSHIP OF MiNOES AND LUNATICS. Digitized by Microsoft® INDEX. 335 DELICTS. See Toets. page DIVORCE AND OTHER MATRIMONIAL CAUSES. [Sootcli rules of iurisdiotion for diToroe] : . ... 73, 74 place where marriage contracted of no importance to English juris- diction for divorce : § 39 7-1 English jurisdiction for divorce given by domicile : § 40 . . . 74 whether by husband's residence : § 41 . 75 whether by wife's residence : § 42 . . , . 76 jurisdiction for judicial separation : § 43 ... . 77 restitution of conjugal rights : §41 . . . 78 declaration of nullity or jactitation of marriage : §i5 '. . . 78 foreign jurisdiction for divorce, when regarded in England as suffi- cient : §§ 40, 47 . . . . . . 79 cause for divorce depends on Ir-e fori. ; § 48 . . . 79 DOMICILE. what domicile means to an English lawyer . . 262-264 domicile of origin : § 228 . . . .264 choice : § 229 .... .... 265 doctrine of Moorliousa v. Lord contrasted with the older doctrine : §§ 230, 229 A . . 265-270 change of domicile to or from a counti-y where authority of govern- ment necessary, or where political nationality and not domicile isimportant: §§ 231,232 . 270,271 domicile of origin, where birth known : §§ 233-235 . . . 271, 272 where bu-th unknown : § 236 272 change of domicile of persons not ,«((,?(/;■« .-^minors : §§237,238 . 272 lunatics : §§ 239, 240 . 273 man-ied women : § 241 273 change of domicile of persons mi juris : — • intention and fact, and reverter of domicile of origin : §§242-245 . .- . . ... 274,276 burden of proof : § 246 . 276 change to domicile politically foreign : § 247 . . 276 intention of return : § 248 . . . 277 Anglo-Indian domicile .• § 249 ... . 277 § 259 282 § 200 283 declarations evidence : § 250 278 acts evidence : § 251 ... .... 279 special criteria : §§ 252-256 ... . 279-281 public service :§§ 257-261 281-284 refugees : § 262 . . 284 trade domicile in time of war : 285 EVIDENCE. See Pkocedtjke. EXTERRITORIALITY. foreign states and sovereigns not suable on obligations : §§180,181 212,213 but when they sue must do complete justice : § 82 . . . . 214 cases of fund to be distributed, and of agency for foreign state or sovereign : § 183 215 diplomatic immunity : §184 217 no consular immunity except in Eastern countries : § 185 . . 219 Digitized by Microsoft® 336 INDEX. PACE GENERAL AVERAGE : § 209 . . . . .241 GUARDIANSHIP OP MINORS AND LUNATICS. power of English court as to foreign minors and lunatics : § .5 . * 47 exercise of that power : §§ 6, 7 i8 power of foreign guardians of estate : § 8 ... . 48 §156 .... ISO power of English court as to estate in foreign guardianship : §§ 9, 10 50 English legislation and jm-isdiction not generally applicable on foreign finding of lunacy : §§ 11, 12 51 IMMOVABLES. governed by fer ,«(Y«* .• § 146 178 what interests are immovables :§§ 117-151, 151 . 178-180 how afEected by debts or legacies : § 152 . . . . 179 void contracts : § 153 . . . 180 restraint on disposition : § 155 ISO English real estate afiected only by English law and jurisdiction : §§156-159 .... 180,181 construction of instruments relating to immovables ; § 160 . . . 181 prescription : § 161 182 when personal jurisdiction may be exercized over proprietor of foreign immovables in matters concerning them, and what law will determine : §§ 162-lGG 1S2-186 redemption and foreclosure of foreign mortgages : § 164 . . . 1S5 government not suable in England in resi^cct of non-English, though British, land :§ 167 .... .... 187 birth after actual mai-riage necessary to inheritable blood for English real estate ;§§ 168, 169 187-189 actions for trespass to foreign soil 210 JUDGMENTS, FOREIGN. how enforced : §§ 292-294 301 pending appeal : § 295 . . 302 what judgments enforceable : §§ 2'.l(j-299 303 competence of foreign court : — elected domicile : §§ 300, 301 804 forum of defendant : § 302 . . . . 304 forum of contract : §§ 303, 304 306 forum of plaintifE : § 305 308 admitted by suing in it : § 306 .... 308 whether by defending in it : § 307 .... 308 where slinreholdors liable on company's contracts: § 308 309 not examinable, when court competent: §§ 309, 310 . . . 311,313 fraud a defence : § 311 314 judgment on confession or submission : § 312 314 cause of action not merged ; §313 314 res judicata pleaded by defendant : §§ 314-317 .... 315, 316 how far res judicata extends : § 318 316 III retii ■■ § 140 167 of divorce : §§ 46, 47 . . . 79 on marriage ; § 321 818 Digitized by Microsoft® INDEX. -337 JURISDICTION, ENGLISH. page by personal service : §§ 170, 171 204, 205 by substituted service, and by the substitution of notice for service ; §171 . • 30.5 in the case of a firm : § 172 205 by service of the writ or of notice of the writ out of the jurisdiction : §§ 175, 170 206, 208 with regard to parties interested, not being original parties : §§177-179 208,209 Aiid sec Immovables ; Extberitoriality ; Service of Writ. LAW MARITIME,' what it means 103-166 LEGACY DUTY •§§ 106, 107 117,118 LEGITIMACY, as depending on marriage after divorce : § 49 84 LEGITIMATION PUR SUBSEQITENS MATRIMONIUM. personal law of father, at dates both of birth and of marriage, must grant it : §§ 50, 51 81, 85 its eflfect as to legacy and succession duty : § 52 86 political nationality : § 53 86 does not make one a " child," within the supposed meaning of an English testator : § 118 ... .... 129 nor confer inheritable blood for English real estate : §§ 168, 169 187-189 LIMITATIONS, STATUTES OF. as to immovables, governed by lex situs : § 161 .... 182 corporeal chattels 160, 255 obligations, governed by English law : §§ 223, 224 . . 253, 254 LIS PENDENS. where foreign suit first : § 319 . . , 317 where English suit first : § 320 318 LUNATICS. See Guardianship op Minors and Lunatics. MAEKIAGE. lex loci actus to be satisfied as to forms : § 13 52 also as to consent of parents or guardians : § 14 . . . . 53 also as to capacity of parties, with regard to prohibited degrees or otherwise : § 15 53 this Butficient as to forms : §16 54 but personal law must also be satisfied as to capacity : § 17 . . . 54 except as to penal or religious incapacity : §§ 18, 19 . . . 54, 55 consent of parents or guardians, when belonging to forms and when to capacity : §§ 20-22 55, 56 forms, where lex loci actus is inapplicable : § 23 . . . . 57 ambassadorial, consular and military marriages : §§ 24-28 . . . 57-60 conjugal rights flowing from majriage : §29 61 polygamous marriage : § 30 61 effect of marriage on English land : § 31 62 §157 .. 181 Digitized by Microsoft® 33"* • INDEX. MAERIAGE — contimtsd. page effect of marriage on movables : § 32 . . . . . 64 marriage settlements, forms : §§ 33, 34 . . . . 65, 67 substance : §§ 35-37 ... . 67-69 succession to husband or wife on death : § 38 . . . . 69 JXATPJMONIAL CAL'SES. See Divoece and other ilATEiMOXiAL Causes. MINORS. See Gttakdianship of Mixobs and LrxATics. MOVABLES. how afiected by judgments hi rem : § 140 . 167 le.r sitv.i and personal law of o\raer : §§lil, U3 169,174 incorporeal : § 142 . . 172 poUtical rights, whether and when deemed movable property : § 14.5 175 PARENT. authority of foreign ; § 4 . . ... 47 PENAL LAWS. FOREIGN • § 345 . . . . . 328 PERSONAL ESTATE. Srr Movables. PERSONAL LAW. determined by domicile and not by political nationality : § 1 . . 43 PRESCRIPTION. See LIMITATIONS, Statutes of. PRIORITIES. .*■(' Procedure. PROBATE AND LETTERS OF ADMINISTRATION. English grant necessars' for personal property in England : § ."7 91 and foreign grant not necessary : § 58 . ... 92 grant to whom and how made : §§ 59-71 .... 92-96 where executor of Scotchman has been confli'med in Scotland : § 64 93 where will relates only to foreign property ■ § 72 ... 96 administration by consul pursuant to convention ; § 73 . 97 what property passes by grant : §§ 87-90 . ... 104, 105 what property not primarily passing by the grant may be judicially administered in England : §§ 91-95 106-108 probate and administration duties : §§104,105 . . . 115,116 PROCEDURE. lex fori govem.s : § 332 . ,S20 name to sue in ; § 323 .... ... 320 prescription : § 324 . 320 special procedure : § 325 . . 321 arrest and nc fa-eflf r^'^no.' §326 321 set-off : § 327 ... .321 suing partners singly : § 328 321 evidence : §§ 329, 343, 344 .. . .... 321, 327 protection of witness : § 330 ........ 322 discretion to await foreign judgment : § 331 . . . . 322 Ijriorities : § 332 322 appealing : § 333 ......... 322 proof of foreign acts of state and proceedings : § 342 . . . 327 Digitized by Microsoft® INDEX. 339 PAGE PROMISSORY NOTES. See Bills op Exchange and Peomissoey Notes. PROOF OF FOREIGN LAW. presumption as to foreign law : § 3,S4 •'i2,S foreign law a question of fact : §§ 335, 336 •'iZS provedby experts :§§ 337-339 323-325 by case sent to foreign court : §§ 340, 341 ... . 326 QUASI EX CONTRACTU, O-BUGkTlOT^^: %-i2f) 248 REAL ESTATE. See Immovables. REVENUE LAWS, FOREIGN : § 145 175 § 199 231 SERVICE OF WRIT. in actions relating to land : § 173 206 in admiralty actions in rem ; § 174 206 SET-OFF. Si-e Peocbduee. SHIPS, BRITISH. when British temtory, and what law therefore applicable : § 144 . 174 SUCCESSION TO MOVABLES ON DEATH. law and res judicata of deceased's last domicile conclusive as to beneficial interest after payment of debts : §§54-56 . . . 90, 91 And see Administeation op Peesonal Assets on Death. SUCCESSION DUTY. English : § 108 120 foreign : § 109 121 TORTS. Toasthe sac}! \)j lex loci delicti commissi : §186 . . . . 222 and by English law : §§ 187, 188 223 where criminal proceedings are necessary by the lex loci delicti commissi .■ § 189 224 where damages are not given by the lex loci delicti commissi : § 190 224 where defendant a foreigner : § 191 225 interest, where property tortiously used : § 196 228 slave trade 228 Arid see COLLISION at Sea. TRANSFER OF OBLIGATIONS : §§ 221, 222 . .... 252 WILLS OF PERSONAL ESTATE. what deference paid to res judicata of deceased's last domicile as to vahdity : §§ 74-78 97, 98 English rules as to law determining validity • §§79-84 . . . 98,101 same where will is intended to execute power : §§ 85, 86 . . 101, 102 operate by law of domicile as to surplus after payment of debts : §§ 114-117 125-129 Digitized by Microsoft® 340 INDEX. WILLS OF PERSONAL 'ESTATE— continued. page peculiar meaning of " child," attributed to English testators : §118 129 WINDING-UP COMPANIES. English : § 123 141 foreign : § 124 142 And see Bankeuptcx. THE END. BRADBURY, AGNEW, & CO., PRINTERS, WHITEFRIARS. Digitized by Microsoft® / a Digitized by Microsoft® Digitized by i