\-^^ . Sindry. . . 194,200 Lebel v. Tucker 182, 356, 359, 414 Le Briton ». Le Quesne . . . 198 Lee V. Moore 198 LeroUx v. Brown 275, 277, 278, 412, 432 Le Sueur v. Le Sueur Lever ®. Fletcher . Levy 1). Solomon . Lewis, Ex parte . V. Baldwin V. Owen . 17,67 . 292 . 43 . 35 . 74 378, 382 . 290 . 436 Lightfoot V. Tennant Lindo V. Belisario Liverpool Marine Co. v. Hunter 177, 456 Lloyd V. Guibert 312, 313, 324, 830, 335, 338, 866, 872, 408, 421, 435 Lookwood V. Coysgame . . . Ill Logan V. Fairlie . . 203, 204, 212 Lolley's Case . . .50, 59, 61, 267 Lopez V. Burslem . . 421, 428 Lord II. Colvin 16 Lothian v. Henderson 452, 472 TABLE OF CASES. XVU PAGE Lovelace, In re . . . .214 Lyall V. Lyall 217 Lynch v. M'Kenuy . . . 379 ■«. Provisional Government of Paraguay . . . . 187 M. M'Carthy v. Decaix .'iO, 60, 61, 69, 267 McDaniell v. Hughes . . 233 Maofarlane v. Norris .... 426 Mackereth«. Glasgow and South- Western Ey. Co. . . . 76 Mackie v. Darling .... 37 Maolaren v. Stainton . . 74, 79 Macmahon v. Eawlings . .198 Macnichol v. Maoniohol . .199 Madrazo i;. Willes . . .105,294 Magdalena Steam Co. v. Martin 106, 109, 114 Malachi Caroline's Case 109, 110, 112 Malcolm v. Martin . . . .192 Male V. Eobei-ts . . 31, 260, 377 Mali Ivo, The . . . 398, 476 Maltass v. Maltass . . 9, 19 Manning v. Manning , 13, 64, 65 Martin v. Martin 133 ®. Nichols 463 Matthaei v. Galitzin . 123, 127, 253 Maule V. Murray 476 Maunders v. Lloyd .... 122 Mavro v. Ocean Marine Insurance Co 339, 340, 375 Maxwell v. Hyslop V. Maxwell Mayor of London v. B Melan v. Fitzjames Melboum, Ex parte Mellish V. Valins . Messina v. Petrococohino Mette V. Mette Meus V. Thellusson . Meyer v. Dresser . V. EalU . 147, 162 145, 147, 155, 156, 162, 164 . . . 475 . 303, 428 223, 237, 240, 281, 382, 424, 432 . 163 . 469 . 49 . 459 . 427 . 453 Middletou v. Janverin 50, 268, 437 PAGE Milford, The . . . . 410 Millar v. Heinrich . . .437 Miller v. James . . . .188 Milne v. Graham . . . .361 Moodalay v. Morton . . 95 Moore v. Darell . . 187 Moorhouse v. Lord ... 13 Moreton v. Milne . . . .175 Morgan v. Knight . . .235 Moses V. Macfarlane . . .463 Mostyn v. Fabrigas 134, 136, 137, 250, 255, 389, 391, 393, 395, 433 Moxham, The M. 135, 390, 391, 399 Munden v. Duke of Brunswick . 102 Munro v. Douglas . . . 11, 18 17. Munro . 9,11,24,39,42 V. PilMngton . . . .477 V. Saunders . . . 40 Myers v. Sari 308 N. Nabob of Aroot v. East India Co. 88 Nabob of Carnatic v. East India Co , . 104 Nabob of India v. East India Co. 95 National Bank of St. Charles v. De Bernales 73 Neal V. Cottiagham .... 230 Nelson, The 366 Nelson v. Bridport . . 142, 436 New V. Bonaker 130 Newby v. Colt's Patent Firearms Co 73 Newby v. Van Oppen . . 74, 76 Newman v. Cazalet .... 340 Niboyet «. Niboyet . . 19,66,69 Norden v. James 230 Norris v. Chambers . . 122, 128 North Star, The . . . 329,366 Novelli V. Eossi . . . 450, 452 Novello V. Toogood 108, 109, 111, 113 Nugent V. Vetzera .... 37 o. Obieini v. Bligh . ... Oil O'Callaghan v. Thomond 236, 414 XVlll TABLE OF CASES. FAGB Ochsenbein v. Papelier . 449, 469 Oddy V. Bovil ...... 469 Odwin V. Forbes ..... 377 Oldham Building, &o., Co. v. Heald 85 O'Loghleri, Mc pwrte . . . .231 Ommaney v. Bingham . 192, 197 Oriental Inland Steam Co., In re 233, 426 Orleans, Duchess of. Case . 194 Orrell v. Orrell . ... 157 Osmanli, The .... 329,366 Oatell V. Lepage . . . . 476 Paget V. Ede . Pardoe v. Bingham Pollard, Ex parte . V. Bell . Pope V. Niokerson . 316, Portarlington v. Soulby . Portland, The . . . Potinger v. Wightman . Potter V. Brown 172, 183, 351, Power V. Whitmore . . President of United Drummond . Preston v. Lament B.Melville 184,202 Price V. Dewhurst 142, 183, Prins Frederik, The PAGE . . 133 451, 457 324, 329 . . 129 . . 25 . . 10 195, 234, 370, 377 . . 340 V. . 213 . 257 1, 207, 425 187, 195, 450, 457 . . 100 . . .122 222, 237, 281, 421, 424 Parker v. Great Western By. Co. 288 «. Kett ... .206 Partington v. Attorney-General 198, 207, 211 Pascal, Ex parte 230 Patria, The . . 310, 325, 333, 368 Pattison v. MUla . . 182, 289, 366 PaulD. Eoy 457 Pearman v. Twias . . . 142 Pearse v, Pearse 209 Peohell V. Hilderley . . . .185 Pellecat v. Angell . . . .290 Peninsular and Oriental Co. v. Shand . . 311, 320, 340, 347, 372 Penn v. Baltimore . 122, 124, 128 Phillips 1). AUan . . . 378,382 •». Eyre .58,129,136,377, 393, 395, 397, 399, 467 «. Hunter . 172,230,233, 445, 461, 464 Philpotts V. Keed 380 Phippa V. Anglesea Picton's Case . . Pieraon v. Gamett Pike V. Hoare . . Pipon V. Pipon Pitt V. Dacre . Pitt V. Pitt Q. Quarrier v. Colston Quelin v. Moisson 289, 292 . . 377 Piatt V. Attorney-General Plummer v- Woodburne . . 305 . 437 . 192 128, 157 172, 195 . 142, 144, 421, 423 60 . 19,20 455, 476 E. Baffenel, In the Goods of . . 12 Ealli V. Deniatonn . . 371 Eatcliffi). Eatcliff .... 66 Eaymond v. Von Watteville . . 208 Bead, In the Goods of . 194, 200 E. V. Dent 439 E. V. Keyn 56, 407 E. V. Lesley 394 Eeid, In the Goods of . 184, 186 Beimers v. Druoe . . . 450, 465 Eeiner v. Marquis of Salisbury . 124 Eenand v. Tourangeau . . .154 Eepublio of Costa Eica v. Erlan- ger 87, 91, 103 Republic of Liberia v. Imperial Bank 9] Eepublic of Peru v. Weguelin 91, 92, 103 Eeynolda v. Fenton . . 456, 459 Eicardo v. Garcias 446, 455, 463, 476 Eioboo, In the Goods of . . . 200 Eippon, In re 184 Eoach V. Garvan . . . 474 Eoberdean v. Ecus . 125, 128 TABLE OP CASES. X17L PAGE Robertson, JEx parte .... 238 J). Jackaon. . 319,375 : V. Struth . . . .457 Eobinson v. Bland 158, 175, 282, 289, 292 Eogerson, In the Goods of . 194 KoUa, The 105 Rothschild v. Currie . 352, 354, 370 Eouquette v. Overman 350, 352, 370 Eoyal Bank of Scotland v. Cuth- bert .... 168, 233, 239, 379 Encker, Inre . . . . 134, 139 Euckmaboye v. Mottichund 144, 421 Euding V. Smith . . 31, 51, 54, 265 Eule, In the Goods of . . .201 Eussel V. Smyth . . . 443, 445 Eyan v. Eyan 62 Eyde, In the Goods of . . . 205 Saloxicoi V. 'Woodmass . . . 472 Santos V. IlUdge 294 Saunders v. Drake .... 192 Sawer v. Shuts 241 Saxonia, The .... 407,410 Scarth v. Bishop of London 199, 208 Scheibler, Jjire . . . . . 133 Sohibsby v. Westenholz . 443, 446, 456, 458 231, 426 . 403 122, 147 Soinde Ey. Co., Ex parte Scott V. Beavan . V. Nesbitt . ■». Pilkington , 351,362,455 V. Eoyal Wax Candle Co. . 73, 74, 75, 252 V. Seymour 136, 396, 400, 427, 476 Scrimshire v. Scrimshire . 50, 268 Seacomb v. Bowlney . . 110, 111 Secretary of State for India v. Karnachee Boye Sahaba . . 104 Segredo, The . . 178, 326, 334, 368 Selkrig V. Davis . . 166, 167, 233 Service v. Castaneda .... 114 Stand ». DuBoisson. . . . 469 Sharp V. Taylor 292 Sharpe v. Crispin . . . .18 Shaw V. Attorney-General 60, 61, 62, 68, 474 Shaw V. Gould . .39, 60, 61, 474 V. Sturton 207 Shedden v. Patrick .... 40 Shiels V. GreatNorthernEy.Co. 76,85 Sichel 1!. Borch 251 Sidaway v. Hay 379 Sill V. Worswick . 172, 195, 230, 426 Simeon v. Bazett 292 Simonds ». White .... 320 Simpson v. Pogo 173, 175, 176, 180, 453, 470 V. Mirabita . . . .379 Sinclair D. Frazer 445 Sinonin v. Maillac 31, 50, 51, 54, 68, 265, 270 Sirdar Bhagwan Singh v. Secre- tary of State for India . . . 104 Skinner v. Bast India Co. 134, 250, 389 Skottowe V. Young 43, 192, 196, 220 Smith, Ex parte . . . 230,231 Smith's Trusts, Inre. . . . 215 Smith, In the Goods of . 194,200 V. Brown . . . 139, 294 V. Buchanan 233, 236, 378, 382 V. Moffat 238 ■;;. Nichols 443, 463, 468, 476 Smyth V. Anderson .... 368 Solomons v. Eoss 234 Somervllle v. SomerviUe . . 9, 11, 19, 24, 84, 172, 195 Sottomayor v. De Barros . 32, 37, 51, 54, 265, 269, 271, 274 South Carolina Bank v. Case Spears v. Hartley Spratt V. Harris . Sprowle V. Legg . . Stanley v. Bemes . State Fire Insurance Co. Steele v. BraddeU . Stein's Case Stern, In re . . Stevenson v. Anderson V. Masson ^ In Stewart, In the Goods of V. Garnett Stonelake v. Babb Strathmore Peerage Case Stuart V. Bute 73 422 199 305 187 403 51, 271 166, 425 14,15 . 98 . 14 . 194 140, 192 . 285 . 40 35, 36, 37 C 2 XX TABLE OF OASES. Submarine Telegraph Co. «. Bick- Bon 398 Sulley V. Attorney-General . . 82 Susa, The 25 Suse V. Pomp 403 Sussex Peerage Case 57, 274, 433, 435, 439 Sutton V. Tatham 308 Swansea Shipping Co. v. Duncan, Fox, & Co ' . .252 Sweeting v. Pearse .... 308 Swift, The 96 Sylph, The 399 Sylva V. Da Costa . . .35 T. Talleyrand v. Boulanger . 303, 429 Tarleton v. Tarleton . . 463, 468 Tatuall «. Hankey . . 188,189 Taylor v. Barclay . . 101, 102, 294 V. Best . . 97, 106, 107, 115 V. Crowland Gas & Coke Company 85 Thomas v. The Queen . . .104 Thompson v. Advocate-General 140, 171, 209, 212, 216, 219, 222 ■». Birch . «. Powles . ■». Sylvester Thorn v. WatMn Thornton v. Curling . Thurbum v. Steward . . . .216 102, 294, 370 . . .256 43, 172, 195 . . 195 223, 237, 240, 301 Thuret v. Jenkins .... 176 ToUemache v. ToUemache . 60, 66 ToUet v. Deponthieu .... 234 Tourton v. Flower . . . .198 Tovey v. Lindsay . . . . 17, 62 Trimbey v. Vignier 182, 241, 288, 302, 355, 357, 369, 414, 424 Triquet v. Bath . . . 110, 111 Trotter v. Trotter . . 158, 191 Trowbridge v. Taylor . . . 207 Tulloch V. Hartley . . . .128 Tyler!). Bell .... 198,204 u. Udny V. Udny 5, 10, 11, 1 2, 15, 23, 35 Uhla, The 399 Union Bank of Calcutta, In re . 77 United States of America v. Wagner 89, 103 Vallee v. Dumerque . . 449, 458 Vanderdonckt ». Thellusaon . 438 Van Grutten v. Digby . 173, 244 Vanquelin v. Bouard . 199, 445 Vaughan v. Weldon . . . 251 Vauthienen v. Vauthienen . 198 Viesca v. D'Aremburn . 194, 200 Vigny, In the Goods of . . . 201 Viveash v. Becker . . 109, 113 Volant, The 181 Vooght V. Winch 444 w. Wadsworth v. Queen of Portugal 100 Walker v. Witter 462 Wall, Coimtess of. Case ... 2 Wallace v. Attorney-General 140, 171, 196, 212, 216 ■». Brightwell . . .192 Wallop's Trusts, In re 213, 214 Walpole V. Ewer ... . 341 Ward V. Dey 439 Waring ». Knight . . . 233 Warrender v. Warrender 50, 60, 62, 153, 241, 267, 275, 299, 384 Waterhouse v. Stansfield 134, 153, 282 Watkins, Ex parte .... 37 Watts V. Shrimpton .... 245 Waymell e. Bead 290 Weaver, In the Goods of 195, 196, 201 Wedderbum v. Wedderburn 132, 476 Wedmore «. Alvarez . . . .111 Westman v. Aktiebolaget Snick- arefabrik . . .73, 74, 75, 252 Whicker v. Hume ... 20, 154 Whitaker v. Forbes . . 129, 256 Whyte V. Rose. . . 198, 199, 207 Wigglesworth v. Dedlison . . 808 Wild Ranger, The . . 404,406 Williams v. Dormer .... 17 V. Jones . 276, 443, 445 V. Nunn . . . 231 Wilson V. Dunsany . . . 222 TABLE OF CASES. XXI Wilson's Case 230 Wilson's Trusts, In j-e . . . 59 Wilson V. Wilson . 13, 64, 65, 67 WlDgate, In the Goods of . . 205 Winter, In the Goods of . . . 199 Wolff V. Oxholme . . 235, 414 Wright V. Commissioners of In- land Eevenue 285 Wright's Trusts, In re 9, 41, 42, 192 Wyoh V. Meal ...... 90 Wyckoff, In the Goods of . 202, 210 Wynne b. Callander . . 293, 351 V. Jackson .... 279 X. PAGE Ximenes v. Jacques , . 285 Y. Yates V. Thompson . . . .191 Yelvertoa v. Yelverton . 64, 66, 67 Yrisarri v. Clement .... 294 Zollverein, The 408 Zyclinski v. Zyclinski . . 67, 69 ( xxiii ) INTEODUCTOEY CHAPTEE. Every independent State assumes by its laws to regulate the status, the acts, and the property, of those who are subject to it. So long as the persons whom these laws claim to affect, the actions of which they assume control, and the property on which they purport to act, are re- moTcd entirely from the operation and influence of the laws of all other independent States, which claim the same privilege of supreme legislation, the only difficulties which can occur are those which belong to the interpreta- tion of a law, about the application of which there is no dispute. Directly, however, that either the persons, the property, or the actions, come within the range of the law of any such foreign state, the question is complicated by the introduction of a new element, and it is often diffi- cult to determine how far each of the contending laws is entitled to the authority which it claims. In order to attain theoretical and perfect simplicity, each group of circumstances, as well as the jural relation between cer- tain persons which results from it, should be under the domain of one law. If the society of each legislating State was entirely isolated, so that the individuals com- posing it were cut off from intercourse with all but their fellow subjects, the law of each State would have full operation within its own dominions, and could claim to extend itself no further. Once, during the history of the world, this uniformity was practically attained, under the supremacy of Eome, as the result of the unique position which the empire occupied amongst a number of semi- XXIV INTRODUCTORY CHAPTER. civilized or barbarous communities, none of whom pos- sessed a system of law which the imperial jurisprudence could stoop to recognise. The law of the Quirites, or jvs civile proper, was indeed amplified and enriched by the jural customs of the Italian tribes, and the obligations which were based on the jus gentiwm in this sense of the term, being regarded as the natural results of civilization among any body of men, formed eventually no inconsider- able part of the whole body of Eoman law. Such rights and obligations, however, when adopted by the civil law {jure civili comprobatse) ceased to be, in any sense of the word, foreign to it ; and this portion of Eoman juris- prudence bore to the original stotsk a relation more analo- gous to that which at present exists between the common law and the statute law of Englaud than to any other known to modern jurists. The jus honorarium, again, or the equitable law administered by the praetors, though specially applied to foreigners and those who were not possessed of the Roman franchise, and though dispensed with a certain regard to the nationality of the parties, was essentially Eoman in its nature ; and the right of any foreign law or custom to compete with the law as inter- preted and enforced by the Eoman magistrate seems never to have been asserted. There is not in fact, with the exception of an isolated passage in Gaius (a), which by no means demands such an interpretation, a single dictum of the Eoman jurists which points to the existence of any- thing like private international law, in the modern sense of the term. Yet in other respects Roman jurispru- dence reached a later stage of development, and ulti- mately of decay, than that to which any modern system has yet attained. The omission, if Rome had been a sovereign State surrounded by its equals in progress and civilization, would have been inexplicable. The actual relation of the imperial mistress of the world to those who (a) " Sponsoris et fidepromissoi-is heres nou tenetur ; nisi de peregrine fidepromissoro quajrcmus, et alio jure oivitaa ejus utatur."'— Gai. iii. 120 -of. iii. 96. INTRODUOTOEY CHAPTER, XXY were by turns her enemies and her dependents offers an intelligible explanation. Huber, after speaking of the conflict of laws between independent and sovereign States, proceeds as follows: " It is not a matter for surprise that there should be no trace of this subject in Eoman jurisprudence. The Empire of the Eoman people, extending over all parts of the habit- able globe, and everywhere acknowledging one uniform jural system, could never have been exposed to that con- flict of various and independent laws which manifested itself as soon as the Empire was broken up into a number of distinct bodies. Nevertheless the fundamental rules of this science must be sought for in the principles of ErOman law, and rather in the Law of Nations than in the Eoman civil law proper. It is clear that the question of what system of jurisprudence the inhabitants of independent States are to adopt in their mutual intercourse, belongs to the science of the Law of Nations " (a). The existence of a similar gap in the jurisprudence of the dominant cities of Greece must be referred to a different cause. Between the Hellenes proper and the Barbarians, indeed — and it must be remembered that the Greek regarded as Barbarians all who were not Hellenes — there could of course be no possible international relations, public or private, except those of peace and war. It might, however, have been expected that between such cities as Athens and Sparta, Thebes and Corinth, whose intercourse with each other must have been close and frequent, the necessity of something like a " comity " in international private law would have been felt. Any such comity was, however, foreign to the spirit and traditions in which the Grrecian citizen was brought up. The absolute indepen- dence and isolation of the Grecian city or State was the most sacred of his political ideas ; and the large admixture in Grecian law of a religious element, peculiar to each city, rendered any relaxation of this jealous spirit of exclusion the more difficult. It may be that even these causes would (a) Huber. Praelect. Jur. Civ. vol. ii. lib. 1, tit. 3, p. 25. FOREION AND DOMESTIC LAW. Part I— PERSONS. CHAPTER I. pabtI. Pebsons. NATIONALITY. ' " Cap. I. Of the elements which compose a man's status, viewed Nationality as a subject of law, nationality is the first and most im- ^ "® ' portant. By a man's nationality is meant that political relationship which exists between him and the Sovereign State to which he owes allegiance ; and this relation- ship is fixed, in different countries, by varying rules and principles. According to the English Common Law, nationality depended in all cases upon the place of a man's birth, following the feudal principle, which to a certain extent, regarded all inhabitants of the soil as appendages to it. The view taken of the question by Eoman law, which referred all questions of a man's status to that of his parents, was absolutely unrecognised in England until its statutory adoption; and the sole consideration was, whether the individual whose nationality had to be deter- mined was or was not born within the king's allegiance. The only exceptions to this rule were those imposed by the doctrines of public international law, which required that the children of foreign ambassadors, to whom the privilege of exterritoriality was attached, should be ex- empted from the rigour of the feudal principle ; and further considered that the territory of any State, while FOREIGN AND DOMESTIC LAW. Part I. Peksons. Cap. I. Statutes regulating nationality. in the hostile occupation of an enemy's army, lost for the time being the national character which properly belonged to it. With these apparent exceptions, con- sistent in reality with the rule itself, all who were born on English soil, and no others, were English subjects. The first statute which qualified this principle was the 25 Bdw. III. St. 2, which provided that "all children inheritors which from henceforth shall be born without the legiance of the King of England, whose fathers and mothers at the time of their birth shall be in the faith and legiance of the King, shall have and enjoy the same benefits and advantages, to have and bear the inheritance witliin the same legiance, as other inheritors aforesaid, in time to come ; so always the mothers of such children do pass the sea by the license and will of their husbands." It will be obseTrved that the privileges of inheritance only (a) were conferred by this statute ; and it was de- cided (b) that it did not confer even these upon the children of an English mother, by an alien father, bom out of the allegiance. More recent statutes have, of course, robbed this decision of any importance. Even under this statute, it was not required that the mother should be of English nationality, it having been decided in Bacon's Case (e) that the alien wife of a British subject was quasi under the King's allegiance (d). By 7 Anne, c. 5, s. 3, it was next enacted that " the children of all natural-born subjects, born out of the alle- giance of Her Majesty, her heirs and successors, shall be deemed adjudged and taken to be natural-born subjects of this kingdom, to all intents, constructions, and purposes whatsoever." The principle just adverted to, as having been decided in Bacon's Case, that the transmission of nationality depends upon the father alone, was incorpo- (a) But see Lord Bacon's argument in Calvin's Case (2 St. Tr. SSS'), and Bac. Ab. tit. " Aliens," A. (6) Duroure v. Jones, i Term Rep. 300. (c) Cro. Ch. 602. {d) By the common law, however, a woman's nationality was unchanged by her marriage : Co. Litt. 31 b ; Countess of Conway's Case, 2 Knapp P. C. 368 ; Countess de Wall's Case, 12 Jur. 348. NATIONALITY. 6 rated with this statute by 4 Geo. II. c. 21, s. 1. But it Paut i. was not considered that the words " all intents, construe- persons. tions, and purposes whatsoever," were large enough to Cap. I. include the power of transmitting such nationality to another generation, and 13 Geo. III. c. 21 was passed to add this privilege, thus extending the natioaality of the grandfather to the second generation born out of the allegiance. Children of the third generation, on the same construction of the words of the statute, would of course be still excluded. The statute 7 & 8 Vict. c. 66, by which considerable alteration in the law of nationality was effected, has now been repealed by 33 & 34 Vict. c. 14, which embodies the recent legislation on the subject, and regulates the manner in which British nationality may be acquired or divested. It therefore becomes unnecessary to examine the previous statutes on the subject of naturalization, most of which have been repealed by the last-mentioned enactment. This Act (33 & 34 Vict. c. 14) was passed after the Naturaiiza- report of a commission appointed to investigate the *'°" ^'^^' ^^^''• subject, and embodies many of the recommendations of Lord Chief Justice Coekburn, contained at the end of his pamphlet ' On Nationality,' published in 1869. By s. 2, it is enacted that aliens may take, hold, and dispose of real and personal property as if natural-born subjects, with the single exception of British ships (s. 14), and with the proviso that no qualification for franchise or ofBce is thereby conferred. The third and fourth sections provide that naturalized aliens, subjects of other states born within British dominions, and children born abroad of British fathers, may divest themselves entirely of British nationality by a formal declaration of alienage. The sixth section enacts that a similar effect shall be pro- duced by voluntary naturalization abroad, with a proviso to meet the case of British subjects so naturalized abroad previous to the passing of the Act. Section 7 provides for the naturalization of aliens by a certificate from a Secre- B 2 FOREIGN. AND DOMESTIC LAW. Part I. tary of State, to be granted under certain conditions, and ' enacts that such naturalization shall be deemed to confer ^^^- ^- aU political and other rights and liabilities. This pro- vision is made applicable, by s. 8, to the case of British subjects who have lost their original nationality under s. 6, As to aliens naturalized under these two sections, it is provided that, when within the limits of the State to which they formerly belonged, their nationality shall not be deemed to be British unless, by the laws of that State, they have ceased to be its subjects. Section 9 gives the form of the oath of allegiance which the earlier sections require to be taken at the time of any naturalization or statutory declaration of nationality. Section 10 relates to the status of married women and children, and in effect provides as follows : By marriage a woman acquires the nationality of her husband ; and a British female subject who has thus become an alien, may, if she afterwards becomes a widow, be re-admitted to British nationality under s. 8 of this Act. The nationality of children is to be deemed as following that of the father, or of the mother if a widow, and as changing with it. These are the main provisions of this important statute, which has placed the whole of the English law relating to nationality and naturalization upon a new footing. There are some minor enactments contained in it, which have not yet been mentioned. The right of trial by a jury de medietate linguse is abolished (s. 5). No right to hold real property situated out of the United Kingdom is con- ferred (s. 2, sub-s. 1). Estates and interests in real and personal property to which any person has become en- titled by a disposition made or a death happening before the Act are not to be affected (s. 1, sub-s. 3); And a British subject who has become an alien under the Act is not to be thereby discharged from liability for acts done before such change of nationality (s. 15). A question which has often arisen, respecting the power of the British colonies to confer British nationality, is set at rest by s. 16, which enacts that all laws duly made by NATIONALITY. the legislature of a British possession for this purpose Part I. shall be valid within the limits of that possession, subject mesons. to the power possessed generally by Her Majesty of con- Cap. I. firming or disallowing any of the laws of such British possession (a). This Act was amended in 1872 by a short Act (35 & 36 Vict. c. 39) which provided that the mode of renouncing nationality agreed upon by a convention between Her Majesty and the United States, dated February 23, 1871, should be deemed to be authorized by the Naturalization Act of 1870. The third section of this amending Act also enacted that the rights and property of women, married before the passing of the Act of 1870, should not be pre- judicially affected by it. It will be seen that all the legislation, which has taken Nationality place on this subject, proceeds on the principle that a ^omkiil. """ man is unable of himself, without statutory assistance, to change his nationality. In the words of Lord Hatherley in Udny v. TJdny (h), "the question of naturalization and allegiance is distinct from that of domicil. A man cannot, at present at least, put off and resume at will obligations of obedience to the government of the country of which at his birth he is a subject, but he may many times change his domicil." The Act of which a summary has just been given has rendered that possible which was not so, in England at least, when Lord Hatherley spoke, but the essential distinction between domicil and nation- ality must nevertheless be borne in mind in considering its provisions. In Moorhouse v. Lord (c), Lord Kings- down, speaking of the acquisition of a French domicil, is reported as saying that, in order to effect such a result, a man must intend to lecome a Frenchman instead of an Englishman. But, as Lord Westbury points out, in his judgment in the case of Udny v. Udny (d), just referred (a) See 10 & 11 Vict. c. 83, the former statute on this subject. (b) Udny v. Udny, L. K. 1 H. L., So. 441, 452. (c) 10 H. L. C. 272. And see Saldane v. Eclcford, L. E. 8 Eq. 631 ; In re Capdevielle, 2 H. & 0. 985, and Attorney-General v. Countess de Waldstatt, 8 H. & C. 374. (cO L. E. 1 H. L., So. 460. O FOEEIGN AND DOMESTIC LAW. Pakt I. to, these words are likely to mislead, if they were intended ' to signify that for a change of domicil there must be a ^^^- ^' change of nationality, that is, of natural allegiance. That would be " to confound the political and civil states of an individual, and to destroy the difference between jpatria and domioilmm." This essential distinction will become more manifest, when the law of domicil has been con- sidered. Inhabitants Apart from the provisions of the Naturalization Act, of^^ded terii- jg^Q^ ^j^j^j^ -^^^^ ^^^^ ^^^^ explained, the rules as to the transfer of allegiance, on the cession or abandonment of British territory, should be here noticed. In Doe v. Aehlam (a), it was held that children born in the United States, after the recognition of their independence, of parents born there before that time, and continuing to reside there afterwards, were aliens. But in the subse- quent case of Doe v. Muleasier (b), it was held that where the parents, at the time of the severance between the countries, elected to retain their British nationality, they were able to do so, and to transmit it to their children. Mr. Westlake (Priv. International Law, § 27) says that the question, in which cases, is to be decided by the voluntary transfer or retention of domicil ; and this is the test generally agreed upon in the treaties which are made between independent States when territory is ex- changed or abandoned. It is not likely that, so far as the English lawyer is concerned, a case unprovided for by treaty will ever arise. (o) 2 B. & 0. 779. (6) 5 B. & 0. 771. NATIONALITY. SUMMABT. Nationality, according to the English Common Law, was decided absolutely and once for all by the place of birth. Those who were born within the allegiance of the British Crown, and those only, were regarded throughout their lives as British subjects. By the statutes previous to 33 & 34 Vict. c. 14 (25 Edw. III. St. 2, 7 Anne c. 5, s. 3, 4 Geo. II. c. 21, and 13 Geo. III. c. 21) the privileges of nationality were con- ferred on the descendants, up to and including the second generation, of a natural-born British subject wiio were born abroad, the transmission of this statutory nationality depending upon the father alone. By 33 & 34 Vict. c. 14, the restrictions on the capacities of aliens were abolished so far as the power of inheriting or otherwise taking British land was concerned, and statutory means were provided (superseding those which had formerly. existed) for the naturalization and de-natu- ralization of aliens in Great Britain, and of British sub- jects abroad. The nationality of a married woman follows that of her husband, and the nationality of children follows that of the father, or of the mother if a widow. A married woman who becomes a widow may change her nationality under the provisions of 33 & 34 Vict. c. 14. The legislatures of British possessions and colonies may confer a limited British nationality, valid within their territorial limits. On the cession or abandonment of territory, by conquest or otherwise, the nationality of the inhabitants is generally provided for by treaty; but in the absence of treaty pro- visions, will probably depend upon the voluntary transfer or retention of their domicil. Part I. Persons. Cap. I. FOEEIGN AND DOMESTIC LAW. Paet I. Persons. Cap. 1. Domioil — defined and explained. CHAPTEE ir. DOMIOIL. By the law of England, and of all other civilized countries, each individual has ascribed to him at his birth two dis- tinct legal status or conditions; one by virtue of which he becomes the subject of some particular country, binding hitn by the tie of natural allegiance, which is called his political status or nationality, and which has been dis- cussed in the preceding chapter ; the other, by virtue of which he becomes the citizen of some particular country, as such possessed of certain municipal rights, and subject to certain obligations. This is called his civil status, entirely distinct from the first, which depends on different laws in different countries ; whereas the civil status is governed universally by the single principle of domicil, the criterion established by international law for deter- mining it (a). As to the proper definition of domicil, much difficulty has always been felt. Dr. Phillimore defines it as " a residence at a particular place, accom- panied with positive or presumptive proof of an intention to remain there for an unlimited time " (b). There can be no doubt that tbis is the hind of residence which is essential to domicil, but the conception itself may be, perhaps, more accurately explained as the relation of an individual to a particular State which arises from his resi- dence within its limits as a mender of its commwnity. There must be always one particular State towards which this relation exists, and there can never be more than one at (a) Per Lord Westbury in Vdny v. Vdny, L. R. 1 H. L., So. 460. (6) Phillimoro's Law of Domicil, p. 13. Adopted by Lord Westbury in Vdny V. Vdny. DOMICIL. the same time (a). (Story's Conflict of Laws, § 45.) Mr. Paet i. Westlake (Private International Law, § 30) asserts that ^^ domioil is " the legal conception of residence," particu- Cap. II. larized and defined only for the sake of legal precision ; but as he admits immediately afterwards that residence is not domicil, unless accompanied by the particular circum- stances under which the law will recognise it, it is evident that such a deiinition is not entirely satisfactory (6). What those circumstances are is just the question which it is the object of definition to answer. Where a man resides is always a matter of fact (e), and when this fact is once ascertained, the legal idea of domicil comes at once into existence. The domicil which attaches to a man at the moment of Domioil of his birth, generally spoken of as the domicil of origin, is, °"g^°' in ordinary cases, that of his father ; though where a child is posthumous or illegitimate {d) the domicil of its mother is necessarily taken to decide its own. Gases can of course be suggested where the domicil must be decided by the place of birth, or even some other place ; as, for instance, in the case of a child found exposed, whose parents are unknown. In ordinary cases, however, the domicil of origin is that of one of the parents, and during legal infancy it changes with that from which it is derived. Mr. Westlake points out (P. I. Law, § 37) that a married minor must be regarded as sui jwris for the purposes of domicil, since on his or her marriage a new home is founded. In such a case the question would appear to be one of fact, and if the minor, after the ceremony of mar- riage, continued to reside with his or her parents, there would be no occasion to consider it, inasmuch as there would be only one locality to which the domicil could (a) As to the possibility of a double domicil, see Somerville v. Somerville, 5 Ves. 749. (6) See Maltass v. Maltass, 1 Roberts, 74, and Munro v. Munro, 7 CI. & F. 842. (c) Bempde v. Johnetone, 3 Ves. Jun. 201. (d) If, however, an illegitimate child hane a father whose paternity is fi.xed, by acknowledgment or otherwise, the domicil of that father attaches to it : Be Wright's Trusts, 2 K. & J. 595. 10 FOREIGN AND DOMESTIC LAW. Part I. Persons. Cap. II. possibly be attributed. It is apparent that the domicil of an orphan must be decided by that of its legal guar- dian, and when this test cannot be applied, it becomes a question of the place where the child in fact resides. A doubt has, however, been raised, whether the legal guardian of an infant can change its domicil, with the effect in many cases of bringing it under the influence of a law of succession more favourable to himself. It is quite clear that when that guardian is a surviving mother, or even, it would seem, a step-mother, and there is no suggestion of fraudulent intention, the change can effectively be made (a). In other cases, however, there is more doubt, and Story suggests that it is extremely difficult to find any reasonable principle by which a guardian, not a parent, can alter by a change of domicil the right of succession to the minor's property. English law is barren of authority on the suhject (6), but the inquiry as to what is sufficient to change the domicil of adults is a more fruitful one, and has given rise to a mass of litigation. The domicil of origin adheres until a new domicil is acquired (e), and in the case of an adult this change is effected by a de facto removal to a new place of residence, AbaBdonment together with an animus manendi (d). As to the factum of removal, it is apparently now settled by the case of Udny V. Udny (e) that a new domicil is not acquired until the transit is complete, and that when a domicil of choice is abandoned, the domicil of origin revives until a new one is completely fixed. In Lord Hatherley's words in the case cited, a man may not only change his domicil, but also abandon each successive domicil sim/pliciier, so that the original domicil simpUciter reverts; and this doctrine was accepted and approved by the Master of the Eolls (Sir G. Jessel) in the recent case of King v. Fox- (a) Potinger v. Wightman, 3 Meriv. 67. (6) Story, § 506, n. ; Burge on For. and Col. Law, pt. i. u. 2, pp. 38, 39 ; Eobtrtson ou Succession, p. 196. (c) Bell V. Kennedy, L. B. 1 H. L., So. 307 ; Udny v. Vdny, ib. 460. (d) Douglas \. Douglas, Jj.'R. 12 Eq 617; Haldane v. Holcford, L. K. 8 Kq. 631 ; De Bonneval v. De B'onneval, 1 Curt. 861. • (e) L. K. 1 H. L., Sc. 160. Domicil by acqui^tion. and transit. DOMICTL. 1 1 weU (a). In the absence of evidence the dpmicil of Part I. origin must of course be presumed to have continued, so that the burden of evidence will be on the party who ^^^- ^^• alleges its abandonment (6). If the domicil of origin reverts when an acquired domicil is abandoned without a new one being acquired, it would naturally follow that, with regard to the domicil of origin itself, mere abandon- ment is not sufficient to divert it. In other words, a domicil of origin cannot be abandoned unless and until a new one is acquired. Accordingly it was held by Lord Alvanley, in SomervUle v. Somerville (e), whose judgment is cited with approval by Sir G. Cresswell in Croolcenden V. Fuller (d), that " the original domicil is to prevail until the party has not only acquired another, but has manifested and carried into execution an intention of abandoning his former domicil and taking another as his sole domicil " — a dietum the peculiar wording of which is due to the fact that in Somerville v. Somerville the Court was called upon to lay down that for purposes of succession a man can have but one domicil. That mere abandonment was not in any case sufficient to divert domicil had been held by Sir John Leach in Mwn/ro v. Douglas (e), and Mr. Westlake, in suggesting the theory that the domicil of origin reverts in transitu, adds that he finds no English authority for the proposition, except for the purposes of prize cases in the Admiralty Courts (J). The dicta, how- ever, in Udny v. JJdny and King v. Foxwell just adverted to must now be taken as decisive of the question. Mere abandonment divests all domicils except that of origin. The domicil of origin of necessity adheres until a new one is acquired, as if this were not so, the man who had left the country of his home for the first time would be left in itinere without any domicil at all, a condition of (a) L. R. 1 Ch. D. 518. (b) Grookenden v. Fuller, 29 L. J. P. & M. 1. (e) 5 Ves. 786. (d) 29 L. J. 8 P. & M. See Munro v. Munro, 7 CI. & T. 842 ; Collier v. Mivaz 2 Curt. 855 ; Hodgmn v. De Beaucheme, 12 Moo. P. C 285. (e) 5 Madd. 405. (/) P. I. L. § 39. 12 FOREIGN AND DOMESTIC LAW. Part I. Persons. Cap. II. Aiiiinus relinquendi. Animus manendi. things which cannot possibly exist. But the abandoment of the acquired domicil must of course be complete ; and it has been held that a French domicil by acquisition is not so abandoned by mere embarkation on a vessel bound for England, the person in question being compelled by ill-health to re-land, and having never in fact quitted the French harbour (a). Accompanying the fa£tum there must necessarily be an animus relinquendi, or the abandonment would be in reality no abandonment at all. It is this animus which constitutes the whole difference between mere absence I'rom the domicil and its relinquishment; and while a man may divest himself of an acquired domicil in an hour by crossing the territorial limit of the State with the intention of permanently quitting it, he may, without such intention, wander over the face of the earth for years and preserve his domiciliary status unaffected. Subsequent declarations will of course be received as evidence that this animus relinquendi was absent when the country of the domicil was quitted, as in the cases of Jopp V. Wood (b) and In re Capdevielle (c) ; and it is clear that proof of an animus manendi in the country of the new home will conclusively establish the intention to abandon the old. If, however, it is shewn that the animus relinquendi or nori, revertendi never came into existence, as in the case of political refugees and exiles {d), it is of course unnecessary to inquire further. The animus relin- quendi is in practice almost identical with the animus manendi, when the latter exists ; and it is only in cases of mere abandonment, according to the principle stated in Udntf V. Vdny (e), that the consideration of the former by itself is necessary or practicable. Next, with regard to the necessary animus for the acquisition of a new domicil, when the transit to its locality is complete, there (a) In the Goods of Sagenel, 32 L. J. P. & M. 203. (6) 34 L. J. Ch. 212. (c) 33 L. J. Ex. 306. (d) Oollier v. Bivan, 2 Curt. 858 ; De Bonneval v. De Bonneval, 1 Curt. 856 ; Burton v. Fisher, 1 Milw. 183. (e) L. K. 1 H. L., So. 452 ; ante, p. 10. DOMICIL. 13 is in theory no difficulty. Tliere must be, in addition to p^bt I. Persons. the animus non revertendi to the old home, an animus .' manendi in the new. In the words of Dr. Phillimore, ^^^- ^^- which have been already cited, there must be positive or presumptive proof of an intention to remain in the locality chosen for an unlimited time. It may be men- tioned that the oath of a person whose domicil is in question as to his intention to change his domicil is not conclusive, but is evidence for the Court to take into c6nsideration (a). And in Manning v. Manning (6) the affidavit of a husband, who petitioned for a divorce, that he had settled in England with an animus manendi, was disbelieved. Whether mere length of residence will in itself amount to such presumptive proof as is required may be doubted (c), and there must always necessarily be other facts from which such an intention may be implied. The " intention " which is here spoken of is necessarily Animus or 1 . 1 i i> 1 11 intention de- a vague expression, involving elements ot law as well as duoed from fact, and much difficulty has been felt in defining it more ^°'^- closely. The ordinary rule that a man must be taken to intend the legal consequences of his act, fails in application when the intention itself forms the principal part of the act in dispute ; and it has been argued with some force, that since a change of domicil depends upon intention alone, an expressed intention to retain a domicil of origin must be given full effect, though the intention to establish a permanent home or residence in the new locality be put beyond a doubt (d). It has been contended, and perhaps was at one time the law of Scotland (e), that in order to prove a change of domicil, it is necessary to shew that the person concerned intended to change his civil status, to give up his position as a citizen of one country, and to assume a position as the citizen of another. The English law, however, may now be regarded as definitely settled on (a) Wilson v. Wilson, L. E. 2 P. & D. 435. (b) L. E. 2 P. & D. 223. (c) Jopp V. Wood, 34 L. J. Oh. 212. (d) See Attorney-General v. Waldstatt, 3 H. & C. 374 : Moorhouse v. Lord, 10 H. L. C. 272, 292 ; Douglas v. Douglas, L. E. 12 Eq. 617. (e) Donaldson v. MoClure, 20 C. of Sess. Ca. (2nd Series) 307. 14 FOREIGN AND DOMESTIC LAW. Part I. thjg point. The intention required for a change of domicil, . " as distinguished from the action embodying it, is an in- ^^^- ^^' tention to settle in a new country as a permanent home ; and if this intention exists and is sufficiently carried into effect, certain legal consequences follow from it, whether such consequences were intended or not, and even though the person concerned may have expressed a contrary wish as to the legal result of his acts (a). In the words of Bacon, Y.C., it is only necessary to shew that a man has established himself in a country, meaning to reside there all the days of his life (h). Thus, where a British-born subject resided many years at Hamburg under circum- stances which afforded evidence of a domicil there, and then made a will in England, where he was present for a temporary purpose, in which he declared that it was not his intention to renounce his domicil of origin as an Englishman, it was held that his declaration of intention could not prevail against the foreign domicil in fact (e). It was said by the Court in that case that such an expres- sion of intention amounted to a desire to have two domicils ; or at any rate, to change his domicil in fact without submitting to the consequences in law, A declara- tion of intention to retain domicil itself being thus insuffi- cient, it is quite clear that a declared intention to retain the nationality of origin will have even less effect (d). The latter declaration, indeed, seems by itself to be Jiardly evidence of that intention to keep or transfer the perma- nent home which the law looks for ; while an expressed intention to retain domicil itself is undoubtedly some evidence ■ to shew that domicil has been retained, though it will not be allowed to counter-balance actual facts. In some cases (e) it has been held, no doubt, that an original domicil has been retained by the mere expression of an (a) Douglas v. Douglas, L. K. 12 Eq. 617, 644 ; Raldane v. Eckford, L. E. 8 Eq. 631. (b) Stevenson v. Maseon, L. E. 17 Eq. 78. (c) Be Stem, 28 L. J. Ex. 22 ; 3 H. & N. 594. (d) Brunei v. Brunei, L. E. 12 Eq. 298. (e) Jopp V. Wood, 34 L. J. Ch. 212; Be Capdevielle, 3.3 L. J. Ex. 306. DOMICIL. 1 5 iBtention to return before death to the residence which Pabt i. has been abandoned ; but the distinction to be drawn '. between the principle of these cases and that which was ^^^- ^^• followed in Be Stern appears to be, that while a man is not allowed to contradict the legitimate inference from his conduct by the expression of a bare wish to retain a domicil which he has practically abandoned, yet a bond fide declaration that he means in fact to return to his original residence, will be accepted by the law as evidence that the abandonment has not been complete. The intention required for a change of domicil, there- Distinctive fore, is that of settling in a new country as a permanent permanent home (a) ; but then comes the material question, what is residence or a permanent home, and howls it to be distinguished from a temporary one ? It, is not clear whether the fact that a foreign residence has been permanently adopted with a view to the acquisition of a fortune, with the ulterior design of returning when that object is attained, is suffi- cient in itself to prevent the place of residence becoming that of domicil. According to the view taken by West- lake (P. I. Law, § 38) it is not (6), and this is in accordance with the later case of Allardice v. Onslow (e) ; but the con- trary was held by Lord Eomvlly in 1865 {d), though it is to be noted that in the last-mentioned case there was a direct expression of an intention to return to the original place of residence. The prospect of return to their home which is cherished by political refugees is of a more deter- minate character, and this, so long as the exile is involun- tary (e), will prevent the substitution of a new domicil for that of origin from being complete (/). The same prin- ciple, that an involuntary detention is destitute of the requisite IfflwimMS, is applicable to incarceration in prison {g). (a) Douglas v. Douglas, L. E. 12 Eq. 212 ; Udmy i. Udny, h. E. 1 H. L., So. 441. • , (b) Bruce v. Bruce, 2 B. & P. 229, n. (c) 33 L. J. Ch. 4a4. (d) Jopp V. Wood, 34 L. J. Oil. 212. (e) Collier T. Rivaz, 2 Curt. 858. {/) De Bonnevai y. De Bonneval, 1 Curt. 85G. Ig) Burton v. Fisher, 1 Milw. 183. 16 rOEEIGN AND DOMESTIC LAW, Part I. When the residence is liable to be interrupted at any Persons, j^q^q^^ \,j the intervention of another will, the elements Cap. II. of domicil are incomplete ; the aninms being at most con- Liability to ditional. Thus an officer in Her Majesty's service, who interruption, j^^y. ^^ ^jjy time be required for foreign service, cannot while no such demand is made upon him acquire a domicil abroad (a) ; nor could an ofiScer in the East India Com- pany's employment, who was at all times liable to be recalled to India, acquire one in England (h). But the duty of a peer of Great Britain to advise Her Majesty whenever she may call for his advice, or to attend the House of Lords whenever his attendance there is required, whether in any sense a legal duty or not, does not incapaci- tate him from abandoning his English domicil of origin and acquiring a new domicil abroad (c). Onus of proof. In all cases it must be remembered that the onus of proof is upon the party who alleges a change of domi- cil (d); but it has been held that slighter evidence is required of an intention to revert to a domicil of origin, than of £tn intention to adopt one entirely new (e). Presumptions In certain cases, however, the law fixes the domicil of of law. ^^ individual without reference to intention, or the pre- sence of its usual indicia; though it would be perhaps more correct to say that in certain cases, the law does not allow the presumption of intention, which it raises for itself, to be contradicted. The most common example of this principle is the rule that a woman assumes on her mar- riage the domicil of her husband (/). How far she may afterwards be able to choose a new domicil for herself, and under what circumstances such a choice will be recognised, is not altogether clear. According to the dicta of Lord Cranworth {g), in (a) Hodgson v. De Beaiichesne, 12 Moo. P. C. 285. (fc) Attorney-General v. Pottinger, 30 L. J. Ex. 284 ; Craigie v. Lewin, 3 Curt. 435. (c) Hamilton v. Dallas, L. E. 1 Ch. D. 257. (d) Bell V. Kennedy, L. E. 1 H. L., So. 307. (c) Lord V. Colvin, 28 L. J. Ch. 361. (/) Bremer v. Freeman, 10 Moo. P. 0. 306. ((/) 7 H. L. C. 390. DOMICIL. 17 Dolphin V. Bdbins, founded on the older decision of PahtI. Williams v. Dormer (a)y and adopted with approval by Sir P™sons. B. Phillimore in the recent case of Le Sueur v. Le Cap- H- Sueur (b), a married woman is undotibtedly rendered Domioil of capable of acquiring^ a domicil distinct from her husband's ^f^^ried , .' ° T>i. T 1 ^°™*^ — when by a judicial separation. In Dolpmn v. Bobms, Lord distinct. Cranworth evinced an inclination to go a step further. " I should add," he says, " that there may be exceptional cases, to which even without judicial separation the gene- ral rule would not apply, as for instance, where the husband has abjured the realm, has deserted his wife, and established himself permanently in a foreign country, or has committed felony and been transported. It may be that in these and similar instances the nature of the case may be considered to give rise to necessary exceptions." A similar conclusion is indicated by expressions which fell from Lord Eldon and Lord Kedesdale in Tovey v. Lind- say (c), and was adopted, as far as wilful desertion by the husband is concerned, by Sir K, Phillimore in the case of Le Sueur v. Le Sueur (d) just cited, where he said: " Upon the whole, I am disposed to assume in favour of the petitioner the correctness of the opinion that deser- tion on the part of the husband may entitle the wife, without a decree of judicial separation, to choose a new domicil for herself; and in coming to that conclusion I am aware that I am going a step further than judicial deci- sions have yet gone." The petition in that case was dis- missed upon another ground, namely, that though the wife, under such circumstances, might elect a domicil of her own, she could not make her husband amenable to the lex fori of her new domicil, and that inasmuch as neither his domicil nor the place where the marriage was contracted was in England, the English Court had no jurisdiction to dissolve the marriage ; but the principle was clearly indi- (o) 2 Eob. Eocl. 505. (6) L. K. 1 P. D. 139. In Be Daly's Settlement, 25 Beav. 456, Lord Eomilly h ad held that a separation de faeto for thirty years was not sufficient to confer an independent domioil on a married woman. (c) 1 Dow. 117, 138, 140. {d) h. E. 1 P. D. 139. 18 FOEEIGN AND DOMESTIC LAW. Pabt I. cated, and may now be regarded as settled. It is hardly Pebsons. necessary to observe, after considering the cases just cited, Cap. II. that a widow resumes on her husband's death the power of electing and changing her domicil as if she were a/eme. sole. Kesidence Following the principle which decides the place of a offie^^"^''^ man's domicil by that of his home — for which phrase, indeed, the word may almost be regarded as the legal equivalent-^— it is established that a foreign domicil is con- ferred by the acceptance of any office which necessarily requires foreign residence (a), even although it may also involve occasional employment in other parts of the world, as in the case of one who enters the military or naval service of a government. This rule requires some modifi- cation when applied to the case of such a sovereign power as Grreat Britain, which includes within its jurisdiction several countries, each able to confer an independent domicil of its own. A Scotchman or Irishman entering the British navy does not thereby acquire an English domicil (b), since the British navy is Scotch and Irish as well as English. It is hardly necessary to observe, that unless the residence required by the office is of a constant character, it will not be residence at all in the eye of the law, and no change of domicil will be effected by the acceptance of its duties. An apparent exception to the rule itself is the case of consular office, which arises from the general view taken by international law of the relation between a consul and the State which he represents. A British subject who goes abroad as consul for his country does not acquire a foreign domicil by so doing, nor does the acceptance of a British consulate by one already domiciled abroad confer a British domicil upon the holder (c). On the contrary, a foreigner who comes to England as consul for the country in which he is domiciled retains his own domicil ex officio, (a) Mwnro v. Douglas, 5 Madd. 379 ; Attorney-General v. Fottinaer, 30 L. J. Ex. 284. " ' (6) Brown v. Smith, 21 L. J. Ch. 356 ; Dalhoune v. M'DouaU, 7 CI. & "P. 817. (c) Slmrpe v. Crispin,'!.. E. 1 P. & M. 611. DGMICIL. 19 however long bis residence in this country, the rule of Pabt i. international law on this point appearing not to admit of contradiction (a). The older cases cited by Mr. Westlake ^^^- ^^- on this subject (h) are to the same eflfect, and the same rule applies a fortiori to ambassadors. In addition to these presumptions of law, which do not indicia ol admit of contradiction, there are other facts which are 'i°™i'=il- accepted as evidence, more or less conclusive, where a difBculty arises in deciding where residence has been fixed. It is a principle of common sense that the place which a man has selected as the home for his wife and family should be regarded, in the absence of evidence to the con- trary, as that in which he himself must be considered to reside (e). And this, in the case cited, was held to be so, even though the choice of residence was made expressly at the wife's request, and the house taken and furnished at her expense. It is always material, as was said in the Privy Council in a recent case (d), in determining what is a man's domicil, to consider where his wife and children live and have their permanent place of residence, and where his establishment is kept up. That is the place to which it is to be presumed that the man would go unless incapacitated from doing so by business or public duties. Next to this test or criterion, but subordinate to it (e), comes the rule which was laid down in Somerville v. Somer- viUe by Lord Alvanley (/). In the case of a nobleman or country gentleman, who has two homes in different juris- dictions, as, for example, in the case of a Scotch landowner with a house in Belgravia, who lives half the year in each, the situation of the country house will be preferred tOi that of the town residence ; while, on the other hand, a, merchant, whose business lies in the metropolis, shall be considered as having his domicil there, and not in the (a) Niboyet v. Niboyet, L. E. 2 P. D. 52. (6) Maltass v. Maltass, 1 Eob. E. 79 ; Heath v. Samson, 14 Bear. 441. (c) AitcUson v. Dixon, L. K. 10 Eq. 589. \d) Piatt V. Aitorney-Generul of New South Wales, 38 L. T. 74. (e) Forbes v. Forbes, Kay, 341. (/) 5 Ves. jun. 750, 789 ; and see the cases cited frxim Denisart, at p. 777. C 2 20 FOREIGN AND DOMESTIC I.AW. Part I. country. The mere fact that a man marries a native of ^^^^' the country to which he has transferred his residence is Cap. II. sojjje evidence that that residence is intended to be per- manent, and therefore that a change of domicil has been made (a). So it has. been held evidence of a change of domicil, more or less cogent when combined with other material facts, that a man should set up a permanent commercial- business in a place, and so fix his rervm ae fortimarwm summam there ; that he should obtain natura- lization in the new country, or take steps preliminary to doing so ; that he should vote at elections there, thus exercising the functions of a resident citizen ; that he should accept local office involving the necessity of taking an oath of allegiance to the territorial sovereign ; and that he should buy land in the new locality to which he has transferred himself (b). The expression of a wish or direction to be buried in either the old or the new country of residence does not seem to be a very impor- tant circumstance (c) ; and it would certainly appear unreasonable that a man's natural desire that his remains should rest, for example, in a family vault, which perhaps he has never visited in his life, should affect the view taken by the law of his actual domicil or civil stcdus whilst living. The facts cited, and all similar ones, will be accepted as indicating that voluntary change of per- manent residence from which the law deduces a change of domicil ; but, as has been already said with reference to political exiles, the change of residence must be volun- tary. Domicil cannot be founded upon compulsory resi- dence, and there may well be cases in which even a permanent residence in a foreign country, if necessitated by the state of the health, will not operate upon the domicil {d). The fact, however, that the preference for (a) Drevon v. Drevon, 34 L. J. Ch. 129, 135 ; Gomez v. Eamee, Prob. DiT. ' Times,' July 9, 10, 1878 (not yet reported). (6) Drevon v. Drevon, 34 L. J. Ch. 129. For other material facts indi- cating a change of domicil, see Whicker v. Hume, 7 H. L. C. 124. (c) Piatt V. Attorney-General of New South Wales, 38 L. T. 74 ; Douglas V. Douglas, L. E. 12 Bq. 617. (d) Eoslcins V. Matthews, 8 De G. M. & G. 13, 28; Benttie v. Johnson 10 CI. & F, 139. DOMIOIL. 21 the foreign residence arose from climatic or valetudinarian Part i. considerations, will not deprive such permanent foreign 1 ' residence of its natural effect. In the one case the foreign Cap. II. abode is determined by necessity; in the other, by choice (a). The variety of the incidents from which a change or Domioil and retention of domicil may be inferred have now perhaps "j^araoter been sufficiently illustrated. The effects which domicil approximation has in determining what law shall be applied to interpret a man's acts, or to the distribution of his property, do not properly come under the object of this chapter, and will be noticed in the ensuing portions of this treatise, as occasion arises. It may be observed before leaving this part of the subject, that there is a growing tendency to regard the question of domicil as of greater importance than that originally attributed to it, in connection with the kindred question of national character. Every act of legislation which renders it easier for a man to divest himself of or assume a particular nationality at pleasure, and which simplifies the formalities of such a process, makes a further step towards the time when no formality whatever will be required, and when the mere voluntary assumption by the individual of a new domicil will be accepted by the government whose protection he has left, no less than by that to which he has declared his inten- tion of adhering, as equivalent to enrolment among the members of the community of which he has become a member, for all intents and purposes. In the United States, in particular, this view has long been gaining ground (&), as would naturally be expected in a country whose population is so constantly being increased by immigration from older nations; but the principle has never received any recognition in English law, although special provision has been made by the convention be- tween Her Majesty and the American Government of (a) ETosUm V. Matthews, 8 De G. M. & G. 13, 28, per Turner, L.J. (b) See Wheaton's Int. Law, 6th ed. p. 132 ; Stoi-y's Conflict of Laws, § lU b. 22 FOEEIGN AND DOMESTIC LAW. Part I. .Peksons. Cap. II. Domlcil for testamentary purposes. 1871, and the Naturalization (Amendment) Act (35 & 36 Vict, c. 39), referred to in the preceding chapter, for the renunciation of British nationality in favour of that of the United States. As to domicil for testamentary purposes, or with rela- tion to succession to personal property on intestacy, the law has been considerably modified by 2-1: & 25 Vict, c. 121, entitled, " An Act to amend the Law in relation to the Wills and Domicil of British subjects dying whilst resident abroad, and of foreign subjects dying whilst re- sident in Her Majesty's dominions." By this Act it is provided that, subject to future conventions to be made with foreign states in relation to its provisicms, British subjects dying in a foreign country shall be deemed for all purposes of testate or intestate suoeassion as to mov- ables to retain the domicil they possessed at the time of going to rieside in such foreign country, unless they have resided in such foreign country for a year at least, and shall have made a formal and public written declaration of an intention to become domiciled there (s. 1). Simi- larly foreigners dying in Great Britain shall not be deemed to have acquired a domicil here unless they have resided within Her Majesty's dominions for the same period previous to their death, and have made a similar declaration of intention (s. 2). It is to be observed that the Act takes no effect of itself, but simply empowers Her Majesty to call its provisions into effect by Order in Council, after a convention has been made with the par- ticular foreign State concerned for that purpose. It is perhaps doubtful how far it is wise to call into Uonslo °^^^ existence a statutory kind of domicil for a particular purpose, or to deny that that is doniicil which international law tecognises as such. In Hamilton v. Dallas (a) it was contended that where a foreign State, such as France, has prescribed certain conditions for the acquisition of domicil within its territories by foreigners, no domicil can be acquired for purposes of succession or testamentary dis- (a) L. B. 1 Ch. D. 257 ; Bremer v. Freeman, 10 Moo. P. C. 306. Statutory DOMICIL. 23 position in that country unless those conditions are com- Part I- plied with. The Code Napoleon (Art. 13) gives the right ™^°''^' of acquiring a domicil and other civil rights in France ^*^- ^^^ only to those foreigners who shall have obtained the authorization of the Government, and cases (a) were cited from the French reports to shew that a domicil de facto without such authorization was not regarded as sufficient to confer any of the ordinary results of a domicil recog- nised by the law. It was, however, held by Bacon, V.C., that whether or not the 13th article of the Code was intended to prevent the acquisition of a domicil in France for the purposes of succession, which was not the opinion of the learned judge, " the fact that a foreigner can acquire a domicil de facto in France is not for a moment to be called in question. It requires no provision in the Code for that ; it is a law paramount to the law of the Code, not provided against nor provided for in the Code, but a natural and national right against which there is no inter- diction or prohibition." There can be no doubt that this view is in accordance with the principles of international law. Statutes which attempt to cut down or enlarge the natural capacity of every adult to acquire a domicil by the requisite animus and factum, do nothing in reality towards taking away or conferring domicil, strictly so called. What they really effect is an alteration in the purposes for which the test of domicil is applied by the legislature that passes them; and to declare that some- thing less or something more than domicil, as the case may be, shall in the courts of that legislature decide questions which private international law refers to domicil alone. This is one of the very points of difference between nationality and domicil, to which Lord Westbury calls attention in Udny v. Udny (b). " The political status may depend upon different laws in different countries ; whereas the civil status is governed universally by one single prin- (o) Melizet's Case, Dalloz. 1869, i. 294 ; Suseman'a Case, Dalloz. 187^, ii 65 ■ Forgo's Case, Cour de Cass. May 4, 1875. (6) L. R. 1 H. L., Sc. 441, 457. 24 POEEIGN AND DOMESTIC LAW. Paet I. Pebsons. Cap. II. Mercautile domicil in time of war. ciple, namely, that of domicil, which is the criterion esta- blished by law for the purpose of determining civil status. For it is on this basis that the personal rights of the party, that is to say, the law which determines his majority or minority, his marriage, succession, testacy or intestacy, must depend." For international purposes, except where regulated by special convention between special States, as provided by 24 & 25 Vict. c. 121, it would follow from this reasoning that municipal legislation purporting to limit or to enlarge the natural power of acquiring a do- micil within the dominion of such legislation, should be disregarded. The same question that was decided in Hamilton v. Dallas (a) had already been determined by Lord Wensleydale in Bremer v. Freeman (b), but in that case the judgment went rather upon the intended scope and proper construction of the French law, an'd not so distinctly upon the paramount nature of the natural right. In any event, a domicil so conferred by the statutes of one particular State would clearly not be entitled to international recognition, and the inconveniences of a double domicil would at once be introduced. That a man can have but one domicil for the purposes of suc- cession was clearly laid down by Lord Alvanley in Somer- ville V. Somerville (e), and the principle has received the fullest recognition since that decision (d). The subject of that mercantile domicil or quasi-domicil, which is peculiar to a time of war, does not properly come within the scope of the present treatise, but it may be useful to advert to it here. Popularly speaking, it is sometimes said that the character of private property on the high seas in time of war is decided by the mercantile domicil of the owner. It is more correctly stated by Wheaton, that a man's property may acquire a hostile character, independently of his personal residence or (o) L. E. 1 Ch. D. 257. (6) 10 Moo. P. C. 306 ; see also Collier v. Bivaz, 2 Curt. 855 : Anderson V. Lanenville, 9 Moo. P. 0. 325. (c) 5 Ves. 756. (d) Crookenden v. Fuller, 29 L. J. P & M. 1 ; Munro v. Manro, 7 CI & F. 842 ; Hodgson v. De Beaiuhesne, 12 Moo. P. C. 285. DOMICIL. 25 nationality (a). Thus, if a man carries on trade from a P*""^ ^- Persons hostile port, as a merchant of that port, his property engaged in enterprises which have originated from that C!ap. II port will be regarded as in hostile ownership (6). A man may thus have mercantile concerns in two countries, and if he acts as a merchant of both, he must be liable, in a prize court, to be considered as a subject of both, with regard to the transactions originating respectively in those countries (e). Nor is it necessary, in order to make a man a merchant of any place, that he should have a counting-house or fixed establishment there ; if he is there himself from time to time, and acts as a merchant of the place, it is sufficient (d) ; though he may of course avoid this liability upon the outbreak of war by with- drawing from and putting an end to the trade he has hitherto carried on (e). 8VMMABY, Domieil is that relation of an individual to a State or country which arises from residence within its limits as a member of its community. In ordinary language, that country is said to be the country of his domicil, and he is spoken of as domiciled within it. Every individual is regarded by the law as domiciled in some one country at every period of his life, and can pp. 8, 9. only be domiciled in one country at a time. A domicil spoken of as the domicil of origin attaches to every individual at his birth. In the case of posthumous or illegitimate children, the domicil of origin is the do- micil of the mother at the time of tlie birth ; in all P- 9- other cases it is regarded as derived from the father. (The possible cases in which the domicils of the father and mother may be different have been already mentioned (/)). (o) Wheaton (Dana), § 334. (6) The Indian Chief, 3 0. Bob. 12 ; The Portland, 3 C. Bob. 41 ; The Susa, 2 C. Bob, 255. (c) The Jonge Klassina, 5 0. Bob. 297, 302. (rf) Ibid. p. 303, 304. (e) The Portland, 3 C. Bob. 41 : The Indian Chief, 3 0. Bob. 12. (/) Ante, p. 17. 26 FOREIGN AND DOMESTIC LAW. Part I. rf jjg domieil of the child continues through legal in- fancy to be that of the parent from which it was derived, ' and follows the changes of the latter. An infant who pp. 9, 10. marries and changes its home must, for this purpose, be regarded as sui juris. The domieil of an orphan becomes and follows that of its legal guardian. It is, however, doubtful whether a guardian by changing his own domieil can so alter that of the minor as to affect the right of succession to the minor's property, at any rate when there is a fraudulent or self-interested intention that it shall be so affected. p. 10. The domieil of origin adheres until a new domieil is acquired. pp. 10-12. The domieil of origin is changed, in the case of a person sv/i juris, by a de facto removal to a home in a new country, with an animus non revertendi and an animus manendi ; or in the case of a woman, by marrying a man whose domieil is different from her own. A domieil which is not the domieil of origin, but has been acquired, is lost by actual abandonment, animo non revertendi. Until a new domieil is acquired, the domieil of origin temporarily reverts. When an acquired domieil has thus been divested, a new domieil is acquired by complete transit to a new country, and the establishment there, animo manendi, of a home. pp. 12-16, The animus manendi or non revertendi is a question of iS-ii- fact for the Court, as to which neither a declaration ante litem motam, nor an affidavit ^ost litem motam, by the person whose domieil is in question, is conclusive, though all such statements are evidence to be taken into con- sideration. p. 16. The animus manendi will in certain cases be a pre- sumption of law which will not admit contradiction. pp. 17, 18. The domieil of a married woman becomes and follows that of her husband, but in the event of his death, of a divorce, or of a judicial separation, she becomes re-invested with the power of acquiring a new domieil of her own. DOMICIL. 27 The same result may probably be regarded as following ^^^"^ ^- from certain exceptional circumstances, such as desertion by the husband. "^^' "• Domicil, for the purposes of succession to movable PP- 22-24. property, testate or intestate, is further regulated by 24 & 25 Vict. c. 121. By this Act it is provided, that, subject to conventions to be made with foreign States for its reci- procal application, British subjects dying in a foreign country shall be deemed, for all purposes of testate or in- testate succession as to movables, to retain the domicil they possessed at the time of going to reside in such foreign country, unless they have resided in such foreign country for a year at least before the death, and shall have made a formal written declaration of an intention to become domiciled there. Similar provisions are made with regard to the subjects of foreign States dying in Great Britain. FOREIGN AND DOMESTIC LAW. Past I. CHAPTER III. Persons. Cap. III. CAPACITY. Capacity and Xhe question of the capacity, or rather the incapacity, of tbeoiiesas'to. persons, is one of which it is difficult to gather anything like a satisfactory view from the isolated decisions on the subject to be found in English law. All individuals, about whom nothing more is known than that they are members of a particular community, are presumed by the law to be as capable of regulating their own actions, entering into contracts, and disposing of their own property, as their neighbours. Infants, however, and persons of unsound mind, are regarded in every civilized country as labouring under a certain incapacity, for most of these purposes; and the declarations of this incapacity, which are made by the law properly claiming jurisdiction in the matter, may be regarded as stamping a certain mark upon the person for the information of other tribunals and communities. How far this mark will be regarded by them, or in other words, how far the declarations of incapacity made by a foreign law are to be recognised as valid and binding, is a branch of international jurisprudence upon which little agreement is to be found. The conflicting opinions of the jurists may be perhaps conveniently regarded under two main heads, directly opposed to each other; the first springing from the theoretical division of all laws into real and personal (a). The writers of this school agree in con- Co) A distinction formulated, probably for the first time, by Bartolus, in the lltb century, who classified statutes as real and personal, according to the arrangement, obviously often accidental, of the subject and predicate in the enacting sentences. — Bart. Cod. I. 1. CAPACITY. 29 sidering that personal laws, or laws directed in personam, Part i. impress certain fixed qualities upon the person, which adhere to it wherever it is removed and must be recog- ^^^- ^^^- nised by the tribunals of all jurisdictions alike. This per- sonal law, according to Hertius (De Coll. Leg. § 4), is the law of that State to which the person is subject by domicil, and extends not only to the acts of the individual, wherever done, but to his dealings with property, real as well as personal, wherever situate. Boullenois (a), Bouhier (6), Bodenburg and P. Voet (c) (the last-named, however, dis- tinguishing between the operation of the principle with regard to real and personal property) lay down a similar rule. As to the question how far a change from the domicil of origin may alter the qualities which have been once impressed by the proper domiciliary law, the views of the older jurists are so conflicting that there is little object in quoting from them. The theory exactly opposed to that of which mention has just been made, is that which denies to the laws which regulate the capacity and status of persons subject to them any extra-territorial operation whatever. Such laws are, according to this view, the mere eyes by which the legis- lature sees the persons who come under its notice, and can only present one kind of image to its perception. This theory has been by no means so generally adopted as the former one, and the younger Voet (d) is perhaps its best known advocate. It is obviously capable of being modified into one more in accordance with the views of English jurisprudence, namely, that the tribunals of one State, when considering acts done within the limits of another by persons there domiciled, will refer to the laws of that other State all questions of the capacity of the persons in relation to those acts, but will not allow the foreign laws in question so to operate as to come into collision with their own regulations for persons properly their subjects. A departure from both these theories is to be seen in (a) Boullenois, Princ. Gen. pp. 4, 5, 6. (c) P. Voet, De Stat. § 4, eh. 2. (b) Bouliier, Cout. eh. 23. <,d) Voet ad Pand. I. iv. 7. 30 FOREIGN AND DOMESTIC LAW. Part I. the French law on the subject (Code Civil, Art. 3) which ' provides that all questions of status and domiciljin the ^•^^- ^^- case of French subjects, even though domiciled abroad, shall be referred to French law as the law of their nation- hat the view more commonly adopted on the con- tinent is that which regards the domiciliary law as the one properly applicable. inoapMitydis- The views hitherto taken by English law of the ques- from'prohibi- t^on of capacity are somewhat perplexing, a state of things tion. for which the loose and inaccurate extension of the term beyond its proper meaning is perhaps responsible. It has already been said that the word can mean nothing more in strictness than the normal and ordinary condition of all human beings. To say that a man is of full capacity is to say simply that he is of full age, and is in full posses- sion of his faculties. Superadded to this meaning comes a purely conveutional one, whose effect becomes intelligible only by observing its negations. This supplementary meaning of the word signifies that the person, whose capacity is under consideration, is not the subject of any of the prohibitions or deprivations of the laws which actually govern him and his actions. More accurately, that he is not affected by the deprivations and prohibi- tions of law otherwise and more stringently than the other reasonable adults by whom he is surrounded. Where a deprivation or a prohibition is general in its effect, it imposes no incapacity upon any one. It does, however, occasionally happen that a prohibition, which is in reality universal, is apparently particular ; and that a man is pro- hibited from a complex act which seems at first sight to be one permissible to others. For example, A. wishes to marry B., his deceased wife's sister, but the English law prohibits him from doing so. Inasmuch as C, D., E., and all the rest of the alphabet may marry B., if they and she like, A. may be said, in a certain loose sense of the term, to be incapacitated by English law from that act. Strictly speaking, this is incorrect. Marriage with a deceased wife's sister, the act in A.'s mind, is universally prohibited CAPACITY. 31 by English law, and neither A. nor anybody else may do Pakt t. it. It is true that any other man not similarly related to her may marry B., but if any other man married her, he ^^^" would not be doing that prohibited act which A. desires to do. A.'s capacity, therefore, is not in any way affected by the prohibition. It will be seen, however, that the distinction between a prohibition and an incapacity is sometimes sufficiently fine to involve a certain amount of confusion. On the question of capacity in the strict sense of the Capacity term, i.e., the capacity of a sane adult to do a lawful act, ^^ ^^^^ ^^^^^ the. English authorities, though scanty, have not hitherto been discordant. According to Burge (a). Story (6), and Westlake (c), the law of the place where an act is done, or a contract entered into, is the proper law to decide all questions of minority or majority, competency or incom- petency, and in fact all matters of status and capacity whatever. On the question of the full age which enables a man to bind himself by a contract, Lord Eldon held the same at Nisi Prius (d). In Ruding v. Smith (e), which was eventually decided upon a different principle, the opposite view was strongly pressed upon Lord Stowell, who expressly guarded himself against being supposed to accept it. " I do not mean to say," he observes in his judgment, " that Huber is correct in laying down as universally true, that ' personales qualitates, alieni in certo loco jure impressas, ubique circumferri, et personam comitari,' that a man, being of age in his own country, is of age in every other country, be the law of majority in that country what it may." And in Sinonin v. Maillac (/), Sir Cresswell Cresswell says clearly, " In general the personal competency or incom- petency of individuals to contract has been held to depend upon the law of the place where the contract was made." These authorities are at any rate sufficiently cogent to render rather startling a dictum of the Court of Appeal, in (a) Burge, Col. Law, i. c. 4, p. 132. (d) Male v. Roberts, 3 Esp. 163. (b) Story, Confl. of Laws, § 103. (e) 2 Hagg. Cons. 371, 389. (a) Westlake, § 401. (/) 2 Sw. & Tr. 67 (1860). 32 FOEBIGN AND DOMESTIC LAW. Paet I. t]ie recent case of Sottomayor v. De Barros (a), where it " was said to be "a well-recognised principle of law," that Cap. III. ^jjg question of personal capacity to enter into any con- Capacity and tract was to be decided by the law of domieil. The ques- cilii.^^ ""*" tioii ill tli^'t case was simply of the validity of a naarriage entered into in England between two Portuguese first- cousins, prohibited, like all other first-cousins, from inter- marrying by the law of Portugal. According to the analysis of the word " capacity," which has been attempted above, this was not a question of capacity at all, but of the legality of an act ; and it will be shewn when discuss- ing the subject of contract (6), that the so-called marriage contract, if a contract at all in the eye of the law, is a contract of a very different nature from that between vendor and purchaser, master and servant. On the ques- tion, therefore, of the legality of a marriage prohibited by a certain law, a dictwm as to the personal capacity of a man to contract was doubly superfluous, especially as it will be seen below (c) that the decision could in fact have been supported on a sound foundation of less questionable material. Nevertheless, as the most recent utterance of the English Court of Appeal on the subject now under consideration, it cannot, of course, be disregarded. The actual decision in Sottomayor v. Be Barros by no means requires that it should be extended to contracts in the sense of commercial agreements, and it is to be hoped that the mist it has thrown over this particular branch of the subject will soon be dispelled. It has just been said that the cases turning on the so-called capacity to con- tract marriage are not properly cases involving capacity at all. Their consideration will therefore be postponed for the present {d), and the decision in Sottomayor v. De Barros has only been referred to for the sake of the dictum which has just been shewn to be at least question- able. Except so far as that dictum may be regarded as qualifying it, the rule as to the capacity of a person to do (a) 37 L. T. 415. (c) Infra, pp. 48-53. (b) Infra, Chap. VIII. (ii.) (a). ((J) Infra, Chap. VIII. (ii.) CAPACITY, 33 an act or enter into a contract appears clearly enough to Pakt i. be, that the law of the place where the act is done or the ' contract entered into mnst prevail. The capacity of a O^''- 1^^- married woman to contract in her own name depends of Capacity of course upon the law which eroyerns the relation created ™8.rried 11.. . . . . woman to by the marriage, i.e., the law of the matrimonial domicil. contract. The decision in Guepratfe v. Young (a), which appears at first sight from the head-note to be an authority for referring capacity to contract to the law of the domicil, is not so in reality. In that case not only was the locality where the marriage was celebrated, and where the husband had his domicil, French ; but the husband and wife had before marriage, by the nuptial contract itself, adopted the provisions of the Code Civil as the basis of their matrimonial rights {pow base de leur association conjugale), with elaborate provisions as to the allotment of the dotal property. The question was not, therefore, whether Madame Guepratte had capacity to contract in England, in the proper sense of the word, but whether the nuptial contract, which defined the effect to be given to the marriage upon the property of the contracting parties, allowed or authorized her to do so. Marriage itself is not a contract in the ordinary sense of the term, but there is in every marriage such an implied contract, providing for the future rights of the parties in each other's goods. Here the ordinary implied contract was formulated in writing, and expressly adopted the Code Civil as its con- trolling law. The law of France was therefore the proper one to determine, not the capacity of the wife to contract in England, but her rigiht to contract at all. Next, with regard to questions of pure capacity or in- Capacity apart capacity, where there is no act or contract to the law of co^racts. °' the place of which the matter can be referred, it appears clear that the law of the domicil of the person should prevail. In such a case there is no law to compete with it but the law of the fortim, which cannot justly claim to decide anything beyond matters of procedure (a) 4 De G. & S. 217. 34 POEEIGN AND DOMESTIC LAW. Pabt I. and remedy. Accordingly, in the case of Be Eellrncmn's " Will (a), whefft a testator, domiciled in England, had Cap. Ill, devised legacies to children domiciled and resident in Hamburg, the Master of the Eolls held, on the application of the executors, that the age at which the children were to be considered as having attained their majority was to be decided by the law of Hamburg, but refused to recognise the authority which that law gives to the father to receive such legacies as guardian for his infant children. The domicil of the testator being English^ and the funds being also in England, the Court was of course justiiBed, from one point of view, in refusing to pay the money over except in the manner contemplated by English law, which governed the will. Nevertheless, it appears at first sight a little inconsistent to have ac- cepted the limit at which natural incapacity ceased as determined by the law of the domicil of the legatees, but to have refused to recognise the powers of guardianship conferred by the same law on the father as a modification of the incapacity which it prolonged. The seeming in- consistency, however, is a natural result of the view taken by English law as to the rights of foreign tutors, curators, and guardians, which will be considered immediately. The decision in Be Hellmann's Will is quite in accordance with the leading case of Boglidni v. Crispin (b). There, the decision of a Portuguese Court that an Englishman domi- ciled in Portugal was a pion, or plebeian, and not of noble rant, and that his illegitimate son was therefore entitled by Portuguese law to succeed to his personal property ah intestato, was accepted and acted upon by the judge of the English Court of Probate, whose decision was confirmed by the House of Lords. It is to be observed, however, that in that case the Portuguese law, being the law of the intestate's domicil, was strictly entitled to regulate all the questions connected with the succession to his mov- able property, the quasi-capacity or stcdus of the intestate being only one of them. On the mere question of capacity, (o) L. E. 2 Eq. 363. (6) L. E. I H. L. 301. CAPACITY, 35 or incapacity, unconnected with ' any act or contract done Paet I. in England, some additional authority in favour of accept- ^^^°^^- ing the decision of the law of the domicil may be gathered Gap. III. from the judgment of Lord Campbell in Stuart v. Bate (a), speaking with reference to the Scotch law of majority. The Iwnacy of a person domiciled abroad will seldom be proposed for the recognition of an English Court except under some special statute, the object and scope of which must be considered. In Em parte Lewis (b), the fact that a person domiciled in Hamburg had been found a lunatic by the competent court there was held sufficient to make him a lunatic in England within the meaning of 4 Geo. II. c. 10. In the subsequent case however of 8ylva v. Da Costa (c), a person found lunatic abroad under a proceed- ing in the nature of a Commission of Lunacy was held not to be so within the provisions of 36 Geo. III. c. 90. Closely connected with the question of the capacity of Eepresenta- the person comes that of the powers and rights of those paoitated^""" who are appointed by his domiciliary law as the represen-, persons. tatiyes and guardians of his interests. It has been already seen from Be Hellmanns Will that these powers and rights will not, in their entirety at least, be recognised in Eng- land. This may be regarded as a natural consequence of the proposition that the lex loci prevails as to questions of capacity when any act done beyond the jurisdiction of the domiciliary law is in question, since the persons claiming those rights and powers before an English Court can only do so with the view of exercising them in England. Ac- cordingly, it was decided in Johnstone v. Beaitie (c!) that foreign tutors and curators have no right or authority in this country, and that the Court of Chancery has jurisdic- tion to appoint an English guardian of an infant whose presence in England was transient only, and whose domicil and real property were Scotch. Lord Cottenham, in his judgment in that case, called attention to the fact that the (a) 9 H. L. 0. 467 ; see also per Lord Westbnry in Vdny v. Vdny, L. B. 1 H. L., So. 457. (fc) 1 Ves. Sen. 298. (c) 8 Ves. 316. (d) 10 01. & F. 42. D 2 36 FOREIGN AND DOMESTIC LAW, Pakt I. Court of Chancery, if it recognised foreign tutors as ^' guardians in England, might in effect have to administer Cap. III. foreign laws (p. 113), and denied that any agreement in Recognition of favour of such a practice was to be drawn from the fact of dianfo/"^"^" *^® fcdria potestas being recognised in the case of foreign curators. children by the English Courts. " This illustration " (he continues) " proves directly the reverse ; for although it is true that the parental autho- rity over such a child is recognised, the authority so recognised is only that which exists by the law of England. If, by the law of the country to which the parties be- longed (a), the authority of the father was much more extensive and arbitrary than it is in this country, is it to be supposed that the father would be permitted here to transgress the power which the law of this country allows ? If not, then the law of this country regulates the autho- rity of the parent of a foreign child Uvmff (b) in England, by the laws of England, and not hy the laws of the covrntry to which the child idongs." How much the judgment of the House of Lords in Johnstone v. Beattie must be taken to have decided, is well explained by Lord Cranworth in the case of Stuart V. Bide (e) : " Perhaps it might have been a decision more consonant to the principles of general law to have held in Johnstone v. Beattie that every country would recognise the status of guardian in the same way as it undoubtedly would the status of parent, or of husband and wife (d). But .... all that was decided there was, that the status of guardian not being recognised by the law of this country unless constituted in this country, it was not a matter of course to appoint a foreign guardian to be English guardian, but that that was only a matter to be taken into consideration. That was all that was decided in that case." The principle, however, that the foreign guardian cannot claim recognition, appears to be well (a) Semble, by domioil. (6) The facta of the particular case shew that this -word was not here used as equivalent to domiciled. (c) 9 H. L. C. 440. (d) See infra, p. 48, sq. CAPACITY. 37 established, and was followed by Lord Oranworth in PabtI. Dawson v. Jay (a), where an application by an American p^^^sons. guardian to be allowed to take his ward out of the juris- Cap. III. diction was refused. So in Johnstone v. Beattie it is pointed out by Lord Oottenham as clear that a foreign committee of a lunatic has not, and cannot claim, the same authority in any other country that he has in that where he was appointed. Nevertheless, the appointment of a guardian or committee, by the law of the domicil of the infant or lunatic, will be regarded with respect, if not followed as a matter of convenience, by an English Court, as was pointed out by Lord Oranworth in the passage from Stuart v, Bute (b) already quoted. In Nugent v. Vetzera (e) Vice- Chancellor Page Wood appointed English guardians of children only transiently present within the jurisdiction, " without prejudice " to the rights of the foreign guardian. And in the subsequent cases of Maekie v. Darling (d) and In re Gamier (e), the title of a curator honis appointed by foreign law received a partial recognition. The title of such personal representatives of persons under incapacity to the personal chattels of the infant or lunatic in England depends upon the lex domicilii as governing the general assignment of movable property from which such title flows (f). 8VMMABT. Where the lex loei of an act or a contract competes with the lex domicilii of the person with regard to his capacity, the former prevails. ^^' " " (Except so far as this rule may be regarded as modified or contradicted by the isolated dictum in Sottomayor v. De Barros, referred to above, p. 32.) Where there is no act or contract in any particular place to invite the competition of a lex loei, but the ques- tion is one of the mere fact of capacity, the decision of the pp. 33-35. fa) 3 De G. M. & G. 764; Ex parte Wathine, 2Ves. Sen. 470. (6) 9 H. L. C. 440. (c) L. R. 2 Eq. 704. (d) L. R. 12 Eq. 319. (e) L. B. 13 Eq. 532. (/) Infra, Chap. VII. (ii.) 88 FOEEIGN AND DOMESTIC LAW. Part I. law of the domieil will be accepted in preference to that Persons. j> ii, 7 /• • 01 the lex fort. ^^^- ^^^' But even though a personal incapacity, as defined by pp. 35, 36. the foreign law of the domicilj be recognised by English law, the status, rights, and powers of the persons appointed by that foreign law to supplement that incapacity as guardians, tutors, curators, or committees, cannot claim or expect as a right a similar recognition. No such rights or powers extend beyond the jurisdiction of the law which created them. p. 37. The creation of such rights and powers by a foreign law is nevertheless a fact to be taken into consideration by an English Court, which will protect or even be guided by those rights and powers where it may seem expedient. LEGITIMACY AND MAREIAGE, ii9 CHAPTER IV. PAET I. Peesons. LEGITIMACY AND MAEBIAGE. OaTTv Closely connected with what has been called capacity is SuoceBsion to the subject of legitimacy, which generally becomes im- movable portant in connection with the right of inheritance, and estate. on this question the law of England is peculiar. So far as succession to real estate or immovables is concerned, it was decided in Doe d. Birtwhistle v. Vardill {a), that the requisitions of both the lex situs and the lex domicilii must be complied with ; in other words, that a man to succeed to English land must be legitimate not only by English law, but also by his personal law, or the law of his domicil. According to Lord Cranworth, however, in Shaw V. Gould (b), the judges in Doe v. Vardill inclined to the opinion that for purposes other than succession to real estate, as controlled by the Statute of Merton {20 Hen. III. c. 9), the law of domicil would decide the question of status involved. That this was the Scotch law had been already decided by the House of Lords jn Dalhousie v. M'Douall (c) and Munro v. Munro {d), where it was held that the child of a domiciled Scotchman,, born in England before the marriage of his parents, was legitimated by the subsequent marriage of his parents in Eagland, so as to succeed to realty situate in Scotland. It was expressly said in the judgment in these cases (which were argued together) that neither the law of the place of the birth, nor of that of the subsequent marriage, had any beariug (a) 7 01. & F. 895 ; and as to sucoesaion under 3 & 4 Will. 4, o. lOg, gee In re Bon's .Estate, 27 L. J. Cli. 99. Cb) L. R. 3 H. L. p. 70 ; 37 L. J. Cb. 433. (c) 7 01. & F. 817 (d) 7 01. & F. 842. 40 FOEEIGN AND DOMESTIC LAW. Part I. upon the question, which was decided by the fact that the ■ domicil of the father had been Scotch throughout. In Cap. IV. the words of Lord Cottenham, " the question in such cases mast be, can the legitimation of the children be effected in the country in which the father is domiciled at their birth? for their legitimacy must be decided by the law of that country once for all." In Shedden v. Patrick (a) the question was whether the illegitimate child, born in. America, of a domiciled Scotchman who afterwards married the mother, could inherit Scotch land, and it was decided that he could not, as he was an alien by birth, and not a natural-born British subject entitled to take British land under 4 Geo. II. c. 21 (6), which is not satisfied unless a child is legitimate from his birth. Story (Conflict of Laws, § 87 a) cites this case as an authority for the proposition that a person illegitimate by the law of his domicil of birth will be held illegitimate in England. By the law of his domicil of birth Story obviously means "the law of the jalace of his birth," ignoring the principle which would attribute to the child in that case the Scotch domicil of his father, and it is clear that for such an assertion of law there is no war- ranty in the decision adverted to. Lord Campbell ex- pressly says in his judgment (e), that the question is not whether the child was made legitimate per siibsequeii^ matrimonium, but whether he was made a natural-born subject of the British Crown, so as to take British land under 4 Geo. II. c. 21. In both of the other Scotch cases cited by Story (d), the domicil of the father of the child whose legitimacy was in question, as well as the place of birth, was English ; and they are not therefore authorities for the proposition that the legitimacy or illegitimacy of a child depends in any sense upon the law of the place of his birth, except in cases where that is also his domicil. It has been already pointed out that the domicil will be (a) 1 Maoq. 535 ; 4 Wils. & S. App. 5, p. 94. (6) See iwpra, p. 3. (c) Maoq. at p. 611. (d) Munro v. Saunders, 6 Bligh, 468 ; and The Strathmore Peeraqe Cdse, 4 Wils. & S. «9. LEGITIMACY AND MARRIAGE. 41 determined by-the place of birth in some rare cases ; but Paet I. it often, of course, happens that the child inherits the ^''^°™" domicil of that place from its father, or if illegitimate and Oip. iv. unacknowledged, from its mother. In English law, though the view seemed at first to be Succession to taken that for purposes of succession to movable estate ^j^te'^^ the law of the domicil of the successor should be accepted, this principle has not been supported by recent authori- ties. It was, indeed, apparently assumed in Be Wright's Trusts (a) by Wood, V.C., that the law of the child's domicil was to decide whether she was legitimate, and so entitled to the benefit of a bequest by a testator domiciled in England in favour of the children of the child's actual father, but the facts of that case prevent it from being regarded as a decision on the point. The father of the child in question was a domiciled Englishman at the time of her birth, which took place in Prance. After the birth of the child the parents married, and the child was there- fore legitimated per svhsequens matrimcmium, according to French law, the father having in the interval between the hirth and the marriage acquired, a French domicil instead of his former English one. Assuming, as the Court ap- parently did, that the law of the child's domicil was to decide the point of her legitimacy for the purposes of the will, the question arose whether the child's domicil was French, being that of the father at the time of the mar- riage, or English, being that of the father at the time of the birth. It was decided that the domicil of the father at the time of the birth was to prevail, and the law of the child's domicil became therefore identical with the law of the domicil of the testator, both being English. The child was accordingly held to be illegitimate, but inas- much as the law of the domicil of the legatee and the law of the domicil of the testator were not really in conflict, the case cannot be regarded as an authority in favour of the former as opposed to the latter. All that can be deduced from it is that in such cases the (a) 2 K. & J. 595 ; 25 L. J. Oh. 621. 42 FOEEIGN AND DOMESTIC LAW. Paet I. domicil of the child is that of the father at the birth, and Pbbsons. . not at the marriage, bastardy, when once created by the ^^' competent law, being indelible (a). Depends on The conflict did arise in a subsequent case, and it was do^oUofthe ^^^'^ clearly laid down by the same judge who decided testator. Be Wright's Trusts that the law of the domicil of the testator must prevail. Words such as " child " or " son " in a will must be interpreted and explained, like all other words, by the personal law of the testator. According to English law, " child " means " child born in wedlock," and therefore in the will of a testator whose domicil is English, the word " child " can receive no other meaning. Conse- quently it was held in Biyyes v. BedaJk that a bequest in the will of a testator, domiciled in England, to " the child of A.," who was domiciled in France before and after the time of the birth, and there had a natural child, which was by French law rendered legitimate "by the subsequent marriage of its pa/rents, could not be claimed by such child, whom the English law still regarded as illegitimate and jUius nullim (b). Nor is this case, properly con- sidered, at all inconsistent with Be BeUmann's WiU{e), where the age at which legatees under an English will were to be considered as having attained their majority was referred by Lord Romilly to the law of their domicil. That was a simple question of capacity, which the law of the domicil of the person might be fairly called in to decide in the absence of any English Act or contract to be affected by its decision ; but in Boyes v. Bedcde the point was whether a particular person came under a par- ticular description m the will, and the law to which the construction of the will belonged was entitled to settle it. The variance between the decisions of Lord Hatherley in this case and in that of Be WrigMs Trusts {d) is more apparent than real. There, the putative father was domi- ciled in England at the time of the birth, and in France («) Vid. Munro t. Munro, 7 01. & F. 842 ; Boyes v. BedaU 1 H & M 798. (<)) Boyes v. Bedale, 1 H. & M. 798 ; Goodman v. Goodman, 3 Giff 643 (c) L. R. 2 Eq. 363. (d) 25 L. J. Ch. 621. ' LEGITIMACY AND MAEBIAGB. at the time of the subsequent marriage with the French -Paet I. mother, the illegitimate child haying been in the mean- time born in France; and the case was decided not so ^^^' ^ * • much upon the construction of the will, as upon the ground that neither hy the law of the child's domieil nor of that of the testator could, the child be regarded as legitimate (a). If the law of the two had been found to differ, the ques- tion would have arisen, which was entitled to construe his will ? — a point which is now set at rest by the decision in Boyes v. Bedale, just adverted to. And according to a dictum of Lord Hatherley in the last-mentioned case (b), legitimacy under the Statute of Distributions would be tested in the same way, so that if an intestate died domi- or intestate. ciled in England, no one could take directly or by repre- sentation under that statute unless legitimate by English law (e). So where a domiciled Frenchman, but of English birth, devised personalty to daughters bom in France, and legitimated per suhsequens matrimomum according to French law, it was held by Stuart, V.C., that the legacy duty payable by them was to be at the rate of 1 per cent., and not 10 per cent., under the Legacy Duty Act (55 Geo. III. c. 184) (d). It did not distinctly appear in this case whether the French law was accepted as the law of the domieil of the testator or of the legatee, but in accordance with the principle of Boyes v. Bedale, just adverted to, it must be taken that the former was the raiio decidendi. In Levy v. Solomon (e) an attempt was made to set in competition with this law, on the same question of legitimation per suhsequms matrimoiniuin, the laws or customs of a religious sect to which all the parties belonged. The testator, the parents, and the child whose legitimacy was in question, were all Jews domiciled in England, and evidence was ofifered to shew that the (o) See Lord Hatherley s explanation of his I'udgment in this case,, in Soyes T. Bedale, 1 H. & M. p. 802. (6) At p. 805. (c) See Doglioni v. Crispin, L. E. 1 H. L. 301 ; Thorn v. Wafkim, 2 Vee. Sen. 35. (d) Skottowe V. Young, L. K. 11 Eq. 474 ; 40 L. J. Cli. 366. (e) Malins, V.C, 24th July, 1877. 43 44 FOEEIGN AND DOMESTIC LAW. Part I. rules of their religion, which they recognised as binding Pemons. j^^g among themselves, authorized that legitimation by Cap. IV. a subsequent marriage between the parents which it was sought to support. Whether, however, this so-called law was regarded as the law common to the parties, or as a quasi-domiciliary law, the contention was equally un- tenable. In such matters, the law of the domicil is not regarded because it may be presumed to express the inten- tion of the parties, but because the interests of the general body of the inhabitants of the country in which they live require its adoption. Neither a religious sect nor any other self-constituted body can be permitted to set up a claim to an imperium in imjaerio — the assertion of any other personal law within its domain. Legitimacy Even if the decision of the domiciliary law of a person ^ii m^Tnot ^^ ^^^ legitimacy was accepted by the law of a foreign be repugnant country for any purpose, another condition would have exjon. ^^ ^^ complied with; viz., that there should be nothing absolutely repugnant to the law of that foreign country in what it was asked to accept. In Fenton v. Livingstone (a), a Scotch case on appeal to the House of Lords, the legiti- macy of a claimant to succeed to Scotch land by inheri- tance was in question. The claimant was the issue of the marriage of a widower domiciled in England with his deceased wife's sister, the marriage having been contracted in England in 1808. At that time such marriages were void- able only and 'not void by English law, and if proceed- ings were not taken to declare them null before the death of either of the parties, could not be questioned afterwards. The claimant was nevertheless, though domiciled in Eng- land from his birth, held to be illegitimate by Scotch law. " It must be granted," said Lord Brougham, " that the general rule is to determine the validity of a marriage by the law of the country where the parties were domiciled, and in most cases the legitimacy of a party is to be determined by the law of his birth-place and of his parents' domicil. But to this . . . there are exceptions from the (a) 5 Jur. N. S. 1183 (1859). LEGITIMACY AND MAEEIAGE. 45 nature of the case in which the question arises. Thus in Pakt i. deciding upon the title to real estate, the lex loci rei sitae must always prevail, so that a person legitimate by the ^^^- ^^ • law of his birth-place, and the place where his parents were married may not be regarded as legitimate to take real estate by inheritance elsewhere .... Was then the mar- riage of the respondents' parents such that the law of Scotland could recognise its validity, in dealing with the rights of the issue of it to real estate by inheritance ?" (a) Lord Brougham then proceeded to state that, though the marriage could not be questioned in England after the death of the parties, yet it was illegal there, and that the law of Scotland was even more stringent on the point than the law of England. By the Scotch law such a marriage was regarded as incestuous, and as actually amounting to a 'crime; and therefore, even if the Scotch law could accept the decision of the foreign domiciliary law at all on the question of legitimacy to succeed to Scotch land, it could not do so where the recognition of such legitimacy would be absolutely repugnant to its own principles. So again, it was said by Littledale, J., in Birtwhisth v. Var- dill (I), that personal status does not follow a man every- where, if its consequences are opposed to the law of the country where he goes, and where it is sought to introduce them. The decision in Compton v. Bearcrqft (c), the case which first recognised the validity in England of Scotch marriages, was similarly explained by subsequent judicial authority to be that " a Scotch marriage was valid in England, if there was nothing in it contrary to the Jaw of England " {d). Under 21 & 22 Vict. c. 93, persons domiciled in Eng- statutoiy land, or claiming real or personal estate in England, may 1^^^^°^ "^ obtain from the Court for Divorce and Matrimonial Causes (now from the Probate, Divorce, and Admiralty Division of the High Court under s. 34 of the Judicature Act, 1873) a decree declaratory of their legitimacy or illegitimacy, or (a) 5 Jur. N.S. 1183, 1184. (b) 5 B. & C. 455. (c) Bull. N. P. 113. (d) Sarford v. Morris, 2 Hagg. Cons. 435. 46 FOEEIGN AND DOMESTIC LAW. Part I. of the Validity or invalidity of the marriage on which the ■ question turns. Mr. Westlake points out (Private Inter. ^^^- ^^- Law, § 407) that the statute does not interfere with the decisions of Birtwhistle v. Vardill (a), and In re Don's Estate (h), adverted to above ; and that a declaration of legitimacy under it would not enable a man born before wedlock to take English land by descent. In the words of Lord Brougham in Birtwhistle v. Vardill (e) giving the effect of the opinion of the judges, " the statute, or rather the common law recognised and declared by the statute, requires something more than mere legitimacy to make an heir to real estate in England — it must be legitimacy sub modo — legitimacy and being born in wedlock." SVMMABY. LEGITIMACY. pp. 39, 46. Legitimacy for purposes of succession to immovable property, including chattels, real, in England is tested both by the English law as the lex situs, and by the lex domicilii oi the inheritor, " Legitimacy " (so by the law of the domicil) alone is not suflScient ; "it must be legitimacy sul modo — legitimacy, and being born in wedlock." pp. 41, 42. Legitimacy for purposes of succession to movable pro- perty by devise is tested by the law of the domicil of the testator, that being the only law which has the right to interpret the meaning of such words as " children " in the will. Under a bequest in an English will to the children of A., a person domiciled in a country where legitimation jjer svhsequens matrimonium is allowed, the children of A. who have been legitimated in that manner are not entitled to take. p. 43. Legitimacy for purposes of succession to movable pro- perty ah intestato is similarly tested by the law of the domicil of the intestate. (Direct authority wanting, but established by dicta.) (o) 7 CI. & P. 895. (6) 27 L. J. Cli. 99. (e) At p. 954. LEGITIMACY AND MAEEIAGE. 47 • Legitimacy for the purpose of estimating legacy and PabtI. succession duty on movable property is decided by the same rules. Cap. IV. [By the Scotch law, legitimacy for purposes of succes- p. 45. sion generally, other than succession to real estate, is referred to the law of the domicil — i.e., the domicil of the father at the time of the birth. In cases of legitimation per subsequens matrimonivm, a change in the domicil of the father after the birth and before the marriage is im- material. The law of the domicil at the time of the birth decides once for all whether the child's bastardy is in- delible or provisional only. Such legitimation, accord- ing to the law of domicil, will not however render a child born abroad, of a Scotchman by domicil and nationality, a natural-born British subject entitled, under 4 Geo. II. c. 21, to hold British land.] Legitimacy for purposes other than succession under a will or ah intestato has not hitherto come in question, but the dieta point to the acceptance of the law of the domicil of the person on the point. The domicil of the person for p. 41. such purposes is the domicil of the father at the time of the hirth, as distinguished from the domicil of the place of birth, or of the father at the time of the subsequent marriage. But legitimacy by the law of the domicil will not in p. H- any case be accepted, either by Scotch or English law, if its acceptance involves the recognition by that law of the validity of a marriage which it regards as incestuous or criminal. MABEIAGE. The question of what law must be applied to test the validity or invalidity of a marriage is so intimately con- nected with this part of the subject, that it is convenient to discuss it here, though not coming under the heading of status, strictly speaking. It will be necessary to con- sider, first, what law decides whether the marriage has been validly contracted ; and secondly, what law decides. 48 FOBEIGN AND DOMESTIC LAW. Paet I. in the case of attempted divorce, whether it has been ■ effectually dissolved. Cap. IV. (a.) With regard, in the first place, to the validity of Validity of the marriage when entered into, it was clearly laid down marriage ab • j^ ^^^^j^ ^ ^^^^j^ ,^\ j. Lord Campbell, that the essentials tmtio — torms \ / j i tested by the of a marriage contract were to be regulated by the lex tials'by tte"''' domieilii, the forms by the hx loci celebrationis. The dif- lex domicilii, ference between essentials and forms in such a matter would naturally seem to be that between prohibitions that forbid, and prohibitory directions which merely impede, the marriage. This is, in fact, the result of the modern cases, which at first sight seem rather contradictory, on the subject. If the parties can, by complying with certain regulations or obtaining the consent of certain people, intermarry in the country of the matrimonial domicil, the performance of those conditions will not be required by an English Court, which will recognise the marriage as valid, provided the ceremonials and preliminaries required by the law of the place of celebration have been complied with. If, on the other hand, the parties are forbidden by the law of the domicil to intermarry at all, they cannot, except by a change of domicil, escape from that prohibi- tion. The matrimonial domicil being the place where the law presumes that the parties intend to spend their married life, the propriety of this rule is obvious. Most of the cases were thought to involve a question of capacity, and have been referred to under that heading (b). It will be necessary, however, briefly to enumerate them here. The case of Brooh v. Brook has already been referred to. That was the marriage of a man with his deceased wife's sister, both parties being domiciled in England, and having gone to Denmark, where such unions are permitted, for the purposes of celebration. It was not, as has been pointed out, decided that they were incapable of marrying ; but that they were forbidden by the law of their domicil to do so, and that the marriage was therefore illegal. (o) 9 H. L. C. 19.S. (6) Ante, p. 32 ; see also infra, Chap. VIII., " Capacity to contract." LEGITIMACY AND MAEEIAGE. 49 Lord Campbell, laying down that the essentials of a mar- Pabt i. riage were to be governed by the lex domieilii, rightly ™sons. decided that such illegality was an essential, and that G^^- IV. there had been in the eye of the law no marriage at all. VaUdity of It should be observed that the parties, according to English ^J^^l^ea law, could not intermarry, whatever forms or preliminaries illustrating, they fulfilled, and the case therefore differs entirely from those later ones in which it has been held that parties, forbidden to marry by the law of their domicil without certain consents and authorizations, may nevertheless do so in England, provided the English forms are complied with. The principle of Brook v. Brook was followed in Mette V. Meite (a), the marriage of an alien domiciled and naturalized in England with his deceased wife's sister being similarly held void. The case is only noticeable because the man's English domicil was acquired, and not that of his birth, which of course does not affect the real principle. Still it should be observed that the marriage was in that case valid both by the law of the place of celebration and by that of the domicil of origin, the law of the actual domicil at the time of the marriage being alone regarded. The earlier case of Conway v. Beazley (6) was not in reality a decision as to the validity of a marriage (though apparently so), but as to the validity of a divorce. The head-note, no doubt, enunciates that the lex loei contractus will not prevail when either of the contracting parties is under a legal incapacity by the law of his domicil ; but in reality there was no question of capacity or incapacity in the case. The " incapacity " depended upon the simple fact, whether the husband was or was not already married at the time of the marriage which it was sought to annul ; and it was undeniable that he was already married, in the eye of the English law, unless a Scotch divorce was to be held by English law competent to dissolve a marriage previously celebrated in England. Such a pro- (a) 28 L. J. Prob. 117. Q>) 3 Hagg. Ecol. 639. E 50 FOREIGN AND DOMESTIC LAW. PabtI. position was untenable, as will be presently shewn (a), P erson s. ^^^ ^^^ second marriage was therefore rightly declared Cap. IV. void. In Sinonin v. Maillae (b), a conflict between the lex domicilii and the lex loci celebrationis directly arose, with regard to the preliminaries to marriage required by the former. The marriage which it was sought to dissolve was one celebrated in England between^ French subjects domiciled in France without the formal consents required by the French law. Sir Oresswell Cresswell decided that the marriage was valid, chiefly on the ground that the personal competency or incompetency of individuals to contract depends upon the law of the place where the contract is made. It has already been pointed out that a more logical view is obtained by regarding the question not as one of the competency of an individual, but of the legality of a marriage. The parties were not prohibited from marrying by the law of their domicil absolutely, but prohibited from marrying without certain preliminaries. Such a prohibition did not touch the essentials but the forms of the marriage, and these are governed, according to Brook V. Brook (c), by the law of the place of the cele- bration alone. It cannot, of course, be assumed that if such a marriage were questioned in the country of the domicil, the law of which required the consents which had been dispensed with, this view would be taken there. The law of the domicil would possibly persist in regarding the preliminaries which it had imposed as essential, and assert its right to insist upon them although the marriage was celebrated elsewhere ; but as the law of England has now no similar provisions, and imposes no preliminaries but such as it would regard as ceremonial merely, the question has little practical importance for English jurists (d). The view, however, which has been suggested above, that all (a) Infrh, p. 59 ; Lolley's Case, E. & K. 237 ; M'Carlhy v. Decaix, 2 Rusa. & My. 61i ; Warrmder v. Warrender, 2 01. & F. 550. (6) 2 Sw. & Tr. 67 (1860). (c) 9 H. L. C. 193. (d) See Scrimshire v. ScHmshire, 2 Cons. 395; Middleton v. Janverin, 2 Cons. 437 ; Compton v. Bearcroft, 2 Cons. 444. LEGITIMACr AND MAEEIAGE. 51 such consents are ceremonial preliminaries only, was taken Pakt I. in the Irish case of Steele y. Braddell (a), referred to with °"^°'' ^' approval by the House of Lords in Brook v. Brook (6) : Cap. IV. " This was a marriage," says Lord Campbell in that case, " between parties who might, with the consent of parents and guardians, have contracted a valid marriage according to the law of the country of the husband's domicil .... If the union between these parties had been prohibited by the law of Ireland (the law of the domicil) as contrary to the law of God, undoubtedly the marriage would have been dissolved." Sottomayor v. De Barros (c), the most recent case on this subject, comes almost exactly within the meaning of the distinction drawn by Lord Campbell in Brook v. Brook, just cited. The parties there were domiciled Portuguese, forbidden by Portuguese law to intermarry at all. Sir E. Phillimore, in the Court of first instance, held that their marriage celebrated in England was valid, conceiving himself to be bound by the decision in Sinonin v. Maillae (^. The Court of Appeal, however, reversed his judgment, holding that as the parties were absolutely forbidden to marry by the law of their domicil, they could not escape from this prohibition by transient presence and celebration in England, and that the possibility of es- caping from Portuguese law by a Papal dispensation was immaterial. The wording of the judgment of the Court of Appeal rested on the more than questionable prin- ciple (e) that the capacity of a person to contract was tested by his personal law ; but the distinction between this case and that of Sinonin v. Maillae is plain, and the actual result of the decision of the Court of Appeal is clearly in accordance with Brook v. Brook (/). Budingr v. Smith {g), though one of the earliest cases on this subject, having been decided by Lord Stowell in 1821, has been purposely left for consideration until the (o) Milw. Ecol. Rep. Ir. 1. (fc) 9 H. L. C. p. 216. (c) 37 L. T. 415 ; Fenton v. Livingstone, 5 Jur. N.S. 1183. id) 2 Sw. & Tr. 67. (/) 9 H. L. 0. 216. (e) Ante, p. 32 ; infra. Chap. VII. (ii.) (g) 2 Hagg. Com. 371. E 2 52 FOREIGN AND DOMESTIC LAW. PaktI. tendency and principles of the modern decisions had Pebsots. Ujggjj sufficiently indicated. That was a marriage cele- Oap. IV. brated at the Cape of Good Hope while under military occupation of the British forces immediately after its acquisition, and the ceremony was performed by the chaplain-general under the sanction of the military authorities, according to British forms. Both the con- tracting parties were British by nationality and domicil. The validity of the marriage was impeached on two grounds; first, that the Dutch law, as the lex loei eele- Irationis, prohibited the parties from marrying at their respective ages without the consents of parents and guar- dians, which had not been obtained ; and, secondly, that the ceremony had not been performed according to the forms required by the same. law. According to the prin- ciples already stated, it will be seen that the lex hoi cde- brationis was prima facie the law to decide both these questions, but in the particular case there were exceptional circumstances to be considered. By the capitulation of the colony it had been stipulated that the conquered should retain certain privileges, including the enjoyment of their own laws and customs, and Lord Stowell deduced from this that the less lod had been altered for all others except those in whose favour the stipulation was made — that for British domiciled subjects with the British forces, in short, the lex loci was in fact British. On this view the decision was not that 'the lex domicilii must prevail in such matters when in conflict with the lex loci, but that the law common to the parties had, under the peculiar circumstances of the case, taken the place of the latter. The case of Harford v. Morris (a), decided in the same year, similarly depended upon the exceptional facts in it, which render it of no authority on the question of the competition of the law of the domicil and that of the place of celebration. Marriage must It has thus been seen that the English law still, fol- j^g*^**,^"'' lowing the principle of Brook v. Brook (6), refers the (o) 2 Hagg. Cons. 371. (I) 9 H. I.. C. 193. LEGITIMACY AND MAEEIAGE. 53 essentials of a marriage to the law of the domicil. This Pakt I. must, however, be taken subject to the qualification that ^™^s- it will not allow anything to be called marriage, either by Cap. IV. the law of the domicil or the place of celebration, which recognises i it does not itself recognise as such ; and accordingly, in ^^''^^ Hyde v. Myde (a), the Probate and Divorce Court refused to acknowledge a Mormon marriage apparently celebrated in Utah, though both the contracting parties were single at the time of the so-called marriage, and had never assumed to contract another. It was said in that case by the Judge-Ordinary (Sir C. Cresswell) that a marriage in Christendom was An entirely different thing, both in its essence and incidents, from what was called a marriage in a country where polygamy was practised ; and he referred to the case of Ardaseer Owrsetjee v. Perozeboye (6), where the Privy Council held that Parsee marriages were not within the force of a charter extending the jurisdiction of the Ecclesiastical Court to Her Majesty's subjects in India *' so far as the circumstances and occasions of the said people shall require." There is abundant authority to shew that a marriage, xaidt or ■which the English law regards as criminal or incestuous, poestuous will not under any circumstances be accepted by it as notreoognised, valid, "The rule," said Littledale, J., "that personal status accompanies a man everywhere is admitted to have this qualification, that it does not militate against the law of the country where the consequences of that status are sought to be introduced " (e). So, in Em-ford v. Morris (d) it was explained that the decisions establishing the validity of Scotch marriages in England simply amounted to this, that a Scotch marriage was lawful in England if there was nothing in it contrary to the law of England. Subject, therefore, to this qualification, that the marriage which the Court is asked to recognise shall be marriage, and not incest or mere illicit intercourse of (o) L. K. 1 P. & D. 130. (6) 10 Moo. P. 0. 375, 419. (c) BirtwhisOe v. Vardill, 5 B. & 0. 455. (d) 2 Hagg. Oons. 435; Compton v. Bearorqft, Bull. N. P. 113; and see Fenfmi v. JLAvingeUme, 5 Jur. Nt S. 1183. 54 FOBEIGN AND. DOMESTIC LAW. Part I. Persons. Cap. IV. Colonial mar- riage with deceased wife's sister. the sexes, it appears clear that the English law refers forms to the lex loci, and essentials to the lex domicilii ; and further, that the only essential question which is practically ever referred to the latter law is this — are the parties permitted by it to intermarry at all? The old cases (a) cited by Story (Conflict of Laws, § 79) for the proposition that English law does not recognise the inva- lidity of a marriage celebrated abroad which is pronounced void by the lex loci, have been already referred to as not in fact establishing his assertion. It is plain that if English law recognises foreign formalities as sufficient for a foreign marriage between domiciled English subjects; it is only a logical consequence to regard them, subject to the ex- ceptions of extra-territoriality (fe), as necessary ; and no modern decision throws a doubt upon the consistent appli- cation of the principle in future whenever the question may arise. The only difficulty that has ever really arisen has been to decide what are the formalities, and what the essentials of the contract — a difficulty which is now solved, reading Sinomn v. MaiUac (e) and Sottomayor v. Be Barros together, by regarding everything as a formality for the lex loci, except unconditional prohibition. It will be seen that there is nothing in these principles, nor in the decision in Brook v. Brook {d), to prevent the English law from recognising the validity of the marriage of a foreigner or colonist with his deceased wife's sister, in the country of their common domicil where such unions are legal, unless such a marriage be regarded as an in- cestuous crime, repugnant to the spirit of English juris- prudence. It is difficult to maintain this proposition, in the face of the fact that colonial statutes recognising the validity of such marriages have repeatedly received the sanction of the Crown. Yet, if such marriages are not to be branded by the law of England as criminal and in- cestuous, it follows that they are perfectly valid according (a) Buding v. Smith, 2 Hagg. Cons. 390 ; Harford v. Morris, ib. 432. (fc) See infra. Chap. V. (c) 2 Sw. & Tr. 67 ; 37 L. T. 415. (d) 9 H. L. C. 193. LEGITIMACY AND MAEEIAGB. 55 to the theory of interDational law which it has just been Part I. shewn that English law adopts, and according to the same ™sons. theory their offspring would be legitimate. In practice, Cap. IV. however, they are not so, because the question of their legitimacy, as has been pointed out, almost invariably arises with regard to their right to succeed to movable or immovable property by devise or db intestato, and this right is governed by a new set of considerations. Succes- sion to immovable property, according to Birtwhisth v. VardiU (a), demands not only legitimacy by the personal law, but legitimacy by the lex situs — i.e., that the persons concerned shall have been born in what the English law calls wedlock, speaking for itself, and not as adopting the prin- ciples of international law. In a similar way, the English law interferes with regard to succession to movable pro- perty, where the testator or intestate was domiciled in England, as the law of his domicil, and claims to inter- pret the word " child " or " son " according to its own independent views of what is paternity, and what is wedlock. Thus, whenever succession to immovables or movables is in question, the children of a man by his de- ceased wife's sister, married to him in the country of their common domicil where such unions are legal, are bastards, and the marriage itself is regarded as a nullity. When neither the lex situs as to immovables, nor the lex domicilii with regard to a movable succession, interferes, it has been shewn, subject to the qualifications stated above, that English law regards such a marriage, complying both as to forms and essentials with the law of the domicil of the parties and of the place of celebration, as perfectly valid. It is obvious, for instance, that such a husband, coming to England and contracting a new marriage there in the life- time of his second wife, would be liable to be indicted for bigamy, though the point has not yet arisen, and possibly never will. The expediency of adhering to legal princi- ples which thus render it necessary to reject the validity of a marriage for certain purposes of comparatively common (a) 7 CI. & P. 895. 56 FOREIGN AND DOMESTIC LAW. Part I. occurrence, and to accept it theoretically for others which Peesons. ^^g ^^j,g hypothetical, is at least questionable. It should Cap. IV. surely be sufficient for the English law, whether speaking as the lex' situs of immovables, or as the lex domicilii with respect to a movable succession, to follow those maxims of international law which have become part of itself by adoption. The vainglorious conservatism of the feudal maxim " NuUus ^rineeps legitimat ad sueeedendum in hona alterius territorii " (a) might well be satisfied by such a rational interpretation, without insisting that the English law shall for purposes of succession refuse to be content with obedience to those rules, founded on expediency and on the comity of nations, which it professes elsewhere to incorporate with itself. It cannot be too strongly insisted upon that international law is a part of the law of every nation, and it would perhaps be beneficial if English jurisprudence were readier to admit it as such. There is, however, no tendency at the present time to do so, and more than one instance has recently occurred in which it has been held absolutely necessary that international law should receive the stamp of the English legislature before English Courts can acknowledge its existence. The result of the Geneva Arbitration, with the subsequent passing of the Foreign Enlistment Aut, 1870 (33 & 34 Vict. c. 90), afibrds one striking illustration of the view referred to ; and another may be found in the decision of B, v. Keyn (h), where it was held in efiect that, even assuming that international law conferred on every nation jurisdic- tion within three miles from its shores, English Courts could not accept or exercise the jurisdiction thus attri- buted to them without the authorization of an English statute. It is beyond a doubt, therefore, that nothing but an act of the legislature will effect that recognition of the legitimacy of the issue of a colonist married to his de- ceased wife's sister, which the principles of private inter- Co) D'Argentre, Oomm. Art. 218. (6) li. R. 2 Ex. D. 63 ; see the statute passed in consequence of this decision in the present session (Territorial Waters Jurisdiction Act, 1878). LEGITIMACY AND MAERIAGB. 57 national law do in fact demand, and a bill has been at Pabt I. least once unsuccessfully introduced into Parliament to arsons. effect this result. It would no doubt be sufficient to Cap. IV. enact, that persons legitimate by the law of their domicil of birth shall be so in England for all intents and pur- poses whatsoever, including that of succession to real and personal estate ; and it is at least possible that the post- ponement of such an enactment is only temporary. The effect of privilegia, or laws specially passed with Prhilegia. reference to one or more individuals, depriving them of the right either of marrying or entering into any other relation permitted to other sane adults, is no doubt to create an artificial incapacity of a particular kind, and for certain purposes. The incapacity, however, being an arti- ficial and not a natural one, cannot demand recognition in other countries ; and the law creating it will be imperative only in the tribunals of the sovereign power by which that law was enacted. The law may direct those Courts to refuse to recognise a marriage contracted in any country by the subject of the frivilegium, or only to regard as invalid any marriage contracted by him within its terri- torial jurisdiction. The former has been held to be the proper construction of the Koyal Marriage Act (12 Geo. III. c. 11) (a), the judges saying, in answer to a question put to them by the House of Lords, that that statute does not enact an incapacity to contract matrimony within one par- ticular country and district or another, but to contract matrimony generally and in the abstract. It creates an incapacity attaching itself to the person of A. B., which he carries with him wherever he goes. The difference between such an enactment and the ordinary Marriage Acts, which require certain consents as necessary prelimi- naries to a valid marriage in a certain country, has been already pointed out (6). British Acts of attainder, on the Acts of other hand, though they may possibly render the attainted "■t*''!"'!''''- (a) The Sussex Peerage Case, 11 CI. & F. 85. (6) Ante, p. 48 ; and see Compton v. Bearcroft, Bull N. P. 6th ed. 113 ; 2 Hagg. Cons. 443, n. ; llderton v. Ilderton, 2 H. Bl. 145. 58 FOREIGN AND DOMESTIC LAW. Part I. person incapable of contracting a valid marriage within ^^^^- the dominions of the Crown, do not claim any extra- Cap. IV. territorial recognition as to marriages contracted abroad, nor are such foreign marriages regarded as invalid even by British Courts (a). " It would be a most revolting conclu- sion to come to," says Erie, C.J,, in the case cited, "that the marriage of a man, who was capable of contracting in the land in which he was living, with a woman who was born and brought up in that land, and who might even have been ignorant of her husband's attainder, was invalid, and their children illegitimate, because the man had been attainted before he went abroad. If such were the law, I should not shrink from enforcing it ; but I believe that it is not the law of our land, though it is said to be the law of Erance " (6). The more correct view, indeed, appears to be that a British act of attainder does not even in- capacitate the attainted person from contracting a valid marriage in England, or, at any rate, that it renders such a marriage voidable merely, and not void (c). 8UMMABY. Marriage is governed, as to its essentials, by the law of p. 48-54. the domicil of the parties ; as to its forms, by the law of the place of celebration. The law of the domicil of the parties is the proper law to decide whether the marriage can, by the use of any forms, ceremonies, or preliminaries, be effected. The law of the place of celebration is the proper law to decide what forms, ceremonies, or preliminaries, shall be employed. If the law of the matrimonial domicil is such that the marriage cannot be effected by obeying its directions, but can be effected by obtaining a dispensation from its pro- (a) Kynnaird v. Leslie, L. R. 1 C. P. 889. (6) Kynnaird v. Leslie, L. E. 1 C. P. 389 ; Vid. Hobby's Case, sub nom. Boreston and Adams, Noy, 158 ; 4 Leon. 5 ; Palm. 19 : Collinqwood v. Pace, 1 Vent. 413 ; Bridg. 410. (e) Per Willes, J., in Kynnaird v. Leslie, L. E. 1 C. P. 389, 400; Phillips V. Eyre, L. R, 6 Q. B. 7. LEGITIMACY AND MARRIAGE. 59 hibitions, the marriage cannot, in the absence of such Pabt I. dispensation, be legalised by the law of the place of ™^s. celebration. Cap. IV. The law of any country may, and the English Koyal Marriage Act does, not only prohibit certain persons from contracting marriage in England except on certain pre- p. 57. scribed conditions, but refuse to recognise any marriage contracted by such persons elsewhere when these condi- tions have not been complied with. Marriage, to be recognised by an English Court, must be that which is recognised as marriage by Christendom, p. 53. and not a mere disguise for illicit intercourse or criminal incest. (b.) Dissolution of the Marriage. — Under this head it is necessary to consider, in the first place, what divorces by foreign tribunals will be recognised as valid by English law ; and secondly, what marriages the English Court will assume jurisdiction to dissolve. On the first point, the Foreign English law is frequently loosely expressed by saying that e^ot^on au°° an English marriage cannot be dissolved by a foreign English court or authority, and that any decree purporting to ' effect such dissolution must be regarded as a nullity {a). Lolley's Case (6) is the authority commonly cited in sup- port of this proposition, and as far as regards a marriage celebrated in England, in which the domicil of the husband remains English, it is undoubtedly correct. Unless the parties are hondfide domiciled under the foreign jurisdic- tion which assumes to dissolve their marriage at the time at any rate if of such attempted dissolution, it is quite clear that the ^j^^ °^™g"j° English Courts will not recognise the validity of any such English. divorce. Lolley's Case, in which a man who was convicted of bigamy for having married again in England after a Scotch divorce from an English marriage, was followed in Conway v. Beazley (e), expressly upon the ground that so long as the parties remain domiciled in England, no (a) See, e.g., the judgment of Kindersley, V.C., in Wilson's Trusts, L. E. 1 Eq. 247. (b) 1 Ru8s. & Ky. 237. (c) 3 Hagg. Ecol. Rep. 639. 60 FOREIGN AND DOMESTIC LAW. Part I. Scotch divorce of an English marriage can be recognised ■ by English law. Dr. Lushington in that case expressed ^^^- ^^- a strong opinion that the principle which denied recogni- tion to such divorces had no application to cases where the parties were domiciled at the time in the country whose tribunals assumed to divorce them. So, in Dolphin V. Bolnns (a), a Scotch divorce of an English marriage, where the parties were not domiciled in Scotland, but had gone there for a time to found a jurisdiction according to Scotch law, was held invalid (6). And in the more recent case of Shaw v. Attorney- General (c), where a woman had left her English husband in England, and, after a resi- dence of two or three years in America, obtained a divorce there, her husband's domicil continuing English, her second marriage in America was held invalid. In none of these cases, however, has it been decided that an English marriage cannot be dissolved by a foreign tribunal, where the parties are, at the time of the divorce, iona fide domi- ciled in a foreign state. M'Carthy v. Decaix (d) was cer- tainly a decision to that effect, but considerable doubt has been thrown upon the principle involved by more recent dicta, and neither in the argument nor in the judgment does any attention seem to have been paid to the fact that the domicil of the husband in that case (where a Danish divorce was held incompetent to affect an English mar- riage) was Danish throughout, Warrender v. Warrender (e) was, it is true, a decision on Scotch law, but the House of Lords there clearly held that it was competent for the Scotch Courts to decree a divorce between parties domi- died in Seotlcmd, whose marriage had been celebrated in England. The House of Lords were, however, sitting as a Scotch Court, bound to administer Scotch law (/), and the point has not yet in England been fully decided, unless the case of M'Carthy v. Decaix, above referred to, (o) 7 H. L. C. 390 ; Pitt v. Pitt, 4 Macq. 627. (6) Shaw V. Gould, L. E. 3 H. L. 55 ; ToUemache v. Tollemache, 1 S. & T. 557; 28 L. J. P. & M. 2. (c) L. R. 2 P. & D. 156. (e) 2 01. & F. 529. (d) 2 E. & M. 614. (/) Ibid. p. 567. LEGITIMACY AND MAEEIAGB. 61 be accepted as an authority. The English law on the PaetI. subject is perhaps best summarised by the Judge-Ordi- ™^^- nary (Lord Penzance) in Shaw v. Attorney- General (a), in Cap. IV. 1870. "First," he says, "LoUeys Case has never been overruled. Secondly, in no case has a foreign divorce been held to invalidate an English marriage between English subjects where the parties were not domiciled in the country by whose tribunals the divorce was granted. Whether, if so domiciled, the English Courts would re- Foreign J , 1. J • i. I. divorce of cognise and act upon such a divorce, appears to be a English mar- question not wholly free from doubt, but the better opinion ™ge by the 1 111 -cij- IP forum domt- seems to be that they would do so it the divorce be tor a diu. ground of divorce recognised as such in this country, and the foreign country be not resorted to for the collusive purpose of calling in the aid of its tribunals." It may be remarked as to McCarthy v. Decaix (b), the decision in which is certainly opposed to the above conclusion, that in 1831, when that case was heard, divorce a vmcido was not granted or recognised at all by the English Ecclesiastical Courts, and the difficulty of admitting the right of a foreign tribunal to dissolve an English marriage, in any event whatever, was of course much greater than it is at present. If the above quotation from Shaw v. Attorney- Oeneral (c) be compared with the judgment of Lord West- bury in Shaw v. Gould (d), it will be seen that it may be taken as giving accurately enough the present state of English law on this question. In the case of Birt v. Boutinez (e), before the Judge-Ordinary in 1868, the point did not really arise, as the parties had gone through the ceremony of marriage twice, once in Scotland and after- wards in Belgium (where the husband was domiciled), and the Belgian divorce did not purport to do more than dissolve the Belgian marriage, which according to English law had created no new siaius between the parties. Nor was the principle at all involved in the case of Collis v. (a) L. E. 2 P. & D. 156, 161. (d) L. K. 3 H. L. 80. (6) 2 Rnss. & My. 614. (e) L. K. 1 P. & D. 487. (c) L. K. 2 P. & D. 161. 62 FOEEIGN AND DOMESTIC LAW. Part I. Hector (a), which only decided that a Turkish divorce had ■ no operation to interfere with the validity of an English Cap. IV. marriage settlement between a domiciled Turk and an English lady, though it would have had that effect accord- ing to the law of Turkey. The judgment of Vice-Chan- cellor Hall in that case by no means involved the assertion that the marriage had not been effectually dissolved, but proceeded on the ground that the settlement was an English contract, to be expounded and dealt with accord- ing to English law. In the older case of Bya/n v. Rycm (b), the validity of a Danish divorce of an English marriage was admitted, the husband being domiciled in Denmark, but only for the purpose of granting administration to the widow of a second marriage, no opinion being expressed as to the general principle. The singular case of separa- tion by vows of chastity arose in Connelly v. Connelly (c), and was regarded as a species of consensual divorce, which the Court was evidently inclined to consider must be governed as to its effect and permanence by the law of the domicil of the parties at the time of the separation, and the allegation of the respondent was ordered to be amended that the facts relating to this question might be ascertained. The question of the validity of a foreign divorce, by the tribunal of the domicil of the parties, for grounds not recognised as sufScient by the laws of this country, has not been directly decided in England, though the language of Lord Penzance in Shaw v. Attorney- General, quoted above, would lead to the inference that it would not be admitted, nor has there been any English decision as to a supposed distinction arising from the loous of the ddictum on which a divorce has been grounded. On this latter point, however, Lord Lyndhurst intimated in Warrender v. Warrender (d), that the English law knew no distinction, notwithstanding a doubt which had been thrown out in Tovey v. Lindsay (e) by Lord Eldon. (a) L. R. 19 Eq. 334. (d) 2 CI. & F. 562. (b) 2 Phill. Ecol. 332. (e) 1 Dow. 131. (c) 7 Moo. P. C. 438. LEGITIMACY AND MAEEIAGE. 63 Both of these points are referred by American jurispru- IPaet i. dence, to the law of the domicil of the parties at the time ' the divorce is sought (a). Cap. IV. The second question which arises, with reference to jurisdiction of the subject of divorce, is, under what circumstances the fo'lSssdve""'^' English Court will assume jurisdiction to dissolve a mar- foreign mar- riage not contracted in England, and whether it will in. "^'S^^- all cases dissolve a marriage which has been so contracted, without regard to the matrimonial domicil at the time its interference i? invoked. With regard to the first point, it may be regarded as established that the English Court will dissolve a marriage, without reference to the place where it was contracted, if the domicil of the husband, English domi- i.e.— the matrimonial domicil— is English, at the time of lumi^ntto"^ the petition. In Brodie v. Brodie (&), the marriage was found jurisdie- celebrated in Tasmania, and the petitioner, who was the husband, had acquired an Australian domicil. It was alleged on his behalf that he had since gained a new domicil in England, and the Full Court regarded it as unquestionable that, if this were established, they would have jurisdiction to dissolve the marriage. Some evidence of the change of domicil was given, and the Court eventu- ally came to the conclusion that the petitioner was " lond fide resident " in England, so as to give them the jurisdic- tion contended for. A distinction was drawn in this case between such " hand fide residence," and strict domicil, the Court remarking that they said nothing as to what the effect of the evidence might have been in a testamentary suit, but that they thought it had been sufficiently esta- blished that the petitioner was bond fide resident in England to entitle him to a decree. For the proposition, however, that something less than domicil is sufficient to give the English Courts jurisdiction to dissolve mar- riages, or for any other purpose connected with the lex do- mieilii, there is no other English authority of any weight, unless some expressions which fell from the Judge-Ordi- (a) Story, Conflict of Laws, 230, a. (6) 2 Sw. & Tr. 259 ; 30 L. J. P. & M. 185. 64 FOREIGN AND DOMESTIC LAW. Pabt I. nary in Yelverton v. Yelverton (a) ;be relied on, and the ^^!^^' decisions of the English Courts as to the validity of Scotch Cap. IV. divorces founded on the theory of transient residence, are directly opposed to such a principle. In Manning v. Man- ning (b), alluding to this very case. Lord Penzance said : " I shall forbear to discuss the questions whether there can or ought to be two sorts of doinicil ; whether a lond fide residence alone can in any sense be called a domicil, and whether the mere fact of residence ought or ought not to be sufficient to entitle a party to sue in this Court. I will remark in passing, that when the case has been re- versed, and the Courts of this country have had to consider how far persons who are domiciled Englishmen shall be bound by the decree of a foreign Matrimonial Court, the strong tendency has been to repudiate the power of the foreign Court under such circumstances to dissolve an English marriage. It would be unfortunate if an opposite course should be followed by the Courts of this country, when they are determining to what extent they will enter- tain the matrimonial suits of foreigners." Lord Penzance was able to come to the conclusion in this case that there was not even the hond fide residence which had been held to be sufficient in Brodie v. Brodie (c), and dismissed the English domi- petition accordingly, so that no direct decision as to the ^'l^L''™'^"'"'^ soundness of the distinction was arrived at, but in the sub- necessary. ' sequent case of Wilson v. Wilson (d), the same judge ex- pressed his opinion still more strongly on the subject. " Whether any residence in this country short of domicil, using that word in its ordinary sense, will give the Court jurisdiction over parties whose domicil is elsewhere, is a question upon which the authorities are not consistent. It is the strong inclination of my own opinion that the only fair and satisfactory rule to adopt on this matter of juris- diction is to insist upon the parties in all cases referring (a) 1 Sw. & Tr. 574 ; see also Burton v. Burton, 21 W. E. 648, and infra, pp. 66, 69. (b) L. B. 2 P. & D. 223. (c) 2 Sw. & Tr. 259 ; 30 L. J. P. & M. 185. (d) L. K. 2 P. & D. 435, 441. LEGITIMACY AND MAEBIAGB. 65 their matrimonial differences to the courts of the country Part I. in which they are domiciled. Different communities have ™sons. different views and laws respecting matrimonial obliga- Cap. IV. tions, and a different estimate of the causes which should Domioil neces- instify divorce. It is both iust and reasonable, therefore, ^^2 ^"*i ''•'_. ■; ' _ ' suffloient that the differences of married people should be adjusted to found in accordance with the laws of the community to which for divorce'- they belong, and dealt with by the tribunals which alone can administer those laws. An honest adherence to this principle, moreover, will preclude the scandal which arises when a man and woman are held to be man and wife in one country, and strangers in another .... It is not, however, necessary for me to decide on this occasion whether mere residence, short of domicil in this country, is sufficient to found the jurisdiction of this Court, because I have arrived at the conclusion that the petitioner was, at the commencement of this suit, domiciled in this country." In Burton v. Burton (a), the petition of the husband was dismissed on the ground that he was not even bond fide resident in England, just as in Manning! v. Manning (b), and it was therefore not necessary to decide whether any residence short of domicil would be sufficient to found the jurisdiction. It is true that the Judge-Ordinary (Sir J. Hannen) is reported in that case as saying that the juris- diction would not attach until the husband had taken up his residence in England, but this cannot be taken as an authority by implication for the theory that residence not amounting to domicil would be sufScient in such cases. It may be mentioned that the contrary has, in fact, been held by the Supreme Court of Melbourne (c), after a care- ful review of most of the English cases, and the dicta of Lord Penzance in Wilson v. Wilson, to which attention has just been called, render it improbable that the theory suggested in Burton v. Burton (d) will be eventually esta- (o) 21 W. E. 648. (6) L. E. 2 P. & D. 223. (e) Vuggan v. Buggan, repoi-ted in the Law Times, Deo. 29th, 1877, at p. 152. ((Q 21 W. E. 648; see Firebrace v. Firebrace, 26 W. E. 617; Deck v. Deck, 2 Sw. & Tr. 90 ; Bond v. Bond, 2 Sw. & Tr. 93. 66 FOREIGN AND DOMESTIC LAW. Pabt I. Febsons. Cap. IV. but this essential has been dis- pensed with. blished. English domicil alone will henceforth probably be considered as sufficient and necessary to justify an English Court in interfering with a marriage at the instance of either party to it (a). It is quite clear, at any rate, that such English domicil will be regarded as suffi- cient (6), and it has been expressly decided in an Irish case (e) that domicil without residence in fact will do for all such purposes. In ToUemache v. Tollemache (d), the Court decreed at the prayer of the husband, a dissolution of a marriage contracted first in Scotland and afterwards in England. After the marriage the parties principally cohabited in Scotland, and the wife contended that a Scotch decree of divorce already made was valid, and that the Court had not jurisdiction. It was found, however, that the husband still retained his domicil of origin, which was English, and the Court decreed a divorce as prayed, holding that they could not recognise a Scotch divorce of a domiciled Englishman. It being therefore established that the English Court will assume jurisdiction to dissolve a marriage, whether celebrated abroad or in England, if the matrimonial domicil at the time of the petition is English, it remains to notice more particularly the cases in which it has done so where this condition has not been complied with. In Seek V. Deck (e) the marriage was an English one, but the husband had since its celebration acquired an American domicil, where he committed adultery. The Court held that it had jurisdiction, and made the decree asked for by the wife, resting their decision on the two grounds that the words of the statute giving them jurisdiction to dis- solve a marriage at the instance of the wife in such cases (20 & 21 Yict. c. 85, s. 27) were large enough to include the case before them, and that the respondent, though his (a) See Firebrace v, Firebraee, 26 W. E. 617 (Yelverton v. Yelvertaiii 1 Sw. & Tr. 574), and Niboyet v. Niboyet, P. D. May, 1878 (not yet reported), a strong decision in favour of the above rule. (6) Batoliffy. Batcliff, 29 L. J. P. & M. 171. (c) GilUs V. Gillis, 8 Ir. E. Bq. 597. (d) 1 Sw. & Tr. 557. (e) 2 Sw. & Tr. 90 ; 29 L. J. P. & W. 129. LEGITIMACY AND MAEEIAGE. 67 domicil was American, was still a natural-born British Part I. subject, and could not shake off his allegiance. Having regard to the expressions of Lord Penzance in Wilson v. Cap. IV. Wilson (a), quoted above, which agree with the almost unanimous views of foreign jurists, and to the view which the English Courts have taken of foreign divorces where the parties have been domiciled in England, it must be admitted that the decision in Deeh v. Deck is an anoma- lous one, and it cannot be regarded as an accurate expo- sition of the present state of the law on the subject. In Bond V. Bond (b) it did not distinctly appear whether the respondent's domicil was Irish or not, and the Court therefore assumed the required jurisdiction, observing that the case was in substance the same as that of Deek V. Deck, which was decided on the same day. Yelverton v. Yelverton (o) was a suit by the wife for a restitution of conjugal rights, the place of the celebration of the mar- riage being Scotch and the domicil of the husband Irish, and the Court held that they had no jurisdiction, after a careful examination of the older cases on the subject. It was further held expressly in this case that the wife could not, as a married woman, acquire any domicil other than her husband's under any circumstances, but the later dicta as to this have already been examined while treating of domicil (d), and it may be now taken that either a judicial separation from or desertion by her husband will enable her to do so (e), though it will not entitle her to sue for a divorce in her new/orwm. In Callwell v. CaU- weU (/) neither the place where the marriage had been contracted, nor the domicil of the husband, who was the petitioner, was English, but the wife appeared, and so submitted to the jurisdiction of the Court. Had it not been for such submission, it does not appear that the fa) L. E. 2 P. & D. 441. (c) 1 Sw. & Tr. 574. (6) 2 Sw. & Tr. 93. (d) Tid. simra, p. 17. (e) Le Sueur v. Le Suew, L. E. 1 P. D. 139; Dolphin v. Bohim, 7 H. L. C. 390. (/) 3 Sw. & Tr. 259; so in Zyolinski v. Zydmslci, 2 Sw. & Tr. 420, infra. F 2 O FOREIGN AND DOMESTIC LAW. PabtI. decree which was made in that case could have been ■ supported. With the exception of this case, and that of Cap. IV. Deeh t. Deck (a), which has been already commented on, there is no authority for saying that the English Court will dissolve any marriage where the parties are not domi- ciled in this country, even though it was contracted here. In Sinonin v. Maillae (h) the Court assumed jurisdiction to inquire into the validity of such a marriage ah initio, and refused a decree of nullity, though such a decree had been obtained in France, where the parties had been domiciled throughout. It is obvious, however, that such an inquiry belongs especially to the forwm loci contractus, and it would be a very different thing for an English Court to assume to dissolve a marriage, for causes arising after its celebration, where the matrimonial domicil was foreign, merely on the ground that it had been originally celebrated in this country. The decisions, however, of the English Courts in cases where the circumstances have been reversed, and they have been called upon to consider the validity of divorces by decrees of foreign Courts where the matrimonial domicil has remained English, are all in point in considering the present question, and have already been discussed in their proper place. The words, however, of Lord Penzance in Shaw v. Attorney-Oeneral (e) are deserving of attention in connection with this subject. " No case," he says, " has ever yet decided that a man can, .according to the laws of this country, be divorced from his wife by the tribunals of a country in which he has never had either domicil or residence. He has never submitted himself, either directly or inferentially, to the jurisdiction of such a Court, and has never, by any act of his own, laid himself open to be affected by its process, if it never reaches him. A judgment so obtained has, there- fore, in addition to the want of jurisdiction, the incurable vice of being contrary to natural justice, because the pro- ceedings are ex parte and take place in the absence of the (o) 2 Sw. & Tr. 90. (J) 29 L. J. P. & M. 97. (e) L. E. 2 P. & D. 156. LEGITIMACY AND MARRIAGE. 69 party affected by them." And in accordance with this Part I. reasoning it has been held that if a husband whose juris- diction is foreign appear imoonditionally to a petition in Cap. IV. the Divorce Court, and take a practical step in the cause, or by obtaining further time to answer, he cannot after- wards contest the jurisdiction, but must answer to the merits. Under such circumstances his proper course would have been to have appeared under protest (a). Since the preceding pages were written the principles Result of the laid down in them have been confirmed by the case of '®'' "^^^^^ Niboyet v. Niboyet (6), in which Sir James Hannen refused to entertain a petition for divorce against a French consul, who had for many years resided in England, but had retained his French domicil by virtue of his international office. It may, therefore, now be regarded as settled that nothing short of domicil will found the jurisdiction. The fact that the husband had on a previous occasion himself appealed to the English Court for a divorce, though the proceedings had been afterwards abandoned, was held insufficient, in the same case, to warrant the Court in assuming jurisdiction over him. SVMMARY. DISSOLUTION OF MAEKIAGE. Where a marriage has been celebrated in England, and the domicil of the parties is British, a foreign divorce PP- ^^' ^^■ purporting to dissolve it will in no case be recognised. When the parties to such a marriage were domiciled abroad at the time of its celebration, and the law of the same continuing domicil purports to divorce them, the better opinion seems to be that an English Court would P- ^^■ (a) Zyclinski v. Zydintki, 2 Sw. & Tr. 420 ; and see also Oallwell v. Call- well, 3 Sw. & Tr. 259. (6) P. D., May, 1878 (not yet reported), thus overruling the suggestion in Firebrace v. Firebraae (26 W. K. 617) that the Court might possibly assume jurisdiction to dissolve the marriage tie where the husband's domicil was foreign, though it would not decree restitution of conjugal rights under similar circumstances. 70 FOREIGN AND DOMESTIC LAW. Pabt 1. recognise and act upon such- a divorce, if granted for a ■ cause of divorce recognised in this country. (But see O^f- 1"^- contra, M'Carthy v. Deeaix, 2 Euss. & My. 614.) The same principle would accord the same recognition to a foreign divorce granted by the law of the domicil, pp. 61, 62. where the domicil of the parties had been English at the time of the marriage, and had been subsequently changed, (But see the same case, contra) "Where a marriage has been celebrated abroad, an pp. 63-66. English Court will assume jurisdiction to dissolve it if it can be shewn that the matrimonial domicil is English at the time of the application. But it appears to be now settled, that nothing less than a domicil i;i England will found this jurisdiction, although in one case (Brodie v. Brodie, 2 Sw. & Tr. 259) it was implied that residence not amounting to domicil pp. 67-69. would do ; and in another, even more questionable, where the matrimonial domicil was originally English, but had become American, the Court dissolved the marriage on the ground of the original English domicil and continuing British allegiance {Dech v. Deck, 2 Sw. & Tr. 90). So, it would seem, the Court may exercise its jurisdiction, not- withstanding the want of an English domicil, if the respondent submit by appearance, and taking practical steps in the cause, though a former submission in another cause is not sufScient. ARTIFICIAL AND CONVENTIONAL PERSONS, &C. 71 CHAPTER V. PaetI. Persons. ARTIFICIAL AND CONVENTIONAL PERSONS, INCLUDING Qap. V. FOREIUN CORPORATIONS, STATES, SOVEREIGNS, AND AMBASSADORS. (i.) Foreign Corjporations. The principle that laws are commands addressed to persons, Pevsdns and which has been referred to above (a), renders it important ''"'"P"^ ^°^^' to consider what entities come within that term. That corporations created by statute or charter of the British Crown are for most purposes " persons " within the contem- plation of the law, has long been decided (h) ; and Order LXiii. of the Judicature Acts, 1873 and 1875, recognises the same principle by enacting that the word " person " shall, in the construction of the Judicature rules, unless there is anything in the subject or context repugnant thereto, include a body corporate or politic. Postponing for the present the discussion of the rights and liabilities in an English Court of independent Sovereign States, which are clearly designated by the phrase "bodies politic," it will be useful to consider how far a corporation not created by British statute or charter may be consi- dered as a body corporate or person, and in what respects its position in an English Court may be regarded as peculiar. It is plainly only by a legal fiction that a corporate Artificial body, being an abstract and intangible creation of the Personality. law, can be regarded as a person at all. This has given rise to doubts whether the personality so created can or (a) Ante, p. xiv. (6) See authorities cited in Grant cm Oorparationsj p, 4, ti. (s). 72 FOREIGN AND DOMESTIC LAW. Part I. ought to be recognised in the courts of any other legisla- ^°^°^ ^" ture than that which created it — whether, in fact. Great Cap. T. Britain or any other State has a right to create artificial Foreign persons which the Courts of other countries shall be bound CorporaUons. ^^ recognise. It is obviously only by a comity of nations, in the strictest sense of the word, that this recognition can be given. The courts of all countries are open prima facie to natural persons, and to no others; and an intangible body, which claims to possess a certain unity and indivi- duality of its own by the law of a foreign State, cannot claim as of right, to be treated, beyond the jurisdiction of that State, on the footing of an ordinary rational human being. Such recognition, in fact, could only be accorded between States whose systems of jurisprudence were characterized by the same general conceptions, and who had reached, approximately speaking, the same stage of civilization. It would be impossible, unless these condi- tions were complied with, that the ordinary attributes of a person, such as doraicil and capacity, could be consistently applied to these creations of a foreign law ; and unless a foreign corporation which claimed our recognition was, by the law of the State which created it, substantially the same thing as a corporation created by statute or charter here, we should be unable to recognise it at all (a). The Eight of a principle that a foreign corporation may sue as plaintiff by foreign j^g corporate name in an English court was decided as lone: corporation ^ . , ° to sue. ago as 1730 in The Dutch West India Co. v. Van Moses (h) and Henriques v. Butch West India Go. (c), the latter of which was an appeal against a judgment on a scire facias brought by the plaintiffs in the iirst action against the bail of the defendant in that case. It was contended in argument for the appellants, that no recognizance in England could be given to this Generalis privilegiata societas Belgica ad Indos Occideniales negotians, inasmuch as the law of England did not take notice of any foreign (a) General Steam Navigation Co. v. Guillon, 11 M. & W. 877; Innate V. Austrian Lloyd's, 4 0. B. N. S. 704 ; 27 L. J. 0. P. 323. (b) 1 Str. 012. (c) 2 Ld. Eaym. 1582. AETIPICIAL AND CONVENTIONAL PEESONS, &C. 73 corporation, nor could any foreign corporation in their PabtI. corporate name and capacity maintain any action at common law in this kingdom. It was held, however, both t)*!"- ^■ by the King's Bench and the House of Lords that the Foreign objection was untenable. In a note added by Lord Eay- Corporation,. mond to the report, it is said that the original action by the Dutch company, which was for money lent, &c., was tried at Nisi Prius before Lord King in 1734, when it appeared that the cause of action accrued in Holland. Lord Eaymond proceeds : " Upon the trial, Lord Chan- cellor King told me, he made the plaintiff give in evidence the proper instruments whereby by the law of Holland they were effectually created a corporation there. And after hearing the objections made by counsel, he directed the jury to find for the plaintiffs ; who accordingly did, and gave them £13,720 damages ; and afterwards a motion was made in the Common Pleas to set aside the verdict, but by the unanimous opinion of that Court the motion was denied " (a). This decision has been recog- nised and adopted in subsequent cases (6), and the prin- ciple that a foreign corporation may sue as plaintiffs cannot therefore now be questioned. It must, however, be taken subject to the qualification already referred to, that the foreign corporation, so-called, must be something with the constitution and attributes of a body incorporated by English law. It was answered ia argument to Lord Abinger, who said that the Court did not know what a corporation meant in France, that it was enough if the body referred to had in France the same incidents and immunities as a corporation in England (e). So Byles, J., says : " I doubted, and I still doubt, whether sect. 16 (of the Common Law Procedure Act, 1852) can apply to a foreign corporation trading abroad. "We have no means (a) 2 Ld. Eaym. 1535. (6) South GaroUna Bank v. Case, 8 B. & C. 427 ; National Bank of St. Charles v. De Bernales, Ky. & M. N. P. C. 190 ; Newby v. Colt's Patent Firearms Co., L. E. 7 Q. B. 293; Scott v. Boyal Wax Candle Co., L. K. 1 Q. B. D. 404 ; Westman v. A. E. Snickarefabrik, L. E. 1 Ex. D. 237. (c) General Steam Navigation Co. v. Gaillon, 11 M. & W. 877, 889. 74 FOREIGN AND DOMESTIC LAW, Pabt I. of knowing the constitution and attributes of such a body. ■ It may be altogether ^different from our incorporated com- Cap. V. panies" (a). In the case last cited, the statute referred to Foreign was held not to have been intended to apply to foreign Cor porat ions, corporations ; but the decision must be regarded as open Liability of to suspicion, having been questioned by Quain, J,, in the oorirar^oii later case of Seott v. Royal Wax Candle Co. (b). to be sued. The principle that foreign corporations might be recog- nised when suing as plaintiffs, was not extended to their appearance as defendants until a considerably later date. It was pointed out by Williams, J., in Ingaie v. Audria/n Lloyd's (c), that there was then (1858) no precedent for admitting foreign corporations to defend an action at law in their corporate capacity ; but they had certainly been treated as defendants in the Courts of Chancery, and in Carron Iron Co. v. Maelaren (d) an injunction was granted by the Master of the Eolls against a Scotch, i.e., a foreign corporation. In the latter case, though objec- tion was taken to the sufficiency of the service, and the presence of the company within the jurisdiction was denied, it was not contended that an English Court was incompetent to treat a foreign corporation as defendants, if proper service of the writ was effected upon them. It was not, however, directly held that it was competent to do so until Newly v. Van Qppen (e). " It is true that we are not aware," said Blackburn, J., " of any reported case in which a foreign corporation has been sued in a court of law ; but it seems to follow, from their being permitted to sue as plaintiffs, that they must be suable as defen- dants. It is, however, enough to say that we will not on this ground prevent the plaintiff from proceeding. The corporation may, if so advised, raise the question after (a) Ingate v. Austrian Lloyd's, 4 C. B. Jf.S. 70i. (6) L. K. 1 Q. B. D. 404, at p. 409 : and see per Biamwell, B.j Westman V. A. K Snickarefabrik, L. K. 1 Ex. D. 237, 240. (c) 4 0. B. N.S. 704, 709. Id) 5 H. L. 0. 416 (1855) ; so service ordered by Court of Chancery on an Irish corporation in Lewis v. Baldwin, II Beav. 163; see Maelaren v. Stainton, 16 Beav. 285. (e) L. E. 7 Q. B, 293. ARTIFICIAL AND CONVENTIONAL PEESONS, &C. 75 appearing on the record." It should be remarked that, in Part i. this case, the defendant corporation was de facto carrying on business in England, though it does not appear that ^^- ^- this fact was relied upon in the judgment on the question Foreign whether the action was maintainable. So it has been GoworMom. held, since the passing of the Judicature Acts, that the provisions in the schedule to these Acts for service of writs of summons or notice thereof out of the juris- diction apply to actions against a foreign corporation resident out of the jurisdiction (a). " The language of Order xi., r. 1," said Oockburn, C.J., " appears to me large enough to include foreign corporations, and to be as ap* plicable to them as to foreign subjects." "There is nothing of the language of the order,'' said Quain, J., " to sanction our making any difference between a foreign subject and a foreign corporation — between a natural person and an artificial person — in respect of service, and there is no reason in the nature of things why we should. With regard to the decision in Ingate v. Austrian Lloyd's (h), that s. 19 of the Common Law Procedure Act, 1852, did not apply to a foreign corporation, I, should like to have that decision reconsidered if it were neces- sary." It has been decided, however, that notice of the writ of summons must be served, service of the writ itself having been set aside by the Exchequer Division of the High Court (e). " I am of opinion," said Bramwell, B., in the case last cited, " that we ought not to set aside the order permitting the issue of the writ, beea/use a foreign corporation is suable in this country, and so a writ may lie against it." It can hardly be said without arguing in a circle, so far as this particular judgment is concerned, that it must be inferred that a foreign corporation is suable here, because the legislature has made provisions for serving notice of writs which have been construed as applicable to them ; but that reasoning is quite consistent (a) Scott V. Royal Wax Candle Co., L. R. I Q. B. D. 404. (fe) 4 C. B. N.S. 704 ; 27 L. J. 0. P. 323. (c) Weslman v. A. E. Sniclcarefabrik, L. R. 1 Ex. D. 237. 76 POEEIGN AND DOMESTIC LAW. PabtI. with the decision of the Queen's Bench Division in Scott Persons. ^_ j^^^j pp^^ Candle Co. (a), and with the admitted right Cap. V. of the Court of Chancery to order service on a foreign Foreign corporation out of the jurisdiction, prior to the passing Corporations, ^f ^^^ Judicature Acts. Service of It has been said that Blackburn, J., in Newly v. Van r foreign*"^ Oppew (b), affirmed the abstract proposition that a foreign corporation, corporation is suable in England. In that case the foreign corporation had a branch office and carried on business in England, and it was further held that service in such a case must be on a clerk or officer in the nature of a head officpr, whose knowledge would be the knowledge of the corporation (c), in accordance with the English common law rule, re-enacted by statute, as to the proper service of a writ upon a corporation aggregate. It was with reference to this point alone that the subsequent case of Machereth V. Glasgow and South- Western Railway Co. (d) was decided, and the question of the liability of a foreign corporation to be sued at all does not therefore seem to be affected by it. The defendants in that case were a Scotch corporation, with running powers over an English railway to Carlisle, and their only officer in England, upon whom the writ was served, was a booking-clerk at Carlisle, whose sole duty it was to issue tickets to travellers. It was held, that the booking-clerk was not a head officer or clerk of the defen- dants, upon whom service of the writ could properly be made, and that the defendants did not in any sense reside or carry on business (e) at Carlisle, so as to come within sect. 16 of the Common Law Procedure Act, 1852 (15 & 16 Vict. c. 76). According to the decisions under the Judicature Acts which have been already cited (/), the proper course under similar circumstances would be to (a) L. E. 1 Q. B. D. 240. (b) L. E. 7 Q. B. 293. (e) See Tidd's Practice, ed. 1828, p. 121 ; 2 Will. 4, c. 39, s. 13 ; 15 & 16 Vict. c. 76, s. 16. (" alleged Sovereign or State shall have been recognised by the Government of Great Britain in accordance with the law of nations ; and English Courts are, it seems, bound to know or ascertain judicially whether such recognition has in fact been accorded (b). In The Charkieh this question arose with reference to the Khedive of Egypt, before Sir E. Phillimore, who stated in his judgment that he had endeavoured to inform himself, and had had re- course to obtain this knowledge to (1) the general history of the Government of Egypt, (2) the firmans which con- tain the public law of the Ottoman Empire on the subject, (3) the European treaties concerning the relations between Egypt and the Porte, and (i) the Foreign Office itself. On these materials Sir E. Phillimore held that the Khedive of Egypt was not an independent Sovereign, thus sanction- ing by implication the view taken by counsel, that the sovereignty or quasi-sovereignty of a foreign government or prince was not to be established by evidence offered by judicially as- the parties in the cause, but by the judicial knowledge of "^'^'^^^'^ J^y the Court (e). The oldest case in which this principle was laid down appears to be that of City of Berne v. Bank (a) 6 Beav. 1 ; ante, p. 95. (6) The Charkieh, L. E. 4 A. & B. 66 ; Oity of Beme v. Baink of England, 9 Ves. 347 ; Emperor of Austria v. Day, 2 Giff. 628 ; Taylor v. Barclay, 2 Sim. 213. (c) Taylor on Evidence, 6th ed. i. 3, 30 ; Wheaton, Int Law (Lawrence! App. p. 970. 102 FOREIGN AND DOMESTIC LAW. Part I. PEESONS. Cap. V. States. of England (a), where it was adopted by Lord Eldon. In Taylor v. Barclay (h) it was falsely alleged by the plain- tiff's bill that a revolted colony of Spain was " a sovereign and independent state, recognised and treated as such by His Majesty the King of these realms," the allegation being introduced to avoid a demurrer, by whicb a former bill founded on the same substantial facts had been met (c). It was held that the Court was bound to know that the allegation was false, and to act upon that know- ledge; and a demurrer was therefore allowed. "Sound policy requires," said Shadwell, V.O., " that the Courts of the King should act in unison with the gOTcrnment of the King." The ground on which the demurrer was based being that a contract to lend money to a rebel so-called goTemment, whose independence had not been recognised by Great Britain, would be void for illegality, the Court was plainly bound to act on its own judicial knowledge to avoid a breach of international law, which might in some instances amount to a casus belli ; and the decision in Bire V. Thompson {d), referred to by the Vice-Chancellor, was decided upon the same principle. Every government is of course responsible, according to the law of nations, for the acts of its tribunals, and must be presumed to have given them the necessary information for their guidance. Where it has not also armed them with sufficient powers to carry out the principles of international law, it runs the risk of being compelled, in its sovereign character, to repair the omission. The deficiencies in English municipal law which led to the escape of the Alabama and her consorts during the American civil war, and ultimately led to the Geneva Arbitration aiid the passing of the Foreign Enlistment Act, 1870 (33 & 34 Vict. c. 90), will furnish a sufficiently modern illustration. A foreign State, then, will be allowed to sue in an (a) 9 Vea. 347. (6) 2 Sim. 213. (c) Tliompson v. Powles, 2 Sim. 194. So a sovereign who claims the privilege of immunity as such must be reigning de facto at the time of the plea : Munden v. Dulee of Brunswick, 16 L. J. Q. B. 300. (d) Cited 2 Sim. 222. See also Emperor of Austria v. Day, 2 Giff. 628. ARTIFICIAL AND CONVENTIONAL PERSONS, &0. 103 English court, either in its impersonal form or represented Part I. by its SoToreign ; and under certain exceptional circum- ™^s. stances, may be made a defendant. When, however, it Cap. v. appears as litigant in an English Court, it cannot be Foreign allowed to escape from any of the obligations incidental to States. the suit, or to obtain any advantage over other suitors Obligations of from its peculiar character. It must sue in a form (in the ^heu uigaut words of Sir J. Leach) which makes it possible for the Court to do justice to the defendants (a). The provisions of Order xxxi., r. 4, of the Judicature Acts (schedule), empowering the opposite party to apply at Chambers for an order to administer interrogatories to any member or officer of a body corporate or a body of persons otherwise authorized by law to sue or be sued, in cases where such a body is party to the action, have been held to be appli- cable to foreign States as well as corporations (6). So the defendant in an action brought by such a body may apply to it to name some person from whom discovery may be obtained on its behalf; and in default of compliance, pro- ceedings may be stayed (c). It was formerly necessary to make the person named defendant in a cross-suit for dis- covery, but now interrogatories may be administered without taking that course, under the Eule of Court already referred to. And in an old case, it was held that a foreign Sovereign, when suing in this country, might be compelled to give security for costs like any other plaintiff bringing a similar action (d). The principle that Sovereigns and sovereign States are Acts of not liable to actions in municipal courts, whether domestic g^vrr^gfto no or foreign, for acts done in their sovereign capacity, has civil rights. been extended further. Acts of sovereignty do not create any civil right or liability whatever, either in the nature (a) Colvmhian Government v. BothscMld, 1 Sim. 94. (6) Bepvhlic of Costa Rica v. Erlanger, L. R. 1 Ch. D. 171. (c) United States of America v. Wagner, L. R. 2 Cb. 582, 589 ; BepubUc of Peru V. Weguelin, L. R. 20 Eq. 140. See on the old practice, King of Spain V. Sulletf, 7 Bligh, N. S. 359, and oases there cited. (d) Emperor of Brazil v. Bohinson, 5 Dowl. P. C. 622 ; King of Greece V. Wright, 6 Dowl. P. C. 12. 104 FOREIGN AND DOMESTIC LAW. Pabt I. Pebsons. Cap. V. Foreign States. of contract (a), or of tort (b). Thus, acts done by agents of sovereign governments, either with express authority, or with the authority implied by subsequent ratification and adoption, give rise to no contractual relation between the agents of the government on the one hand, and the other person or personality affected by the act on the other (e). A petition of right would seem to be the only remedy available for a wrong sustained by such person affected (d). The law is the same when an act is done by an agent of an independent government, either clothed with authority or supported by subsequent ratification, that would have been tortious if done by a private indi- vidual. "If," says Parke, B., in the case cited, "an individual ratifies an act done on his behalf, the nature of the act remains unchanged. It is still a mere trespass, and the party injured has his option to sue either. If the Crown ratifies an act, the character of the act becomes altered ; for the ratification does not give the party in- jured the double opportunity of bringing his action against the agent who committed the trespass or the principal who ratified it, but a remedy against the Crown only (such as it is), and actually exempts from all liability the person who commits the trespass. Whether the remedy against the Crown is to be pursued by petition of right, or whether the injury is an act of state without remedy, except by appeal to the justice of the State which inflicts it, or by application of the individual suffering to the government of his country, to insist upon compensation from the government of the other — in either view the wrong is no longer actionable " (e). There must, however. (a) Doss V. Secretary of State for India, L. B. 19 Bq. 509 ; Secretary of State for India v. Kamaehee Boye Sahaba, 13 Moo. P. C. 22 ; Sirdar Bhagwan Singh v. Secretary of State for India, L. E. 2 I. App. 38 ; Nabob of the Garnatic v. East India Co., 1 Ves. 371 ; Dvke of Bnmswick v. King of Hanover, 6 Beav. 1 ; Elphinstone v. Bedreechwnd, \ Knapp, 316. Q>) Buron v. Denman, 2 Ex. 167. (c) Secretary of State for India v. Kamaehee Boye Sahaba, 7 Moo. Ind. App. 476; S. C. 13 Moo. P. C. 22. (d) Thomas v. 'Jlie Queen, L. R. 10 Q. B. 31. (e) Per Parke, B., in Buron v. Denman, 2 Ex. 167, 188. ARTIFICIAL AND CONVENTIONAL PERSONS, &C. 105 be either previous authority or subsequent ratification; PabtI. and an agent or servant of a sovereign State will therefore be held liable for acts done by him in excess of his autho- Cap. v. rity, if no subsequent ratification by his government is Foreign shewn (a). The principle itself is clearly a necessary ^™''^'''»-»- result of the ordinary intercourse of nations. If it were not recognised, the absurdity would follow, that every member of the military and naval forces of his country would be liable to a civil action of trespass for the execu- tion of his duty on active service. A trespass authorized by a sovereign State is, in truth, an act of war, and can only be dealt with as such. (iii.) Foreign Ambassadors. The general principle has been shewn to be that an Diplomatic independent Sovereign is not liable to be sued in the """^"°^'y courts of a foreign State, unless he has in some manner ■waived his sovereignty and the immunity which it confers, or otherwise consented to the jurisdiction, or bears the double character of Sovereign and subject, and is sued in the latter character only. The rule and its exceptions apply with equal force whether the person of the foreign Sovereign is or is not within the jurisdiction ; though in the latter case the additional privilege of immunity from personal arrest and detention is invariably conferred on the Sovereign by public international law (6). But with the ordinary and prima facie immunity from action which a foreign Sovereign enjoys is often confounded another privilege, the limits of which are defined by different considerations. This privilege is the immunity of an ambassador or other authorized representative of an independent State. The principle upon which this immunity rests is what rests on theory is commonly called the fiction of extra-territoriality (ex- territoriality territorialite). The residence of a foreign minister within (a) Madrazo v. Willei, 3 B. & Aid. 353 ; The Holla, 6 Bob. 364. (6) Wheaton, Int. Law (Dana), p. 155. 106 FOEEIGN AND DOMESTIC LAW. Pabt I. Persons. Cap. V. Foreign Ambassadors. Extent of immunity. the jurisdiction of the State to which he is accredited is, by this fiction, to which the Sovereign of the State assents by receiving him, considered as a continuing residence in his own country ; and this fictitious situation is applied, not only to the person of the minister, but to his family and suite, secretaries of legation and other secretaries, servants, movable efiects, and the house in which he resides (a). The person of the minister is, moreover, entirely exempt from all civil and criminal jurisdiction (6), so that his immunity would not be affected by a mere permission under the new practice to serve the writ or notice of the writ abroad ; though it might be a curious subject of speculation how far such an order might be applicable to the case of an action against a subject of the country not connected with the foreign minister's establishment, but present, casually, or even as a refugee, within his house. To the general rule, that a foreign minister, his family and suite, are exempt from civil and criminal jurisdiction, Wheaton states the three following exceptions. First, the exemption does not apply to the contentious jurisdiction, so far as the person claiming the diplomatic immunity voluntarily makes himself party to an action. Secondly, he continues subject to the juris- diction, if he is a citizen or subject of the country to which he is sent, and that country has not renounced its rights over him. Thirdly, he is subject to the jurisdiction, if he is not only entitled to the diplomatic immunity in one character, but is in another in the service of the power to which he is accredited. The extent of the diplomatic immunity, which attaches, as has been said, to the whole of the minister's family and suite, is not very easily defined. It includes, however, exemption from all writs and process of the Courts, and judicial restraints upon his person, his movements, and his time. Thus it appears, not only that he cannot be brought (a) Wheaton, Int. Law, §§ 98, 224, 235. (6) Magdalena Steam Go. v. MaHin, 2 B. & B. 94 ; 28 L. J. Q. B. 310 ; Taylor v. Best, 14 C. B. 487; 23 L. J. C. P. 89. ARTIFICIAL AND CONVENTIONAL PEESONS, &0. 107 into court as a defendant, but that the same objection Part i. applies to his coming there as a witness ; and it is clearly '^^sons. laid down that he cannot be compelled to appear and give Cap. V. evidence, even in criminal cases (a). Thus, in the trial of Foreign Herbert for murder at Washington, in 1856, the minister ^rnbasmdors. of the Netherlands, who was an important witness to the transaction, refused to appear in Court at the request of the United States Government, who admitted his right to decline, and his own government refused to instruct him to appear as a witness, although requested to do so by the United States. The principle of his objection appears to have been, that though his testimony might have been voluntary in the first instance, yet circumstances might have subjected him to compulsion with respect to rules of cross-examination and procedure which justice to the parties implicated might require the Court to enforce. It is clear that a person entitled to the diplomatic immunity may waive the privilege by appearing in court to give Waiver of testimony, by commencing an action as plaintiff, or by i°i™™i*y- voluntarily appearing to a writ and pleading otherwise than to the jurisdiction. Thus in Taylor v. Best (6), one of four co-defendants, being secretary of legation to the King of the Belgians, appeared voluntarily and pleaded to the merits. After notice of trial he obtained a rule nisi to stay further proceedings or strike his name out of the action, which was discharged, upon the ground that though he was entitled to claim diplomatic immunity, he had in fact waived his privilege by appearing and pleading, and could not afterwards rely upon what he had aban- doned. The Court further laid stress upon the fact that it did not appear that the result of the action would be to interfere in any way with the person or effects of the de- fendant, but it is difficult to see how this could have been assumed, or how, if true, it could in any way alter the effect of the alleged waiver of the diplomatic immunity. If an ambassador entitled to the diplomatic immunity (a) Wheaton, Int. Law (Dana), p. 306, n. (6) 14 0. B. 487 ; 23 L. J. 0. P. 89. 108 FOEEIGN AND DOMESTIC LAW. Part I. waive his privilege by bringing an action, it does not ■ appear quite clear how far he is placed in the position of Cap. V. an ordinary litigant. In 1816 the Court of Queen's Ftreign Bench refused to make such a plaintiff give security for Aml assad ors ^Qsts (a), on the ground that there was no precedent for such a course, with the exception of a case in 1727, where a similar order had been made on an ambassador's servant (6). The diplomatic immunity, however, extends equally to an ambassador and all the members of his suite (e) (with the exception to be mentioned immediately), so that there appears to be little reason for the distinction ; and since the date of the decision referred to, foreign Sovereigns themselves, when suing in English Courts (d), have been more than once compelled to give security for their costs. The case cited would therefore probably not now be followed. Effect of The diplomatic immunity has hitherto been treated of 7 Anne, c. 12. "'y the light of the principles of. public international law which have been laid down by jurists and acknowledged in British Courts. They were, however, but little under- stood or practised until the circumstances which led to the passing of the 7 Aane, c. 12, which does in fact do little more than declare the common law on this subject (e). This statute was passed in consequence of the arrest of the Eussian ambassador in the streets of London for a debt of trivial amount, and the. diplomatic difficulties which arose out of the supposed insult to the representative of the Czar (/). It enacts that all writs and processes thereafter sued forth against the person of any ambassador or other public minister of a foreign State, or of any domestic servant of such ambassador or minister, or for the dis- traint, seizure, or attachment of their goods or chattels, (o) Duke of Montellano v. Christin, 5 M. & S. 503 ; Davies v. Solomon, cited Tidd, Pr. 535, n. (s.) (6) Goodwin v. Archer, 2 P. W. 452. (c) Wheaton, Int. Law (Dana), 306, n. (d) Emperor of Brazil v. Bobinson, 5 DowL P. C. 522 ; King of Greece V. Wright, 6 Dowl. P. 0. 12. (e) Novella v. Toogood, 1 B. & C. 564; Hopkins v. Bobeck,3 T. B. 79 ; Magdalena Steam Co. v. Mmtm, 2 E. & E. 94 ; 28 L. J. Q. B. 310. C/) See the account of these i.'ircumBtances in Steph. Bl. ii. 488. ARTIFICIAL AND CONVENTIONAL PERSONS, &C. 109 shall be null and void (sect. 1) ; but that no merchant or Part l FSBSONS other trader whatever, within the description of any of the statutes against bankrupts, who hath put or shall put ^^^- ^- himself into the service of any such ambassador or public Foreigh minister, shall have or take any manner of benefit from Embassadors. the Act (sect. 3). It will therefore be noticed that the servant of an ambassador may by trading waive the diplomatic immunity to which he is entitled ; a liability which does not, as will be shewn below, attach to ambas- sadors or ministers themselves. As a matter of practice, indeed, the affidavits made by ambassadors' servants claiming the protection of the Act have generally nega- tived expressly the fact of the applicant being engaged in trade (a). It has been already said that this statute was declara- tory of the common law. The preamble recites that the arrest had been made " in contempt of the protection granted by Her Majesty, contrary to the law of nations, and in prejudice of the rights and privileges which ambas- sadors and other piiblic ministers have at all times been thereby possessed of, and ought to be kept sacred and in- violable." The persons who shall violate the provisions of the statute itself are to be deemed " violators of the law of nations, and disturbers of the public repose." " The Act itself," said Lord Tenterden, " was only declaratory and in confirmation of the common law. It must, therefore, be construed according to the common law, of which the law of nations must be deemed a part" (h). The same view is taken of the scope and effect of the statute by Lord Campbell, C.J., in MagdaUna Steam Navigation Go. v. Martin (c). So far as regards the immunity of those per- Distinction sons who are the subjects of this legislatiou, the autlio- basraXrs^Sid rities on international law cited above shew that this view ambassadors' is a correct one ; but there is considerably more doubt ^®"^" ^" (a) Malachi CaroUno's Case, 1 Wils. 78 ; Bopliins v. De Bdbeck, 3 T. E. 79; Viveash v. Becker, 3 M. & S. 284. (6) Novella v. Toogood, 1 B. & 0. 554. (c) 28 L. J. Q. B. 310 ; 2 B. & E. 94. See also Hopldns v. De Eobeek, 3 T. E. 79. Ambassadors. 110 FOREIGN AND DOMESTIC LAW. Pabt I. about the third section, which prevents " traders " from ^!_^ ■ taking or deriving any benefit from the Act as servants of Q-^^- ^- an embassy. The rule of international law appears to be, Foreign as wiU be shewn below, that the diplomatic immunity of an ambassador cannot be waived by his entering into trade, although it has been already seen that an independent Sovereign can waive his immunity by a similar course. The reason of the distinction may be that the privilege of an ambassador is not his own, but something entrusted to him for the mutual benefit of the country which he repre- sents and that to which he is accredited; and therefore that it cannot be waived by his entering into commercial relations with those amongst whom he dwells — a practice which, when adopted by members of a diplomatic body, is always viewed with disfavour (a). Whatever the reason of the rule, it would almost certainly have applied, on the principles of international law alone, to the servants of ambassadors and the ambassadors themselves equally; and the statute therefore does make a distinction between ambassadors and their servants which the common law itself would never have drawn. The statute, however, now defines the extent and manner of the recognition to be given to the rules of public international law on this particular subject, and Service of must be taken in substitution for them. " It must be cratempfated considered," says Lord Ellenborough, « as declaratory not by statute only of what the law of nations is, but of the extent to which that law is to be carried" (&). It has been repeat- edly held that in order to take advantage of it, the claim- ant must be actually and hand fide in the service of the must be foreign minister, and that no colourable or collusive ^^fide^ employment will do (c). The fact of the service, and its nature, must, it seems, be established by affidavit (d); and where a physician, during the pendency of a writ of (a) Wheaton, Int. Law (Dana), bs. 306,'307. (6) 3 M. & S. 298. (c) Gross V. Talbot, 8 Mod. 288 ; Evans v. Biggs, 2 Str. 797 ; Seaeomb v. Bowlney, 1 Wils. 20 ; Darling v. Atkins, 3 Wils. 33 ; DelvaMe v. Plvmer, 3 Camp. 47. (d) Malaehi Carolina's Case, 1 Wils. 78. ARTIFICIAL AND CONVENTIONAL PBESONS, &C. Ill error on a judgment which had been recovered against Part i. him, obtained a retainer to serve the Bavarian minister at a ™o^s. salary of £40 a year, and swore that he had not since accept- Oap. v. ing it prescribed for or advised any other patients, he was Foreign held not to be entitled to the protection he claimed (a). The ^'^^'^J^'- law is, in short, that the process of the law shall not take a honafide servant of a foreign minister out of his service, but that nevertheless a foreign minister shall not take a person who is not his hond fide servant out of the custody of the law, or in any way screen him from the payment of his just debts (6). Such hona fide servants need not be in the habit of sleeping in the house of the minister, pro- vided that they are in his actual service (c) ; and it seems that a chorister, hona fide employed by an ambassador in the performance of religious worship in his chapel, is a servant for the purposes of this Act {d). It is not enough to state that the name of the person Service to be who claims immunity as an ambassador's servant was regis- affidavit" tered at the office of the Secretary of State, and thence transmitted to the Sheriff's office, since an actual service must be disclosed upon the affidavits (e), though it is not, of course, necessary that every particular act or habit of service should be specified ; and if service is prima facie shewn, the presumption will be, in the absence of further evidence, that it is not colourable or collusive (/). But unless the name of the claimant has been so registered in the office of the Secretary of State, and transmitted to the Sheriff's office, it appears that the she.riff' or sheriff's officer making the arrest is not liable to the summary proceedings provided by way of punishment in sect. 4 of the Act (g) ; nor will the mere fact that the defendant has been appointed chaplain to a foreign ambassador or (a) LocJcwood v. Coysgarne, S Burr. 1676. (6) Seathfield v. Chilton, 4 Burr. 2016. (c) Wedmore v. Alvarez, 2 Str. 797 ; Moans v. Biggs, ib. ; Darling v. Atkins, 3 Wils. 33 ; Novella v. Toogood, 1 B. & 0. 562. (d) Fisher v. Begrez, 1 C. & M. 117. (e) Fisher v. Begrez, 1 0. & M. 117. (/) Triquet v. Bath, 3 Burr. 1478. Ig) Seaeomb v. Bowlney, 1 Wils. 20. 112 FOREIGN AND DOMESTIC LAW. PaetI. Peesons. Cap. T. Ambassadors, Extent of statutory immunity. minister entitle him to protection, unless it is shewn that he does duty as such chaplain (a). In a case where the wife of the defendant was arrested under a writ issued against both, the defendant swore that before and at the time the writ was issued he was in the actual employment of the ambassador to the King of Spain, as second secre- tary to the embassy; that his employment consisted in writing despatches and other official documents for the ambassador, and that he was in daily attendance upon him (jb). The Court refused to quash the writ, Abbott, C. J., on the ground that the aflSdavit did not state that the defendant was a domestic servant of the ambassador, or employed in the ambassador's house ; Holroyd, J., also on the ground that the writ was not absolutely void because it had issued, unless or until put in force by an arrest. It is difficult, however, to see that the affidavit was defective in any material particular, and the other reason on which the judgment of Holroyd, J., proceeded is directly contrary to the express words of the statute, which provide that all writs thereafter sued forth or prose- cuted, whereby .... the domestic servant of any ambas- sador or public minister may be arrested or imprisoned or his goods and chattels may be seized, distrained, or attached, shall be deemed and adjudged to be utterly null and void, to all intents, constructions, and purposes whatsoever (c). The case is said to have been one of considerable suspicion, and must probably be regarded as an instance of the law being strained. to fulfil the presumed requirements of expediency and moral justice. The privilege of immunity is expressly conferred upon the goods as well as the person of all who are entitled to it, but this exemption does not attach to all such goods without qualification. Where the claimant of the privi- lege, as chorister to a foreign ambassador, resided in a (a) lb. A person in the navy cannot, it seems, be a domestic servant to an ambassador ; Darling v. AtMns, 3 Wils. 33. (6) English v. Caballero, 3 Dowl. & B. 25. In Carolina's Case, 1 Wils. 78, it was held that an interpreter was not a domestic servant. (c) 7 Anne, u. 12, ». 3. ARTIFICIAL AND CONVENTIONAL PERSONS, &C. 113 separate house, part of which he let out as lodgings, was Tart i. a teacher of music and languages, and also acted as ^bsons. prompter at one of the London theatres, it was held that Cap. V. his goods in that house, not being necessary for the conve- Foreign nience of the ambassador, or for the due perform,anGe of ^'»6«88o Wheaton, Int. Law, § 143, n. 144 FOBEIGN AND DOMESTIC LAW. Part II. prescription ; and so it may be argued that they belong ■ to the laws of property and not of mere remedy ; but it is Cap. VI. impossible, in international law, to be governed by these indirect operations." In a recent case (a) it was, however, apparently assumed by the Court that the law which regulates the prescription of actions as to real estate is not the lex fori but the lex loci rei sitsB. Funds had been paid into Court representing the rents and profits of certain lands in Jamaica, out of which an annuity had been granted by will in 1810. The last payment on account of the annuity had been in 1842, and the personal representative of the annuitant claimed to be entitled to the funds in Court to satisfy arrears of the annuity. It was held that the English statute of limita- tions did not apply to land in Jamaica, and that the claim of the personal representative of the annuitant was not barred by the lapse of time, although it was admitted that the lex fori regulated the prescription of actions which did not affect realty (6). Hall, V.C, said, " There is no corre- sponding statute of limitations applicable to the island of Jamaica ; and these annuitants are, in my judgment, as much entitled to recover their annuities as the estate itself, as they are only portions of the estate." No further notice of the conflict between the lex fori and the lex situs appears to have been taken. As to the question of the applicability of the lex fori to cases of prescription in personal actions, it will be discussed hereafter when treating of procedure ; but it may here be mentioned that Westlake regards the. conflict as stiU open for decision, while Story considers it conclusively settled in favour of the lex fori (c). The question of the applicability of local laws of prescription and limitation to real or immovable property appears to arise most naturally in this form. It is conceded that a valid title to land can only be conferred or taken away by the lex rei sitas {d). It is equally indisputable that the (a) Pitt V. Lord Dacre, L. E. 3 Ch. D. 295. (6) Citing Buckmaboye v. Mottichimd, 8 Moo. P. C. 4. (c) Westlnke, § 252 ; Story, §§ 576-581. (iJ) Ante, p. 121. IMMOVABLE PBOPEETY. 145 manner and time of bringing an action, apart from any Part II. question of title to land, are regulated like other matters bo?ebiy. of procedure, by the lex fori (a). The title to land can of Cap^ VI. course be only directly litigated in the forwm situs, but in prescription administering and enforcing personal equities, it may often ^^ *° foreign happen that it becomes necessary to inquire into the title governed by to foreign land in an English Court (6). The question *'^« ^^'^ ''*""■ which will then arise is, whether the local law of prescrip- tion or limitation has either conferred or taken away any title to the foreign land, or whether it has merely enacted a rule to regulate the procedure of its own Courts, which will not be binding upon those of another country ? In the large majority of cases, such laws do purport either to create a title positively, or negatively to take a title away by preventing its assertion. When the title is positively created by a law of prescription, it is tolerably clear that a foreign Court cannot be justified in ignoring it, though its own laws of prescription would not have conferred it under the same circumstances. The matter is not quite so clear when the local law of limitation merely enacts that, after a certain lapse of time, no action to assert title shall be brought. A law which prohibits the assertion of title does, however, practically take it away, and vest it in some one else. No person can be said to have a valid title to land by the lex rei sitse which that law does not permit him to assert in its own courts. When a law takes away a remedy altogether, it virtually destroys the right to which such remedy is attached. To abolish a remedy is not to regulate it ; and the right to regulate the remedy is all that the lex fori can reasonably claim. There may conceivably be cases where a law of limitation is so framed as to apply, and to be intended to apply, to procedure alone ; but in the majority of instances this will not be so ; and subject to this exception, it is submitted that the provisions of the hx rei sitse as to the period of limitation applicable to immovables should be universally followed. With regard to the liability of foreign immovables to (a) Infra, Chap. X. (ii.) (6) Ante, p. 121, sq. L 146 FOREIGN AND DOMESTIC LAW. Paet n. Pbopebtt. Gap. VI. Liability of foreign land to debts of owner. the debts of the owner, the lex situs, apart from any consideration of an equity affecting him, is- alone en- titled to be heard. In Harrison \, Harrison (a), on appeal from the Master of the EoUs, where a Scotch heir had elected to take Scotch lands by descent in opposition to an English will, the domicil of the testator being English, and the will itself being ineffectual to pass real estate in Scotland, it was decided that the liability of the Scotch real estate to the payment of debts, as between the heir and the pecuniary legatees, must be determined by the law of Scotland, and not by the law of the country where the estate was being administered. In that case Lord Selborne said, "The doctrine of marshalling, as applied in favour of legatees against heirs-at-law taking descended real estates in England, is part of the lex loci of England affecting those real estates, and no question of conflict of law can arise under those circumstances. It is a wholly different thing when persons, who have an interest in the personal estate only, endeavour indirectly to establish in their own favour, or for their own relief, a burthen upon real estate situate in another country, which, by the law of that country, would not be administered so as to give them what they ask. ... It is admitted, as I understand, that the burthen of liability to debt, so far as relates to real estate, can only be created by the lex loei rei sitse ; but it is suggested that the burthen may be laid on real estate, on which it is not imposed by the lex loci rei sitse, by an indirect equity in favour of the legatees .... What is that equity ? There is no fiduciary relation. What right have these legatees, upon the footing of personal equity, to say that the heir shall not enjoy the Scotch real estate as the law of Scotland gives it to him, or that any burthen shall directly or indirectly be thrown upon that real estate in their favour, which would not be im- posed by the law of Scotland ?" (6) Similarly it was (a) Sarrison v. Harrison, L. E. 8 Oh. 342 ; Drummond v. Drummond, 6 Bro. P. 0. 601 ; Elliott v. Minto, 6 Madd. IG ; Carrori Iron Co. v. Mac- laren, 5 II. L. C. 416. (&) L. B. 8 Ch. 348, IMMOVABLE PKOPERTY. 147 decided in an old case that the question of a creditor's Part it lien on real estate was to be determined by the leas bo™tt. situs (a). It may be added that a heritable Scotch bond €ap: vi: in the possession of an English testator is real estate, and gootch herit- descends to his heir-at-law (h), being regarded as an ^^^^ tonds. integral part of the Scotch land which is bound by it to satisfy the debt. Nor does the fact that a personal obliga- tion is inserted in such bonds alter their nature, the personal security being regarded as a mere adjunct to the heritable security (e). The case is different where the heritable bond is not an asset in the possession of the testator or intestate, but a bond given by him to some one else, and remaining after his death as a debt due from his estate, as well as a charge upon the Scotch land on which it was given. Thus in MaxweU v. Maxwell (d), where an English testator charged his personal residuary estate with payment of " all his just debts," and after the date of his will borrowed £14,000 on Scotch lands, for which he gave a heritable bond, it was held that the expression " all my just debts " in the will, interpreted by the lex domicilii of the testator, included the charge on the Scotch land, and that the residuary personal estate was liable to payment of the £14,000 in exoneration of the Scotch realty. The Scotch heir, who took by intestacy (the will nOt affecting Scotch lands) was therefore not put to his election. It will be seen that this case, though from one point of view the converse of Jermngham v. Herbert (e), depends in substance upon totally different principles. That case shews that a heritable bond in' the possession of the tes- tator, a charge on somebody else's Scotch land, is in reality regarded as a portion of that land, and is not included in a bequest of the testator's personal estate like other choses in action, although the debt which it secures is also due on a (a) Scott V. Nesbitt, 14 Ves. 438. (6) Johnston v. Baher, 4 Madd. 474, n. ; Buceleueh v. Hoare, 4 Madd. 467 ; AUen v. Anderson, 5 Hare, 163. (c) Jermngham v. Herbert, 4 Euss. 388. Id) L. K. 4 H. L. 501 ; S.C. sub voo. Maxwell y. Syslop, L. K. 4 Bq. 407. (e) 4 Kuss. 388. L 2 148 FOREIGN AND DOMESTIC LAW. Pabt II. Peofeett. Cap. VI. Scotch herit- able bond — effect of coUateial security. personal bond. Mamoellv.MaieweM, on the contrary, decided that where the testator had given such a heritable bond, charging his Scotch land, the debt secured by it was within the meaning of the phrase " all my just debts," as used in his will. The first case was decided on the ground that the lex situs must decide what is realty and what is not, and what is sufficient to pass it; the second on the ground that the lex domicilii must be called in to interpret a testator's intention. It has just been said that the fact of a personal obliga- tion being inserted in a Scotch heritable bond does not alter its nature^ but that it descends notwithstanding to the heir-at-law. But if the personal obligation be con- tained in a separate instrument, so that the debt due to the testator was secured both by a Scotch heritable bond charging it on his debtor's land, and a personal security given by the debtor, the personal security may be dis- posed of. by a will in the form of the doinicil, and the heir will thus lose the benefit of the Scotch heritable bond, as the debt secured by it may be paid to the iexecutor or legatee under the will. This has been held not. only where the personal bonds were specifically devised by the will (a), but also where the testator had devised generally to his executors " all his moneys, seev/rities for money, chattels, and other personal estate " (6). The principles on which these decisions should be distinguished from those cases in which it has been held that a Scotch heritable bond is realty to which the Scotch heir is entitled, may perhaps be best stated in this way. Where a heritable bond alone is taken by the testator on lending his money, he is regarded as having in effect laid out that money in the purchase of Scotch land. But where he takes a personal bond as well, the debt due to him is regarded as still a chose in action, which still, therefore, forms part of his personal estate. The judgment in Oust v. Goring, delivered by Lord (a) Buooleuch v. Hoare, 4 Madd. 467. (6) Cust V. Goring, 18 Beav. 383. IMMOVABLE PEOPEETT. 149 Eomilly, forms a convenient summary of the previous PabtII. pROPERTT cases on the subject, and may be quoted with advantage. " This is a case in which the determination of which ^^^- ^^• system of law is to prevail depends less upon principle Oust v. Gor- than upon authority. In order, therefore, to determine*"^' whether the Scotch or English law shall prevail in this case, it is necessary to consider the authorities affecting cases of this description, which I will do in their order. The first I think necessary to mention is Brodie v. Barry, 2 Yes. & B. 36. It is very distinguishable from this case. There the testator had by his will purported to dispose of his Scotch real estate, but the will not being in conformity with the solemnities required by the Scotch law, was in- operative for this purpose. The question then was whether this raised a question of election against the Scotch heir, who was a legatee under the will. Sir W. Grant held that this was analogous to the case of a will purporting to dispose of copyholds not surrendered to the use of the will, and that therefore, as the will, in the case of copy- holds, could be read against the customary heir, so also, in that case, the will could be read against the heir of the Scotch estates : the effect of which was, that he was put to his election. No contest arose between English and Scotch securities for the same debt. There was in that case no question but that the will did not affect the debt, or any instrument affecting to secure it, " The next case is that of Johnstone v. Baker, 4 Madd. 474, n. That also was a case where the heritable bond was the only security given, which bond did not pass by the will of the testator, and which is, therefore, distin- guishable from the present case. " The Buehess ofBueeleuch v.Eoare (4 Madd. 467), before Sir John Leach, did raise a question between English and Scotch instruments given to secure the same debt. In that case the testator had advanced sums of money to the Duke of Buccleuch and the Duke of Montague, on two several occasions, which sums were secured by two Scotch heri- table bonds and by two ordinary English money bonds. 150 FOREIGN AND DOMESTIC LAW. Pakt II. The testator, by his will, reciting that he was possessed of R OFERT Y. j.^^ bonds or obligations, of the Dukes of Buccleuch and Cap. VI. Montague, bequeathed them to his executors, upon certain trusts fepecified^in the will. The Court held that the will passed the debt, and that the heir was a trustee for the legatee. " In Jerningham v. Herbert (4 Euss. 388), before Sir John Leach, no contest arose between English and Scotch securi-, ties. That was the case of a Scotch heritable bond given to secure a debt, which, although it also contained a personal obligation to pay -the debt, as a part of the same instru- ment, was held not to pass by a will which affected English property only. It does not therefore, as it appears to me, govern this question. "Allen V. Anderson (5 Hare, 163), before Sir James Wigram, was the case of a testator who at the time of making his will was a creditor for a large sum of money, apparently not secured by any instrument whatever. Sub- sequently to the date of his will, a Scotch heritable bond was given to secure this debt, which bond was not affected by the will. The Court held, that the heir was not a trustee for the legatees under the will, and that he,was not put to his election. That case also is very distinguishable from the present. It seems to me to have been analogous to the simple case of a testator laying out money in the purchase of land subsequently to the date of his will. The testator took a heritable bond as a security for the debt, which heritable bond did not pass by the will. If he had taken real estates in England, in exchange for the debt, it would not have passed by the will,. and would in that case have been in all respects analogous to the case which actually occurred; and in the case last supposed, it is obvious that, according to the principle of English law, the heir could not have been put to his election. " In Drwmmond v. Drwmmond (Koberts. on Personal Security, p. 209), before the House of Lords, and com- mented upon by Sir W. Grant in Brodie v. Barry, there was no contest between securities. The contest was. IMMOVABLE PEOPBETY. 151 whether the English personal estates or the Scotch real Part ii. Property estates, should be applied to discbarge a heritable bond granted by the testator on his Scotch estates; and it ^^^- ^^- was there held, that the Scotch law was to govern the question, inasmuch as the rights of a person to real property must depend upon the law of the country where it was situated; and consequently, that the person who took the Scotch real estate must take it with the burthen upon it, that estate being by the Scotch law the primary fund for the payment of the bond .... The only dis- tinction between Buccleueh v. Hoare and the present case rests on this, that there the testator had, by his will, specifically bequeathed the English securities for the debt. In this case the testator has not specified the securities, but he has disposed of his personal property in general terms. The description, however, of the property bequeathed, contains the words "securities for money" which obviously includes the bond in question. But I think that this specific mention is not essential to the case. The English bond was the primary security for the debt; it was never cancelled; and it was not merged in or extinguished by the Scotch bond, which was given as an additional security " (a). SUMMARY. (ii.) NATUEE AND INCIDENTS OF KEAL OE IMMOVABLE PKOPEETT. The lex rei siim is entitled to determine what is, and p. 139. what is not, real or immovable property. The lex rei siise may accordingly impress the character of personalty upon the res sita for its own purposes (as for the payment of legacy duty), without abandoning its PP- 1*0) M- claim to regard the same res sita as realty or immovable property for the purposes of international law. The lex rei sitse, in calling the res sita personalty, does not thereby (a) Cud V. aorinci, 18 Beav. 383. 152 FOREIGN AND DOMESTIC LAW. PaetII. convert it into movable personalty. Movables and per- Property • t ■ sonalty are not equivalent terms. Cap. VI. The less rei sitse will generally prevail as to questions of limitation and prescription in their application to real or immovable property, inasmuch as these naturally arise pp. 142-145. only in ih.e. forum rei sitse. There is some authority for saying that the lex rei sitse will also prevail when such questions arise in a foreign court ; but among jurists there is some conflict of opinion on the point, the lex fori assert- ing its claim to deal with the matter as pertaining to the remedy. The lex rei sitse will determine the liability of real or immovable property for the debts of its deceased owner, pp. 146-151. testate or intestate, and the obligation of the heir in re- spect of those debts. But this principle may be modified, (i.) by the rule that the construction of a will depends upon the law of the domicil of the deceased ; (ii.) by a personal equity affecting the heir. Oapacity^for transfer. (iii.) Transfer of Immovahle Property inter vivos. It is firmly established, that both as regards the ca- pacity of transferring, and the necessary forms to effect the transfer, of land, the lex situs is alone competent to speak (a). As regards the question of capacity, there is a dearth of English decisions, and Mr. Westlake (Priv. Int. Law, § 89) shews an inclination to refer it, even with respect to the transfer of realty, to the lex domicilii of the person, rather than to the lex situs. It has, however, been already pointed out (p. 31) that the English law regards the law of the place where an act is done, or a contract entered into, as the proper one to decide all ques- tions of minority or majority, capacity or incapacity (6). And it can hardly be supposed that the fact of an English- man being domiciled in Prussia, where majority is not attained until the age of twenty-five, would be sufiSeient to invalidate a conveyance by him of English land made (a) Story, Conflict of Laws, 430, 436 a ; see the cases cited, tb. 428, n. 3. (fe) Story, Conflict of Laws, 103. IMMOVABLE PBOPEETY. 153 when he was twenty-four. This is, however, a proposition Part ix. for which numerous jurists, who advocate the claims of b<»™t^- the domiciliary law, are prepared to contend (a) ; hut the Cap. VI. language of Abbott, C.J., in Birtwhistle v. Vardill (b), may be quoted to shew how untenable it must be considered. " The rule as to the law of the domicil has never been extended to real property .... Is there any authority that the law of England, as to any lands in. England, is to adopt the law of a foreign country ?" (e) As to the formalities requii'ed to make a valid transfer, Formalities there is a greater abundance of decisions. Transfer inter °^ *''*°^^*''- vivos of real estate, by English law, must be governed, as to the formalities which accompany it, by the lex rei sitse alone (d). In Eohinson v. Bland (e) Lord Mansfield said : " In every disposition or contract where the subject- matter relates locally to England, the law of England must govern, and must have been intended to govern. Thus ... as to conveyances or wills of land, the heal nature of the thing reqmres them to le carried into execution aecordvng to the law here.'' Waterhouse v. Stansjield (/) was a case where the effect of the law in Demerara was considered as to land there situate, purporting to restrain the alienation by a debtor of any immovable property without the assent of his debtors, express or implied, and without certain prescribed forms, intended to secure this object ; and it was held that such a law must prevail to exclude the claim of an English assignee of the equitable interest in such land. Turner, V.O., said: "When the law of a foreign country places a restraint upon the alienation of the property of a debtor situate in such country, an equity arising here on a contract entered into in respect of such property cannot be enforced against the lex loci rei sitse." The restraint spoken of in the case last cited was, as Restraints on transfer, (a) See Story, Conflict of Laws, 432 sj., 51 sq. (6) 5 B. & 0. 451. (c) As to the recent alteration in the law regarding the capacity of aliens, see 33 & 34 Vict. o. 14, ante, p. 3. (d) 2 Dwarris on Stat. 648 ; Warrender v. Warrender, 9 Bligh. 127. (e) 2 Burr. 1079. (/) 10 Hare, 254. 154 FOREIGN AND DOMESTIC LAW. Part II. has been said, only conditional, depending upon the neglect ' or employment of the forms prescribed by the lex situs. Oaf. YI. j^ jg ^q ^q observed, however, that all restraints imposed by that law, which determines generally the effect and operation of any attempt at the transfer of realty^ are to be accepted as binding; and that such restraints only bind within the territorial limits of the authority which imposed them. Thus the English Statute of Mortmain does not apply to land within the colonies, which was decided in Whioher v. Hume (a), upon the authority of Sir W. Grant in Attorney-General v. Stewart (6), though the case turned more upon the intention of the legislature, and the policy of the law of mortmain generally, than upon the strictness of the theory of the intra-territorial operation of all laws regulating the- disposition of im- movables. Nor do they apply to land in Scotland ; but where a will was made in England and according to English form by a domiciled Scotchman, bequeathing money to trustees to ^purchase lands (without saying where), and pay over the rents for charitable purposes to persons resident in .Scotland, the bequest was held void under the Statute of Mortmain, there being nothing in the words to shew that a purchase of anything but English lands was contemplated (e). In Benaud v. Towrangeau {d) the effect of an attempt at restriction of all alienation for twenty years, by a Canadian testator, was discussed with reference to Cana- dian land ; and though it was suggested in argument, by way of analogy, that such a restriction would be bad by English law, even if there had been a gift over, it was ^assumed throughout that the real question was, whether such a restraint on the alienation of Canadian land was bad or good by the law of Canada. It is, true that Lord Epmilly said in his judgment that it would be invalid, not only by the old French law, prevailing in Lower Canada, (a) 7 H. L. C. 124. (6) 2 Meiiv. 143. (c) Attorney-General v. Mill, 3 Buss. 328 ; CuHis v. Hutton, 11 Ves. 537. (d) L. B. 2 P. 0. 4. IMMOVABLE PEOPERTY. 155 but by the general principles of jurisprudence ; but it is Part II. plain that all that was meant by this latter expression was to signify those rules of public policy which must be Oaf. VI. taken as part of the common law in every part of the British Empire. SVMMABY. (iii.) TEANSFEB OF IMMOVABLE PEOPEETY INTEE VIVOS. The lets situs determines all questions relating to the p. 152. transfer of real estate. Thus (inter alia), it determines the capacity of the parties to the transfer. [There is, however, little direei authority on this point, and jurists shew a tendency to decide capacity on this, as on all other matters, by the lex domicilii.^ The formalities of the transfer, and the restrictions on pp- 153, 154. the freedom of alienation, are similarly decided by the same law. (iv.) Succession to Immovable Property hy Will. It is hardly necessary to state that the principle that Formalities conveyances inter vivos of realty must comply with the ?' ^'"f hie formalities required by the lex situs, applies a fortiori to all alienations of real property by will {a). But a will, though executed so as not to pass real; estate, may be read for the purpose of discovering in it an implied conditio^ respecting real estate, annexed to a gift of personal pro- perty, and thus in Brodie' \. Barry (b), a Scotch heir-£it- law, who was entitled to personal property under a will made in English form, was put to his election. Exactly the reverse case occurred in Dundas v. Dundas (c), where the heir-at-law of real estate in England, which the testa- tor had attempted to devise by a will in Scotch, form, im- (a) Coppin v. Coppin, 2 P. Wms. 291 ; Gmtis v. Hutton, 14 Ves. 537 ; Bmey v. Smith, 1 Vem. 85 ; Drummond v. Drummond, 3 Bro. P. 0. Toml. 601. ' ■ (6) 2 Ves. & B. 127. (e) 2 Dow & 01. 349. 156 FOEEIQN AND DOMESTIC LAW. Pabt II. perfect to carry out the intention, was put to his approbate I^ ' or reprobate of the will as it stood. Where the heir-at-law. Cap. VL jn gudi a case, elects to take by inheritance in opposition to the will, it has been already shewn that no personal equity attaches to him, by which the foreign realty can be affected by the law of the English Court as to mar- shalling in favour of legatees (a), the mere fact that he is , before the Court as a party to the suit not warranting any interference, as to the foreign real estate, with the leas loei Equities rej, sitss. Such an equity results, however, from the ex- ofdevisee'^^ pressed intention of the testator, according to the inter- pretation of his will by the domiciliary , law (h), and therefore though the English will of a domiciled English- man may not be available to devise Scotch land, yet the heir to whom it would go on intestacy cannot share in other benefits under the will, if he defeat the intention of the testator as to the land by taking advantage of the in- validity of the will to pass it to the devisee. In such; Foreign heir a case, therefore, he is put to his election ; but the inten- — -wheaput ^^^^ ^j ^.j^g testator to pass the foreign land by his will must clearly appear, and it has been held that general expressions will not, as a rule, be sufficient to shew that intention (c). General words of description will be intended to apply to such property only as would by its nature pass by the will, and to the uses therein expressed (d). Or, as Lord Cranworth expressed it in a more modern case (e), the designation of the subject intended to be affected by the instrument in general words imports jjnmayaei'e that property only upon which the instrument is capable of operating. To affect, foreign land indirectly by a will not executed according to the lex siius, by putting the heir to his election, the foteign property must be either specific- ally devised, as in Brodie v. Barry (/), or there must be (a) Harrison v. Harrison, L. R. 8 Ch. 342. (6^ Maxwell v. Maxwell, L. B. i H. L. 501. (c) Johnson v. Telfourd, 1 Eusa. & My. 254 ; Allen v. Anderson, 5 Hare, 163. (d) Per Sir J. Leach in Johnson v. Telfourd. (e) Maxwell v. Maxwell, 2 De G. M. & G. 705. (/) 2 Ves & B. 131. IMMOVABLE PEOPEKTY, 157 at any rate words from which the intention to act on it Pakt II. can be unequivocally gathered. These principles have ^_^^ ■ been fully recognised in the later cases, an heir of foreign Cap. VI. immovables being put to his election by a will not in itself operating upon them, only where there was a personal equity affecting him with reference to them, arising from the expressed intention of the testator or in any other manner. Thus, in Dewa/r v. Maitland (a), a will devised lands in England to the testator's son and heir for life, remainder to trustees, and also lands in St. Kitts to the same trustees upon trust to sell and invest the proceeds in lands in England, to hold on the same trusts. The will was executed according to the English law only, and did not operate so as to pass the land in St. Kitts, but the heir-at-law having received the rents of the St. Kitt's estates during his life, his infant heir was held bound by such election after his death, so as to be debarred from setting up his title as heir of the lands in question against the title of the trustees, who had contracted to sell the property to a stranger. So in Orrell v. OrreU (h), where a testator devised " all the residue of my real estate situate in any part of the United Kingdom or elsewhere," having real estate in Scotland as well as England, the heir-at-law taking the Scotch lands was put to his election, it being held that the testator had sufiSciently indicated his inten- tion to dispose of his real estate in Scotland as far as he was able to do so ; notwithstanding the general rule that, without clear evidence of intention, a testator will be supposed only to be dealing with what he can dispose of by the instrument whose construction is in question. Except, however, so far as it is affected by such a personal equity as that involved in the doctrine of election, a will of foreign realty must comply strictly with the lex loci rei sitae, and with that law alone ; and it was decided long ago (e) that the English Court of Chancery would not direct an issue to try the validity of a will of lands in (a) L. E. 2 Eq. 834. (6) L. E. 6 Ch. 302. (c) Fike V. Hoare, 2 Ed. 182. 158 POEEIGN AND DOMESTIC LAW. Part II. one of the colonies, which have distinct local laws of their R OPEBT Y. ^^^ ^^ J -J. j^^g \)QQj^ decided that the provisions of 20 & Gap. VI. 21 Vict. c. 77, which authorizes the citing of the heir-at- law or persohs interested in the real estate, when conten- tious proceedings arise as to the validity of a will, and by which the probate of a will granted after such litigation is to enure to the benefit of all persons interested in the real estate affected by the will,. are not applicable to wills ^hich in whole or in part have not been executed in ac- cordance with the Wills Act (1 Vict. c. 26) (a). These statutory provisions cannot be employed, therefore, when the testator was not domiciled in England, and his will was executed so as only to satisfy the requirements of the law of his domicil, in order to bind indirectly immovable property in England by a will not executed in accordance with the lex situs. The construction, however, of wills is in all cases a matter for the law of the domicil alone, even when the destination of immovables situate in some country other than that of the domicil is affected by it (h). SUMMARY. (iv.) SUCCESSION TO IMMOVABLE PROPERTY BY VFILL. p. 155. The lex situs decides the capacity of the testator to devise immovable estate (see, however, the qualification of the rule just stated as to the capacity to transfer inter vivos), the formalities of the testamentary instru- ment, and its operation upon the land which it affects to devise. pp. 155, 156. But where a testator intends and attempts to devise immovable estate by a will not effectual to do so by the lex situs, the heir of the immovable estate will not be per- mitted to take a bequest of movable personal estate under the will, and to defeat the same will as to the land. In (a) Campbell v. Lucy, L. E. 2 P. & D. 209. (6) Trotter y. Trotter, i Bligh, N. S. 502; S.O. 3 "VVils. & S. 407; Enohm v. Wylie, 10 H. L. C. 1. IMMOVABLE PKOPERTY. 159 such a case, he will be put to his election whether he will Paet II. "P RO PE RT Y accept the will for all purposes or for none. The liability of his foreign immovable estate to the Cap. VI. personal debts of the testator depends upon the lex situs p. us. alone, whese no intention on the part of the testator to interfere with that law appears; and the law of his domicil cannot impose any burden upon such foreign immovable estate from which by its own law it is exempt. The intention of the testator to devise or burden foreign land by a will insufficient by the lex situs to do so, must, P- 15G. in order to impose a personal equity on the heir, be un- equivocally expressed. General words, which might be satisfied by a different interpretation, will not be construed as evidence of such an intention. The construction of wills, even when foreign land may p. 158. be indirectly affected by it, is for the law of the testator's domicil alone. Hitherto the transfer of immovable property in accord- ance with the wish of its owner, expressed either in a con- veyance inter vivos, or by a testamentary disposition, has been spoken of. Land, however, changes owners under certain circumstances without any expressed intention on the part of the owner, by the mere operation of law. It will be necessary to consider what law operates, and how far it excludes all others, in the alienation of land either (v.) by succession on intestacy, or (vi.) by assignment on bankruptcy, or (vii.) by operation of marriage. (v.) Sueeession to Iwmovahh Property on Intestacy. — It luheritanoe of has already been stated, in treating, of the question of ™™°™''^''^' legitimacy, that the English law requires an heir to English land to be legitimate by the law of the situs as well as by that of his domicil (a). Not only is this ques- tion to be decided by the former law, but the destination of the property is determined in all other respects by it (&). (o) Doe d. BirtwMstle v. Vardill, 7 CI. & F. 895 ; and see siipra, p. 39. (ft) Jarman on Wills, p. 2. 160 FOREIGN AND DOMESTIC LAW. Part II. The question in BirtwJiistle v. Vardill, before which deci- B OPEBT Y. gj^^ ^j^g j^^ ^^ ^j^jg point can hardly be regarded as Cap. VI. settled, was whether a child born in Scotland, of parents Legitimacy of domiciled there, before their marriage, being admittedly inheritors. legitimate by the law of Scotland, was legitimate for the purpose of taking English lands by inheritance ; and after two arguments before the House of Lords, it was solemnly decided that he was not, since an heir must be, in Lord Coke's words, " ex justis nwptiis procreatus ; nam heres legitimus est quern nuptise demonstrant." It has been already pointed out that this decision was arrived at in opposition to the opinion of Lord Brougham, and that it is in conflict with the view taken on the question of legi- timacy by the jurists of almost all other nations ; but the general rule, that the succession to real estate is governed in all respects by the lex loci rei sitse, is established by it for all practical purposes. In the words of Wheaton (Elements of International Law, § 80), the "law of the place where real property is situate governs exclusively as to the tenure, the title, and the descent of suoh property," while the English law alone, when it speaks as the lex situs, demands that the heir should be legitimate by the law of his domicil as well. Thus, as has been already mentioned, a heritable Scotch bond in the possession of an English testator is real estate, and in the absence of a will effectual to pass Scotch realty, descends to his heir-at-law (a). And where a Scotch heir elected to take Scotch realty by descent in opposition to an English will, it was held by Lord Selborne that the doctrine of marshalling did not apply, and that the incidents of the succession to the Scotch realty were governed by the lex loci rei sitse alone (6). In the case last cited. Lord Selborne says, "In our judgment all questions as to the burdens and liabilities of real estate situate in a foreign country, in the absence of any trust or personal contract (which might (a) Buceleuch v. Hoare, 4 Madd. 467; Johnstone v. Baker, 4 Madd. 474, n. ; Jemingham v. Herbert, 4 Eusa. 388. (b) Harrison v. Harrison, L. E. 8 Ch. 342, 346. IMMOVABLE PKOPEETY. 161 make a difference), depend simply upon the law of the Part II. country where the real estate exists." So where the heir b^™m^y. of a Scotch estate filed a bill in England to have his •Cap. VI. estate exonerated from a heritable bond by the applica- Equities tion of personal estate in England, Sir J. Leach held that affecting heir. the question whether he had an equity to be exonerated was to be determined by the lex loci rei sitw, and not by the law of the country where the personal estate happened locally to be (a). Almost exactly the same question had previously arisen in Brv/mmond v. Drummond (b) ; but it appeared there that the intestate had been domiciled in England at the time of his death, which was not stated to have been the case in Elliott v. Minto. The decision there also was in favour of the lex loci rei sitm. In another case, cited by Sir W. Grant at the same time as Drummond V. Dmmmond, the Scotch heir was also one of the next of kin, and claimed his share in the personalty of the intes- tate, who had died domiciled in England. By the Scotch law, he was not entitled to do so except on condition of collating or bringing into hotchpot the real estate, so as to form one common subject of division ; but it was held that the English law was to be followed, and that he was entitled to share in the personalty without fulfilling this condition (e). The real analogy between this case and that of Drwmmond v. Drwmmmid is perhaps not very close, but it appears correct enough to say that the conditions on which a man is to share in personalty must be prescribed by the law of the intestate's domicil alone (d). In Drum- mond V. Drummond the question was not as to the condi- tions under which the next of kin, who happened to be also the heir to the Scotch estate, was to take the English personalty (as in Balfour v. Seott) ; but as to the right of the heir to the Scotch estate, in that character, to have his estate exonerated from debts to which it alone was liable by Scotch law. Upon the general principle ex- (a) Elliott V. Minto, 6 Madd. 16. (6) Cited in Brodie v. Sarry, 2 Ves. & B. 131. (c) Bal/ourv. Scott, 6 Bro. P. C. 550; 5 Ves. 750; S.O. in Brodie v. Barry, 2 Ves. & B. 131. (d) Infra, Chap. VII. (iii.) M 162 FOEEIGN AND DOMESTIC tAW. Part II. pressed in the dictum of Lord Selborne, just cited, that all ■ questions as to the burdens and liabilities of real estate Cap. VL situate in a foreign country are to be referred to the law Foreign land of the country where the real estate is situate (a), there not burdened g^n be no doubt that the decisions in ERioU v. Minto and except by the hx situs. Dmmmond v. Vrummond were right. The latter case was indeed cited with approval by Lord Hatherley, in a case which went comparatively recently before the House of Lords (b). In Maxwell v. Maxwell, a domiciled English- man, by a testamentary disposition in the Scotch form, gave certain real estate in Scotland, and by a subsequent will in the English form, after declaring that the trusts of his present will should not affect the Scotch estate, nor put to his election any person who should claim under both instruments, gave the residue of his estate upon trusts for sale and payment of " all his just debts " and legacies. He subsequently charged the Scotch estate with a debt of £14,000, by means of a Scotch heritable bond, and pur- chased other real estate in Scotland, which passed by in- testacy to his heir. It was held, first, that the residuary estate was liable to payment of the £14,000 in exoneration of the Scotch estate — thus adopting the interpretation of the lex domicilii as to the expression " all my just debts " — and secondly, that the Scotch heir, who took something under the will, was not bound to elect, but had the same right to the real property that he would have had if there had been no will. "We have not here," said Lord ■ Hatherley (e), "a case like that of Drummond v. Drtim- mond, in which, there being a charge on land in Scotland which was the debt of the intestate, and there being also personal property of the intestate, the property of the intestate was administered according to English law, England being the country of his domicil. There the Court held that the person himself — the prsejpositus — had expressed no intention, but had left his property to be (a) Harrison v. Harrison, L. E. 8 Ch. 346. (fc) Maxwell v. MaxweU, L. K. i H. L. 501 ; S.C. sub voe. Maxwell v. Hyslop, L. B. 4 Bq. 407. (c) At p. 514. IMMOVABLE PBOPEKTY. 163 disposed of as the law might direct, as affecting his two Past II. classes of property. The law would apply his Scotch estate according to the existing law in Scotland. That 0^- ^^- would involve the necessity of the Scotch creditors taking Foreign heir his remedy out of the Scotch estate, and the necessity, ^^eiection *" therefore, of the heir to the Scotch estate bearing that burden ; and the consequence would be that the person entitled to the personal estate in England would not be liable to bear that charge, which would primarily be a charge upon the Scotch estate. But here we are dealing with a testator's intention, as eospressed in his will." And Lord Westbury says in the same spirit (a), " Brv/mmond V. Drvmrnmid has nothing to do with this case. Drv/m- moftid V. Drummond was nothing more than an illustration of the settled principle, that real estate is governed by the lex loci. The Scotch owner of the estate in that case took it according to the law of Scotland, cum onere." The other point, with regard to the want of any obligation on the Scotch heir to make election, and bring his land into hotchpot in order to take under the will, was similarly decided with reference to the intention of the testator. An heir to foreign realty may take it unconditionally ac- cording to the law of the dtus, and nevertheless share under an English will which was ineffectual to devise it, tmless it appear distinctly from the terms of the will that the testator intended that he should not he allowed to do so (6). In Balfour v. Scott (c) there was an intestacy, so that no such intention could be suggested, and the Scotch heir accord- ingly took the Scotch land according to Scotch law, and a share of the personalty as next of kin according to English law. So in Johnson v. Telfowd (d), it was held that an heir of Scotch real estate was not put to his election by general expressions, unless it was clearly to be collected (a) At p. 519. - See as to tie exoneration by personalty of real estate, Mellish V. Valins, 2 J. & H. 194; Eno v. Tatham, 3 De G. J. & S. 443; and 17 & 18 Vict. o. 113 (Looke King's Act). (&) Harrison v. Harrison, L. E. 8 Oh. 342 ; ante, p. 156. (c) 2 Ves. & B. 131, n. Id) 1 Euss. & My. 254 ; and see Mien v. Anderson, 5 Hare, 163. M 2 164 rOEEIGN AND DOMESTIC LAW. Paet ir. Pbopbbtt. Cap. Vr. Intention of testator — foreign heir bound by. from the words used that the testator meant to pass his Scotch estate to the uses of the will. " Where the tes- tator uses only general words," said Sir John Leach, " it is to be intended that he means those general words to be applied to such property as would by its nature pass by his will, and to the uses therein expressed." And this doctrine was accepted in Maxwell v. Maxwell {a), where the will purported to devise to trustees all the testator's real and personal estate wheresoever and whatsoever. It was invalid as to certain Scotch heritable bonds — real property by the Scotch law — and it was held that the Scotch heir was not bound to make election. Lord Cranworth said, " The designation of the subject intended to be affected by the instrument in general words imports prima facie that property only upon which the instrument is capable of operating." If the will had specifically devised the herit- able bonds in question, the intention would of course have been manifest, and the Scotch heir could not have taken them in opposition to the will at the same time that he received a benefit under it. This was actually the ground of the decision in Brodie v. Barry (h), where the will expressly devised the testator's real estate in Scotland, although it was ineffectual to do so, and the Scotch heir was of course put to his election. In cases of intestacy, it is apparent that these consider- ations of the intention of the deceased owner cannot arise, and the proper laws will therefore be left to operate upon immovable and movable property respectively. The burdens of the former, as also its claims to exoneration (e), will therefore be decided by the lex situs ; the distribution of the latter, and the conditions under which those entitled may share in it (though they may also be the heirs of foreign immovables), by the lex domicilii of the intes- (a) 2 De G. M. & G. 705 (1852). This case, though not referred to by Mr. Westlake, is cited with approval by Malina, V.C., in Maxwell v. Eyslop, L. E. i Bq. 415. (6) 2 Ves. & B. 131. (c) EUiott V. Minto, 6 Madd. 16 ; Dnmmond v. Drummond, 2 Ves, & B. 131. IMMOVABLE PBOPEETT. 165 tate (a). It is hardly necessary to say that when the PaetII. loreign heir elects to take in opposition to a will purporting to deal with his inheritance, there is, quoad the foreign ^^- ^^■ land, an intestacy, though the will remain by the law of the testator's domicil as to the movable personalty (b). (vi.) Assignment of Immovahles hy Banhrv/ptcy. — It is Assignment of said by Wheaton, that the question how far a bankruptcy on bankruptcy declared under the laws of one countrv will affect the real — l^ow far and personal property of the bankrupt situate in another torial. State "is one of which the usage of nations, and the opinions of civilians, furnish no satisfactory solution. Even as between co-ordinate States, belonging to the same common Empire, it has been doubted how far the assignment under the bankrupt laws of one country will operate a transfer of property in another. In respect to real property, which generally has some indelible charac- teristics impressed upon it by the local law, these diffi- culties are enhanced in those cases where the lex loci rei sitse requires some formal act to be done by the bankrupt, or his attorney specially constituted, in the place where the property lies, in order to consummate the transfer." The diflSculty, as it now presents itself to English Courts, is rather to construe properly the provisions of the statutes relating to bankruptcy in force for the time being, so as to understand what property they affect to convey to the English trustee or assignee of the bankrupt. The Act of 1869 «*^'^te«- enacts (s. 15 subs. 3) that "all such property as may belong to or be vested in the bankrupt at the commence- ment of the bankruptcy, or may be acquired by or devolve on him during its continuance," shall pass to the trustee. The Bankruptcy Act of 1849 was limited in terms to real estate "in England, Scotland, Ireland, or any of the dominions, plantations, or colonies belonging to her Majesty " (e). No such limitation is contained in the present Act in words, nor, on the other hand, is there (a) BaX/mr v. Scott, 2 Ves. & B. 131 ; S.O. 6 Bro. P. C. 550, and ante, p. 161. (i) Harrison v. Harrison, L. E. 8 Oh. 342. (c) Sect. 142. 166 FOREIGH AND DOMESTIC LAW. Pabt II. anything to extend its operation to the real property of B OPEBT Y. ^jjg bankrupt situate within her Majesty's dominions, but Cap. VI. out of England. There is nothing said in the definition of " property " (s. 4) as to its situation, and s. 2 says that the Act shall not apply to Scotland or Ireland, except where expressly provided ; but the words are large enough, and are no doubt intended, to include all real property situate within her Majesty's dominions (a). It may be questioned, however, whether this would be their effect, if construed strictly ; as the common law rule undoubtedly limits the control over immovable property in such matters to the lex situs (b). By the Scotch Bankruptcy Act, 19 & 20 Vict. c. 79, the bankrupt's real estate in England, Ireland, or any of the dominions of the British Crown, will vest in the Scotch trustee. By s. 268 of the Irish Bankruptcy Act, 1857, all a bankrupt's estate, wherever situate, is vested in his assignees ; a provision which is not repealed by the Irish Bankruptcy Act, 1872, 35 & 36 Vict. c. 58. Obligation of In SeTkrig v. Davis (e), it was held that a bankrupt asBignToreign "iider an English commission of bankruptcy could not be laiid- compelled to assign his foreign real estate to his assignees, though it was suggested that he might be indirectly obliged to do so by withholding his certificate. The reasoning, however, of Lord Selborne in Harrison v. Hwrrison (d), already quoted on a different point, seems directly applicable. Unless there is a personal equity affecting the owner of real estate situate abroad, an English Court cannot claim to control such estate by acting on him, and it is quite clear that no English Court would recognise such a claim, as to English land, by the trustees or assigeees under a foreign bankruptcy. In a later case (e), Parke, B., after saying that generally (a) Williams on Bankruptcy, p. 97. (6) Story, C inflict of Laws, 376, 463. (c) 2 Dow 245; see Stein's Case, 1 Rose, 462; BenfieU v. Solomon, 9 Yea. 77. (d) L. E. 8 Ch. 342 ; see p. 127, supra. (e) Oockerell v. Dickens, 3 Moo. P. 0. 98, 133; see also Ex varteBlahes \ Cox, 398. IMMOVABLE PKOPEETY. 167 speaking real estate is governed by the lex hoi rei sitse, _Pa kt ii. and not transferred by an assignment according to the ^ °^°"' '^' law of the domicil of the owner, proceeded, " We have the Cap. VI. authority of Lord Eldon in Selkrig v. Davis, in the ana- logons case of an English commission of bankruptcy, that a bankrupt cannot be compelled directly to assign his real estate to his assignees ; and though there are indirect methods, as withholding their certificate, or by creditors assigning their debts to others in order to obtain execution against the real estates, neither of these are in the power of the assignees as such, nor would the first of them seem to he in any case properly applied." It would, however, seem that s. 19 of the Bankruptcy Act, 1869, imposed such a duty on the bankrupt, by enacting that the bank- rupt should, to the utmost of his power, aid in the realiza- tion of his property, and the distribution of the proceeds amongst his creditors, and generally do all such acts and things in relation to bis property and the distribution of the proceeds among his creditors, as may be reasonably required by the trustee or prescribed by rules of Court. (vii.) Alienation of Immovable .Property on Marriage. — The nature of the rights acquired by the husband and Eights in wife respectively at marriage in the immovables of the acquired by other is decided absolutely, according to English law, ""a™age- by the lex situs. According to Story (a), "it may be affirmed without hesitation, that independent of any contract, express or implied, no estate can be acquired by operation of law in any other manner, or to any other extent, or by any other means, than those prescribed by the lex rei sitse. Thus no estate in dowry, or tenancy by the curtesy . . . can be acquired, except by sucli persons, and under such circumstances, as the local law prescribes." Westlake says that on this point there is no doubt but that in England the lex situs would prevail, as it does in America (b). Against it has been set up by foreign jurists the claim of the law of the matrimonial domicil, on the ground, among others, that the presumed (o) Conflict of Laws, §§ 448, 454. (5) Priv. Int. Law, § 95. 168 POEEIGN AND DOMESTIC LAW. Past II. intention of the parties was that their mutual rights should L ' be regulated by that law (a) ; though even those who Q^^- ^^- maintain this view do not contend that the law of the matrimonial domicil can prevail as to any of these rights in direct opposition to any prohibition or restriction im- posed by the lex situs. It has also been suggested that the law of the place where the marriage is celebrated is the proper one to govern the rights of husband and wife respectively in all the property, movable and immovable, of the other; and Lord Meadowbank, in 1814, used lan- guage in a Scotch ease which has been quoted in support of such a view. " When a lady of fortune having a great deal of money in Scotland, or Stock in the banks or public companies there, marries in London, the whole property is ipso jure her husband's. It is assigned to him. The legal assignment of a marriage operates without regard to territory all the world over " (b). In Selkrig v. Davis (e), however. Lord Eldon limited the doctrine here laid down to personal property, and it is beyond a doubt that as to realty, at any rate, it is unsound. The question as to the proper law to regulate the effect of marriage on the mov- able property of the husband and wife will be discussed subsequently. SUMMARY. ALIENATION OF IMMOVABLE PROPERTY BY ACT OP LAW. (v.) Succession on Intestacy. — The lex situs determines the heir ; and the English law, speaking as the lex situs, p. 159. requires that he should be legitimate not only according to its own rules, but by the law of liis domicil also, p. 160. The burdens, liabilities, and claims, of immovable pro- perty in the hands of the heir, in the absence of auy equity arising from trust or contract, depend upon the lex situs. pp. 161 -163. But the conditions under which the heir of foreign land may share in t!ie (movable) personalty of the infestate, (a) Story, Conflict of Laws, § 419 ; Westlakc, Priv. Int. Law, § 369. (6) Eoyal Sank of Scotland v. Cuthbert, 1 Eose, 481. (c) 2 Kose, 97. IMMOVABLE PEOPEBTY. 169 depend upon the law of the Intestate's domicil, and not PaetII. upon the lex situs of the foreign land. These rules, in cases of intestacy, are invariable, because 0^^- ^^- there can be no demonstration of the intention of the p. 164. owner that the foreign land should either bear or be exonerated from any particular debts, as there may be when a testamentary disposition has been made. (vi.) Transfer on Bcmhrujptey. — Under an English bank- p. 165. ruptcy, the English bankruptcy law affects to vest in the trustee all the movable and immovable property of the bankrupt, wherever situate ; and the Irish bankruptcy law is the same. The Scotch Bankruptcy Act is confined in terms to real estate within the British dominions ; and on principles of international law, the English statute cannot be given a wider interpretation.' A bankrupt is therefore not compellable, apparently, to pp. 166, 167. assign foreign land to his trustee or assignee in bank- ruptcy, unless there is some personal equity attaching to him by which ihe forum of the bankruptcy can indirectly compel him to do so by acting in ^personam. It is not clear how far such an assignment can properly be made a con- dition of his discharge. (vii.) Transfer on Marriage.— The rights of husband p. 167. and wife in and to the English immovables of either are decided by English law, as the lex situs. Setnhle, the lex situs has an equal claim to prevail when the situation of the immovables is foreign, whatever the matrimonial domicil. 170 FOEEIGN AND DOMESTIC LAW. Part n. Propebtt. Cap. VII. Movables and personal property dis- tingiiiehed. CHAPTEE Vir. MOVABLE PEESOKAL PEOPEETY. (i.) Jurisdiction as to Movable Personal Property. It has been already noticed, while treating of the prin- ciple that it is the lex situs which must decide what does and what does not fall within the category of real or immovable estate (a), that the English classification of all property into real and personal does not correspond exactly with that adopted by foreign jurists and systems of juris- prudence which are founded on the civil law, and that an ambiguity is consequently involyed in the use of the words personal and movable as synonymous. The com- paratively modern nature of chattel interests in land, which were unknown to the feudal system, and could not conveniently be subjected to its rules, caused them to be classed with the only other kind of property then recog- nised by the law, goods and chattels; being given the distinguishing name of chattels real, inasmuch as they were said to " savour of the realty " (b). But though such chattel interests are still, strictly speaking, personal pro- perty, they are so merely in name, and only in the con- templation of the English law ; and are governed like other immovables, by the lex loci rei sitss only (c). It will be shewn directly that personal estate generally is governed by the law of the domicil of the owner j but this is so, not by any special law of England, but — as Lord Selborne expresses it in the case just cited — by the deference which, for the sake of international comity, the law of England pays to the law of the civilized world (o) Supra, p. 139, 140. (6) Williama, Personal Property, p. 2. (c) Jarman on Wills, vol. i. p. 4, n ; Freke v. Lord Garbery, L. E. 16 Eq. 461. MOVABLE PERSONAL PEOPEETY. 171 generally. But this general law only applies the law of Pakt li. the domicil to such personal estate as comes within its category of movables, according to the maxim "molilia Cap. VII. seqmmtw personam" on which it is based. Consequently the comity of nations does not demand that England should concede the control of English chattels real to the law of the domicil of the owner, simply because English law chooses to include such chattels under the classifi- cation of personal property, and it must be borne in mind throughout that in fact such a concession is not made {a). As the term " movables " is not one familiar to English law, it has been thought better to retain the English classification of real and personal property while treating of this subject ; but what is subsequently said as to the law which governs personal property does not extend to chattel interests in realty, and must be considered as applicable to chattels personal alone. With regard, then, to all personal property other than MoUlia chattels real, a rule very different to that which obtains ^personam. with regard to " immovables " prevails. In the words of Lord Selborne (6), " The maxim of the law of the civi- lized world is mohilia sequtmtur personam, and is founded on the nature of things. When mohilia are in places other than that of the person to whom they belong, their accidental situs is disregarded, and they are held to go along with the person." The same principles were laid down by Lord Loughborough, in a judgment cited with approbation by Story (e). " It is a clear proposition, not only of the law of England, but of every country in the world where law has the semblance of science, that per- sonal 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 (a) Frehe v. Lord Carbery, L. R. 16 Eq. 461; Thomson v. Advocate- Gemral, 12 01. & F. 1 ; Wallace v. Attorney- General, L. E. 1 Oh. 1 ; Jar- man on Wills, vol. i. p. 4, n. The authorities cited by the later editors of Jarman in support of the opposite view must^ow be regarded as overruled ; Story, Conflict of Laws, § 447. (6) Frehe v. Lord Carbery, L. E. 16 Eq. 466. (c) Story, Conflict of Laws, § 380. 172 FOEEIGN AND DOMESTIC LAW. Pabt II. of the owner." With respect to the disposition of it, with Pbopkbty. respect to the transmission of it, either by succession or Gi'V- Vll- the act of the party, it follows the law of the person (a). This personal law is, of course, that of the domicil of the person (h). It is true that Lord Loughborough, m the judgment just quoted from, goes on to say that when a man dies, it is the law of the country of which he was a subject that will regulate the succession to his personal property ; but it is obvious that this was a mere inaccuracy of expression, and the case Lord Loughborough himself cites in support of his proposition (c) shews that domicil, and not nationality, was really in his Lordship's mind. In a case which has been already frequently cited for another important proposition, Abbott, C. J., said : " Per- sonal property has no locality. And even with respect to that, it is not correct to say that the law of England gives way to the law of a foreign country, but that it is part of the law of England that personal property should be dis- tributed according to the Jus domicilii " (d). It was said by Bayley, B., in another case, " The rule is that personal property follows the person, and is not in any respect to be regulated by the lex situs ; and if in any instances the situs has been adopted for the rule by which the property is to be governed, and the lex loci rei sitse resorted to, it has been improperly done. Wherever the domicil of the proprietor is, there the property is to be considered as situate " (e). It is unnecessary to multiply quotations in support of the general principle, which, according to Story, has been constantly maintained, both in England and America, with unbroken confidence and general unanimity (/). (o) Sill V. Wormieh, 1 H. Bl. 690. (fc) Doglioni y. Crispin, L. E. 1 H. L. 301 ; EnoUn v. Wylie, 10 H. L. 0. 1. (o) Pipon V. Pipon, Ambl. 25. Id) BiHwliistle v. Vardill, 5 B. & 0. 451. (e) In re Ewln, 1 C. & J. 156. (/) See, in addition to the eases already cited, Potter v. Brovm, 5 East, 130 ; Bruce v. Bruce, 2 B. & P. 229 ; Somermlle v. Somerville, 5 Ves. 570 i Thorn v. WatMns, 2 Ves. 37 ; Countess D'Acunlia's Case, 1 Hagg. Ecol. 237 ; Hunter v. Potts, 4 T. E. 182, 192 ; Phillips v. Hunter, 2 H. Bl. 402 ; Codlcerell v. Dickens, 3 Moo. P. 0. 98. MOVABLE PERSONAL PEOPEETY. 173 It may be added here that the fact of a specific chattel, Pabt II. the subject-matter of a contract, having been brought ° °^"™ ^' ■within the jurisdiction of an English Court, will justify O^p- ^^^ that Court in assuming control over the chattel in question, Jurisdiction so as to grant an injunction against the removal of the aotuaf sitX- chattel, and to entertain a suit for the specific performance tion. of the contract respecting it (a). It is true that in one sense, in the case referred to, England was the locus solutionis, or place of performance of the contract, but it is by no means clear that the decision does not go some length in establishing the proposition that the mere situ- ation of personal property, even if transient, confers upon the forum situs jurisdiction to deal with contracts that concern it. The same principle may be traced, though not unmixed with other considerations, in the cases already referred to, in which the fact that the subject- matter of a foreign settlement of personal property was within the English jurisdiction at the time of the making of the settlement, was regarded as a reason for applying English law to the interpretation and regulation of its pro- visions (6). And it will be noticed in the proper place that the Judicature Acts, 1873 and 1875, permit service without the jurisdiction, inter alia, whenever, the subject- matter of the action is land, stock, or other property situate within the jurisdiction, thus accepting the same principle, to the extent, at any rate, of entertaining and hearing the claim (c). SUMMARY. JUEISDIGTION AS TO PERSONAL PROPERTY. Personal property, according to the English law, is not p. 170. coincident with the class of movables contemplated by the law of nations, but includes certain immovables as well. The terms are consequently not equivalent. (a) Mart v. Berwig, L. E. 8 Ch. 860. (V) Vain Grutten v. Vigby, 31 Beav. 561 ; see infra, Chap. VII. (v.) (c) Judicature Acts, 1873, 1875, Sched. Ord. xi. r. 1 ; see infra, Chap. X. 174 FOREIGN AND DOMESTIC LAW. Part II. Pbofertt. Cap. VII. p. 171. p. 172. The maxim " moUlia seqimntv/r personam " applies to movables only; i.e., to such personal property as falls under that class. Such personal property as is immovable comes under the rules which relate to the jurisdiction over immovables generally. Movables are regarded as situate in the country of the domicil of the owner, wherever they may be in fact ; and the law of his domicil alone has consequently jurisdiction to deal with them for the purpose of distributing them among his creditors or successors. The situation in fact of movables within a particular jurisdiction will, never- theless, warrant the local Courts in assuming to deal with them for certain purposes, at any rate so far as to entertain actions based on contracts which concern them, or the right to their possession. ALIENATION OF PEESONAL PBOPEETT. Transfer of movables. The general principle being that movable personal pro- perty is governed by the law of the owner's domicil, it will be as well to consider its application more particularly with regard to its alienation. Alienation of personal property is either by the act of the owner, or by the act of the law. In the first of these cases it is either by transfer inter vivos, or by devise. In the second case it may be either by succession, by assignment on bankruptcy, or by the operation of marriage. Each of these cases requires separate consideration. (ii.) Alienation ly transfer inter vivos. — Notwithstand- ing the general principle that movables are governed by the law of the domicil of the owner, it cannot be taken as established that an alienation of personal chattels which is valid by the law of the transferor's domicil, will be accepted everywhere, even where there is no actual prohibitory or restrictive law in the country where the chattels are in fact situated. That there may be such a MOVABLE PERSONAL PEOPEETY. 175 prohibitory or restrictiye law is obvious, " In one sense Pabt n. "Property personal property has locality ; that is to say, if tangible, it has a place in which it is situated ; and if invisible ^^^- ^^I- (consisting of debts) it may be said to be in the place Operation where the debtor resides ; and of these circumstances the °^^^'^ '^" most liberal nations have taken advantage, by making such property subject to regulations which suit their own convenience" (a). The question therefore arises, whether the English law admits that the lex situs has the right to impose such restrictions, or whether it considers that com- pliance with the law of the transferor's domicil is sufficient in all cases ? It is obvious that this branch of the subject is much entangled, in the majority of cases, with the operation of the lex loci contractus eelebrati upon the per- fection of the transfer ; but in certain cases, the lex situs necessarily speaks for itself. Thus with contracts for the transfer of public funds or stocks, which must obviously be carried out, to be effectual at all, in compliance with the law of the country to which they belong (6), so that until the forms prescribed by it have been complied with, the contract is necessarily unperformed and remains in intention only. But the laws of some countries refuse to acknowledge the validity of any assignment of chattels until it has been perfected by delivery, and it becomes a question how far English law regards them as justified in imposing such a restriction. In Simpson v. Fogo (e), the subject received some consideration from Lord Hatherley. Then the Courts of Louisiana had refused to recognise the rights of a mortgagee of a British ship, which had been taken by the mortgagors to New Orleans, and was there attached by other creditors without ever having been delivered to the mortgagees. The ship having come again within British jurisdiction, the mortgagees filed a (a) Fer Tilglimon, C.J., in an American case, Moreton v. Milne, 6 Binn, 361. (6) Bobinson v. JBland, 2 Buit. 1079 ; Eunter v. Potts, 4 T. E. 182, 192 ; Story, Conflict of Laws, § 383. (c) 32 L. J. Oh. 249 ; 1 H. & M. 195. 176 FOREIGN AND DOMESTIC LAW. Part II. bill to enforce their rights, and Lord Hatherley refused to Pbopebty. j.g(,ogjjige tiie judgment and order of the Louisiana Court, Cap. VII. under which the ship had been sold, as being directly Valid transfer contrary to the comity of nations. It is to be remarked by the lex ^jj^t in this particular case the transfer by way of mort- gage had been completed long before the ship came within the Louisiana jurisdiction, and Lord Hatherley said that, in his opinion, the American Court was bound to have recognised the principle that a title which a man has- legally acquired in one country shall be a good title to him all over the world ; further citing with approval the language of an American judge in another case : " If, therefore, according to the lex loci contractus, that of the domicil of both parties, the sale transfers the property without delivery, it does so eo instanti, or not at all. If two persons in any country choose to bargain as to the property which one of them has in a chattel not within the jurisdiction of the place, they cannot expect that the rights of persons in the country in which the chattel is will there be permitted to be affected ; but if the chattel be at sea or in any other place, if any there be, in which the law of no particular country prevails, the bargain will have its full effect eo instanti as to the whole world, and the circumstance of the chattel being afterwards brought into a country, according to the laws of which the sale would be invalid, would not affect it " (a). It is to be observed that in Simpson v. Fogo the assignment had been completed before the chattel came within the Louisiana jurisdiction, so that the assumption of the Louisiana Court to pronounce upon its ownership must be regarded as wholly unwarrantable from an English point of view. Had the ship been at New Orleans when the mortgage was effected, the validity of the attempted assignment would have been ^prohibited by the lex loci rei sitrn, and Lord Hatherley's strictures upon the Louisiana judgment (a) Thuret v. Jenkins, 7 Martin, 353. MOVABLE PERSONAL PKOPEETY. 177 would have been uncalled for (a). The decision, however, Part II. P KOPE RT Y in Simpson v. Foffo, cannot now be regarded as an autho- rity for the proposition that a foreign judgment is ex- ^^''- ^^• aminable by an English Court for a mistake in private international law, or even for a violation of the rights of nations. It is established by the decision of the House of Lords in Castrique v. Imrie (h) that the validity of a foreign judgment can be impeached on no such ground?, except only in cases where the foreign Court has wrong- fully assumed a jurisdiction which did not properly belong to it. BlacJcburn, J., in that case, while commenting on Simpson v. Fogio, clearly indicates that the judgment may be supported without impeaching, the general proposition that a foreign judgment cannot be examined for error ia law, domestic or international, except as to the grounds of its jurisdiction ; and if the decision is inconsistent with this theory, it must be regarded as overruled (e). Next, with regard to the validity of a transfer of Transfer valid personal chattels which is only good by the lex loci J'ei tut MfbT Zes sitss, and not supported by the lex domicilii, it appears to domicilii. have been decided by the case of Cammell-v. Sewell(d) that such a transfer is regarded as good and sufficient by Eng- lish law. In that case a cargo of timber which had been wrecked on the coast of Norway was sold there by the captain of the vessel, improperly according to English law, but under such circumstances as to convey a good title to a lona fide purchaser according to the law of Norway. The timber having been re-sold and brought to England, the English merchant brought trover for it, and it was decided (Byles, J., dissentiente) that the action could not be maintained. In pronouncing the judgment of the majority of the Court, Crompton, J., said, after stating the effect of the Norwegian law on the question: "It does not appear to us that there is anything so barbarous or monstrous in this state of the law that we can say that it should not be (a) Liverpool Marine Co. v. Hunter, L. E. 3 Ch. 481. (6) L. K. 4 H. L. 414. (c) Infra, Chap. XI. id) 27 L. J. Ex. 447 ; 3 H. & N. 617 ; S.C. on appeal, 29 L. J. Ex. 350. 178 FOREIGN AND DOMESTIC LAW. Part 11. recognised by us. Our own law as to market overt is Pb opebt y. analogous .... Many cases were mentioned in the course Cap. vn. of the argument, and more might be collected, in which it would seem hard that the goods of foreigners should be dealt with according to the laws of our own or of other countries. Among others, our laws 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 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 be changed by being taken by the new owner into the foreigner's own country. We think that the law on this subject was correctly stated by the Lord Chief Baron (a) in the course of the argument in the Court below, where he says, ' 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 ;' and we do not think that it makes any difference that the goods were wrecked, and were 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 landlord's right of distress, because the owners did not foresee that they would come to England " (6). The case of " The Segredo " (e), which was relied upon in the argument in Camrmll v. Sewell as an authority for the plaintiff's con- tention, was referred to with disapprobation in the course of the judgment just quoted from, and the Court said that if Dr. Lushington's judgment in that case was relied on as an authority that the effect of a law of a foreign country, as to the passing of property in a foreign country, was to be disregarded, they were prepared, sitting as a Court of error, to dissent from it. So, it seems that the Dutch law as to market overt might have had the effect of passing the property in a cargo sold in the Cape of (a) 27 L. J. Ex. 447. (6) 29 L. J. Ex. 353. (c) Otherwise " Elisin Cornish," 1 Spinks, Eeel. & Adra. 36. MOVABLE PERSONAL PEOPEETY. 179 Good Hope, when the law of Holland prevailed there, if PaktII. the circumstances of the knowledge of the transaction " " °'''™^ ^' had not taken the case out of the provisions of such Cap. VII. law (a). In the " Gratitudine" (6), speaking of the circumstances under which the captain of a ship might exercise his judgment as to the sale of a cargo in emer- gencies, Lord Stowell said, " If the master acts unwisely in that decision, still the foreign purchaser will be safe under his acts." The general principle thus laid down, that if personal Doctrine of property is disposed of in a manner binding according to g^^ ^' the law of the country where it is, that disposition is binding everywhere, came under the notice of the House of Lords in the more recent case of Gastrique v, Imrie (c). That case was decided on the principle of the validity of a foreign judgment in rem, which, in the words of Black- burn, J., in that case, is in truth but a branch of the more general principle which is enunciated in CammeU v. Sewell ; and it was not there necessary to resort to any such larger principle, or to inquire what qualifications, if any, ought to be attached to it as a general rule. Never- theless Blackburn, J,, intimated his opinion that the general principle of the validity of a transfer made according to the lex loci rd sitse was correct, though no doubt it might be open to exceptions and qualifica- tions {d). It would be difficult, perhaps, to name a general principle of which the same might not be said ; and the opinion of Keating, J., in the same case, was avowedly and entirely based on the decision in GammeU V. Sewell, and the principles to be drawn from it. The principle of GammeU v. Sewell is entirely consistent with the decision in Hooper v. Gumm (e), on appeal from the judgment of Wood, V.O. There certain ship-builders in America had built several ships, mortgaged them there, sent them to England for sale, sold them there, and paid (o) Freeman v. M. I. Co., 5 B. & Aid. 617, explained by Crompton, J., in CammeU v. Sewell, 29 L. J. Ex. 363. (6) 3 Eob. Adm. Sep. 258. (c) L. E. 4 H. L. 414. Id) Gastrique v. Imrie, L. E. 4 H. L. 429. (e) L. E. 2 Ch. 282. N 2 180 FOREIGN AND DOMESTIC LAW. ipabtII. the mortgagees in America. The mortgages were duly Fbofebty. j.ggjg|.gyg^ ^ America ; but notice of the mortgage being Cap. VIL indorsed on the certificate of registry, and having in one case impeded the sale, it was agreed that no such notice should be indorsed in future. Another ship was accord- ingly sent over and sold, no notice of the American mort- gage being indorsed on her certificate of registry, and the American ship-builders having failed after receiving the money, the mortgagee filed his bill against the purchaser. He failed eventually, on the ground that he had so acted as to suppress the mortgage, and make the ship-builders his agents for the sale, but the language of Turner, L.J., is important with reference to the validity of the sale itself. " In my opinion the law of this country ought to govern the decision of the case ; for the purchase of the ship, on which the rights of the question depend, was made and completed in this country. In saying this, however, I must not be understood to mean that the shipping law of America is not to be regarded in deciding the case ; on the contrary, I think that great regard must be paid to it. In order to determine what the rights of these parties now are, it must be ascertained what their rights were at the time when the purchase in question was made, and in order to ascertain this, resort must be had to the American shipping law. The rights of the parties stood upon that law at the time when this purchase was made, and I apprehend that where rights are acquired under the laws of foreign States, the law of this country recognises and gives effect to those rights, unless it is contrary to the law and policy of this country to do so." It will be seen from the facts in Simpson v. Foffo (a), that the American Courts are not equally ready to recognise the rights of property which the laws of foreign States have conferred ; but it is plain from the above citation, that in Hooper v. Gvmm the validity of the sale in England was referred to the English law alone, and the fact that English law in that case was unusually ready to guide itself by the rules (a) IJ. & H. 18 ; 1 H. & M. 195. MOVABLE PERSONAL PEOPEET¥. 181 of foreign jurisprudence does not affect the principle. So Pabt II. in Gastrique v. Imrie, already referred to, where a sale ko™ty. had been decreed under the judgment of a French Court, Cap. Vll. it was said that even if the English tribunal could review the foreign judgment, the sale in France, made under it, would remain valid, and the title of the purchaser be pro- tected (a). The decisions in the cases just cited do not in them- Transfer of selves go beyond the question of the validity of a transfer govemed'by'''^ of the property in personal chattels ; but cases may easily lex situs. arise where the complete property in a chattel is not in- tended to pass, but a mere lien or possessory right con- ferred, and it would seem that the creation of such a lien is in like manner subject to the lex loci r^i sitas. In the case of Harmer v. Bell {The Bold Buecleugh) (6) it was held that the lien, which attaches by English law on a ship which causes damage by collision, travels with the vessel into whatever jurisdiction and into whosesoever possession it may pass, and when carried into effect by a proceeding in rem, relates back to the period when it first attached. The principle of this case, where the lien so created was held to prevail against a subsequent bond fide purchaser without notice, would logicaUy demand the recognition of a lien created in another jurisdiction, and by a law different from that of the Court which was called upon to enforce it, but as the collision happened in English waters, no conflict of law arose. In the much older case of Inglis v. Usherwood (c), a lien created by Eussian law on a chattel then within its jurisdiction, which the English law would not have conferred, was recognised by the Court, but here again there was no real conflict of law, as the contract out of which the trans- action arose was entered into by correspondence between merchants in London and St. Petersburg, and the vessel was chartered by the English consignee, so that the lex (a) L. K. 4 H. L. 414. (6) 7 Moo. P. C. 267. The dictum in The Volant, 1 W. Eob. Adm. 387, that damage by collision gives no lien upon the ship in fault, is overruled, (c) 1 East, 515. 182 FOEBIGN AND DOMESTIC LAW. Pabt II. loci contractus, as far at least as the rights of the Russian Pbopebty. j^gj.j,ijg^Qt ^1^0 sought to enforce his lien were concerned, Cap. vn. ^as the same as the lex locirei sitse. The plaintiff was the assignee of a bankrupt who had commissioned a Russian merchant tO purchase certain goods for him and ship them on board a vessel of which the defendant was the captain, chartered by the bankrupt. The goods were shipped, but the shipper hearing of the consignee's bankruptcy, exer- cised the right of lien given him by the Russian law under such circumstances, and the action was against the captain of the ship for delivering up the cargo to his order. Thus ■whether the Russian law was accepted as conclusive be- cause it was that of the place where the vendor had bound himself to perform his contract {a), or that of the place where the purchaser had concluded the contract by his agent (h), or for the reason just stated, that the goods were within its jurisdiction when it assumed to create the lien in question, was immaterial to the decision, which was, however, clearly put on the last mentioned ground. SVMMABr. ALIENATION OF MOVABLE PEKSONAL PEOPEETY BY TEANSFEK INTBB VIVOS. pp. 175-180. When alienation of movable personal property is effected by transfer inter vivos, the law regards not so much the person and domicil of the owner, as the act or transfer by which the transfer is effected, and the situation, in fact, of the property transferred. p. 176. If the property transferred, and the parties to the transfer, are all within the same jurisdiction, the transfer, according to the law of that jurisdiction, will confer a good title valid everywhere, under the dominion of what- ever law the property afterwards passes. (a) Lehel v. Tucker, L. E. 3 Q. B. 77 ; Trimhey v. Vignier, 1 Bing. N! 0. 151. (b) Fattisonv. Mills, 1 Dow & 01. 342 ; Albion Insurance Co. v. MiUs, 3 Wils. & S. 233. MOVABLE PEESONAL PEOPEBTY. 183 But sucli a title will not be conferred if the property, Part II. Property at the moment of the transfer, be within another juris- diction, by the law of which the attempted transfer is Oap. vil. invalid or imperfect. If the transfer be valid according to the law of the pp. 177-181. place where the property is in fact situate, the title con- ferred by it should be recognised as good everywhere, though imperfect by the law of the former owner's domicil, and though the property be afterwards brought within the dominion of that law. The creation of a lien upon movable personal property P- 181. is similarly referred to the law of the place where the property was in fact situate at the time when the lien was created. (iii.) Succession to Movable Personal Property. (a.) Disposition of Movable Personal Property hy Will. — Movable It is now universally received, both in England and governed by America, as a maxim of private international jurisprudence, '^* domicilii. that wills of movable personal property are in all cases governed by the lex domicilii of the testator (a) ; and the law was clearly stated by Lord Westbury in Enohin v. Wylie. " It is now put beyond all possibility of question that the administration of the estate of a deceased person belongs to the Court of the country where the deceased was domiciled at his death. All questions of testacy and intestacy belong to the judge of the domicil. To the Court of the domicil belongs the interpretation and con- struction of the will of the testator. To determine who are the next of kin or heirs of the personal estate of the testator is the prerogative of the judge of the domicil. In short, the Court of the domicil is the forum concursus, to which the legatees under the will of a testator, or the (a) Potter v. Brown, 5 Bast, 130; Sill v. Worsmcle, 1 H. Bl. 690; Price V. VewTiurst, 4 My. & Or. 76 ; De Bonneval v. De Bonneval, 1 Ourt. 856 ; Dolphin V. Robins, 1 Sw. & Tr. 37 ; De Zichy Ferraris v. Hertford, 3 Curt. 468 ; EnoUn v. WyUe, 10 H. L. 0. 1. 184 FOEEIGN AND fiOMESTIC LAW. Pabt II. parties entitled to distribution of the estate of an intes- Pboperty. ^^^g^ ^j,g rgquired to resort " (a). Cap. VII. The clearness with which it is here stated that the Change of domicil referred to is the domicil of the testator at the be^een dat *^"'® °^ ^^^ death is especially worthy of remark ; since it of wUl and js obvious that a conflict may often arise between that ^^^^^' law and the law of his domicil at the time the will was made. According to the continental view, the validity of a will is tested either by the law of the domicil or by the law of the place where it was executed, following the maxim locus regit actum, and a change of domicil after execution of the will and before death is therefore imma- terial, since the latter principle will support its validity if the first fails (6). But the maxim locus regit actum tas obtained no recognition in English law, and by the law of domicil is meant, unquestionably, the domicil at the time of the testator's death (c), as Lord Westbury distinctly states, in the jut^gment just quoted from. English Courts will therefore assume no jurisdiction unless the domicil at the time of the death be English : i.e., unless the change, if any, has been from a foreign to an English domicil. A question then arises as to the validity of wills made under the law of the first domicil, but insufficient according to English law> At common law, there is no doubt that such wills would be invalid (d), and it would seem that this is still the law as to the wills of foreigners domiciled at the time of their death in England. But it is now unne- cessary to consider whether a testator, being a British subject, has changed his domicil since making his will (e), since as regards • British subjects, it was eaacted by Lord 24 & 25 Vict. Kingsdown's Act (24 & 25 Vict. c. 114), first, that any will of personal estate made out of the United Kingdom by a British subject, wherever domiciled at the time of (a) 10 H. L. C. 13 ; Preston v. Melville, 8 01. & F. 1. {h) Weatlake, § 326. (c) Bremer v. Freeman, 10 Moo. P. 0. 312 ; Collier v. Bivaz, 2 Ouit. 855. (d) Per Lord Penzance in In honis Beid, L. K. 1 P. & D. 74. (e) In re Eippon, 32 L. J. P. & M. 141 ; In Jjoais Beid, L. E. 1 P. & D. 74. MOVABLE PERSONAL PROPERTY. 185 making or of death, should be admitted to probate as Part il. valid, if it was executed in compliance with the forms prescribed either by the lex loci actus, the lex domieilii at Cap. "VII- the time of its execution, or the lex domicilii originis of the testator. Secondly, that any will of personal estate made within the United Kingdom by a British subject, whatever his domicil at either time, should be admitted to probate as valid, if it was executed in compliance with the forms required by the laws for the time being in force in that part of the kingdom where it was made (s. 2). And, thirdly, that no will or other testamentary instrument should be held to be revoked or to have become invalid, nor should the construction thereof be altered by reason of any subsequent change of domicil of the person making the same (s. 3). But it has been held that a will and re- vocation, executed according to the testator's domicil at the time of his death, revokes altogether a will made under a former English domicil, with the appointment of exe- cutors contained in it, if the intention that it should have that effect is apparent (a). This last section is not in terms confined to the wills of British subjects, but, having regard to the title of the Act (" An Act to amend the law with respect to wills of personal estate made by British subjects "), it is difficult to see how it could be extended to the wills of foreigners who should have ac- quired a British domicil between the time of making their will and that of their death. Assuming that the section cannot be so extended, the validity of such a will would have to be decided upon its compliance or non-compliance with the requirements of English law, and the fact that it was valid by the law of the testator's domicil at the time of making woTild be immaterial. With regard to the alternative tests of validity offered by the first two sections, it was decided by Lord Penzance (b) that only one can be adopted in each case, and that it is not compe- tent for those who seek to set up a testamentary paper to (o) Cottrell V. CottreU, L. E. 2 P. & D. 400. (6) Pechell v. Bilderley, L. E. 1 P. & D. 673. 186 POEEIGN AND DOMESTIC LAW. Part II. Pkopertt. Cap. Vn. Capacity of testator — depends on lex domieilii. endeavour to secure the advantages of two conflicting jurisdictions. The privileges conferred by the Act attach to British subjects by naturalization (under 7 & 8 Vict. c. 66) as if they had been so by birth (a). As to the possible effect of marriage in England after the acqui- sition of an English domicil upon the validity of a will previously made, having regard to the provisions of the 3rd section : see In the Goods of Beid (b). And where the testator, being a naturalized Englishman, whose domicil was not ascertained, but appeared to be French, made in France a will and codicils in English form, and a holograph will confirming them in French form, it was held that all were valid under s. 1 of the Act, it being proved that the French law permitted foreigners in France to make their will according to the forms required by the law of their nationality; so that the French will was good directly, and the English will and codicils indirectly, by the lex loci actus (c). The general rule that the law of the domicil governs testamentary dispositions of personalty applies to capacity ; for although it has already been shewn {d) that the law of England regards the law of the place where an act is done, or a contract entered into, as the proper one to decide all questions of minority or majority, capacity or incapacity, this general rule does not apply to the execution of wills. It will be obvious that this is the natural consequence of the principle which prevents English Courts from assum- ing jurisdiction in respect of the will of a testator domi- ciled abroad, though the will may have been made in England. Of contracts and other acts to which the principle of domicil does not apply, the English Court assumes jurisdiction as being the forum loci actus, and decides questions of capacity by its own law as incidental to its jurisdiction. Where no act is done by the person whose capacity is in question to make the English Court (a) In the Goods of Gaily, L. K. 1 P. D. 438. (5) L. K. 1 P. & D. 74. (c) In the Goods of Lacroix, L. R. 2 P. D. 95. (d) Supra, p. 31. MOVABLE PERSONAL PEOPEETY. 187 the proper forum, the English law will not dispute the Paet li. decision as to capacity of the lex domicilii (a). With regard to forms and solemnities, the question of ^^^- ^^^- the proper law by which wills of personalty should be Forms of wills tested was for some time left undecided, it having been ° ™°^* ®^' thought at one period that there was a difference between the will of an English subject domiciled abroad and that of a foreigner similarly situated; and it was held in several cases that compliance with the English forms by an English subject was sufficient (6) and necessary (e). But this distinction was exploded, and the principle of referring to the decision of the lex domicilii, and of the lex domicilii alone, firmly established by subsequent deci- sions (d). The alteration made in the English law on this subject by Lord Kingsdown's Act (24 & 25 Vict. c. 114) has been already pointed out. Further, by the law of the testator's domicil is meant Change of hx not only the law of his domicil at the time of his death, f^^^^^ ^^^^"^ but the law at the time of Ms death of his domicil at the time of his death. In Lynch v. Provisional Government of Paraguay (e), a domiciled Paraguayan died in Paraguay, leaving personal property in England. After his death all his property wherever situate became by a change in Paraguayan law the property of the nation of Paraguay, and his will became by the same law absolutely invalid. It was held, however, that the legatee under the will of the property in England was entitled to probate here notwith- standing, and that no retrospective operation could be attributed to the Paraguayan decree. " The question is," said Lord Penzance, " in what sense does the English law adopt the law of the domicil ? Does it adopt the law of the domicil as it stands at the time of the death, or does it (a) Story, Conflict of Laws, § 103 ; Westlake, Priv. Int. Law, § 401 ; Be SelUnann's Will, L. E. 2 Eq. 363. (ft) Btuihees of Kingston's Case, cited 2 Addams. 21. (c) Curling v. Thornton, 2 Addams. 21. (d) Stanley v. Bernes, 3 Hagg. Bocl. 373 ; Moore v, Darell, 4 Hagg. Ecol. 346 ; Price v. Dewhurit, 4 My. & Or. 76 ; Be Zichy Ferraris v. Hertford, 4 Moo. P. C. 339 ; Laneuville v. Anderson, 2 Sw. & Tr. 24. (e) L. E. 2 P. & D. 268. 188 FOREIGN AND DOMESTIC LAW. Part II. Undertake to adopt and give effect to all retrospective BOPEBTT. gj^^jjgjgg ^jja^t ^jjg legislative authority of the foreign country Cap. VII. may make in that law ? No authority has been cited for this latter proposition, and in principle it appears both inconvenient and unjust. Inconvenient, for letters of ad- ministration or probate might be granted in this country which this Court might afterwards be called upon, in con- formity with the change of law in the foreign country, to revoke. Unjust, because those entitled to the succession might, before any change, have acted directly or indirectly upon the existing state of things, and find their interests seriously compromised by the altered law. As, therefore, I can find no warrant in authority or principle for a more extended proposition, I must hold myself limited to the adoption and application of this proposition, tbat the law of the place of domicil as it existed at the time of the death ought to regulate the succession to the deceased in this case." The rule which refers all questions of the validity of a will to the law of the testator's domicil applies not only to the formal requisites of execution, but to all objec- tions which could be raised in the Court of the domicil. Where the will of the testatrix had been duly proved in Jersey, where she was domiciled, it was not allowed to be impeached in the Court of Probate here on the ground that the testatrix was of unsound mind or that it was obtained by undue influence (a). Testamentary Where a power of appointment by will to personalty appohitment ^^^ been given under English law, and a will is made in by will • pursuance of the power appointing to personalty situate in England, in conformity with the English law, but not with the law of the testator's domicil, the English Court of Pro- bate, according to the latest decisions, will accept the will and grant probate of it (6). The question, however, can hardly be said to be in a satisfactory condition. According to Tatnall v. Hankey (c), it is the English Court of Probate (a) Miller v. James, L. E. 3 P. & D. 4. (6) In the Goods of Eallyhurton, L. E. 1 P. & D. 90 ; In the Goods of Alexander, 29 L. J. P. & M. 93. (o) 2 Moo. P. C. 342. MOVABLE PERSONAL PEOPEETY. 189 which in such a case must pronounce upon the testa- PabtII. mentary character of the alleged will. It does not clearly appear by what law it is to guide itself in so doing, though Cap, yh. Story (a), and apparently Westlake (h), assumes that by what law English law is meant. Lord Penzance, however, appeared ° ^ "^ ^ • to consider that according to this case, and the later one of Barnes t. Vincent (e), it was the duty of the Court to inquire, where the English law was applicable, whether the will was executed according to the Wills Act, and where the law of a foreign country was applicable, whether it was executed according to the law of the domicil or foreign country {d). The cases cited appear to be direct authorities that the terms of the power in such cases are not to be looked at by the English Court of Probate, and so Lord Penzance! considered them, but nevertheless felt himself compelled, on the later authority of Sir C. Cresswell in the case of In the Goods of Alexander (e), to come to a decision directly opposed to them, expressing at the same time a preference for the rule of the law of the domicil in such cases, which had been previously approved of by Sir C. Cresswell himself in the case of Croohenden v. Fuller (/). Probate will therefore be granted in such cases if the will be executed in conformity with the power, without refer- ence to the requirements of the law of the testator's domicil. As to the effect of such grant of probate, Mr. Far well says in his note to TatnaU v. Hanhey that it would conclude anyone from objecting in the Court of Chancery that the instrument proved was not the will of the testator, citing D'Huart v. Harkness (34 B. 324), Dolphin V. Bohins (7 H. L. C. 390), and calling attention to tlie effect of Lord Kingsdown's Act upon such cases for the future. In the case of In the Goods of Hallyburton, the will having been made in Scotland according to the English form, and being invalid by the Scotch law, which (a) Conflict of Laws, § 473 a. (6) Priv. Int. Law, § 327. (c) 5 Moo. P. C. 201. (d) In the Goods of BallybuHon, L. R. 1 P. & D. p. 93. (e) 29 L. J. P. & M. 93. (/) 29 L. J. P. & M. 1 ; 1 Sw. & Tr. 454. 190 FOEEIGN AND DOMESTIC LAW. Part II. was that of the domicil of the testatrix, was not affected by ■ the second section of Lord Kingsdown's Act (24 & 25 Vict. Cap. VII. Q^ 214, 8. 2). According to D'Huart v. Harhness (a) a power given by will to appoint to personalty "by a will duly executed " is well exercised by a will good according to the law of the country of the testator's domicil, though ill executed according to the law of the country where the personalty is situated, and where the original testator was domiciled. Probate had been granted in England to the will which purported to appoint. Lord Bomilly said in that case " The power must be exercised by a will valid according to the law of England ; but the law of England admits the validity of two classes of wills, namely, wills executed in accordance with the English statute, and wills of persons domiciled abroad executed according to the law of their domicil ; and wills of the latter class effectually dispose of personal property in England. The cases which have been cited decide that such powers as these may be executed by wills of the former class, although the testa- tor dies domiciled abroad, but there is no decision that they may not also be exercised by wills of the latter class. On the contrary, the law takes a broad view, and allows the execution of such powers by a will which is executed in conformity either with the law of England or with the law of the testator's domicil " (b). The cases cited to which Lord Eomilly referred were Taindll v. EanJcey and In the Goods of Alexcmder (c), and his view of the law as there laid down has been since confirmed, as already mentioned, by Lord Penzance in In the Goods of Hallyhurton (d) ; but Lord Penzance's criticisms on the principle he felt com- pelled to follow would detract from the weight of the authority in a Court of Appeal. Where an instrument was executed purporting to be in exercise of a power of appointment by will, and the Ecclesiastical Court, in 1834, determined that it was a valid will, and admitted it to pro- Co) 34 L. J. Ch. 311. (6) B'Huart v. Hwrkness, 34 L. J. Ch. 311, 313. (c) 2 Moo. P. C. 342 ; 29 L. J. P. & M. 93. id) L. R. 1 P. & D. 90. MOVABLE PEESONAL PEOPERTT. 191 bate, Sir Jolm Leacli, in a suit in Chancery involving the Pabt il. "Propbiitt same question, though not strictly between the same parties, held that the validity of the instrument as a will Cap. VIl. could not be contested (a). The judgment recognised was of course the judgment of a Court created by the same sovereign jurisdiction ; but the principles of international law would seem to require a similar recognition, at any rate in suits between parties or privies, if the tribunal which pronounced upon the will had been a foreign Court, in the country where the deceased was domiciled (6). As to the interpretation and construction of wills of per- ConBtruotion sonal estate, there is no doubt at all but that the law of movables. the domicil speaks alone (c), unless there is sufficient on the face of the will to shew a different intention in the testator, and this not only in the forum domicilii but wherever such questions arise {d). In Enohin v. Wylie, Lord Westbury says, " All questions of testacy and intes- tacy belong to the judge of the domicil. To the Court of the domicil belongs the interpretation and construction of the will of the testator " (e). Where a testator domiciled in England devised personalty in trust for A. for life, remainder to his children at the age of twenty-one, and A. acquired a French domicil, and became the father of a daughter legitimate by French but not by English law, it was held by Lord Hatherley that the word " children " was to be construed according to the law of England, and that A.'s daughter took nothing under the will (/). In his judgment Lord Hatherley said, "The will must be construed according to the law of the testator's domicil. That is a proposition for which I need refer to no autho- rities .... When the testator speaks of the children of his nephew, he does so simplidter, and he must mean such (a) Douglas v. Cooper, 3 My. & K. 378. (b) See infra, Chap. XI. (c) Yates v. Thompson, 3 CI. & F. ; Enohin v. Wylie, 10 H. L. C. 1 ; Anstruther v. Chalmer, 2 Sim. 1. (d) Trotter v. Trotter, 4 BHgh. N. S. 502 ; 3 Wils. & S. 407. (e) 10 H. L. C. 13. (/) Boyes v. Bedale, 1 H. & M. 798; Goodman v. Goodmm, 3 Giff. 643. 192 FOEEIGN AND DOMESTIC LAW. Part II. Peopebtt. Cap. VII. Testator's intention to evade lex domicilii. persons as the law of England would regard as the nephew's children. The testator cannot be assumed to know that there is any other kind of child extant " (a). Be Wright's Trusts (h), which had come before the same judge some years previously, was decided upon a different ground, as it was there held that by neither of the conflict- ing laws — i.e., the law of the domicil of the testator and the law of the domicil of the claimant — was the child legiti- mate, and it was therefore unnecessary to say whether or not the law which was entitled to construe the will was paramount. In Anstruther v. Chalmer (e), a Scotch lady died domiciled in England, having made a will in the Scotch form whilst on a visit to Scotland. The universal legatee having died in the lifetime of the testatrix, his representative became entitled by Scotch law. It was held however that the law of England must govern the construction, and that the gift consequently lapsed. Simi- larly technical expressions or words of quantity or value in a will are to be interpreted as they would be in the Courts of the testator's domicil. The cases on this part of the subject are so fully discussed in Story, that it is unne- cessary to do more than refer to them here (d). As the law of the testator's domicil, when left to itself, will decide all questions connected with the construction and effect of his will that were not expressly contem- plated, so any attempt by the testator himself to evade the provisions of that law will be futile. Thus, in Hog v. Lashley (e), it was held that though the personalty referred (a) So in Skottowe v. Yowng, L. K. 11 Eq. 474, the children of a testator domiciled in France, who had been legitimated per siibsequens matrimo- nivm according to French law, were held liable to pay legacy duty only at the rate fixed by the Legacy Duty Acts for legitimate children. (b) 2 K. & J. 595. (c) 2 Sim. 1 ; see Yates v. Thompson, 3 01. & F. 544, 569 ; Ommaney v. Bingham, 3 Hagg. Eocl. 414, n. (d) Pierson v. Garnett, 2 Bro. Oh. 38 ; Malcolm v. Martin, 3 Bro. Oh. 50 ; Saunders t. DraTie, 2 Atk. 465; Wallis v. BrightweU, 2 P. Wms. 88; Lansdovm v. Lansdovm, 2 Bligh. 60 ; Laneuville v. Anderson, 2 Sw. & Tr. 24 ; Stewart v. Garnett, 3 Sim. 398. As to the practice of the Court of Chancery in ignoring the rate of exchange, see Gockerell v. Barber, 16 Ves. 461 ; Campbell v. Graham, 1 Kuss. & My. 453. (e) 6 Bro. P. 0. 577; 3 Hagg. Eocl. 415. MOVABLE PERSONAL PEOPEKTT. 193 to by the will was locally situate in England, a Scotch tes- Pabt II. tator could not exclude his children from the legitim or ''^"'^ ^' share in it given imperatively by the Scotch law. Simi- Cap. VIL larly, in Ommaney v. Bingham (a), the law of the tes- tator's domicil was referred to in order to decide whether or not a condition in restraint of marriage, with a bequest over, was void. A question has often arisen as to what wills are entitled Foreign wills, to probate in the English Court, and it appears to be now ^ probate. ^ settled that a will disposing solely of property situate abroad will not be admitted to probate here, unless it is incorporated by reference in another will entitled to probate on its own account, as disposing of property within this jurisdiction (6). Unless so incorporated, it is not entitled to probate here (e). But it seems that a mere mention in the English will of an intention to ratify and confirm the foreign one will be sufficient to incor- porate it, so as to entitle it to probate {d). And where a testator expressed a distinct intention, in a will dis- posing of British property, that it should be regarded as independent of and disconnected from his general will, which disposed of other property in America at much greater length, Sir J. Hannen allowed the English will to be admitted to probate alone, an authenticated copy of the American will and codicils being ordered to be filed in the registry, and a note of such filing appended to the English probate (e). A foreign grant of probate granted by the competent Foreign grant Court, i.e., the Court of the domicil of the deceased, will be foifowed by followed by the English Court of Probate when application English is made for a grant of probate or administration with the will annexed here (/). In the case of In the Goods of Earl (/) the person who had obtained probate as executrix (a) 5 Ves. 757 ; 3 Hagg. Bccl. 414. (6) In the Goods of Lord Howden, 43 L. J. P. & M. 27. (c) Ire the Goods of Good, L. E. 1 P. & D. 449. (d) In the Goods of Harris, L. K. 2 P. & D. 83 ; 39 L. J. P. & M. 48 ; In the Goods of Be la Sauesaye, L. K. 3 P. & D. 43 ; 42 L. J. P. & M. 47. (e) In the Goods of Astor, L. K. 1 P. D. 150. (/) In the Goods of Earl, L. E. 1 P. & D. 450; In the Goods of Hill, L. E. 2 P. & D. 89 ; infra, p. 200. O 194 FOREIGN AND DOMESTIC LAW. Part II. from tte Court of the domicil in New South Wales was not rBOPEBTY. gjj^i^jg^ tQ the grant here, but the Court granted her ad- Oap. VII. ministration with the will annexed, under the discretionary power conferred upon it by 20 & 21 Vict c. 77, s. 73. Lord Penzance, in reyiewing the previous decisions on the subject, said, "The result of the cases (a) is that in the Prerogative Court the tendency was to follow the foreign grant where it could be done, but there was a reluctance to lay down any general rule on the matter ; while the de- cisions in the Court of Probate have militated against the rule of following the foreign grant." Lord Penzance, after having referred to the dicta of Lord Westbury on the subject in Enohin v. Wylie (6), proceeded to say that he thought the Court ought to act upon the special power given to it by 20 & 21 Vict. c. 77, s. 73, and make a grant in all such cases to the person who had been clothed by the Court of the country of domicil with the power and duty of administering the estate, no matter who he was or on what ground he had been clothed with that power. The same principle was adopted in the case of In the Goods of Hill (e), where administration de bonis had been granted in America to those who applied for a similar grant here, the testatrix having died domiciled in America, and there being personal estate unadministered in this country. Succession to (b.) Succession to Movahle Personal Property hy operation ^ntettat^ o/ Lww. — It will have been already gathered from what governed by tas been said as to the law which governs the disposition, of personal chattels by will, that the same principle of the hx domicilii applies to succession to personal chattels ah intestato. The words of Lord Westbury, cited above {d), in Enohin v. Wylie (e), are as applicable to cases of suc- cession ah intestato as to those of testacy. " It is now put (a) Larpent v. Sind/ry, 1 Hagg. Bocl. 383 ; In the Ooodi of Bead, 1 Hagg. Eccl. 476; Countess IfAcwnha's Case, 1 Hagg. Eccl. 237; Duehess of Orleans Case, 1 Sw. & Tr. 253 ; 28 L, J. P. & M. 129 ; Viesca v. D' Aram- hum, 2 Curt. 280 ; In the Goods of Stewaa-t, 1 Curt. 904 i In the Goods of Mogerson, 2 Ourt. 656. (6) 10 H. L. C. 115. (c) L. B. 2 P. & D. 89 ; so In the Goods of Smith, 16 W. K. 1130. (d) Supra, p. 183. (e) 10 H. L. 0. 13. MOVABLE PEESONAL PROPEETY. 195 beyond all possibility of question that the administration Part II. of the estate of a deceased person belongs to the Court sotbett. of the country where the deceased was domiciled at the O^?- ^^• time of his death. All questions of testacy and intestacy belong to the judge of the domicil. To determine who are the next of kin or heirs of the personal estate of the testator is the prerogative of the judge of the domicil. In short, the Court of the domicil is the forum conewrsus, to which the legatees under the will of a testator, or the parties entitled to distribution of the estate of an intes- tate, are required to resort." The result of the cases previous to 1801 was stated in that year by Sir R. Arden, M.E., as being to the same effect. " The first rule is, that the succession to the personal estate of an intestate is to be regulated by the law of the country of which he was a domiciled inhabitant at the time of his death ; without any regard whatsoever to the place either of the birth or the death, or the situation of the property at that time " (a). Thus, it is clear that fhe law of the domicil is Persona the proper law to decide who are the persons entitled to succeed on administration, or succeed to personal chattels ab intestato. intestacy. In Dofflioni v. Crispin (6) the intestate died domiciled in Portugal, and the Portuguese Court had decided upon the question of his rank in that country, finding that he was a fion or plebeian, to whose succession on intestacy his natural son was entitled to succeed. By this judgment the House of Lords held that the English Courts were bound. So where the Court of the domicil at the time of death grants administration to one who by the law of that country is entitled to the grant, the English Court, in making a grant of administration as to property situate (a) In Somerville v. BomervUle, 5 Ves. 786. Other authorities to the same effect on the general question are : Pipon v. Fipon, Ambl. 25 ; Thome T. WatUns, 2 Vea. 35 ; aUl v. Worswieh, 1 H. Bl. 690 ; Balfour v. Scott, 6 Bro. P. 0. 5.50 ; Sruce v. Bruce, 2 B. & P. 229, n. ; Hunter v. PoUg, i T. E. 182 ; Potter v. Brown, 5 Bast, 130 ; Themton v. Curling, 8 Sim. 310 ; Price v. Dewhunt, 8 Sim. 279 ; and among the more recent cases, Boglioni v. Crispin, L. E. 1 H. L. 301 ; In the Goods of Weaver, 36 L. J. P. & M. 41. (6) L. E. 1 H. L. 301. 2 196 FOREIGN AND DOMESTIC LAW. Part II. in England^ will follow the foreign grant (a). And the Property ^ *-» t-* \ ^ ■ law of the domioil will prevail as to what is sufficient to Cap. YII. constitute kinship ; so that where the intestate died domi- ciled in England, leaving debts and choses in action recoverable in Scotland, the English rule as to kindred by half blood, and not the Scotch, was followed (b). So legitimacy is to be decided by the same law ; and where an intestate dies domiciled in England, no person can share in his personalty, either directly or by representa- tion, who is not legitimate by English law (c). The con- verse case arose in ShoHowe v. Young (d), where the pro- ceeds of land devised by a British subject domiciled in France, on trust to sell and pay the proceeds to his daughters born of a French mother before marriage, but afterwards legitimated according to French law, were held liable to legacy duty at £1 per cent, only, that being the rate fixed by the Legacy Duty Act for legacies to the testator's legitimate children. The distinction between cases of distribution on intestacy, -which are to be governed by the law of the intestate's domicil, and those in which the real question is how far the operation of the lex situs on his real property shall prevail, is well seen in two cases cited by Sir W. Grant in Brodie v. Ba/rry (e). In the first the intestate's domicil was English, and it was accordingly held that the next of kin took his personalty by English law, so that the Scotch heir was not obliged to bring the Scotch realty into hotchpot, in order to claim his share, as the Scotch law would have compelled him to do (/). In the other case, where the domicil was also English, it was held that the personalty was not liable to be called upon to exonerate Scotch real estates from debts to which it alone was liable by Scotch law, although the English law would have imposed such a burden upon (a) In the Goods of Weaver, 36 L. J. P. & M. 41 ; In the Goods of Bill. L. E. 2 P. & D. 89 ; Surr v. Cole, Ambl. 416. (6) Thome v. Watltins, 2 Ves. Sen. 35. (fi) Per Lord Hatherley in Boyes v. Bedale, 1 H. & M. 805. (d) L. R. 11 Eq. 474; see Wallace v. Attorney- General, L. R. 1 Oh. 1 at p. 8. (e) 2 Ves. & B. 131. (/) Balfour v. Scott, 6 Bro. P. C. 550. MOVABLE PEBSONAL PEOPEKTY. 197 English land (a). Obviously this decision does not touch Part II. the claim of the lex domieilii to gorern all questions that " affect the personalty only, and in accordance with this Cap. VH- general principle, it was held in Hog v. Lashley (h) that a Scotch testator could not exclude his children from the legitim or share in his personalty given to them by the Scotch law, though the property was situate in England. In Ommomey v. Bingham (c) it was decided that the law of the testator's doraicil determined whether or not a condition in restraint of marriage with a bequest over was void. These two last cases properly come under the head of succession to personal property by will; but the princi- ples regulating the two branches of the subject are almost identical, and they are virtually authorities for the general principle, that the rights and liabilities of those entitled to succeed to the movable personalty of a deceased person are governed by the law of his domicil. The duties of executors and administrators will be considered immedi- ately. (c.) Bight and Title of the Personal Befresentatf,ve. — Title of Closely connected with the subject of succession to per- eou^OT'orad- sonal chattels either by will or ah intestato, come the ministrator. principles by which these personal chattels are collected and made available for the purposes of succession, after clearing the estate of the deceased from all burdens and claims. In cases where all the personal chattels of the deceased are in one country, and that country the country ' of his domicil, no difficulty arises ; and the personal repre- sentative who is appointed by the domiciliary Court either to execute the will or to administer the estate, as the case may be, tabes possession of all the estate of the deceased by the authority of the Court which appointed him, and deals with it in accordance with the law which that Court enforces. But in many cases it happens that the per- sonal estate of the deceased is not situate in the country of (a) Drummond v. Driimrmmd, 6 Bro. P. 0. 601. (&) 6 Bro. P. C. 577; 3 Hagg. Eocl. 415. (c) 5 Ves. 757 ; 3 Hagg. Bccl. 414. 198 FOEEIGN AND DOMESTIC LAW. Paht II. his domicil, or not wholly so situate ; and it is plain, Peopbrtt. gj.gj,^ ^^^^ g^jjjg ^^.jjgj. authority than that of the Court of Cap. Vir. the domicil is necessary to enable any representative of the deceased to take possession of it j and secondly, that there will be in many cases a conflict of law as to the principles by which he should be guided in dealing with it. Grant of The first general principle which can be laid down on admMstra- t^^ subject is that a foreign grant of probate or letters of tion— no administration is intra-territorial only in its operation, torial effect, and that the title so conferred extends only as of right to personal estate within the jurisdiction of the government which granted it (a). Consequently to entitle .the per- sonal representative of a man who has died abroad to take possession of personal estate here, he must prove the will or take out letters of administration here as well as in the country of the domicil (&). This rule extends to choses in action, it being an established rule (e) that in order to Foreign repre- sue in any court of this country in respect of the personal righfto TOe?° rig^<^s or property of a deceased person, the plaintiff must appear to have obtained probate or letters of administra- tion in the Court of Probate of this country. Thus, where a company is being wound up in an English Court no per- sonal representative of a creditor can establish his debt without an English probate or letters of administration, though the deceased creditor was domiciled abroad (d). Even a stop-order cannot be obtained without complying with this requisite (e). But an English grant of probate or administration properly obtained here is by the English Courts regarded as extending to all the personal property of the deceased, wherever situate at the time of his (a) Story, § 512. (6) Lee v. Moore, Palm. 163; Tourton \. Flower, 3 P. Wms. 369; Vau- thienen v. Yavihiemen, Fitzgib. 204 ; Le Briton v. Le Qaesn,e, 2 Cas. temp. Lee, 261 ; Attorney-General v. Bouwens, 4 M. & W. 193. (o) Williams on Executors, i. 362 ; Attorney- General v. Bouwens, 4 M. & W. 193; Tyler v. BeU, 2 My. & Or. 89; Attorney- General v. Cockerell, 1 Price, 179 ; Whyte v. Bose, 3 Q. B. 507 ; EnoMn v. Wylie, 10 H. L. 0. 19 ; Maomahon v. BawUngs, 16 Sim. 429 ; Carter v. Crofts, Godb. 33. (d) Partington v. Attorney-General, L. E. 4 H. L. 100. (e) Christian v. Devereux, 12 Sim. 264. MOVABLE PERSONAL PROPERTY. 199 ' death (a), at least in such a sense that a representative Part li. duly constituted in England may sue in England in rela- ' ° °'''°"^ ^" tion to foreign assets ; and in a case before Sir J. Nicholl (6), C!ap. VII. where a domiciled Englishman died in France, leaving two testamentary papers relating to personalty there, and the first of them also to personalty and realty in England, his widow was granted administration with both papers annexed, though a doubt was expressed whether and in what sense snch administration extended to the French property. This case was followed by Sir 0. Cresswell in ' In the Goods of Winter (c), but the true rule on the point, as has been already stated, was laid down in the later cases cited above (d) ; and now it ' may be taken that a will disposing solely of property situate abroad will not be admitted to probate here unless it is incorporated by reference in another will entitled to probate here as dis- posing of property within the jurisdiction ; though a mere mention in the English will of an intention to ratify and confirm the other will be sufficient. To support a right of action, however, a grant of representation or probate in England is only necessary where the plaintiff is suing qua personal representative, in the right of the deceased (e). Thus, where a foreign administrator has already obtained a judgment abroad against an English debtor of his intestate, he may prove in England against the estate of that debtor, if since dead, without taking out English administration to his own intestate (/). And in granting probate to the executor Foreign grant of a person who has died domiciled abroad, it is the duty of foifj^ed by the Court of Probate, in accordance with the comity of English nations, to follow the grant (if any) made by the competent Court of the domicil (g). In accordance with this prin- (o) Whyte v. Base, 3 Q. B. 498, 507 ; Soarth v. Bishop of London, 1 Hagg. ■ Ecol. 625. ' (6) Spratt V. Harris, i Hagg. Bool. 403, 409. (c) 30 L. J. P. & M. 56. (d) In the Goods of Lord Sowden, 43 L. J. P. & M. 27 ; In the Goods Of Coode, L. B. 1 P. (Si: D. 449 ; In the Goods of Harris, L. E. 2 P. & D. 88 ; ■ 39 L. J. P. & M. 48 ; In the Goods of De la Saussaye, L. E. 3 P. & D. 43 ; 42 L. J. P. & M. 47. (e) Vanquelin v. Bouard, 15 C. B. N.S. 341. (/) Macnichol v. Macniehol, L. E. 19 Eq. 81. (g) Enohin v. Wylie, 10 H. L. 0. 1, 14 ; ante, p. 193. 200 FOEEIGN AND DOMESTiq LAW. Part ii. ciple, it has been the practice, upon the production of an ■ exemplified or certified copy of the probate granted by Cap, vn. the proper Court of the domicil, for the English Court to make its own grant of probate to the executor who proved there (a). And the doubt expressed as to the expediency of the practice by Sir J, NichoU in Larpent \. Sindry and In the Goods of Bead (b) must now be regarded as set at rest by the judgments of Lord Westbury and Lord Cranworth in Enohin v. Wylie. So where the Court of the domicil has decreed that the time limited by its law for the execution of the executorship has passed, and that the executor has no more right to intermeddle in the estate of the testator as against the persons beneficially interested, the Court held itself bound by such decree, and refused to grant probate as to English personalty to such executor (e). Similarly in granting ancillary administration, the Court will follow a grant already made in the Court of the domicil, and in granting original administration, will guide itself by the law of that Court {d). But in In the Goods of Cosnaham (e). Lord Penzance said that the Court would not follow a foreign grant so as to treat the claimant as executor to the tenor of a will, where he did not appear to it to be entitled to such a grant, but admitted that the foreign grant should be followed so far as to treat the deed as testamentary, and eventually granted the claimant administration with the will annexed under the discretion- ary power given by 20 & 21 Vict. c. 77, s. 73. In a later case, the same judge used language not quite consistent with this decision, saying, "I have before acted on the general principle that where the Court of the country of the domicil of the deceased makes a grant to a party, who (a) In the Goods of Clarke, 36 L. J. P. & M. 72 ; Larpent v. Sindry, 1 Hagg. 382 ; Iritlie Goods of Gringan, 1 Hagg. 549 ; In the Goods of Bioboo, 2 Add. 461; Yiesca y. D'Aramhwrn, 2 Ourt. 277; In the Goods of Hen- derson, 2 Robert. 144 ; In the Goods of Smith, 2 Kobert. 332. (6) 1 Hagg. 474. (c) Laneuville v. Anderson, 2 Sw. & Tr. 24 ; see Crispin v. Doqlioni, 3 Sw. & Tr. 96 ; S.C. L. E. 3 H. L. 301. (d) Williams on Executors, i. 430 ; Enohin v. Wylie, 10 H. L. C. 1, and cases cited in note (a). (e) L. B. 1 P. & D. 183. MOVABLE PERSONAL PROPERTY. 201 then comes to this Court and satisfies it that by the proper Part n. Property authority of his own country, he has been authorized to administer the estate of the deceased, I ought, without Cap. VII. further consideration, to grant power to that person to administer the English assets " (a). In the case of In the Goods of Weaver (6), the principle of following a foreign grant of administration was recog- nised, but the Court refused to extend it so far as to follow a grant made to a nominee of the person entitled, except upon the express consent of the latter, there being nothing to shew that the consent given to the appointment of the nominee, as to the goods in the country of the domicil, was intended to apply also to goods situate here. As to the evidence required by the English Court of the will upon which foreign probate has been granted, a translation of the will proved in the foreign Court should be adduced ; and where the document used in that foreign Court was itself a translation from an English original, a re-translation of that translation is the proper document to produce ; though it is, of course, open to those seeking English probate to claim it on the ground that the will is valid by the law of the foreign domicil, without reference to the foreign decree, in which case the original English will, or a copy of it, should be used (e). In the words of Hannen, J., " If this Court is to give credit to a foreign Court for having duly investigated all the facts of a case upon which it founds its decree, it must also assume that it has satisfied itself of the accuracy of the document upon which it proceeds " (d). Under 24 & 25 Vict. c. 121, when subjects of foreign Statutory States shall die in Her Majesty's dominions, and there ^J°^'^^J^?^jg_ shall be no person to administer their estates, the consuls tratiou by of such foreign Stat es shall administer, and shall be entitled ° ^' to obtain from the proper Court letters of administration (o) In the Goods of Hill, L. E. 2 P. & D. 89. (6) 36 L. J. P. & M. 41. (c) In the Goods of Deshaie and In the Goods of Vigny, 4 Sw. & Tr. 15. (d) In the Goods of Rule, Weekly Notes, Feb. 9, 1878, p. 32. See also In the Goods of Clarice, 86 L. J. P. & M. 72. 202 POKEIGN AND DOMESTIC LAW. Part II. of the effects of such deceased person, limited in such ■ manner and for such time as the Court shall think fit. Cap. VII. These provisions, however, are only to apply to the subjects of such foreign States as shall be specified by order in Council, with whom agreement shall have been made by treaty for securing similar rights to British subjects and British consuls within their dominions. Apart from this statute, the law of this country will not, it seems, recognise the right of a foreign consul to take possession of or administer the property of a foreigner dying here, who is domiciled in his own country, even though none of those otherwise entitled object to the grant (a). When a grant of Foreign ad- administration has been once made, the person who has — cannot ""^^ received it is the person bound to administer the effects transfer their of the deceased within the jurisdiction, and it makes no difference that he may have consented to the appointment of another representative in the Court of the domicil. Thus in Preston v. Mdville (b), the persons named as trustees and executors in the will of a domiciled Scotchman having declined to act, his next of kin obtained letters of administration of his personal estate in England from the proper Court there, and afterwards consented to the appointment, by the Court of Session in Scotland, of other persons as trustees and executors in the place of those named in the will, with all the powers that had been thereby given to them. These trustees so appointed raised an action in the Court of Session against the administra- trix, calling on her to transfer to them the personal estate possessed by her under the administration, and offering her a full release from liability. The House of Lords held that the English administratrix was the proper person to administer the personal estate in England, by virtue of the letters of administration, and that the Scotch Court could give no title to such estate. But if the substituted trustees had been appointed executors in Scotland before (a) Aspinwall v. Qiieen's Proctor, 2 Curt. 241, 247; In the Goods of Wychoff, 3 Sw. & Tr. 20 ; WUliams on Executors, i. 430, n. (6) 8 CI. & F. 1. MOVABLE PEESONAL PROPERTY. 203 the next of kin took out administration in England, and Pabt ii. "P ROPERTT with her consent, there can be little doubt that the English Court would have held them entitled to administration ^^- ^I^- here in preference to her claim as next of kin. Their appointment would then have been sanctioned by the Court of the domicil — the appointment being, of course, the act of the Scotch Court — and the next of kin would have been no longer entitled by the law of the domicil at the time the application was made to the English Court, so that the observations of Lord Cranworth in Mnohin v. Wylie (a) would apply. The grant of administration once having been made, Title of ad- the title of the administrator to all the effects within the ^^wha" lurisdiction becomes complete, and remains though they effects it GxtGnds be carried out of it; unless they come into another juris- diction as unappropriated assets of the deceased. Thus where the widow of an intestate in India took out adminis- tration of his effects there, and remitted the proceeds of those effects in government bills to her agent in England, and a creditor of the intestate, having taken out adminis- tration in this country, brought an action against that agent to recover such proceeds, it was held that no action would lie (6). But in Hervey v. Fitzpatriek (c), Lord Hatherley held that where a foreign administrator had remitted assets to England and come himself after them, he might be sued in a Court of Equity by the next of kin who had taken out English administration, in respect of those assets. The decision, however, was put on the ground that the foreign administrator had transmitted the assets to England for the purpose of their being carried to the account of the estate of the deceased owner, and the Court refused to order the defendant to pay the proceeds of the assets in question into Court. This was in effect the same principle as that adopted by Sir J. Leach in Logan v. Fairlie (d), who says, " If a testator die in India, (a) 10 H. L. C. 1. (6) Currie y. Bircham, 1 Dow & By. 35; Jawncey v. Seeley, 1 Vem. 397. (c) Kay, 421. (d) 2 Sim. & Stu. 284. 204 FOREIGN AND DOMESTIC LAW. Part II. Pbopeety. Cap. VII. Scotch con- firmations. and his personal estate be wholly in India, and his executor be resident there, and the will be proved there, and the executor remit to a legatee in England, I am of opinion that the legacy duty is not payable upon such remittance, inasmuch as the whole estate is administered in India, and the remittance is in respect of a demand, which is to be considered as established there. But if a part of the assets of the testator is found in England, in the hands of the agent of such executor, without any specijio appropriation, and a legatee in England institute a suit here for the pay- ment of his legacy out of such unappropriated assets, then such assets are to he considered as administered in England." And though the decision of Sir J. Leach in this case as to the liability of such assets to legacy duty was subsequently reversed (a), on the authority of Attorney-General v. Jack- son (6), which will be noticed when the rules as to the payment of legacy, succession, and probate duties are discussed, yet the above statement of the law as to specific appropriation of assets by an administrator was quoted with approval by the Court. When, therefore, proceedings are commenced in England as to unappropriated assets within the jurisdiction, administration should be taken out in England, and the administrator made a party to the suit (e). So where it did not even appear that the intestate, who died in India, had at the time of his death assets in England, but a bill was brought here for an account of the assets in the hands of his personal repre- sentative in India, it was held that administration must be taken out in England, and the administrator made a party (d). With regard to the effect of Scotch probates or " con- firmations," as they are called, in England, it is enacted by 21 & 22 Vict. c. 56, s. 12, that when any confirmation of the executor of a person who shall in manner aforesaid be found to have died domiciled in Scotland, which in- (d) Logan v. Fairlie, 2 My. & Or. 59. (6) 2 01. & F. 48. (c) Williams on Executors, i. 361. (d) Tyler v. Bell, 2 My. & Or. 89; Bond v. Graham, 1 Hare, 482: Flood V. Patterson, 29 Boav. 295. MOVABLE PERSONAL PEOPEETT. 205 eludes besides the person^,! estate situate in Scotland also Part II. "P ROPE RT Y personal estate situate in England, shall be produced in the principal Court of Probate in England, and a copy Cap. VII- thereof deposited with the registrar, together with a cer- tified copy of the interlocutor of the commissary, iinding that such deceased person died domiciled in Scotland, such confirmation 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 administration, as the case may be, had been granted by the said Court of Pro- bate. Under this section, when the seal of the English Court has been affixed, the executor has all the powers of an English executor, and may sell and dispose of English leaseholds, although specifically bequeathed, though a Scotch executor cannot deal with leaseholds in Scotland (a). And the enactment incorporates with it 48 Geo. 3, c. 149, so that where additional property is discovered in this country after sealing the confirmation, an additional con- firmation may be issued in Scotland, and the seal of the English Court affixed to that (&). But when one con- firmation has been sealed in England, the Court will not allow its seal to be further affixed to an " eik " or addi- tional confirmation ; and this whether the additional con- firmation include a part of the estate omitted from the . original one or not (e). A similar enactment is made as to Irish probates by 20 & 21 Vict. c. 95. Though it is thus clear that no man has any right to Foreign re- assume title to the assets of a deceased person, except by acttng as'^^ virtue of probate or letters of administration taken out in executor de the country where they are situate, yet a question has sometimes arisen as to what is the position of a foreign personal representative who has done so, and how far payments to him by debtors of the deceased are a good (a) Hood V. BarringUm, L. E. 6 Eq. 218. ' (V) In the Goods of Byde, L. E. 2 P. & D. 86. See also on this section Hawarden v. Dunlop, 2 Sw. & Tr. 340 ; WiUiams on Executors, i. 363. (c) In the Goods of Eutcheson, 32 L. J. P. & A. 167 ; In the Goods of Gordon, 2 Sw. & Tr. 622 ; In the Goods of Wingate, ib. 625. 206 FOKEIGN AND DOMESTIC LAW. Paet n. discharge to them of their liabilities. Such a person 1 ■ intermeddling with English assets would, it is clear, be Cap. VII. regarded as executor de son tort, the commonly accepted definition of such an executor being " he who takes upon himself the office of executor by intrusion, not being so constituted by the deceased, nor, for want of such consti- tution, substituted by the Court to administer " (a) ; and as such an executor has all the liabilities, though none of the privileges, that belong to the character of execu- tor (b), it is clear that he would be liable to actions in the country where the assets were found situate, as the representative of the deceased, at least, as far as the amount of those assets. Unless a foreign personal re- presentative has received English assets, so as to make himself liable in England on this principle, or has taken out administration here, he is of course not liable to be sued, qua representative, in English Courts, however un- limited his foreign liability may be (c). But whatever liability might attach to such an executor de son tort, would his receipt be a good discharge to debtors of the deceased's estate, so as to protect them from any further demand of the same debt at the hands of a representative properly constituted ? It was laid down in Coulter's Case (d) that " all lawful acts which an executor de son tort doth are good ;" and it has been held that alienations of the goods of the deceased by such an executor are in- defeasible (e). These authorities, however, by no means go so far as to sanction the collection of assets by such an executor, or to protect those who have made payments to him without satisfying themselves that he has authority to give them a discharge. Story inclines to the opinion that such discharge would be invalid, on the ground that receiving debts amounts to a collection of assets, which no (o) Godolphm, pt. 2, u. 8, d. 1 ; Wentwortt, Ex. o. 14, p. 320 (ed. 14) ; Swinburne, 4. 23, i. (6) Per Lord Cottenham in Carmichad v. Carmichael, 2 Phill. 101. (e) Beavan v. Lord Mastinge, 2 K. & J. 724. (d) 5 Co. 30 b. (e) Greyshroolc v. Fox, Plowd. 282 ; Parlcer v. Kett, I Eaym. 661 ; S.C. 12 Mod. 471. MOVABLE PEESONAL PKOPEKTT. 207 man is empowered to do except by a grant of probate or Part II. administration in the country where he finds them {a). It is clear that a foreign personal representative would ^^'^- ^^- have no advantage in this respect over a common executor de son tort (h). According to the old case of Daniel v. Lucre (c), a Eelease by release given by an Irish administrator to the Irish obligee BerrtSrve*^"^^' of a bond made in England, and afterwards taken posses- sion of in England by the English administratrix, the intestate having died there, was held to be no answer to an action on the bond in England by the English ad- ministratrix, on the express ground that bonds are hona notabilia in the diocese where they are found at the time of death (d). It is difScult to regard the sitm of such a bond as the real locality of the assets represented by it, in preference to the country where the debtor must be sued, and in Whyte v. Bose (e), where the circumstances of Daniel v. Lucre were reversed, it was held that a grant of administration in the foreign country where the bond was situate was not necessary to entitle an English administrator to sue in England, the debtor having come within the jurisdiction of the Euglish Court. There can be no doubt that if a release had been given by a person who had obtained administration in the foreign country where the bond was honvm notdbile at the time of the death, that release would have been a good answer to a subsequent action by any administrator in any other country, whether that of the domicil or not (/) ; but there is no English authority to shew that where a debtor to the estate of the deceased has paid a personal representa- tive who could not have enforced the claim against him (a) story, § 514 ; Preston v. Melmlle, 8 01. & F. 1, 12 ; Attorney-General V. Beuwens, i M. & W. 71. (6) Partington v. Attorney-General, L. E. 4 H. L. 100. (e) Dyer, 303 ; Dal. 76. (d) Trowlridge v. Taylor, temp. Jao. I. cited Dyer, 305 ; 11 Vin. Ab. 79 ; 1 Rol. Ab. 909. (e) 3 Q. B. 493. (/) Shaw V. Siurton, 2 Lev. 86 ; 3 Keb. 163 ; Euthmaite v. Phaire, 1 M. & Gr. 159. 208 rOEEIGN AND DOMESTIC LAW. Paet II. by suit, he can in any case protect himself by such a dis- ■ charge of his liability. Cap, yii. Though it thus follows that no personal representative Obligation of has a right to collect assets or give discharges for debts in to M?oui^^^ any country other than that where his grant was obtained, for what yet where he does so, and brings them home within the jurisdiction of the Court from which his grant proceeded, it would seem that he is liable to account to it for the administration of those assets, just as if they had been received and collected within the limits of his author rity (a). Though this doctrine is mentioned with some disapprobation by Story, it would appear to follow from the view of the English Courts, mentioned above, that a grant of probate or administration properly obtained here extends to all the personal property of the deceased, wherever situate at the time of his death, at least in such a sense as to entitle an English representative to sue in relation to foreign assets (b). Probate and (d.) Prolate and Ad/ministration Duties. — The personal tiondSies" representative of the deceased being therefore compellable to clothe himself with the authority of the English Courts, in order to reduce into possession assets locally situate in England, as has been explained, comes under the English Acts which regulate the probate and administration duties, to which the English assets are liable without reference to the domicil of the testator or intestate. The amount of this duty is to be regulated, not by the value of all the on what effects assets which an executor or administrator may ultimately they attach, administer under the will or letters of administration, but by the value of such part as are at the death of the de- ceased within the jurisdiction of the Court by which the probate or letters of administration are granted (d) ; and it attaches on hona notahilia in the place where the goods happen to be situate, wholly irrespective of the question of (a) VowdaU's Case, 6 Co. 47 ; Story, § 514, a. (6) Whyte v. Base, 3 Q. B. 507 ; Scarlli v. Bishop of London, 1 Haffff Ecol. 625. ^^'■ (e) WilliamB on Executors, i. 617 ; Baymond v. Von Watteville, 2 Cas. temp. Lee, 551. MOVABLK PERSONAL PROPERTY. 209 the domicil of the testator (a), the test being whether the Pabt II. goods in question are effects which, under the old law, the Ordinary would have had to administer in case of intes- Oaf. VII. tacy (6). Thus probate duty is not payable in respect of Local situa- French rentes, which were sold out and whose proceeds at'dea^thf'^"'* were transmitted to the executor in London of a domiciled Englishman after his death (e). The same principle was confirmed by the House of Lords in respect of American stock in the case oi Attorney-General v. Hope (d), the stock being in both cases regarded as locally situate only in the place where it is transferable. And it was similarly held that probate duty was not payable in respect of notes or securities given by the East India Company, payable in India, although the testator bad agreed before his death that the notes in question should be converted into stock, registered and transferable in England, and this was in fact done shortly after his death (e). So, where the tes- tator was domiciled in England, it was held that probate duty was due and payable in Scotland under statute 48 Geo. 3, c. 149, s. 38, in respect of shares in certain com- panies in Scotland constituted under the Companies Clauses Consolidation Act (Scotland), 1845. But the local situa- tion of transferable securities, which pass from hand to hand, is that in which they are found, and not the place where the principal or interest due on them is to be paid ; and probate duty is therefore payable in respect of such " bonds " of foreign governments as come within the above description, and are in England at the time of the death of the owner, being in effect saleable chattels (/). And where the testator, who died in India, had directed his bankers there to realize certain securities, and to transmit the proceeds to his bankers in England, and the securities had been converted into bills of exchange drawn upon a (a) Fernandes' Executor's Case, L. E. 5 Ch. 314 ; Thomson v. Advocate- General, 12 01. & ¥. 1. (6) Attorney-General v. Bouwens, 4 M. & W. 171. (c) Attorney-General v. Dimond, 1 Or. & J. 366 ; S.O. 1 Tyr. 243. (d) 1 0. M. & E. 530 ; 2 01. & F. 84. (e) Pearse v. Pearse, 9 Sim. 430. (/) Attorney: General v. Bouwens, 4 M. & W. 171. P 210 FOREIGN AND DOMESTIC LAW. Paet II. London bank payable six months after sight, which'were " . a^fj^ya^^y on their way to England when the testator died. Cap. vn. it ^a-s held that probate duty was payable here in respect Local situa- of the proceeds (a). The judgment of, the majority of the at'death*'^''*^ Court in that case went on the ground that the debts or assets to which the bills of exchange were evidences of the title, or the credit which they represented, were locally situate in England ; but Kelly, C.B., was of opinion that the bills themselves were personal chattels, and that the fact that they were upon the high seas at the time of the testator's death did not exempt them from the liability to duty. This latter view was in some measure supported by In the Goods of Wyckoff (b), where administration was granted by the English Court of Probate of assets, includ- ing unaccepted bills of exchange, belonging to and in the possession of the deceased, an American citizen, who died on board a British ship on the high seas, bound for this country. On the principle oi Attorney-General v. Bouwens, probate duty is payable on the value of all British ships or shares in British ships wherever they may be (e), for they are capable of being dealt with in this country by a bill of sale, and also upon the value of any cargoes in ships which are capable of being dealt with here by means of the bill of lading (d). And with regard to specialty ehoses in action, it is enacted by 25 & 26 Vict. c. 22, s. 39, that " for the purposes of the stamp duties on probates of wills and letters of administration, debts and sums of money due and owing from persons in the United King- dom to any deceased person at the time of his death on obligation or other specialty, shall be estate and effects of the deceased within the jurisdiction of Her Majesty's Court of Probate in England or Ireland, as the case may be, in which the same would be if they were debts owing to the deceased upon simple contract, without regard to the place where the obligation or specialty shall be at the (a) Attorney-General v. Pratt, L. E. 9 Ex. 140 ; see as to Indian Govern- ment notes, &c., 23 Viet. c. 5. (6) 3 Sw. & Tr. 20. (c) By 27 & 28 Vict. c. 56, s. 4. (d) Hanson on Probate and Snccession Duty, pp. 7, 160. MOVABLE PEESONAL PROPERTY. 211 time of the death of the deceased." Where the law of the Pabt li. country where the personal estate is situated requires a double administration to be taken out, in order to reduce Cap. VII. it into possession, it was held by the House of Lords that Double ad- double duty is payable, notwithstanding the fact that the "^J'y'^^^po""^ person beneficially entitled and the parties through whom by the lex he claimed had always been domiciled abroad. In that case (a) there was personal estate here of S., who died in- testate domiciled in England. The sole next of kin was a married woman domiciled in the United States, who died without having administered or done anything to reduce her rights into possession. Her husband retained his American domicil, and died without having taken out administration to his wife. According to our law, apart from considerations of domicil, the child of these parents would be compelled to take out two administrations, one to his father, the other to his mother, on each of which administration duty would be payable ; and it was decided that this law was applicable to the circumstances stated, notwithstanding the fact that, by the law of the United States, the claimant might have been entitled to represent his mother (the next of kin to the original intestate) directly ; though Lord Westbury differed from the other law lords on this point. It was pointed out that if the claimant had constituted himself the personal representa- tive of his mother in America by taking out letters of ad- ministration there, where she was domiciled, he could have come to the English Court for ancillary letters of adminis- tration of her estate here, in which case the claim of the Crown to double duty would have been evaded. As a . matter of fact, he came before the English Court as the personal representative in America of his father, having taken out administration to his estate there, but that did not help him ; it being still necessary for him to consti- tute himself his father's representative here (whether by ancillary administration or otherwise), and then take out administration to his mother in that character. (a) Partington v. Attorney-General, L. E 4 H. L. 100. P 2 212 FOREIGN AND DOMESTIC LAW. Part II. PE(iPEETT. Cap. VII. Succession aud legacy duties — de- peadent on the domicil of deceased. (e.) Succession and Legiaoy Duty. — It has thus been shewn that for the purpose of probate or administration duty, which is a tax imposed by the government within whose dominion the property lies, upon its collection into the hands of the personal representative, the local situation of the property is alone taken into consideration. For the purpose, however, of legacy or succession duty, which is a tax upon the transmission of property, the actual situation of the subject-matter is disregarded, and the maxim " mo- hilia seqmmtur personam " strictly adhered to. Until the case of Thomson v. Advocate- General (a), the question was not free from doubt, and the older cases (h) are not aU inconsistent With a tendency to refer the decision to the situation of the property at the time of its actual appro- priation to the purposes of the testator's will. That deci- sion of the House of Lords, however, put the matter at rest, and it is now clearly established that legacy duty is payable only to the government of the testator's domicil, without reference to the actual locality of the property at the time of his death. The same principle was established as to succession duty in the event of intestacy by the case of Wallace v. Attorney-General (e). According to Parke, B., in Attorney-General v. Napier (d), the correct doctrine was first broached in In re Ewin (e), and rests upon the general principle, that for ordinary purposes personal pro- perty is to be considered as situate in the place where the owner of it is domiciled at the time of his death, the previous decisions inconsistent with this view having been decided without adverting to the important distinction * between domicil and residence. Where a person dies abroad, the onus of proof appears to be on the Crown to shew that his domicil was English, the presumption of law being against that view ; and unless this burden of proof is successfully maintained, the Crown will not be (a) 12 01. & P. 1 ; Gookrell v. Coakrell, 25 L. J. Ch. 730. (6) Attorney-General v. Goclcerill, 1 Price, 165; Attorney- General v. Beatson, 7 Price, 560 ; Logan v. Fairlie, 1 My. & Cr. 59 ; Attorney-General V. Forbes, 2 01. & F. 48 ; Arnold v. Arnold, 2 My. & Or. 256. (c) L. B. 1 Oh. 1. (d!) 6 Ex. 220. (e) 1 Or. & J. 151. MOVABLE PEUSONAL PKOPEETY. 213 entitled to legacy duty (a). In the case, however, of In re Paut ii. Ca/pdevielle (l), it had been held that though legacy duty bopeety. was payable only to the government of the testator's do- Cap. Vll. mieil, yet succession duty was payable to the Crown under the will of a testator who died in England while still domi- ciled in France, in respect of personal property situate in this country at the time of his death. The Court of Exchequer, in the case cited, were apparently of opinion that they were bound by the decisions in In re Love- laee (c) and In re Wallops Trusts (d), which were, how- ever, cases of testamentary appointments under English instruments, to be governed, as will be shewn below, by different considerations. The decision of the Court of Exchequer in In re GapdevieUe must therefore be re- garded as overruled by the Court of Chancery Appeal in WdUaee v. Attorney-General (e). The rule laid down Assessed on by Lord Cranworth in Wallace v. Attorney-General is abit^on^""' strictly confined in its operation to personal chattels, and the duty is not due upon a legacy or annuity charged on foreign land (/), or upon the proceeds of such land directed to be converted, nor upon chattels real abroad. But chattels real in this country come of course under the operation of the English Legacy and Succession DQty Acts, without regard to the domicil of the owner. And it has been suggested (g) that in the case of a British subject dying domiciled abroad, and leaving a will of personal property situate here bad according to the law of his domi- cil, but good under English law by virtue of 24 & 25 Vict. c. 114 Qi), the property should be liable to legacy duty here, inasmuch as the title of the person to whom it is given depends wholly on the law of this country. (a) President of United States v. Brummmd, 33 L. J. Ch. 501 ; Ander' son T. Laneuville, 9 Moo. P. C. 325. (5) 33 L. J. Ex. 806. (c) 4 De G. & J. 340. (d) 1 De G. & S. 656. (e) L. E. 1 Oh. 1. (/) Attorney-General v. Napier, 6 Ex. 620. (gr) Hanson on Succession Duty, p. 223. (h) Sect. 1 enacts that wills and testamentary instruments made out of the United Kingdom by British subjects, wherever domiciled at the time of making the will or of death, shall be valid if made as required either by the law of the place where made, of the place of the testator's domicil at the time of making, or of the country where ho had his domicil of origin. 214 FOBBIGN AND DOMESTIC LAW. PabtII. With regard to personal property not devised by a Pb ofebt y. ^jgg^a^^Qj. domiciled abroad, but appointed under a general Cap. VII. power, duty is payable under the Succession Duty Acts, Movables such property not being regarded as the property of the appointed donee of the power, so as to be exempt from succession under powers, /. i . <. • ^ • -t , \ t ii ^ by donee duty by the tact 01 his loreign domicii (a), in that case abroad*mav ^^^ property had been settled by an English marriage be liable to settlement, and if the power of appointment had not been " ^' exercised, would have devolved to the next of kin by the terms of the settlement, without forming part of the estate of the deceased at all. A similar question arose shortly afterwards, in the case of In re Wallop's Trusts (6), where an English testator by will settled personal estate in the hands of trustees, giving the enjoyment of the income and a power of appointment by deed or will to his daughter, and appointing certain further trusts in default of appoint- ment. The daughter having exercised the power of appointment by will, died domiciled abroad, and it was held that the legacies so given were liable to succession duty, following the previous decision, under s. 2 of the Succession Duty Act, 16 & 17 Vict. c. 51. The chief dis- tinction between this case and that of In re Lovelace, just cited, was that in In re Wallop's Trusts the death of the testator as well as that of the donor of the power had taken place after the coming into operation of the Succes- sion Duty Act, s. 4 of which provides that where any person shall have a general power of appointment, under any disposition of property taking effect upon the death of any person dying after the time appointed for the com- mencement of the Act, over property, he shall, in the event of his making any appointment thereunder, be deemed to be entitled, at the time of his exercising such power, to the property or interest thereby appointed as a succession from the donor of the power ; and that where any person shall have a limited power of appointment, under a disposition taking effect upon any such death, over property, any person taking any property by the (a) In re Lovelaoe, 4 De G. & J. 340. (5) 1 De G. & S. 656. MOVABLE PEESONAL PEOPEETY. 215 exercise of such power shall be deemed to take the same Paet ii. as a succession derived from the person creating th'& power ° "^""' ''^" as a predecessor. It was expressly pointed out by Lord Cap. VII. Gran worth, in Wallace v. Attorney-General (a), that neither of the two cases last cited was to be considered as affected by that decision of the House of Lords. They were both cases of testamentary appointment under English instru- ments, not of wills ; and such instruments were necessarily to be construed by English law, not by the law of the domicil of the person executing the power. But where a testator dies domiciled abroad, having by Sucoessious will created an English trust of personal estate, such that B™iisli°trust one or more successions will arise under it at a subsequent created by period or periods, the persons beneficially entitled to such ™®^^" successions will be liable to pay succession duty on the amounts taken by them, notwithstanding the foreign domicil of the testator (h). Malins, V.C, in deciding this case, conceived himself to be bound by the decisions of In re Capdevielle (e) — which has, however, been shewn to be distinguishable — and In re Smith's Trusts (d), where Stuart, V.C, had held that succession duty was payable under similar circumstances. The opinion of Malins, V.C, has since been confirmed by the House of Lords in the case of Attorney- General v. Campbell (e). In that casC) the testator, who was domiciled in Portugal, made a will in this country, while on a visit to it, in English form, appointing English executors, and desiring that his pro- perty should be invested in English consols. An annuity was to be paid to a sister of the testator during her life, and at her death the part of his personal estate which had been set aside for this purpose was to be divided amongst his three children. The ground upon which succession duty was payable upon this division taking place was clearly put by Lord Hatherley. " In order to have the personal property administered you must seek the forum of that (a) L. B. 1 Ch. 1. (6) In re Badart's Trusts, L. R. 10 Eq. 288. (e) 2 H. & C. 985. {d) 12 W. K. 933. (e) L. E. 5 H. L. 524. 216 POKBIGK AND DOMESTIC LAW. paet n. Pbopebtt. Cap. vn. Settled^fund in England. country where the person whose property is in question had acquired a domicil. Then, when you obtain pos- session of that property, yon do all that has to be done in the country to which the testator belonged. The question is afterwards, when the property has been so obtained and administered, in what condition do you find the fund? You find it in the condition of a settled fund. That con- dition arises, no doubt, from the operation of the testator's will ; but I can see no difference in consequence of that circumstance from its having arisen in any other manner, as, for instance, from a deed executed in his lifetime, as might have been the.case, or supposing he had transmitted to his bankers a sum of money to be invested upon the same trusts. When there is any fund standing in this country in the names of trustees in consols or other pro- perty which has a quasi local settlement — as stock in the funds has — all the dividends having to be received in this country, and the persons who have to be dealt with in respect of it being persons residing in this country, that fund is liable to succession duty. The settlement provides for the succession, and the interest of each person on coming into possession is liable to the payment of duty upon that interest to which he so succeeds .... In the cases of Thomson v. Advocate-General (a) and Wdllaee v. Attorney-General (b), the Court had to deal with a fund which was to be administered, and which was in the course of administration, before the executor, or the person on whom the duty of administering it was imposed, had cleared himself and discharged himself of that duty. In those cases, he being a foreigner (e) (we must take him to be a foreigner, because the original owner of the property was a foreigner), you have nothing to do with the reception of the duty levied by Acts of Parliament on the person whom you are pursuing before a foreign tribunal. But when the duties which have been imposed upon him involve the placing of the money here, in funds within (o) 12 CI. & F. 1. (6) L. E. 1 Ch. 1. (c) Foreigner, i.e., in respect of domicil. MOVABLE PERSONAL PBOPEETY. 217 the functions of the judicature of this country, and when Paet il. you find those funds in a state involving succession from "w^tt. one individual to another, then the duty has accrued, and Cap. VII. you proceed to levy it " (a). Lord Westbury put his decision in the same case even more clearly upon the fact of the fund being fownd settled in England, with- out reference to the direction given by the testator's will. "You cannot apply an English Act of Parliament to foreign property whilst it remains foreign property; hut after the purposes of administration have been an- swered, and distribution made, if a person taking a dis- tributive part comes to this country and invests it upon trusts, it assumes the character of a British settlement and British property." In accordance with this principle it is pointed out by Mr. Hanson (on Legacy and Suc- cession Duty, p. 226) that it is not necessary that the testator should have directed such an investment, but that the liability to duty equally attaches where the trustees have power to invest the property here or abroad at their discretion, or where it is already actually invested in this country ; and he cites a case decided by Bacon, V.C. (J), where the rule was applied to the proceeds of American securities remitted to English trustees, and paid by them into Court in an action brought on behalf of the infant eestid qiie trust. And where the settlement was not by will, but by deed taking eflFect inter vivos, the property affected being locally situate in England, and consisting of an English policy of assurance and English consols, the person ultimately entitled under the settlement was held liable to the payment of succession duty on the amount received by him (c). In the same case the real principle was shewn by the refusal of Lord Komilly to personal attach such a liability to the rest of the personal estate ^'^*^'^i^?<''^^ settled by will on similar trusts, with a direction that it in England, should be invested in English funds or lands, the whole (o) L. E. 5 H. L. 528. (b) Thompim v. Birch, Bacon, V.C, May 20, 1876. (c) Lyall V. Lyall, L. E. 15 Bq. 1. 218 FOEEiaN AND DOMESTIC LAW. Part II. of such residuary personal estate being locally situate KOPEBTT. g^jjpQj^^ 3^^ ^{jg tjjjje Qf j;]jg testator's death, and none of Cap. Vll. the proceeds of it having been remitted to England at the time of the succession of the person who was ulti- mately entitled under both instruments. Movables Nevertheless, it is not necessary, according to a recent Engifs™ decision of Sir Gr. Jessel's (a), that the funds should have trustees— been actually brought into England, if they are vested in in^Bngland ^ English trustees, so that the forum to decide the owner- ship must be English. In that case a settlement made in England on the marriage of an Italian and an English- woman vested certain French rentes and shares in the Bank of France in English trustees. On the death of the husband and wife, the children of the marriage, who were domiciled Italians, became beneficially entitled to the' trust funds, and the Commissioners of Inland Revenue claimed succession duty from the trustees. The trustees paid a sum sufficient to meet the duty into Court under Trustee Eelief Act, and on the petition of the children to pay it out to them, it was held that the trust funds were not, under the circumstances, exempt from succession duty. It is difficult to see how this decision can be supported, except on the principle that the funds were constructively in England, because it would have been necessary to have recourse to an English Court to obtain, payment from the trustees ; and if the trustees, even con- tinuing their English domicil, had gone to France, and had there either voluntarily or under the direction of the French law realized and paid over the whole trust funds without reserving anything to satisfy the English duty, it does not seem clear that they could have been made liable here on their return. That the fact of the foreign domicil of the person beneficially entitled is immaterial, if the trust funds are in England, had already been really decided by the case of Attorney-General v. Oamjphell (b) ;. but considerable weight was attached by Jessel, M.E., in (a) Be Cigala's Trusts, L. E. 7 Ch. D. 351. (6) L. E. 5 H. L. 524. MOVABLE PEESONAL PHOPEETT. 219! Be Cigalas Trusts to the fact that the settlement under Paet ii. which the trustees took was made in England, by an P" "^^"' ^^- Englishwoman, according to the forms of the English law. Cap. VII. Notwithstanding the general principle that the law of chattels real, the owner's domicil is applicable to personalty generally, ^^°^s}^ P^r- . . , . f „. . 1 •' sonalty, are it IS obvious that when the conflict is on the question as not movables. to what is personal estate, liable as such to duty, the lex situs, being that which alone has power to enforce its judgment, must prevail. In the case of Ghatfield v. Berch- toldt (a) the question was whether a rent-charge fur autre vie issuing out of English land was liable to legacy duty as personal estate under the English statutes (14 Geo. 2, c. 20, s. 9, and 1 Vict. c. 26) which make estates pji/r autre vie applicable as personal estate in the hands of executors and administrators ; and it was held on appeal that legacy duty was payable, although the domicil of the deceased was Hungarian, and in opposition to the conten- tion that the character of personal property was so impressed by the English statutes upon the interest in question, as to exempt it from liability to legacy duty according to the principle of Thomson v. Advocate-Gene- ral (b). The decision was given on the ground that the English law only made it personal property for the pur- pose of charging it with duty, and that it remained, except for this purpose, English realty governed by Eng- lish law. Had it been the law of the testator's domicil that assumed to declare English realty to be personal estate, the case would have been too clear for argument ; but in the actual circumstances the lex situs was given much stronger effect, being allowed to change the nature of realty into personalty for its own purposes, without exposing it as such to the law of the foreign domicil. The decision, however, was clearly right on another ground, which has already been discussed (e). What the English law calls personal estate is not co-extensive with the class of " immovables " according to international law, including (a) L. E. 7 Eq. 192. _ (6) 12 CI. & F.l. (c) Supra, p. 141. 220 FOREIGN AND DOMESTIC LAW. Paet II. Peopeety. Cap. vn. Bate of duty — domicil of successor. Distribution of movables by personal representa- tive. as it does chattels real, to which the maxim seqvMntur personam does not apply. Chattels real, which are regarded as personal property for many purposes by English law, are not thereby rendered movables, and it is to movableis, and movables alone, that the maxim is admitted to extend (a). When there is any doubt as to the rate at which legacy or succession duty is to be assessed upon the amounts transmitted, the status of the recipients and their relation to the deceased, must be decided according to the law of his domicil. Thus in Skottowe v. Yoimg (h), the proceeds of land in England, devised by a British subject domiciled in France on trust to sell and pay the proceeds to his daughters born of a French mother before marriage, but afterwards legitimated according to French law, were held liable to legacy duty at the rate of £1 per cent, only, instead of the higher rate imposed by the Legacy Duty Acts upon gifts by a testator to strangers in blood. This is only the natural result of the application of the prin- ciple which construes and interprets wills of personal property by the law of the domicil of the deceased (e) ; just as in Boyes v. Bedale (d), where the domicil of the testator was English, a daughter born and legitimated under similar circumstances was held not to come within the description of " children " of her father, though he had acquired a French domicil. (f.) Distribution of Movable Personal Estate by Executors and Administrators. — The principles by which the ad- ministration of personal estate is governed having thus been considered with regard to the appointment and title of the personal representative, and the duties payable to the governments by whose authority or permission he acts, it remains to discuss the rules by which he is to be guided in satisfying such claims as may be put forward to the (a) Freke v. Lord Carbey, L. E. 16 Eq. 461, 466 ; Jarman on Wills, i. p. 4, n. (6) L. E. 11 Bq. 474. (c) Vid. mpra, p. 191. (d) Boyes v. Bedale, 1 H. & M. 798 ; Goodman v. Goodman, 3 Giff. 643. MOVABLE PERSONAL PBOPEETY. 221 personal estate in his hands. Under this head of the sub- P^™ ^^- "P"Rrt PHRT Y ject come all questions which relate to the priority of debts, the marshalling of assets, and the mode of proof C^'p- V^- against the estate, if it should be insolvent. It is need- less to recapitulate the numerous authorities which have already been cited (a) to establish the general rule that the distribution of personal estate is governed by the law of the domicil. But with regard to the question of the priority of debts, with regard, that is, to its distribution as affects creditors, as distinguished from persons beneficially interested, an important doubt has been introduced. In a case where the deceased was domiciled abroad, and an- cillary administration is taken out to his effects here, is such local administrator to be governed by the laws of this country or of that of the domicil of the deceased, in paying creditors who make their claim upon him in this country ? and is there any difference as to this between debts originally contracted here, and those contracted in the country of the domicil ? Westlake (6) and Story lay down positively that the law of the country from which the ancillary representative obtained his grant is to be followed, on the ground that he is accountable to that jurisdiction alone. This position, however, involves the assumption that the law of that jurisdiction does not adopt the law of the domicil of the deceased for such pur- poses, as it undoubtedly does for the general distribution of personal effects, and appears inconsistent with the diotitm of Abbott, C.J., in Doe v. Vardill (e), that it is part of the law of England that personal property should be distributed according to the jus domiciUi, Nor are there any conclusive authorities on the point. In Gook v. Qreffson (d), which is cited in support of the proposition, it did not really arise, all that was decided there being that as against assets which had been brought from Ireland, where the testator was domiciled, an Irish judg- (d) Pages 183, 195. (i!>) Westlake, Priv. Int. Law, § 307 ; Story, § 524. (c) 5 B. & 0. 452. (d) 2 Dr. 286. 222 FOREIGN AND DOMESTIC LAW. Part ii. ment creditor was entitled to priority. This is obviously Peofebty. ^ ^gj.y. ^jg-gj-gj^t thing from saying that a priority given Cap. VII. by English law, when assets are taken possession of in Priorities of England, shall not be taken away by any law of the creditors— by (jomicil of the deceased even as to foreign creditors. what law ° governed. Transmission of the assets, after they have once been taken possession of by a local administrator, can obviously not affect the rights of creditors, which become vested at that time, as was decided in Cooh v. Gregson, by which- ever of the two laws they are to be regarded as being regulated. The claim of the lex situs was also recognised in the earlier case of Hanson v. Walker (a), but that de- cision again proceeded on a different principle, following the rule which subjects real property, and for this purpose, its proceeds, to the lex situs without reservation; and although in the course of the argument it was contended that the law of England, where the deceased was domi- ciled, would have governed the rights and priorities of creditors with regard to foreign personalty, no decision was given on that point. Even if the case of Cook v. Gregson be considered as involving the principle that the lex situs and not the lex domicilii is to prevail on this point, it is confessedly in conflict with the decision of Sir J. Eomilly in Wilson y. Lady Dunsany (h). In that case .the deceased was domiciled in Ireland, and the assets in dispute were in England. The question was one of priority between creditors, and Sir J. Eomilly said that, following the principle of Thomson v. Advocate- General (e), and other cases, where the personal estate had been administered according to the law of the domicil of the deceased, he was of opinion that he ought to treat the case as if he was administering the estate in Ireland. The point was again raised in the later case of Pardoe v. Bingham {d). In that case an Englishman residing in Venezuela executed an instrument there to secure repay- ment to a creditor of a sum of money, and the creditor, (a) 7 L. J. Ch. 135. (e) 12 01. & P. 1. (6) 18 Beav. 293. (d) L. E. 6 Eq. 485. MOVABLE PEESONAL PKOPEETY. 223 having registered the instrument in the form prescribed Pakt n. by the law of Venezuela, became entitled, by that law, to ''°^^^- be paid his debt out of the general assets of the debtor in Cap. VII. priority to other creditors. The debtor died in Venezuela, but it did not appear whether or not he had been domi- ciled there, and all that was decided was that the pro- visions of the lex loci contractus would not entitle a creditor to a priority not given by the law of the country where the assets were situate. It was suggested in the course of the argument that the deceased was probably domiciled in Venezuela, and that the Venezuelan law was entitled to be heard on that ground, but Lord Eomilly refused to direct an inquiry as to this without a special application for that purpose, and gave no opinion as to the probable effect of such a fact, if it had been ascer- tained to exist. It cannot therefore be said that, as far as English precedents go, the proposition asserted by Story and Westlake is established ; and the course of con- tinental authority is admittedly the other way (a). Per- Priorities- haps it may best be supported by regarding all questions »,^(,°°|„y°. of the priority of creditors as touching matters of fro- .eedure, a principle asserted in general terms by jurists (6), and recognised in English Courts as to distribution of assets under bankruptcy. In Ex parte Melhov/rne (c), a marriage contract settling personal estate on the wife had not been registered as required by the law of Batavia, where it was executed, and consequently was of no effect there as against third parties. The husband having sub- sequently become bankrupt in England, his wife claimed to prove against his estate for the sum settled, and her proof was admitted, on the general ground that the ques- tion of priority of creditors inter se must be governed by the law of the country where the bankruptcy takes place, and where the assets of the debtor are being administered. (a) Story, § 526 ; Weetlake, § 308. (6) Dela Vegay. Vianna, 1 B. & Ad. 284; Story, § 323; Westlake, § 411, 277 ; Huber, torn. 2 lib. 1, c. 3. (c) L. E. 6 Ch. 64 ; see, for the converse case, Thmham v. Steward, L. K. 3 P. C. 478. 224 FOREIGN AND DOMESTIC LAW. Pabt II. In such a case the assets are of course regarded as being K OPEBT Y. jQQ^Uy. situate there, following the person of the bank- Oap. VII. rupt. The principle is perhaps best expressed in the words of Tenterden, C J. : " A person suing in this country must take the law as he finds it ; he cannot, by virtue of any regulation in his own country, enjoy greater advan- tages than other suitors here, and he ought not therefore to be deprived of any superior advantage which the law of this country may confer " (a). 8VMMASY. (iii.) STJCCESSION TO MOVABLE PEESONAL PEOPBETT. (a.) Disposition of Movable Personal Troferty hy Will. p. 183. The Court of the domicil of the deceased at the time of his death has supreme jurisdiction, and the law of the domicil supreme authority, in all matters connected with the capacity of the testator, the formalities, execution, in- terpretation, construction, and effect, of a will of movable personal property. p. 184. But, under Lord Kingsdown's Act (24 & 25 Vict. c. 114), the wills of British subjects, whether the domicil at the time of the death or of making, if made out of the United Kingdom, are also valid if the forms required either by the law of the place of making, the law of the domicil at the time of making, or the law of the domicil of origin have been complied with ; and if made within the United Kingdom, are also valid if the forms required by the law of the place of making at the time of the making have been complied with. And by the same statute, no will, at least of a British subject, is revoked or becomes invalid by a change of domicil between the times of making and of the death. p. 188. But a power of appointment by will to movable per- sonalty, given under English law, will be validly exercised by a will made in conformity with English law, though (a) De la Vega v. Vianna, 1 B. & Ad. 284, 288^ MOVABLE PERSONAL PEOPEETY. 225 not with the law of the domicil of the deceased at the Paet ii. P ROPERT Y time of his death. Such a will will be admitted to probate accordingly ; though it seems that a will executed in ^^^- ^^I- compliance with the law of the domicil would be equally p. 191. entitled to recognition. To entitle a will or other testamentary paper to English p. 193. probate, it must dispose of some personal property situate in England, or else be incorporated by express or implied reference in another will or testamentary paper entitled to probate on its own account. In granting probate of the will of a testator not domi- pp. 193, 199, ciled in England, the English Court will, as a rule, follow the grant of the Court of the domicil, and grant probate or administration with the will annexed to the person who has been duly clothed by the Court of the domicil with the power and duty of administering the estate. (b.) Suceession to Movable Personal Property hy operation of Law. The Court of the domicil of an intestate at the time of P- 191. his death has supreme jurisdiction, and the law of the domicil supreme authority, in all matters connected with the succession to his movable personal estate. The law of the domicil of the intestate will thus deter- p. 195. mine the persons entitled to administration, and those entitled to share in the distribution. The same law will decide their legitimacy, kinship, and mutual rights and liabilities touching exoneration, election, and all similar questions. (c.) Bight and Title of the Personal Bepresentative. A grant of probate or letters of administration has no p- 198. extra-territorial operation ; and the personal representative under it acquires only a title to the personal chattels of the deceased within the jurisdiction of the Court which made the grant. To take possession of personalty in England, or sue for Q 226 FOREIGN AND DOMESTIC LAW. Part II. debts in an English Court, a personal representative must ■ therefore prove the will or take out letters of administra- Oap. VII. tion i^ere as well as in the country of the domicil of the pp. 198-200. deceased. But this rule does not operate to prevent a personal representative clothed with authority by the English Court from suing in England in respect of mov- ables actually situate abroad, p. 200. In granting probate or letters of administration, the English Court will generally follow the grant (if any) made by the competent Court of the domicil ; but it appears doubtful if the mere fact, that a person has ob- tained a grant as executor in the foreign court, will entitle him as of right to recognition of that character here. If the English Court does not consider him entitled as executor, it will, it seems, grant him letters of administra- tion ciim testamento annexo. p. 203. The personal representative, when once clothed with authority by the English Court, is bound to administer the personal assets of the. deceased in England. The title of a personal representative to the personal assets within the jurisdiction of the Court from which he derives his authority, is not divested by the removal of the assets to another jurisdiction, unless they are removed under such circumstances as to remain still unappropriated assets, belonging to the general estate. p. 204. The effect of Scotch and Irish probates in England is regulated by the statutory provisions of 21 & 22 Vict. c. 56, s. 12, and 20 & 21 Vict. c. 95, respectively. A foreign personal representative, who has not obtained authority from an English Court, nor received English assets, cannot be sued in his representative character in England. (d.) Probate and, Administration Duty. p. 208. When probate or administration is granted by an Eng- lish Court, probate or administration duty is payable to the English, government on the value of the assets locally MOVABLE PERSONAL PROPERTY. 227 situate in England at the time of the death of the deceased, Part II. without reference to the law of his domicil, or the value P""''™'^^- of the assets situate there. ' Cap, VII. The local situation of transferable securities, which pass p. 209. from hand to hand, is that in which they are actually found. The local situation of stocks and shares, transferable only in one place, is the place where they are so trans- ferable. If the law of the country where assets are locally situate p. 211. requires double administration to be taten out in order to reduce them into possession, double duty is payable to the local government. The law of the domicil of any or all of the parties is in such a case immaterial. (e.) Succession and Legacy Duty. Succession and legacy duty is payable to the English p- 212. government in respect of the personal estate of every testator who dies domiciled in England ; and is assessed not only on his personal estate in England, but upon all his personal movable estate, wherever situate in fact. The duty does not attach upon annuities or legacies p. 213. charged on foreign land, nor upon chattels real abroad. Succession duty is payable upon chattels real situate in England, though the domicil of the testator be foreigo. The personal character of such estate, and its liability to English succession duty, is determined by the English law as the lex situs, claiming in that right to govern immovables. Succession duty is payable on personal estate appointed p. 211 by the will of a testator domiciled abroad, under a power of appointment created by an English will or settlement. [And see the Succession Duty Act, 1853 (16 & 17 Vict, c. 51), s. 4.j So also, on successions to a settled fund vested in English trustees, consisting of English stocks and shares, though the instrument creating the settlement was the will of a testator domiciled abroad. But not, it Q 2 228 FOBBIGN AND DOMESTIC LAW. Paet II. seems, by the trustees who take immediately under such Pbopbbtt. ^^y,_ Cap. VII. go, where the instrument creating the trusts of the p 217. settlement is a deed inter vivos. So, it seems in such a case to be sufficient that the funds should be vested in English trustees, though they have not actually -been brought into England, p. 220. When succession duty is calculated according to the degree of relationship between the successor and the person from whom the succession is derived upon his death, that relationship is determined by the law of the domicil of the deceased. (f.) Distribution of Movable Personal Estate by Executors and, Administrators. p. 220. The distribution of movable personal estate in the hands of executors or administrators is regulated gene- rally by the law of the domicil of the deceased. p. 22). But when the deceased was domiciled abroad, and ancillary administration is taken out here, it is doubtful whether the priorities of creditors will not be regulated by the English law, as that from which the local administrator derives his authority. The English law will clearly pre- vail, as the lex fori, whenever a matter of procedure is involved. (iv.) Assignment of Personal Property by Law on BanJc- ruftey or Insolvency. — The transfer of personal property by alienation inter vivos and by succession by devise or ab intestato having been now considered, it becomes neces- sary to discuss the operation of the universal assignments which take place by operation of law upon the bankruptcy of the owner. The first question is, to what property of the bankrupt do these universal assignments to trustees or assignees for the benefit of his creditors extend ? And this question must be regarded as quite apart from that which is apparently connected with it, as to the effect of MOVABLE PERSONAL PEOPEETY. 229 a bankruptcy in one iurisdiotion in dischareing debts con- Paet II. • • cj CD ^ Property tracted in or sued for in the courts of anotber, depending as it does upon entirely different principles. The latter Cap. VH. question will be discussed when the nature of obli- Bmicraptey. gations is treated of, and their inherent liability to dis- charge. The question then being simply as to the view taken by English Courts of the effect of a bankruptcy in assigning the personal property of the bankrupt, it is obvious that two sorts of bankruptcies have to be considered. It must be seen, first, what effect English Courts attribute to an English bankruptcy, and secondly, what to a foreign one, with regard to property situate both within and without the jurisdiction under which the assignment is made. First, then, with regard to an English bankruptcy, by Effect of s. 15, subs. 3, 4, 5j of the Bankruptcy Act, 1869, it is b^^fptey enacted that there shall pass to the trustee under the bankruptcy all such property as may belong to or be vested in the bankrupt at the commencement of the bank- ruptcy, or may be acquired by or devolve on him during its continuance (with certain exceptions in the previous subsections which are immaterial to this question) all powers in or over or in respect of property, and all goods and chattels being at the commencement of the bank- ruptcy in the possession, order, or disposition of the bankrupt, being a trader, by the consent and permission of the true owner, of which goods and chattels the bank- rupt is reputed owner, or of which he has taken upon himself the sale or disposition of owner. Choses in action, other than debts due to him in the course of his trade or business, are excluded from this last category, of goods of which he has the reputed ownership. It will be seen that there is thus no territorial limitation in the statute, which regards the actual situation of personal chattels as im- material, on the principle of mdbilia sequimtw personam, nor is there indeed any express limitation as to real estate, which is included by the definition clause (s. 4) in the general term of property, but it has been already pointed 230 FOKEIGN AND DOMESTIC LA.W. Pabt n. out (a) that as to real estate and chattels real, an assign- Pkopebtt. ^^^^ jg g^^j l^y. ^j^g i^^ g^f^g ^2Q^g_ rpjjjg extensive Cap. vn, operation of the statute as to personal chattels is in Sanhruptcy. accordance with the view taken by English law ; and it is Bant^oy well established in England that an English assignment in jurisdiction of bankruptcy operates as a complete and valid transfer of Qom^^ all the personal chattels of the bankrupt wherever they are situate (6). And this is so, in the contemplation of English law, whatever the domicil of the bankrupt. In Ex pa/rte Crispin (c) it was decided on appeal that an alien non-trader domiciled abroad who contracts debts in England may be made a bankrupt under the Bankruptcy Act, 1869, provided that an act of bankruptcy has been committed in England, although he may have left Eng- land before the petition for adjudication is presented. So under the older statutes, it was held that the essential requisite to make an act of bankruptcy cognizable in our courts, was that it should have been committed in Eng- land (d). In Phillips v. Htmter, just cited, it was said that no foreign residence — i.e., domicil — could exempt an English subject from the operation of the bankruptcy laws, whether such residence was temporary or perma- nent ; but the question of nationality appears now to be immaterial for this purpose, much less weight being now given to it in such matters than was formerly the case. The principle of Ex parte Crispin (e) that a foreigner, who has contracted a debt in England and committed an act of bankruptcy in England, is amenable to our bankrupt law, was extended by a later decision (/) to the case of a foreigner who has committed an act of bankruptcy in England, and is proceeded against under the Bankruptcy Act by another foreigner in respect of a debt contracted (o) Supra, p. 166. (6) Phillips V. Hunter, 2 H. Bl. 402 ; Sill v. Wmswick, 1 H. Bl. 665 ; Hunter v. Potts, 4 T. B. 182 ; Wilson's Case, cited 1 H. Bl. 691 ; Neal v. Cottingham, 1 H. Bl. 132, n. ; Ex parte Blakes, 1 Cox, 398. (c) L. B. 8 Ch. 374 ; 42 L. J. Bank. 65. ., (d) Ex parte Smith, Cowp.402; Inglis v. Grant, 5 T. E. 530; Norden v. James, Dick. 533. (e) L. R. 8 Ch. 374 ; 42 L. J. Bank. 65. (/) Ex parte Pascal, Be Meyer, L. K. 1 Ch. D. 509. MOVABLE PERSONAL PEOPEETY. 231 abroad. It was contended on behalf of the bankrupt that Part li. though his transient presence in England would make him "otebty. liable to a common law action in respect of the debts con- Cap.VII. tracted abroad (a), yet it did not render him subject to the Bmhrnptay. service of a debtor's summons under the Bankruptcy Act, for which the same jurisdiction was necessary as in cases of actual adjudication (b). Mellish, L.J., however, ex- pressed his opinion that transient presence and the com- mission of an act of bankruptcy in England were sufiScient to found jurisdiction under the Bankruptcy Act, 1869, wli ether for the service of a debtor's summons simply, or for petition and adjudication. By the earlier Bankruptcy Consolidation Act of 1849 (s. 277) foreigners who were traders were expressly made subject to the banking laws, and under this and the older statutes it was decided that foreign residence was immaterial (c). The decisions in the cases of Ex joarte Crispin and Ex parte Pascal just cited, shew clearly that the question of domicil need not now be regarded, although Story seems to consider it as the basis of the principle now under discussion. English Courts, therefore, will regard the title of the Foreign trustee in an English bankruptcy to personal property ^^ggg^^^ of situate abroad as complete, but the question assumes a slightly different form where this title has already been disregarded by a foreign Court, and a creditor of the bank- rupt has possessed himself by foreign judicial process of the foreign property. Where such creditor is domiciled in England and has notice of the English bankruptcy, the assignees have been held entitled to recover the proceeds he had thus appropriated in an action for money had and received (d) ; but appear to have no right of action against a foreigui garnishee, who has paid a debt due to the bank- rupt estate to the creditor under or in expectation of the (a) Jackson v. Spittall, L. E. 5 0. P. 542. (6) Ex parte O'Loghlen, L. E. 6 Ch. 406, 410. (c) Alexander v. Vaughan, Cowp. 398 ; AUen v. Oamion, 4 B. & A. 418 ; Ex parte Smith, Cowp. 402 ; Williams v. Nmin, 1 Taunt. 270. (d) Sunter v. Fotts, 4 T. E. 182 ; Phillips v. Hunter, 2 H. Bl. 402 ; Sill V. Worswiclc, 1 H. Bl. 665 ; Ex parte Seinde By. Go., L. E. 9 Ch. 557. 232 FOREIGN AND DOMESTIC LAW. Part II. compulsion of a competent jurisdiction (a). From the Pbopeett. j^dg^gjjt of Lord Eosslynin 8Ul v. Worswich Mr. West- Oaf. VII. lake deduces, first, that the title of the assignees ought to Bankruptcy, be preferred to that of any creditor by a foreign Court, if intimated to it pendente lite, and secondly, that if it is dis- regarded by it, an English creditor, but not a foreign one, will be compelled in an English Court to yield the proceeds he has acquired abroad to the English assignees (h). The distinction drawn between an English and foreign creditor is clearly one of nationality in the authorities on which ihis proposition is based, but Mr. Westlake, though speak- ing of an " Englishman " and " an English creditor," uses language that would lead to the belief that the English domicil is or should be the distinguishing test. The dis- tinction between domicil and nationality was not so clearly marked at the end of the last century, when those cases were decided, as it is at present, and it is certainly diffi- cult to see now in what sense an English subject who has acquired a foreign domicil remains subject to the English bankruptcy law with regard to his acts done abroad, so as to be bound by an assignment under it of the property of an English bankrupt any more than other people. If the creditor was domiciled in England, and so subject to its laws, the case would be Tery different, but even then there appears no authority in the cases cited for saying that he would be compelled to refund, if the foreign Court, after due notice of the title of the assignees, had pronounced judgment in his favour. All that is said is that no foreign Court that respected the comity of nations ought to pro- nounce such a judgment, but that a creditor who recovers in such a way, and is not subject to the bankrupt laws of England nor affected by them (whatever that may mean), can certainly not be compelled to refund, if sued by the assignees. The validity of such a judgment if pronounced, (a) Le Chevalier v. Lynch, Dougl. 170 ; Cleve v. Mills, Cock. 1764 ; Allen V. Douglas, 3 T. E. 125. (6) Westlake, § 273; 1 H. Bl. 693; 2 H. Bl. 405, 406, 408. MOVABLE PEESONAL PROPERTY. 233 being in a certain sense in rem (a), can hardly on general Past II. principles be questioned, at any rate as between the parties to it. Where there has been no judgment pro- Cap. Vll. nounced by the foreign Court, but a creditor has merely Bankruptey. obtained possession by foreign attachment of the bank- rupt's property, it is clear from the later case of Sellcrig V. Davis (h) that whether there has been a formal intima- tion to the garnishee or not of the bankruptcy, the creditor can take nothing by such diligence, and if he can be reached by the English Court, will be compelled to refund. If he is neither present within the jurisdiction, nor has property within it, nor comes before the English Court of Bankruptcy to prove for other debts due to him in excess of the value of what he has acquired by the foreign process (c), it is plain that he cannot be reached or in any way obliged to disgorge. This principle was also admitted in JSx fwrte Ddbree (d), where the only real dis- pute was whether the foreign attachment was complete, so as to vest the property attached, before the English bank- ruptcy or not. Where the bankrupt was a partner in a firm trading and having assets both in England and the West Indies, and after the English bankruptcy, a creditor of the firm attached a debt due to the firm in the West Indies, it was held that the assignees could not compel him to refund the proceeds thus obtained (e), the principle being apparently that the English bankruptcy could not affect the partnership assets situate abroad, as against the foreign creditors and the foreign partners. The ordinary rule applicable to the bankruptcy of a partner being that the partnership is dissolved, and that the trustee in the bankruptcy becomes tenant in common with the other partners of the partnership property, who retain their (a) Story, § 592 ; McDaniell r. Sughes, 3 Bast, 367 ; Gammell v. Sewell, 29 L. J. Ex. 350. (6) 2 Eose, 291 ; B.C. 2 Dow, 230 ; see also Boyal Bank of Scotland v. OuOibert, 2 Eose, 78 ; Smith v. Buohanwn, 1 East, 6. (c) As in In re Oriental Inland Steam Co., Ex parte Seinde By. Co., L. R. 9 Oh. 557. ((Z) 8 Ves. 82. (e) Brickwood v. Miller, 3 Mcr. 279 ; Waring v. Knight, cited ia Phillips V. Hunter, 2 H. Bl. 410. 234 FOEEIGN AND DOMESTIC LAW. Pabt n. Propebty. Oaf. Vn. Effect of foreign bankruptcy. authority to deal witli the business in order to wind it up (a), the decision of Sir W. Grant in the case just referred to appears to have been correct. Bankruptcy. So much for the effect of an English bankruptcy in assigning personal chattels of the bankrupt situate abroad., As to the operation of a foreign bankruptcy in England, the same universal; effect of such an assignment that the English law claims for bankruptcies declared by itself, is conceded by it to those which result from the laws of foreign countries. Accordingly, it is settled that an assignment by a foreign bankruptcy passes all the per- sonal property of the bankrupt situate in England, includ- ing ehoses in action (b). Re BUthman (e) is perhaps a little inconsistent with this doctrine. Lord Eomilly holding that the question whether or not an Australian insolvency applied to personalty in England depended upon the domicil of the insolvent, who had died since the adjudica- tion, and that if his domicil was English, and an Austra- lian domicil had not been acquired, the title of his English executrix must prevail. It does not appear to have been quite clear whether Lord Eomilly considered that it was the domicil at the time of the adjudication of insolvency, or that at the time of the death which ought to be regarded, as he uses expressions consistent with either view, and mutually contradictory in his judgment; but it is sub- mitted that as the English bankrupt law does not require an English domicil to found its jurisdiction (d), so it should recognise foreign insolvencies and bankruptcies without inquiring whether the subject of them was or was not domiciled in the country where his bankruptcy or in- solvency was declared ; and this view seems to be supported by the judgment of James, L.J., in a later case (e). And though it is of course established law that the personal estate of a testator or intestate shall be distributed accord- (a) Liadley on Partnership, p. 1175. (6) Solomons v. Boss, 1 H. BI. 131, n. ; Toilet v. Depontliieu, ib 132, n. ; Potter V. Brown, 5 Bast, 124 ; Ex parte Cridland, 3 V. & B. 94. (c) 35 Beav. 219 ; L. K. 2 Eq. 23. (d) Supra, p. 230. (e) In re Davidson's Settlement Trusts, L. E. 15 Eq. 383. MOVABLE PERSONAL PEOPEETY. 235 ing to the law of his domicil, yet in the first place, the PabtH. Australian assignment under the insolvency in the case of Be Blithman ought to have been held operative on the Oaf- vn. English property by English law, as part of the law of Bcmkrwptcy. nations, and not merely by the Australian statute ; and secondly, if it operated at all, it did so at once, so that at the time of the death the English property belonged to the assignees under the insolvency, and was not part of the estate of the deceased for purposes of succession at all. Where the foreign bankruptcy is pending, and the bank- rupt, without having obtained his discharge under it, is adjudicated bankrupt on a new petition in England, it would seem on principle that there should be no distinc- tion between this case and that where both the bankrupt- cies are English (a). In such an event it was decided, prior to the Bankruptcy Act of 1869, that the Court would support the title of the assignees under the later bank- ruptcy against those under the earlier one in respect of property acquired between the two bankruptcies, but not, of course, in respect of that which the bankrupt had pre- viously held (6). All the property of the foreign bankrupt being vested Title of in his assignees, they become of course entitled to his aesigMe ehoses in action, for which they may have to come to English Courts, and their right to sue there in their own names depends in the first place upon] the original negotia- bility or liability to assignment of the obligation which it is sought to put in force. If the obligation was negotiable or assignable in its inception, then the assignees may sue in their own names (e), the question not being then of the remedy available, which is a matter for the lex fori (d), but of the nature of the contract. If, on the other hand, the eiiose in action is an ordinary debt, the assignees are not, according to the view best supported, entitled to sue on it in their own names (e). In the case of Alison v. (a) Griffith on Bankruptcy, p. 94. (fc) Morgan v. Knight, 33 L. J. 0. P. 168. (c) Jeffery v. M'Taggart, e M. & S. 126; Wolff v. Oxhohne, ib. 99. id) Infra, Chap. X. (e) Wolff v. Oxholme, 6 M. & S. 92, 99. 236 FOEBIGN AND DOMESTIC LAW. Paet II. Furnival (a), the point was not distinctly raised. There Pb opeet y. ^]jg bankrupt, prior to his bankruptcy and the appoint- Cap. "VII. ment of provisional syndics in France, had become the " creditor of the defendant on a French award and judgment, and the contest was rather whether two of the syndics were entitled to sue in their own names by the law of France, than whether the English law as to the non-assign- ability of obligations was to prevail. O'XMlaghcm v. Thomond (b), where the assignee of an Irish judgment, made assignable by an Irish statute, was held entitled to sue in his own name, was not cited, but the Court were perhaps entitled to apply the principle of that case, the debt being on a French judgment. Parke, B., in his judgment, treated the plaintiffs not strictly as assignees of the creditor's choses in action, but as mandatories or agents for the creditors under the French bankrupt law. In Smith v. Buchanan (c) Lord Kenyon said the English law so far gave way to foreign laws of bankruptcy that assignees of bankrupts deriving title under foreign ordi- nances were permitted to sue here for debts due to the bankrupt's estate, but that dictwn, if it meant that such assignees were entitled to sue in their own names, is cer- tainly inconsistent with the later cases already cited {d), and considerable doubt is thrown by, Story, § 565, on the decisions in the two cases mentioned above. The general principle that an obligation not assignable in its inception cannot be sued for by an assignee, either for valuable consideration or under a bankruptcy, in a form which does not recognise the ordinary assignment of choses in action, appears to be strictly analogous to the rule as to debts due to the estate of a testator or intestate, which requires the personal representative to perfect his title according to the lets fori, by taking out administration in his own name, before he can recover them by suit. By the Judicature Act, 1873, s. 25, subsect. 6, it is (a) 1 0. M. & E. 277. (b) 3 Tauuton, 81. (c) 1 Bast, 6, 11. (d) Jejfery v. M'Taggart, 6 M. & S. 126 ; Wolff v. Oxholme, ib. 92 : Folliott V. Ogden, 1 H. Bl. 131. MOVABLE PEESONAL PROPERTY. 237 enacted that any absolute assignment by writing undei!; Part II. "P'RO'PT?TlT"V" tbe hand of the assignor (not purporting to be by way of charge only) of any debt or other legal chose in action, G^^- ^^l- of which express notice in writing shall have been given Bmlcruptcy. to the debtor, trustee, or other person from whom the ^gajj^^iiity assignor would have been entitled to receive or claim such of chases in debt or chose in action, shall be, and be deemed to have been, effectual in law (subject to prior equities) to pass and transfer the legal right to such debt or chose in action from the date of such notice, and all legal and other remedies for the same. It would, therefore, seem that the assignees under a foreign bankruptcy could now obtain a clear title to sue in their own names for choses in action of the bankrupt in England, by calling upon him to execute to them such a written assignment as the section just quoted contemplates, and giving the required notice to the garnishee. The distribution of assets under a bank- ruptcy is entirely a matter for the lex fori, under the authority of which the bankrupt has been adjudicated and the distribution ordered. Thus all questions of the priority of creditors must be determined by the law of the country where the bankruptcy takes place (a), and the question whether or not a creditor's claim is capable of proof at all must be referred to the same test (b). And where double proof against the estates of two bankrupt firms is not allowed by English law, the fact that the first bankruptcy under which the creditor has proved was in Brazil will not render his proof admissible under the bankruptcy in ' England (e). It should be remarked, however, that in this case the bills which it was desired to make the subject of the proof had been accepted in England, so that the English law might have been applied as that of tbe place where the contract was to be performed (d). Moreover, a foreign creditor, residing out of the jurisdiction of the • (o) Thurbwrn v. Steward, L. E. 3 P. C. 478 ; Parch v. Bingham, L. R. 6 Eq. 485. (6) Ex parte Melbourn, L. E. 6 Oh. 64. (c) Ex parte Goldsmid, 7 H. L. C. 785 ; S.C. 1 De G. & J. 257. (d) See judgment of Turner, L. J., 1 De G. & J. 285, and Don v. Lippman, 5 CI. & F. 1. 238 FOEEIGN AND DOMESTIC LiW. Pabt II. Court of Bankruptcy, who comes in and proves his debt ■ in an English bankruptcy or liquidation, brings himself Cap. VII. thereby within the general jurisdiction of the Court as to Bankruptcy, the administration of the estate, just as if he were residing within it; so that an order can be made upon him to restore property of the bankrupt or debtor improperly in his possession (a). It would seem that the' mere fact of a foreign assignee being present in England with assets in his hands will not warrant an English Court in assuming to control his management of the estate, at any rate unless it is sufficiently shewn that the bankrupt has failed to obtain justice in the ordinary courts of the country where the bankruptcy took place (6). SUMMABY. ASSIGNMENT OF MOVABLE PEESONAL ESTATE ON BANKEDPTCY OR INSOLVENCY. p. 230. To found the jurisdiction of the Bankruptcy Court, it is not necessary that the alleged bankrupt should be domiciled in England. It is suflScient if the debt in respect of which bankruptcy proceedings are taken was contracted, and the act of bankruptcy took place, in England, the debtor him- self being commorant or even transiently present there. And it seems to be enough that the last two conditions should be complied with, though the debt was contracted abroad. Assignment under an English bankruptcy includes all movable personal estate of the bankrupt, wherever situate, and whatever his domicil. pp. 231, 232. The title of the trustee is therefore complete to all movable chattels of the bankrupt abroad, including chases in action. But if a foreign creditor of the bankrupt has obtained possession of any such movables by a competent judgment of a local Court, the title of the trustee will not prevail against him even in England ; though there is (a) Ex parte Bobertson, Be Morton, L. R. 20 Eq. 733. lb) Smith V. Mofatt, L. E. 1 Eq. 397. MOVABLE PEESONAL PEOPEKTY. 239 some authority for contending that if a domiciled English- Part n. man has used like diligence, an English Court will not ^" Q^'ebt y. allow him to hold the proceeds as against the trustee. Cap. vn. Nothing less, however, than a judgment of a competent foreign Court will in any case defeat the trustee's title. Assignment under a foreign bankruptcy to foreign p. 234. assignees extends to all the movable personal estate of the bankrupt in England, including ehoses in action. It is not, however, clear that if the bankrupt's domicil be English the title of his foreign assignees will prevail against that of his personal representative on his death. The right of the foreign assignees to sue in England p- 235. for a debt due to the bankrupt will be the same as that which would be conferred by an ordinary English assign- ment of the debt. Priorities of creditors and all other questions of proof p- 237. and distribution under a bankruptcy will be governed by the lex fori ; which will deal with creditors who have sub- mitted to the jurisdiction by coming before the Court without regard to their domicil. (v.) Alienation of Movable Personal Property hy Mar- riage. — The last species of assignment by which personal Assignments property is transferred is that universal assignment which i'e" dSc«TO~ results from the marriage of the owner when a woman, and is absolutely regulated by the law of the matrimonial domicil — i.e., the domicil of the husband at the time of the celebration of the marriage. Story cites for this the words of Lord Meadowbank in the Boyal Bank of Scotland V. Cuthhert (a) : " When a lady of fortune having a great deal of money in Scotland, or stock in the banks or public companies there, marries in London, the whole property is ipso jure her husband's. It is assigned to him. The legal assignment of a marriage operates without regard to territory all the world over." It is obvious, however, that this language is just as applicable to the lex loci celebra- tionis as to the lex domicilii, and it is extremely probable (a) 1 Eose App. 481. 240 FOREIGN AND DOMESTIC LAW. Pabt II. Pbopbbty. Cap. VII. on nw/rriage. that the learned judge was confounding the two laws, the case before him being that of an English adjudication of bankruptcy against a firm carrying on business both in Edinburgh and in London, and whose domicil for the purposes of the case was considered as being in both countries equally. The principle of the lex domieilii, how- eTer, is regarded by all writers as firmly established (a). The law of the matrimonial domicil is also that which is strictly applicable to marriage settlements of personal property as between husband and wife, yet this statement is not to be accepted without qualification. For example, its effect does not survive as against creditors when the husband is afterwards adjudicated bankrupt in another competent jurisdiction, but the law there in force will prevail (6). This simply follows from the general rule that in a distribution of assets in a conewsus of creditors, the order of distribution is a matter for the lex fori where the distribution takes place (e) ; and does not at all inter- fere with the principle that the law of the matrimonial domicil at the time of the marriage regulates the rights which husband and wife acquire in each other's personal property. By placing himself within the reach of a foreign bankrupt law, the husband in Thurbwrn v. Steward ren- dered himself and his wife liable to the operation of that law upon all the rights that had become vested in them at the time of their marriage. The reverse case occurred in Ex jpa/rte Melbov/rn (d), where the matrimonial domicil was foreign, and the bankruptcy occurred in England. On the same principle that was the ground of the decision in Thwlwrn v. Sfetoard, the wife was allowed in the case last mentioned, following the English law, to prove for a sum agreed to be settled upon her, though the law of Batavia, where the parties were domiciled and the settlement was made at the time of the marriage, rendered the contract of settlement invalid as against creditors for want of regis- (a) Story, § 423 ; Westlake, § 366. (6) Thurburn v. Steward, L. E. 3 P. C. 478. (c) Per Lord Cairns, L. E. 8 P. C. 513. (d) L. E. 6 Ch. 64. MOVABLE PERSONAL PEOPEETT. 241 tration. Nor is the law of the matrimomal domicil neces- Paht il. sarily that which reguktes the interpretation and con- Bop™nr. struction of settlements of personal property made on Cap. VII. marriage. In interpreting ambiguous or technical expres- Assignmerds sions the domicil of the parties is an element which ought °" mam age. to be taken into consideration (a), but where there is no expression of a contrary intention, a marriage settlement, like am ordinary contract, is to be interpreted according to the law of the country where it is executed (6). In the words of Story, the general rule is in no case more firmly adhered to than in cases of nuptial contracts and settle- Conflict ments — that written agreements are to be construed and jogj and lex enforced according to the lex loci contractus (e). In most domicilii. of the cases, howeverj the place of the matrimonial domicil is also that where the settlement is executed, and a con- flict between the two laws does not arise. Westlake says, on the same subject, that while the external and formal requisites depend generally on the place of celebration, the interpretation generally, and the legality and opera- tion always, depend upon the domicil (d). In Anstruther V. Adair (e), the domicil of the parties was Scotch, and an antenuptial contract, affecting the personalty which was the subject-matter of the suit, had been entered into in Scot- land. In holding that the contract must be governed by the Scotch law, Lord Brougham said nothing to indicate ■whether that law was adopted as being the lex domicilii or the lex loci contractus, but rested his judgment solely on the ground that the intention of the parties would be defeated if the Scotch law was not followed. The inten- tion of the parties is, no doubt, the true governing prin- ciple, if it can be ascertained, but the question is whether the law of the matrimonial domicil, or that of the place where the contract is entered into, is most likely to be in (a) Lansdown t. Lcmsdown, 2 Bligh, 60, 87. (6) Holmes v. Holmes, 1 EuSs. & My. 660 ; Lansdoim v. Lansdown, 2 Bligh, 60 ; Trimhey v. Vignier, 1 Bing. N. C. 151, and infra. Chap. VIII. (ii). (e) Story, §276. '.:' . . i (d) Westlake, § 371. (e) 2 My. & K. 513. See Wairrender y. Warrender, 2 01. & F. 468; Sawer v. Shute, 1 Anstr. 63. E 242 FOREIGN AND DOMESTIC LAW. Part II. the minds of the contracting parties. And though West- ! ■ lake, in the passage quoted, refers the interpretation of Cap. VII. marriage contracts to the law of the domicil, he elsewhere expresses a view more consistent with that taken by Story, on mam age. ^}jen treating of the interpretation and construction of contracts generally (a). Foubert v. Turst (b), again, was a case where the place of the matrimonial domicil, at the time of the execution of the contract, was also the place where the contract was executed, and there is nothing in the decision to support either law at expense of the other. A different state of things existed in Dunccm v. Gannan (e), but there the marriage contract, though pre- pared and signed in England, was in the Scotch form, so that the intention of the parties to be governed by the Scotch law was clearly indicated. And as Lord Justice linight Bruce, in giving judgment,' attached as much weight to this fact as to the domicil of the husband, it is hardly an authority for the law of the domicil as opposed to that of the place of the contract in cases where the forms prescribed by the latter law are adopted. In Este v. Smyth (d) the marriage contract was executed, and the marriage celebrated, in France, and the validity of the former by its terms depended upon that of the latter. The parties were English by nationality, and the marriage was celebrated at the English Embassy. Lord Romilly in effect held, that whether this was a good marriage or not by the law of France, it was good in an English Court, and that the' contract (to that extent) must be construed by English rules. But as to the general rights of the parties he held that the French law must prevail, and that the contract must be expounded by it, in order that the intention of the parties might be carried into effect. Of the matrimonial domicil nothing is said in the judgment, except that the fact of the parties being resident in France at the time of the execution of the contract was imma- (a) Weatlake, § 188. (6) Preo. Ch. 207 ; 1 Bro. P. C. 38, ' (c) 18 Beav. 128 ; 7 De G. M. & G. 78. (d) 18 Beav. 112. ■ MOVABLE PERSONAL PROPBETY. 243 terial, and Westlake says of this case that the domicil was Part n. really French, and the contract interpreted by French " Q™"^ '^- law. So far as this is true it is obTious that the case is Cap. VII. not an authority for the law of the matrimonial domicil as Assignments opposed to that of the place of the execution of the con- °^ mam age. tracts. In GuepraUe v. Young {a) the law of France, which was the domicil of the husband and the locus cele- hrationis, was expressly adopted by the nuptial contract. The dictum of Mr. Westlake just cited, to the effect Lex domicilii that the legality and operation of marriage contracts ~°ee;^ent^ depends always upon the law of the matrimonial domicil, cannot now be accepted in its entirety, at any rate with regard to a settlement made in England in a case where the domicil of the husband only is foreign. In such a case it wOuld seem that an English Court will be indis- posed to allow the subsequent operation of the settlement to be interfered with by any act of foreign law, though that law belongs to the matrimonial domicil. Thus, where a settlement had been made in England on a marriage between a domiciled Turkish subject and an English lady, entered into on the faith of the husband's representations that he would reside in England, a divorce in Turkey was disregarded, the effect of which by Turkish law was to annul the settlement, but which had in fact been pronounced without notice to the wife or the other persons interested under the settlement (b). It cannot be said, however, that: Hall, V.O., in that case expressly decided against the law of the domicil, inasmuch as 'he expressed himself satisfied that the husband represented to the wife at the time of the marriage that he intended to leave Turkey and come to reside as a domiciled Eng- lishman, whether that was in reality his intention or not. It was apparently assumed that this fact was sufficient to oust the law of the husband's actual domicil altogether, and the Vice-Chancellor said that the rights of the parties claiming under the settlement must be recognised (a) 4 De G. & Sm. 217. (6) Collis V. Hector, L. E. 19 Eq. 334, 840. E 2 244 FOREIGN AND DOMESTIC LAW. Part n. and dealt with according to English law, by which the " contract, being English, was admittedly to be expounded. Cap, yii. Regarding the contract as English, it'was further said that Assignments a Turkish Court could not make void an English settle- m mwrnage. ^^^^^ j^ ^j^^ absence of parties taking benefits under it. It is not quite clear whether the Vice-Chancellor intended by the expression "an English settlement" a contract that had been made in England, and nothing more, or a contract that had been made in England by a person who announced at the same time his intention of taking an English domicil ; but it is plain enough, that inasmuch as the matrimonial domicil remained as a matter of fact Turkish throughout, the decision is an authority to shew that the law of that domicil is not allowed absolutely to control a settlement made in England. Perhaps the clearest way of indicating the principle involved is that taken by Lord Eomilly in an earlier case (a) ; where it was said, that if a foreigner and an Englishwoman make an express contract previous to marriage, and if on the faith of that contract the marriage afterwards takes place, and if the contract relates to the regulation of property within the jurisdiction and subject to the laws of this country, in such a case an Euglish Court will administer the law on the subject as if the whole matter were to be regulated by English law. From the two cases last cited the test question appears to be, by what law did the parties intend that their rights under the contract should be governed ? In Van Orutien v. Bicfby, Lord Romilly, while admitting that foreigners — i.e., persons domiciled abroad — may enter into contracts in England to be go- verned exclusively by the law of their own country, held that the effect of the provisions in the particular marriage settlement then under his consideration was, that the subject-matter of it was to be regulated by English laws. So in Collis v. Hector the circumstance that the marriage had been entered into on the faith of a representation by the husband, that he intended forthwith to change his ■ (a) Van OruUen v. Vighy, 31 Beav. 561. MOVABLE PEBSONAL PBOPEETY. 245 domicil from Turkey to England, was considered as PabtII. clearly shewing that the law of England was the proper »o™^^- one to regulate its effect, as it was the only one which was OXp. VII. expected, to do so. The earlier case of Watts v. Shrimja- Assignments ton (a) is less clearly indicative of regard to the intention "" marriage. of the parties, inasmuch as it does not appear plainly from the judgment whether the funds which were the subject-matter of the litigation were or were not com- prised in the settlement, and that very question was dis- puted in the course of the argument. The husband's domicil at the time of the marriage was French, and the settlement was made in England, both the contracting , parties being English by nationality, and under these cir- cumstances it was held by Lord Eomilly that the contract was English, and to be regulated by English law. So far as it related to property in England, there was no doubt the same reason for appealing to the English law that existed in Van Grutten v. Bighy. SUMMARY. ASSIGNMENT OE PERSONAL PEOPEETY ON MAEEIAGE. Where no marriage contract or settlement is entered p. 239. into, the rights of the parties in and to each other's goods are absolutely regulated by the law of the domicil of the husband at the time the marriage takes place. When there' is such a marriage contract or settlement, pp. 241, 243. the law of the domicil is prima facie that which regulates its validity and interpretation ; but if the place where the contract is executed is not that of the matrimonial domi- cil, the governing law appears to be that of the place which must be taken to have been in the contemplation of the parties, either as their intended future residence, or as the lacus of the subject-matter of the settlement. Even where there is no dispute as to the proper govern- p. 240. ing law, in consequence of the marriage having been (a) 21 Beav. 97. 246 FOEEIGN AND DOMESTIC LAW. Past h. celebrated, and the contract entered into, in the country Peomett. ^£ ^jjg domioil; yet the rights created by it will not Cap. vn. prevail against a subsequent bankruptcy of the husband in a competent foreign court, inasmuch as the distribution of assets in a conewrsus of creditors is goyerned by the lex fori alone. CONTEAOTS. 247 Part III— ACTS. partiii. Acts. CHAPTEE VIII. Cap, ym. CONTEAOTS, Inasmuch as the greater part of the contracts entered into in the transaction of the ordinary business of life relate more or less directly to property, of one kind or another, it has been necessary in the course of the pre- ceding pages, while speaking of the operation of local and foreign laws upon movable and immovable property, to refer more than once to the relation to the same laws of the contracts by which such property is dealt with, and to shew that the operation of those contracts is often modified and governed by the effect of the lex situs upon the subject-matter with which they are concerned. The necessity of treating of the rights and capacities ot persons has similarly given rise to a discussion, which would other- wise have been premature, of the effect which such strictly personal qualifications have upon the contracts into which the persons enter. It is nevertheless possible, theoretically speaking, to consider the subject of contracts by itself, abstracting them in theory from the persons who make them and the property which they concern. In practice it will no doubt frequently be found that the law of persons, and the law of property, arise either singly or together to compete with the law of contracts for the ultimate decision of the particular case which is the sub- ject of inquiry ; but this is a difficulty which is not con- fined to private international jurisprudence, and occurs with equal frequency in the investigation of ordinary municipal law. But the inevitable result must be, that Jurisdiction. 248 FOREIGN AND DOMESTIC LAW. Paet ni. just as, in the consideration of the claims of English law . .' to regulate things and persons, it was not practicable to Cap. VIII. escape entirely from its operation upon contracts, so in Contracts— the discussion of contract, it will be impossible uniformly to ignore the law of persons and things. In considering the jurisdiction assumed by English law over contracts, and the extent of its right to determine and define those which come before it, the following factors must be regarded as important : (i.) The place where the contract was made, or the locus contractus cele- brationis ; (ii.) the place where the contract is to be or was to be performed, or the locus solutionis ; (iii.) the situs, or situation of the property which it is intended by the contracting parties to affect ; (iv.) the status of the con- tracting parties themselves ; and (v.) the operation of the lex fori upon the remedy which the litigants seek to obtain from the English Court. The questions of situs rei and status personm have already been discussed, and the whole subject of remedies will be considered when treating of Procedure (a) ; but it will not be practicable to keep the consideration of contract law as a whole entirely distinct from these last-mentioned branches of the subject. It is proposed to treat here of contracts from their incep- tion to their enforcement according to the natural order in which the difSculties arising from the subject present themselves, (i.) Jurisdiction as to Contracts. It is not proposed to enter into the questions of jurisdic- tion which are peculiar to Roman jurisprudence and to the systems of those countries which are derived from the civil law. The distinctions between the forum rei, the forum domicilii, the forum actoris, the forum rei sitrn, the forum rei gestw, and the} forum rei solvendse, are of little practical importance to the English lawyer (fc), whose (a) Infra, Chap. X. (6) They may be found discussed in Story, § 532-538; Westlake.p. 89, p. 104 ; J. Voet, Pandect, torn. i. lib. 5, § 77, seq. CONTEACTS. 249 object it is to inquire simply how far the statutory and Pabt III. common law powers oi his own Courts extend, and over what matters they will assume and maintain jurisdiction. Cap. YIII. The element of the English common law, which as a Contracts— matter of fact prevented these questions from ever arising J""*^'""- in its administration, was the technical rule of venue, which Eules of divided all actions into two exhaustive classes, heal and ''^""^" transitory. Local actions were those connected in any way with the soil, which it was always necessary to bring in the country where the cause of action arose, and the dis- tinction arose in the following way. By the old common law the jurors were to be summoned from the particular place or neighbourhood (vieinetvm, msrae)^where the facts happened, it being then thought highly desirable that they should be cognizant of their own knowledge {a), apart from the evidence, of the matters in dispute. It was therefore necessary, for the guidance of the sheriff in executing the Writ of venire facias, that the pleadings should shew what the place or neighbourhood was (6), and the term " laying the venue " was given to the required allegation. But in course of time the jury began to be summoned no longer as witnesses, but as judges, to receive the facts from the testimony of others judicially examined before them (c), and the necessity of their being summoned from file mdnetwm where the facts occurred — in other words, the necessity for that reason of the venue being truly laid — ceased. It was from this time that the distinc- tion between local and transitory actions began; the former including all matters necessarily involving the idea of a certain place or part of the soil, the latter those which affected the person, or the movables which follow the person, and which might therefore have happened anywhere. With regard to local actions, it was held that if the venue alleged in the margin of the pleadings was untruly laid — i.e., if on trial the action appeared to be (a) Co. Litt. by Harg. 125 a, n. (1). (6) Ilderton v. lUerton, 2 H. Bl. 161 ; Co. Litt. 125, a, b.' (o) Stephen on Pleading, Ittx ed. p. 235. 250 FOEEIGN AND DOMESTIC LAW. Part in. connected with the soil of some place outside the county ,' of the venue as laid^^the variance was fatal, and the OAP.vin. plaintiff failed. If, on the other hand, the facts of the Contracts— action were transitory — i.e., such as might have occurred Jurisdiction., anywhere — the fact that the venue, as laid, was not the place where they were actually proved to have happened, was immaterial (a). The consequence was that any con- tract, not directly connected with the soil, could be sued on in an English Court without regard to the place where it arose or was to be performed, if the defendant could be only rendered amenable to the Court's process, and service could be effected upon him according to its regulations. The former practice of the Common Law and Chancery Courts differed in several essential poiats. At common law, personal service within the realm was necessary until Effect of 1852. The Common Law Procedure Act of that year Common Law permitted service abroad Cexcept in Scotland or Ireland) Acts. in actions against both British subjects (s. 18) and foreigners (&) (s, 19), when there was a cause of action which arose within the jurisdiction, or in respect of the breach of a contract made within the jurisdiction ; and the Court or a judge, on being satisfied by affidavit of these facts, and that reasonable efforts were made to effect service of the writ, which had come to the defendant's knowledge, were empowered to dispense with service alto- gether (e). It will be seen that the limitation confining this statutory power to cases in which there was a cause of action which arose within the jurisdiction, or in respect of a breach of a contract made within the jurisdiction, may be construed in two ways : first, as confining the statutory power in respect of actions on contract to cases where the contract was made within the jurisdiction ; and secondly, as including cases where the contract was made abroad, but the breach took place in England — this second con- (a) Mostyn v. Fabrigas, 1 Sm. L. C. 607, and oases cited in note. So for torts to realty abroad, no action lay in England ; secus, as to personal wrongs, Skinner v. E. I. Co., cited in Cowper, 167, 168. (6) Foreigners resident in Scotland or Ireland might be served there, though British subjeota were exempt : Day's C. L. P. Acts, p. 58, u. (o) Bind V. Picot, 28 L. J. Ex. 244. CONTRACTS. 251 struction regarding the Ireaeh of a contract as a " cause Past III. of action " within the meaning of the first part of the ' limitation. Upon this question the Courts at Westminster Cap. Yill. at first held divided views j the Queen's Bench adhering Contracts— to the view that it was insufficient that the breach of a ■^»"^""- contract should take place within the jurisdiction, if the contract itself was made abroad (a), while the Courts of Common Pleas and Exchequer acted upon the opposite construction (6). In consequence of these conflicting de- cisions a conference of the judges was ultimately held upon the subject, and the view taken by the Court of Common Pleas in Jackson v. SjpittaU was accepted as binding once for all (c) ; so that according to this, the latest authority, a plaintiff was entitled under the Common Law Procedure Act, 1852, to serve the defendant abroad, if he could shew that the contract was either made or broken within the jurisdiction. The passing of the Judi- cature Acts, 1873 and 1875, introduced new law upon the subject altogether ; but Ord. xi., r. 1, of the Eules of Court, in the schedule to those Acts, adopts the principle enunciated in Vaughan v. Weldpn. " Service out of the jurisdiction of a writ of summons Provisions of or notice of a writ of summons may be allowed by the Aits!^ "™ Court or a judge whenever the whole or any part of the subject-matter of an 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 j and whenever the 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, was made or entered into within the jurisdiction, and whenever there has been a breach within the jurisdiction of any contract wherever made, and whenever any act or thing sought to (a) Allhusen v. Malgarejo, L. E. 3 Q. B. 340 ; Cherry v. 'Thompson, L. E. 7 Q. B. 573 ; and see Siohel v. JBoreh, 2 H. & C. 954. (h) Jaelcson v. Spittall, L. E. 5 C. P. 542 ; Durham v. Spence, L. R. 6 Ex. 46 ; Vaughan v. Weldon, L. R. 10 0. P. 48. (c) Vaughan v. Weldon, L. E. 10 C. P. 48. 252 FOKEIGN AND DOMESTIC LAW. Paet m. Acts. Cap. VIII. Contraete — Jurisdiction. Effect of Judicature Acts. be restrained or remoTed, or for which damages are sought to be recovered, was or is to be done or is situate within the jurisdiction." By a subsequent rule (r. 4, Ord. xi.) the order giving leave for service of such writ or notice shall limit a reason- able time for appearance. It has been decided in Swansea SMpfing Company v. Duncan, Fox, & Co. (a) that both these rules apply to the service of notice on third persons under Ord. xxi., rr. 17, 18. The Chancery practice, previous to the passing of the Judicature Acts, was controlled by Ord. x., r. 7, of the Consolidated Orders, which gave the Court a discretionary power (not limited to the cases contemplated by 2 Will. 4, c. 33, and 4 & 5 Will. 4, c. 82) to order service of a copy of a bill on a defendant without the jurisdiction in any suit (6). The rule of court above cited will of course henceforth regulate the practice in all the Divisions of the High Court. It was held under the old practice that the power conferred by the Common Law Procedure Act, 1852, of serving " persons " abroad did not include the case of foreign corporations (e). The interpretation order, however (Ord. LXiii.) expressly provides that the word " person " in the rules shall include a body corporate or politic, so that the decision in Ingate v. Austrian Lloyd's must be regarded as inapplicable to the present practice, and it has been expressly decided that service can now be ordered on a foreign corporation abroad (c?). It will be remarked at once that the terms of Ord. xi., r. 1, which has just been cited, are merely permissive, and not obli- gatory, and the question immediately arises, by what rules will the exercise of that discretion be governed ? In Sart V. Serwig (e), a case which came before the Appeal Court of Chancery before the commencement of the (a) L. R. 1 Q. B. D. 644. (6) See Drummond v. Drwmmond, L. B. 2 Oh. 32, where the old law is fully discussed. (c) Ingate v. Austrian Lloyd's, 4 C. B. N.S. 704. (d) Scott V. BAyyal Wax Candle Co. L. R. 1 Q. B. D. 404 ; Westman v. A. E. Snickarefdbnk, L. R. 1 Ex. D. 237. (e) L. R. 8 Oh. 860. OONTBAOTS. 253 JunsdicUon. Judicature Acts, it was argued that the discretion which Part ill. Acts. the Court of Chancery then possessed (as explained in ! Drwnmond r. Brwmmond,, vid. supra) should be regulated Cap, yiil. by the analogy of the common law powers conferred by Gontracts- the Common Law Procedure Act, 1852, and stated above. Without actually assenting to this proposition. Lords Justices James and Mellish intimated that in that parti- cular case, inasmuch as the chattel which was the subject- matter of the suit was within the jurisdiction, the Court had power to grant an injunction against its removal, which was the relief prayed. James, L.J., however, says with regard to the general question, " I am of opinion that, according to the established law of nations, if this suit were a suit for damages only, or one which could result in damages only, then the plaintiff must, in order to enforce his claim for damages, go and seek the forum of the de- fendant. But where the contract, as in this case, though made abroad, is to deliver a thing in specie to a person in this country, and the thing itself is brought here, then the Court here, in the exercise of its discretion, will see that the thing to be delivered in this country does not leave this country, so as to defeat the right of the plaintiff to have it so delivered." In Davies v. Park (a), which was cited during the argument in Hart v. Serwig, the contract had been made abroad, and the defendant, whom it was attempted to serve, was also without the jurisdiction ; and in discharging the order for service, Wickens, V.C., said the question was whether the defendant, the contract being a foreign one, had done anything to waive his ordi- nary right to be sued in the courts of that country of which he was a citizen, and where he still resided. The judgment of Malins, V.C, in Muithaei v. Galitzin (6), another case decided before the Judicature Acts, is also useful in shewing the view of the general question of jurisdiction taken by English Courts, In that case the parties, the contract, and the subject-matter were all foreign, though it does not appear from the report whether (a) L. E. 8 Ch. 862, n. (6) L. K. 18 Eq. ^40: Jurisd/iction. 254 POEEIGN AND DOMESTIC LAW. Part III. and how service had been effected abroad, and Malins, V.C, ' said, " What right in such a case can there be to sue here ? Cap. vm. Qajj aj^y one sue in the courts of this country in matters Contmcu— relating to foreign property, the contract being foreign, ^nd: both parties foreign subjects ? (a) Certainly, ac- cording to my view, it is no part of the business of this Court to settle disputes between foreigners. There must be some cause for giving jurisdiction to the tribunals of this counta-y ; either the property or the parties must be here, or there must be something to bring the subject- matter within the cognizance of this Court. . . . All the cases cited go upon the same principle, and they shew that you cannot sue a foreigner in this country, unles^ the parties are resident here or the property is situate in this country " (b). These observations must, however, be read seevm,dmn svkjectmn materiem, the suit relating to the profits of a Eussian mine, and the cases immediately afterwards referred to by the Vice-Chancellor being all connected with foreign realty (c). When the cause of action was not connected with any specific property, and arose out of a mere personal contract, it has been already seen tha,t jurisdiction was frequently assumed by English Courts if this country was either the place where the contract was made or where it was broken — the loeus contractus .celebrationis^ or the loc^s solutionis (d). But where there is a foreign subject-matter, and no special circumstances exist to give the English Courts jurisdiction, it appears clear, that the parties must be confined to the foreign; tribunal (e). ^ Service, of a petition under the Trustee Belief Act, 1847 (10 & 11 Vict. c. 96), will, it (a) Tlie parties were really domiciled abroad, and it does not appear that any reliance lias ever been placed on the point of nationality, so that the expression "■British subjects " was probablyf used inadvertently ; espe- cially as it appears that the intestate of the pla,intiff, who sued as adminis- tratrix, was a naturalized British subject. ' '1 ■ I (b) Matthaei v. Galitzin, L. E. 18 Eq. 347 ; Cookney v, Anderson, 31 Beav. 466 ; 1 D. J. & S. 365. (c) Vid. stiprd, pp. 120-138. (d) Ante, p. 250. (c) Dos^ V. Secretary of State for India, L. E. 19 Eq. 509, 535 ; Matthaei V. Galitzin, L. E. 18 Eq. 340 ; Be Holmes, 2 J. & H. 527 ; Blalce v. Blalce. 18 W. R. 944. CONTEAGTS. 255 seems, he permitted in any case, without reference to the Part hi. local situation of the subject-matter of the trust (a). °'^^" So far, then, it is difficult to see what limitation is to be ^^p- ^l^^- placed upon the exercise of the discretion in assuming the Contraets— foreign jurisdiction which is conferred by Order xi., r. 1. •?"■««*«*«"»■ It has been seen that it will be exercised in respect of contracts either made or broken here, or concerning mov- able or immovable property situate here. The case of two domiciled Englishmen, contracting abroad for some- thing to be performed there, does not seem to have arisen, and is not included in the rule, as the service of a writ, with which that rule is concerned, woflld not of course give rise to any question as to the locus of the contract, if the defendant was in England. Even transient presence, however, within the jurisdiction, has always been held sufficient to entitle the Court to proceed in any matter (h) that was not concerned with foreign realty, or otherwise required a local venue abroad, and a fortiori the fact' that the defendant was domiciled in England would give the Court jurisdiction in such matters, if he could be served with the writ here. Whether the mere fact that the de- fendant had his domicil here would give jurisdiction in cases where the cause of action was foreign, so as to enable the Court to order service abroad, iS a question which does not appear to have come before the Court of Chancery before the Judicature Act, when the discretion of that Court was undefined and unfettered by statute. The Common Law Courts could of course only act under the statutory provisions enabling them to do so (C. L. P. Act, 1852, s. 18), just as all thei Divisions of the High Court are now'limited to the cases mentioned in Order xi. of the Judicature Acts ; and in neither of these statutory enact- ments: is the supposed case included. , The restriction arising from the necessity of a local Abolition of venue, in actions concerning foreign realty, has now been '"'^^ of wnue. (a) In re Haney's Trusts, L. E. 10 Ch. 275, aud cases there /oitpi As to service in probate actions (Ord. xi., i. 2) see Beddington v. Beddington, 34 L. T. 366. ,, ,, ,-,.,, , - (6) See note to Mostyn v. Fabru/as, 1 Sra. L.^ CS-.|658,| i 256 FOREIGN AND DOMESTIC LAW. Pakt III. abolished by the Judicature Acts (Sched. Order xxxvi., °™" r. 1), and it would seem no longer controls the jurisdiction Cap. vm. of the High Court. WTidtaher \. Forbes (a) was a case in Coniracts— which the Judicature Acts did not apply, inasmuch as it Jmisdiction. ^^g commenced before their operation, though argued in the Court of Appeal after that date, and in giving judg- ment, Cairns, L.C., suggested the probability that the alteration in the law of venue introduced by the Judicature Acts might extend the jurisdiction to some actions which the Courts under the old law had no power to entertain. That was an action for a rent-charge issuing out of land in Australia, as to which the authorities cited to shew that the venue was local were conclusive (6), and the decision proceeded therefore strictly upon the technical ground that an action in which the venue was local could not be maintained here unless that venue could be laid within the jurisdiction. The observations of Lord Cairns were after- wards referred to in a case commenced under the Judica- ture Acts, and to which the new rules abolishing venue therefore applied. The claim stated that the Plaintiffs and defendants were each of them limited companies with registered offices in London, and that the action was brought for rent of a railway station in Buenos Ayres (into possession of which the defendants were put by the plaintiffs), and for part of the cost of constructing lines of railway and approaches to the station (e). The distinc- tion as to venue no longer existing, it was not directly decided that the case in question was local, and that the Judicature Acts had therefore actually enlarged the juris- diction ; but it appeared to be assumed that it would be insufficient to oust the jurisdiction of the Courts to shew merely that the rules of venue would formerly have pre- vented the action from being brought. The litigant com- panies both being English corporations by statute, with registered offices in London, no difficulty bad arisen with (a) L. E. 1 C. P. D. 51. (6) Thomas v. Sylvester, h. E. 8 Q. B. 368. (c) Buenos Ayres and Easenada Port By. Co. t. Northern By. Co. of Buenos Ayres, L. E. 2 Q. B. D. 210. Jurisdiction. CONTEAOTS. 257 respect to the service of the writ ; and the only question Past in. argued was, whether the fact that the railway and premises .' were situate in Buenos Ayres, and that the Argentine O ap. vin. Republic had assumed jurisdiction over the plaintiffs' Contracts— claim, was sufiScient to prevent an English Court, accord- ing to the comity of nations, from taking cognizance of it. It was held insufficient, on the ground that no exclusive jurisdiction belonged . to or had been assumed by the Courts of the Argentine Republic, and that the law of nations did not restrain a tribunal here from dealing with a contract properly brought before it, by reason of its relating to immovable property situate in a foreign country. There are in fact two stages of any action at which the defence that the contract to which it relates is a foreign one may be raised. It may be raised either by opposing the application for leave to serve the writ abroad, when the defendant is not in England, or on the pleadings by demurrer (a). It may also of course be left for argu- ment upon motion for judgment, or otherwise after verdict, but the question so raised will be exactly the same as that involved in the demurrer. First, as to the service of the writ, it has been already shewn that the discretionary power of the Courts is limited and conferred by Order xi., r. 1, of the Rules of the Supreme Court ; and it is sub- mitted that the discretion exercised under that Order by a judge at Chambers should refuse leave to serve abroad even in cases where the facts are strictly within the terms of the Order, if it is clear that the jurisdiction of an English Court does not properly extend to the subject- matter. In other words, it should be governed by the same rules as those recognised and followed by the Court of Chancery before the Judicature Acts came into opera- tion. Secondly, with regard to the cases in which the •defence may subsequently be raised upon the pleadings, that course was adopted as the most suitable one in Buenos Ayres and Ensenada Port By. Co. v. Northern By. (a) See, however, Preston v. Lament, L. K. 1 Ex. D. Sdl. 258 FOREIGN AND DOMESTIC LAW. Pabt III. Go. of Buenos Ayres (a), but in Preston v. Lamont (h) a de- 1' fence substantially objecting to the jurisdiction was struck Cap. VIII. out on the ground that the question was one for Chambers. Contracts— It should be noticed, however, that in the case last cited Junsdieiton. ^^^^ ^f jj^g statement of defence which was disallowed was virtually a denial that the facts of the case came within the terms of Order xi., r, 1, at all, so that the judge's order for service beyond the jurisdiction was alleged to have been wrongly made ; and there can be little doubt that many cases may arise, in which, though Order xi., r. 1, is strictly applicable, the general principles of law and the comity of nations would direct an English tribunal to decline jurisdiction. Such, for example, are obviously those actions in which it is attempted to try the title to or the right to the possession of foreign realty, with regard to which it has been shewn above (c) that the Court of Chancery never assumed jurisdiction to act directly upon foreign land, but only indirectly through the consciences of its own justiciables. The rules of Chancery on this point being based on the principles of the law of nations (d), and having nothing to do with the common law technicality as to verme, remain unaltered by the Judicature Act, being only modified at the stage of the service of the writ of summons, by the additional limitations imposed and defined in Ord. xi., r. 1. SVMMABY. JUEISDICTION ON CONTEAOTS, p. 248. The jurisdiction of English Courts to deal with con- tracts in which a foreign element existed was originally based on rules of practice alone; and the distinctions made by Eoman law between ihe forum actoris, the forum rei, and ike forum rei sitae, rei gestse, or rei solvendse, were (a) L. E. 2 Q. B. D. 210. (6) L. E. 1 Ex. D. 361. (c) Supra, pp. 121, 127. (d) Except so far as they may be said to be at variance witb it. See Story, § 544, and mpra, p. 136. GONTKACTS. 259 ignored. The test of venue, provided that personal service Past III. could be effected on the defendant within the realm, was ' the only one applied in the Common Law Courts ; whilst Oap- YIII. the Court of Chancery, which was unrestricted by the rules of venue, had a discretionary power of ordering ser- p. 249. vice without the realm in any suit. Actions for the pos- session of foreign immovables were excluded from all Courts ; from the Common Law Courts by the rules of p. 252. venue, and from the Court of Chancery on principle. The Common Law Procedure Act, 1852, gave a similar p. 250. power of ordering foreign service to the Common Law Courts, where the cause of action arose within the juris- diction, or in respect of a breach of a contract made within the jurisdiction; a provision which was, after a judicial conflict, construed to include the case of a contract made abroad, but broken within the realm. The provisions of the Judicature Acts, 1873 and 1875, p- 251. give a similar discretionary power of ordering foreign service (a.) where the subject-matter of the action is land stock or property situate within the jurisdiction, (b.) in all actions on contracts made within the jurisdiction, or (c.) of which there has been a breach within the jurisdiction, wherever they were made, (d.) in actions touching any act or thing done, to be done, or situate, within the jurisdic- tion. If the action does not fall under one of these heads, the mere English domicil or nationality of the contracting parties will not enable foreign service to be ordered. The restrictions arising from the rules of venue are abolished altogether. Notwithstanding the abolition of venue, actions for the possession of or property in foreign immovables will not, it would seem, be now entertained, any more than they could have been in the Court of Chancery under the old p. 256; practice. The mere fact, however, that a contract relates to foreign immovables will not restrain an English Court from dealing with it ; and the Court of Chancery will of course indirectly affect foreign immovables by acting in personam, as heretofore. s 2 260 FOREIGN AND DOMESTIC LAW. Law of the Ccmtract. PABTin. (ii.) Law hy which the Contract is governed. — The lex '^^' contractus has always been an ambiguous term, which Cap. VIII. jurists have interpreted either as the lex loci celebrationis or solutionis, the law of the place where the contract was entered into, or of that where it was to be performed, according to the tendency of their peculiar views. A little consideration will shew, that, assuming that the parties entering into the contract are of full capacity to do so by every law, and that no law is transgressed or intended to be transgressed by the subject-matter of their agreement, their will is or should be absolutely unfettered. They should in theory be able to contract themselves out of or into any law they please, and the only question for a tri- bunal called upon to enforce the contract should be, by what law did the parties intend that their rights should be defined and governed ? According to this reasoning, the intention of the parties should be deferred to when interpreting and enforcing a contract in all respects ex- cept two, the question of their capacity to contract, and the question of the legality of that for which they have contracted. An examination of the cases in detail will shew how far these theoretical principles have been adopted. (a.) Capacity to contract. — With regard to the capacity to contract, which is generally regarded as the natural consequence of adult age, it has been said above (a) that the English authorities, as far as they go, are unanimous in saying that the lex loci celehrationis, the law of the place where the contract is entered into, has alone the right to make its voice heard. On such a matter the question of intention can obviously have no weight, and the limit of age, which the English law has imposed for the benefit and protection of its own subjects, must be conclusive within the limits of its jurisdiction. It would clearly be inequitable, for example, that a domiciled sub- ject of Prussia or of some other continental State which regards legal majority as postponed until the age of twenty- (a) Supra, p. 31 ; Male v. Boberts, 3 Bsp. 163. Capacity governed lex loci. by CONTRACTS. 261 five, should attempt to evade the performance of a con- Past m. tract entered into in England when he was twenty-four .' by the plea of infancy. The reverse case of an English- Cap, vin. man at the age of twenty-four making a contract in Capacity to Prussia, and afterwards repudiating it on the same plea, "o™*™^*- has not occurred; but the other party to the contract, who would almost inevitably be Prussian by nationality or domicil, would necessarily be taken to know his own laws ; and though he might complain that he had been defrauded, could not deny that the fraud ought to have been foreseen. It is of course possible to imagine the case of two Englishmen transiently present in a country whose law regarded them as infants, although both had passed the English limit of twenty-one years, and there entering into a contract in ignorance or in contempt of the provisions of the lex lod. No English Court has been called upon to decide upon the validity of a plea of in- fancy offered under such circumstances, and it is difficult to think that it would be allowed to prevail. In Daly- ryrwple v. Dalyrymple (a), Sir W. Scott said that it was an indispensable rule of law as exercised in all civilized countries, that a man who contracts in a country engages for a competent knowledge of the law of contracts in that country. Nevertheless, until the recent decision in Sottomayor v. Capacity— De Barros (b) on appeal, authority was wanting for ^^^ <*°^*''*^*- holding that the law of the domicil of the parties would in such a case be referred to. It must be confessed that there are dicta in that judgment which go far towards unsettling the view hitherto attributed to English law on this question (c), and towards adopting the theory main- tained by so many of the older jurists, that the personal law of domicil confers a capacity or imposes an incapacity which will follow the person into any other country (d). That was a case which turned upon the so-called capacity of two domiciled Portuguese, who being first cousins were (a) 2 Hagg. Cons. 61. (c) See authorities cited suprci, p. 31. (6) 37 L. T. 415. () JBrooh v. Brooh, 9 H. L. 0. 216. 272 FOREIGN AND DOMESTIC LAW. Pakt in. Acts. Cap. Vni. Capacity to contract. expressly says that it cannot be disputed that every State has the right and power to enact that every contract made by one or more of its subjects shall be judged of, and its validity decided, according to its own enactments and not according to the laws of the country wherein it was formed." (How far this latter dietvm may be regarded as applicable to contracts in the ordinary sense of the word has been considered above {a).) On the same principle it is clear that the provisions of the English Marriage Act (26 Geo. II. c. 33), as to the previous consents required to render the marriage of minors valid, were not intended to apply to marriages celebrated out of England, any more than the other provisions in that Act as to the necessity for banns or license. The Act, in Lord Campbell's words, did not touch the essentials of the contract, or prohibit any marriage which was before lawful. It dealt with formalities and celebration alone (b). There is, it is true, one description of prohibition of marriage absolutely which is conceivable, and would amount, did it exist, to an assumption by the law to create an incapacity in the proper sense. It has been suggested that the effect of attainder is to incapacitate the attainted person from con- tracting a valid marriage at all ; but however the law of some foreign countries may regard the attainder of their subjects, it has been decided, first, that attainder by English law does not create even an incapacity to marry in England ; and secondly, that even if it did so, it would not, except by express enactment to that effect, claim any extra- territorial effect, so as to prohibit the marriage of the attainted person abroad (e). It is quite clear that what- ever claim might be made by the law of a particular country in this respect, it could be entitled to no inter- national or extra-territorial recognition whatever, on the double ground that political offences are ignored altogether in non-domestic tribunals, and that a law which imposed (a) Ante, pp. 263, 264. (6) Broole v. Brook, 9 H. L. C. 215. (o) Eynnaird v. Leslie, L. E. 1 C. P. 389. CONTEACTS. 273 an absolute incapacity to raarry at all must be opposed to Pabt hi. the public policy of every civilized community. The examination of the foregoing cases on the question Oaf. Vlll . of the capacity to contract a marriage, taken in conjunction Capacity to with authorities cited above (a) as to the capacity to con- <=" " '•°^ *- tract in a commercial sense, shews, it is submitted, that the decision of the Court of Appeal in Sottomayor v. De Capacity for JBarros (h) accorded in substance with the authority of precedents, but was expressed in terms not warranted by that authority, and involved dicta directly opposed to it. "None of the cases cited," said Lord Campbell in Brook V. Brook (c), " can shew the validity of a marriage which the law of the domicil of the parties condemns as inces- tuous, and which could not, by any forms or consents, have been rendered valid in the country in which the parties were domiciled." It is submitted that that is the only principle upon which Sottomayor v. De Barros should have been decided. The prohibitions of the Koyal Marriage Act have been Royal Mar- before alluded to, and inasmuch as they forbid certain "^'^^^ marriages without the previous consent of the reigning Sovereign under the Great Seal, clearly ought in principle to be regarded as only imposing an additional formality, which the law of another country would not be justified in requiring when the marriage was celebrated within its jurisdiction. So far as the laws of foreign States are con- cerned, there is no difference in theory between the con- sent of a parent or guardian, and the consent of the reigning Sovereign under the Great Seal. But so far as the law of England is concerned, it is clearly competent for it to say that it will regard certain marriages as invalid, wherever celebrated. It cannot compel, or even expect, other States to adopt its view, but it can and does assert its own intention to take it. It can, that is, and does, impose a personal incapacity on the members of the royal family, by declaring that it will act upon the supposition (o) Ante, pp. 31, 262. (6) 37 L. T. 415. (c) 9 H. L. C. 218. 274 FOREIGN AND DOMESTIC LAW. Part HI. Acre. Cap. Vin. Capacity to contraet. that such an incapacity has been' imposed. In accordance with this view the House of Lords decided in the Sussex Peerage Oase (a) that the provisions of the Eoyal Marriage Act extended to marriages celebrated out of England, and that the law would not allow its object and intention to be defeated. It is noteworthy that in the opinion of the judge in that case the same distinction is drawn between the essentials and the formalities of a marriage contract, the prohibitive and the directory part of the enactment, that has already been shewn to be deducible from Brook V. Brook (6) and its cognate cases. 8UMMABT. CAPACITY TO CONTRACT. p. 262. The capacity to contract in the ordinary sense of the word, and the so-called capacity to enter into a contract of marriage, are decided by different considerations, and governed by different rules. pp. 260, 261. The law of the place where the contract is entered into, the lex loci celebrationis, is, in common cases of contract, the law which must decide the capacity of the contractors. [Except so far as the obiter dicta in Sottomayor v. Be Barros (c) on appeal may be considered as establishing the supremacy of the lex domicilii.] pp. 265-273. In the contract of marriage, the question strictly speak- ing is generally not one of the capacity or incapacity of the parties, but of the legality or illegality of the marriage. The law of the matrimonial domicil is the proper law to decide whether the marriage can, by the use of any forms, ceremonies, or preliminaries, be' effected. The law of the place of celebration is the proper law to decide what forms, ceremonies, or preliminaries, shall be employed. If the law of the matrimonial domicil is such that the (a) llCl. &F. 85; and see ante, p. 57. (c) 37 L. T. 415. (6) 9 H. L. C. 193. CONTRACTS. 275 marriage cannot be effected by obeying its directions, but Pakt in. can be effected by obtaining a dispensation from its pro- .' hibitions, the marriage cannot, in the absence of such Cap. Vlll. dispensatioD, be legalized by the law of the place of Capacity to celebration. '"^*- The law of any country may, and the English Eoyal p. 273. Marriage Act does, not only prohibit certain persons from contracting marriage in England except on prescribed conditions, but refuse to recognise any marriage contracted by such persons elsewhere when those conditions haye not been complied with. (b.) Formalities and Legality of the Contract. The capacity of the parties to a contract having thus Forms of been determined, the question next arises, by what law ^~^^ the formalities and ceremonies of the contract are to be regulated ? It has been already shewn that the rule with respect to the contract of marriage is that the forms must depend upon the lex loci celebrationis alone (a) ; and it is undoubted that this is only a consequence of the general principle which applies to contracts generally, of whatever nature and wheresoever celebrated. The for- malities and ceremonies which the law of the place of celebration demands for the constitution of a contract are to be tested by that law alone ; and if they satisfy it, no other law has a right to demand more, or in the other event, to accept less (6). So far as regards the formalities of contracts, the maxim of the civil law " locus regit actum" is, with one exception more apparent than real (the trans- fer of immovables (e)), adopted by the law of England; The point where a conflict of law does nevertheless arise is the distinction between the requisite formalities of celebration, and the requisite proof that the contract was (a) Ante, p. 48 ; Brook v. Brook, 9 H. L. C. 193. (6) Beriham v. Mornington, 3 C. B. 133 ; Burge, For. Law, vol. 1. p. 29 • Story, Conflict of Laws, §§ 260, 262 ; Leroux v. Brown, 12 C. B. 801 ; Warrenden v. Warrendem, 9 Bligh, 110, per Lord Brougham. (c) Ante, p. 152, infra, p. 282. T 2 276 FOREIGN AND DOMESTIC LAW. Pabt III. duly celebrated, between the creation of the obligation ; and the evidence of its existence, between the origin of Oaf. Yin, t^e liability under the lex loci and the procedure required Contract— foT the remedy by the lex fori. This conflict was well in- FcrmaHtiei. ^-^^^^^ -^ jg-^^^ ^ ^^^^^^ ^^^ ^^ Tmd.a\, C.J. « The dis- tinction between that part of the law of the foreign country, where a personal contract is made, which is adopted, and that which is not adopted by our English Courts of law, is Essentials and Well known and established ; viz., that so much of the law distfiKtion ^^ affects the rights and merits of the contract, all that between. relates ad litis decisionem (h), is adopted from the foreign country ; so much of the law as affects the remedy only, all that relates ad litis ordinationem, is taken from the lese fori of that country where the action is brought." The principles here acknowledged are also clearly laid down in British Linen Company v. Drummond (c). Be la Vega v. Vianna (d), and Don v. Lijapman (e), overruling an older decision in which a contrary view appears to have been taken (/). It may therefore be regarded as beyond dis- pute that whatever relates to the enforcement of the remedy sought must be determined by the lex fori, the law of the country to the tribunals of which the appeal is made. But when a law, like the English Statute of Frauds, makes a particular species of evidence necessary to establish the constitution of the contract which was not foreseen or required by the law of the place of cele- bration, or rejects evidence which that law would have admitted, it becomes more difiScult to determine whether this question belongs peculiarly to the enforcement of the remedy, or to the materiality of the contract. A similar difficulty arises, where the English law, as the lex fori, instead of being more stringent than the law of the locus contractus, is less so, and admits evidence which would have been rejected in the forum celebrationis or solutionis, as the case may be. It has been decided, as will be shewn (a) 2 Scott, 326. (d) 1 B. & Ad. 284. (6) Vid. Bartoius, Comrn. Cod. I. i. 1. (e) 5 CI. & F. 1. (o) 10 B. & C. 903. (/) WiUiams v. Jones, 13 East, 439. CONTRACTS. 277 immediately, that both these questions belong to pro- PaktIII. cedure, and are to be determined by the lex fori alone; ' and this is so even where the matters to which the ques- C^^- ^^^• tionable evidence relates are themselves mere formalities Contraet— of celebration. The distinction, which it is rather difficult ^<»-^*^^»- to discern at first sight, appears to be this. The lex fori does not attempt to dictate to those who contract beyond its jurisdiction what ceremonies or formalities shall be employed, nor does it examine a contract that is properly evidenced before it, to see whether the forms and cere- monies actually used are such as it is accustomed to. But it has its own rules of evidence as to the manner in which a contract must be proved as a fact, whether, for example, by parol testimony or by writing, and to these it adheres, whatever may have been the requirements of the foreign law. The question of stamped documents is governed by the same considerations. Facts, such as the payment of money to another's use, will be accepted as proved by the lex fori without the evidence of a foreign stamp (a) ; but if the law of the place where a contract is made declare that it shall be void unless a stamp is used, it cannot be sued upon or enforced elsewhere. These principles are illustrated by the following cases. 1. First, the lex fori prevails, when its rules as to evi- Requirements dence are more stringent than those of the lex loci cele- ^ e^ridence.^ hrationis or solutionis — that is, where it demands evidence which they do not require, or rejects evidence which they admit. Thus, in Leroux v. Brown (h), it was held that 8. 4 of the Statute of Frauds, providing that no action shall be brought upon certain contracts that are not evi- denced by writing, applied to contracts made abroad. In that case Jervis, C. J., said, " It is not denied that if s. 4 of the Statute of Frauds applies to the contract itself or to the solemnities of the contract, it cannot be enforced here. I am of opinion that the section in question applies not to the solemnities of the contract, but to the procedure, (a) Bristoii) y. SequevilU, 5 Ex. 275, 279. (6) 12 0. B. 801. 278 FOEEIGN AND. DOMESTIC LAW. Part III. and therefore that the contract cannot be sued upon here." °^^' Aeebal v. Levy (a) shews that the Statute of Frauds simi- Oap. vnij larljr claims to regulate procedure, when in competition, Contract— not with the law of the place of celebration, but with the FormaUties. ]g^^ ^j ^j^g place of performance. That was an action for the non-receipt of goods ordered by the defendant in London from the plaintiff in Spain, the letter conveying the order being an imperfect memorandum within the Statute of Frauds. Mr. Westlake cites this case for the proposition that when there were several parties to a con- tract, the solemnities which must be satisfied by each are those of the place where he engages himself, and says that the Statute of Frauds applied because the defendants wrote their letter ordering the goods in England. But according to the passage just cited from the judgment in Leroux v. Brown (6), the Statute of Frauds does not apply to solemnities at all. If it did, it is there expressly stated that it would not regulate contracts merely in the right of the lex fori, but the very ground of that decision was that it applied not to solemnities, but to procedure. The real conflict in Aeebal v. Levy appears to have been be- tween the English law, claiming to regulate procedure as the lex fori, and the Spanish law as the lex loci solutionis. The contract proved (apart from the question of the Statute of Frauds) was a contract that the plaintiff should load a particular vessel then lying at a Spanish port with nuts at the shipping price of that port. This being done, there was a delivery to the defendant on board their ship in Spain, and though the Court did not consider that there was an acceptance to bind the defendant and take the case out of the Statute of Frauds, yet it is difficult to see how any law but the Spanish can be regarded as the law of the place of performance. The Statute of Frauds was therefore held to apply, not because the defendant promised in England — according to Leroux v. Brown it would have been the same wherever he promised — but (o) 10 Bing. 376. (6) 12 C. B. 801. OONTEACTS. 279 because its provisions are intended to regulate procedure, Paet in. and the law of the place of performance of a contract ^^ cannot, in an English Court, be allowed to compete Oaf, viii. with it. Contract— 2. When the lex fori admits evidence which the lex loci ^°""'^'»^'- celebrationis would have rejected, the facts will be taken as sufficiently proved, but if they disclose that the solem- Eequirements nities required by the lex loci celebrationis were not ful- °^ evidence! filled, then in accordance with that law the contract will be held void. Thus, it is now established that a written contract which does not bear the stamp required by the law of the place where it was made cannot be sued upon in England (a), though the opposite view had formerly been taken (b), on the ground that the revenue laws of a foreign State need not be regarded. But in Bristow v. 'Segueville a receipt proving the payment of money to the use of another was admitted in evidence, though without the stamp required by the law of the locus actus ; and although Mr. Westlake expresses his dissent from this de- cision (e), it is submitted, with all respect to his authority, that it is in perfect accordance with the principles of Alves V. Sodgson and Clegg v. Levy. The lex loci actus no doubt said that such a receipt, unstamped, should not be admitted to prove the payment. That, in the opinion of Lord Cranworth, was a pure question of procedure, and so far it is difficult to see how a contrary opinion could be maintained. The payment to the use of another being thus proved as a fact, where was the contract? The contract was one implied by law, begotten by the law out of that fact. It was a contract which would be implied as well by the foreign law as by the English, if the facts which rendered the implication necessary were sufficiently (a) Alves v. Hodgson, 7 T. R. 241 ; Clegg v. Lem/, 3 Camp. 166 ; Bristow V. Sequeville, 5 Ex. 275, per Lord Campbell. The point seems to have arisen in Legrelle v. Davis, 5 L. T. 54, where a rule nisi was obtained on the ground that the stamp of the loci celebrationis was necessary, but the case is not further reported. (6) James v. Catherwood, 3 Dowl. & Ry. 190 ; Wynne v. Jackson, 2 Russ. 351., (c) Priv. Int. Law, §177. 280 FOREIGN AND DOMESTIC LAW. Paet ni. brought before it. The rules of procedure of the foreiga °™ ' law prevented it from accepting the facts, but the rules of Cap, vm . procedure of the English law did nothing of the kind j CmUract— and therefore the English law was able to make the Fo rmali Ues. implication which the foreign law did not. [The less hesitation has been felt in dissenting from Mr. Westlake's view of Bristow v. Sequeville, because it is avowedly opposed to that adopted by Lord Cranworth in coming to his decision ; but in venturing to criticise an authority of so much weight, it is right to give the reasoning by which it is supported. Mr. Westlake says (§ 177), "The special force of a rule of evidence is to exclude, not to admit, testimony of a certain character, every kind being prima facie receivable. We therefore give full effect to the lex fori if we admit no evidence which it rejects ; without accepting, merely because it does not reject it, proofs of which the real tendency is not to establish but to create an obligation. Or the point may be put thus. Eead the evidence, if you please, but read it for what it is worth. The point we have to try is whether there was an obligation in the locus contractus, to the law of which you submitted yourself ; and to this your evidence does not go, for it only proves the transaction as a fact, which is not enough." In answer to the first argu- ment, it may be said briefly, that, if the special force of a rule of evidence is " to exclude, not to admit, testimony of a certain class, every kind being prima facie receivable," then, if we are to follow the lex fori, we must exclude the evidence which it excludes, and admit all other. To exclude anything more would be to follow, not the lex fori, but the lex fori plus the law of some other country. Nor is it accurate to say that proofs can create an obligation ; the most they can do is to shew whether an obligation has been created. Secondly, if the transaction is proved as a fact, that is enough ; for the contract in Bristow v. Seque- ville was one which was implied out of the fact by the law. It must be assumed (the contrary not being shewn), and it no doubt was the case, that the lex loci actus would CONTEAOTS. 281 equally have implied the obligation, if it had recognised Part hi. the fact. The lex fori, therefore, when it had once got °^^" the fact established, was able to say that there was an Cap. Vlll. obligation even by the lex loei actus ; although the lex hoi Gmtraci^- actus would have been obliged to ignore the obligation ^o™«^<»'es- which it had itself created, because it could not take judicial notice of the fact out of which that obligation arose.] The doctrine that the formalities of a contract depend Formalities in all cases upon the law of the place of celebration, and fro^"™?^^*^ that the validity of the obligation will be recognised by no oedure. Court, if these preliminaries have not been complied with, is not at all impeached by the judgment in the case of Ex parte Melbou/rn (a). There the law of Batavia, where the contract was executed, required that any contract made on marriage, by which property was settled on the wife separately, should be registered, in order to have any effect as against third parties. It was held in substance that this was not a formality preliminary to the validity of the contract, but a provision as to the future remedies of the creditors of the husband, in the event of his assets being administered in bankruptcy. It will be seen elsewhere that in bankruptcy all priorities between creditors are regarded as matters of procedure, which the lex fori alone is entitled to decide (b). But where the law of the matri- monial domicil, which had been expressly adopted by the parties to regulate their rights in each other's goods, required that in any postnuptial contract entered into by the wife respecting her movable property, there should be as many original instruments as there were distinct parties, a contract executed by her in England was held valid, though these formalities had not been complied with (e). No law can prevent competent parties from contracting validly according to the lex loci ; though per- sons may, of course, contract themselves out of such a power in reference to a particular subject-matter. (a) L. E. 6 Ch. 64. (6) Parch v. Bingham, L. E. 6 Eq. 485. (c) Guepratte v. Young, 4 De G. & Sm. 217. 282 FOREIGN AND DOMESTIC LAW. Pakt III. The one exception in English law to the maxim locus ' regit actum, as applied to the formalities of contracts, Gap. vin. ig tiie result of the principle which claims supremacy for Contract— the hx situs in ail that relates to immovables. That prin- ForrmUties. ^jpjg ^^^g jg^y ^q^u clearly by Lord Mansfield in Bdbinson V. Bland {a) in 1760, and even older authorities to the Transfer of same effect are found with respect to wills (J). "In contracts for. every disposition or contract," says Lord Mansfield in the case cited, " where the subject-matter relates locally to England, the law of England must govern, and must have been intended to govern. Thus, a conveyance or will of land, a mortgage, a contract concerning stocks, must all be sued on in England, and the local nature of the thing requires them to he carried into execution according to the law here." A similar doctrine was adopted in Waterhouse V. Stanfield (c). In that case the effect of the Demerara law was considered as to land in Demerara, and it was held that a local statute, purporting to restrain the alien- ation by a debtor of any immovable property without the assent of his debtors, express or implied, and without certain prescribed forms intended to secure this object, must prevail to exclude the claim of an English assignee of the equitable interest in such land. The deviation from the rule of locus regit actum with regard to immovables, which has just been stated, is explained by Westlake (d) as the necessary result of the peculiar character of the English land law. It is not acknowledged by continental jurists, though as firmly established in Scotch and American law (e) as in our own, and it may be perhaps more correctly regarded as one of the essential differences between the real property law of England and that of foreign countries, than as a conse- quence of those differences. There is an obvious difiiculty in selecting one of concurrent phenomena as the result of the others, and it is a safer theory to assume for all a (a) 2 Burr. 1079. (6) Bovey v. Smith, 1 Vern. 85 (1682) ; Ooppin v. Coppin, 2 P. Wms. 293 (1725) ; Westlake, Priv. Int. Law, § 84. (c) 10 Hare, 254. id) Priv. Int. Law, § 83. (e) ' Story, Conflict of Laws, 727. CONTKACTS. 283 common parentage. It is quite true, as Westlake says, Past III. that the English law " cannot possibly recognise a transfer ' of land, which, made in a foreign form, might contemplate Cap- vm. estates, rules of succession, and other incidents of pro- Contraet— perty, so strange to its system that even the words in ''^''^'' which they were expressed might be incapable of an English interpretation." But it cannot be assumed that it was for that reason, a reason of convenience only, that the English law has always rejected foreign transfers of English land. The real cause was more probably the spirit of exclusion which has applied the lex situs in England to every conceivable question that affected the soil — to the question of succession, for example, and of the legitimacy of the heir (a). " NuUus prineeps legitimat personam ad suecedendum in bona alterius territorii," are the words of D'Argentre (b), quoted by Westlake ; and it can scarcely be doubted that the exclusiveness of the feudal law in this particular was due to higher considera- tions than the difficulty of translating a foreign convey- ance, or of interpreting the meaning of a foreign legal practitioner. The cases in which an English stamp is required^ on English documents executed out of the United Kingdom, are now ^^^^ '*^^' indicated by 33 & 84 Vict. c. 97, s. 17, which enacts that no instrument executed in any part of the United King- dom, nor relating, wheresoever executed, to any property situate or to any matter or thing done or to be done in any part of the United Kingdom, be pleaded or given in evidence (except in criminal proceedings) or be admitted as good or available in law or equity, unless it is duly stamped in accordance with the law in force at the time when it was first executed. And by s. 15 of the same Act, provision is made for stamping without penalty instru- ments made abroad, within two months from their being brought into the United Kingdom. Thus a contract made abroad requires an English stamp, if the subject-matter or (a) Sirtwhistte v. Vardill, 5 B. & C. 438 ; 2 01. & F. 571. (6) Art. 218, 6, n. 20. 284 FOEEIGN AND DOMESTIC LAW. Pabt III. place of performance be in England. If the law of the _^" place of celebration declared that all contracts made Cap. VII I. within its jurisdiction should be void without the local Contracts Stamp, such contracts as those referred to in 33 & 34 Vict. Formaimes. ^ grj^ g_ jy^ ^^^j^ apparently require a double stamp, the foreign as well as the English, according to the principles already explained as deducible from Ahes v. Rodgson (a), Clegg v. Levy (h), and Bristow v. Sequeville (c). It is to be noticed that an older statutory provision (1 & 2 Geo. IV. c. 55, s. 1) on this subject, now repealed by 33 & 34 Vict. c. 97, contaiaed explicit language prevent- ing this result, by an enactment that " every deed, agree- ment, or other instrument relating to any real or personal property in Great Britain or elsewhere than in Ireland, or to any matter or thing (other than the payment of money) to be done in Great Britain or elsewhere than in Ireland, shall be chargeable with such stamp duties as are or shall be payable by the laws for improving and regulating the stamp duties in Great Britain, and not with any other stamp duty : Provided always that every sueh deed, agree- ment, or other instrument shall he charged and chargeable with such stamp duties accordingly, and no more, whether the same shall be engrossed and executed at any place or places within the United Kingdom, or at any place or places not within the United Kingdom, and whether any of the parties to such deed, agreement, or other instrument shall be resident in or executing the same at any place either in Great Britain or Ireland or elsewhere." This language was no doubt clear enough, although its effect may have been doubtful, but the whole Act was re- pealed in 1870 (88 & 34 Vict. c. 97), and the new enact- ment contained in 83 & 34 Vict. c. 97, s. 17, which has already been cited, contains no equivalent provision. Sect. 3 of the last-mentioned statute does, it is true, enact that there shall be charged upon the several instruments specified itt the schedule to the Act, " the several duties in («) 7 T. E. 241. (6) 3 Camp. 166. (c) 5 Ex. 275. Formalities. OONTKACTS. 285 the said schedule specified, and no other duties." The effect Part hi. of this general provision may, however, well be doubted. ^^ It is clearly not a law intended to render the imposition of Cap. VIII. duty by the lex loci celebrationis, in the cases covered by Contraot- 8. 17, illegal ; and it is more than arguable that it amounts to no more than an enactment that no other duties are to be imposed by English law {a). Are they not, however, to be recognised by an English Court, when duly imposed by a foreign law, competent according to the rules of inter- national jurisprudence to impose them ? It is submitted that they are, and that if a contract were made abroad in a country the law of which declared that all contracts should be void if made within its limits without the local stamp, it could not, though requiring an English stamp under s. 17 of the Stamp Act, 1870, be sued upon in an English Court without the foreign stamp as well, not- withstanding the provisions of s. 3. It should be remarked that, apart from these statutory provisions, no duty was chargeable, according to the earlier Stamp Acts, on agreements not made within Great Britain. Sect. 2 of the Stamp Act, 1815 (55 Geo. IIL c. 184), enacts that the duties specified in the Act shall be raised, levied, and paid unto and for the use of the Crown, in and throughout the whole of Great Britain, for and in respect of the instruments, matters, and things mentioned in the schedule. Accordingly it was held by Lord Kenyon at Nisi Prius, that for an agreement made on board a ship at sea, a stamp was not required (6). The stamp was always, however, essential if the agreement was actually made in England, whatever might have been the place of performance, or the situs of the subject- matter (e). These decisions were upon the earlier Stamp Acts, but the language of 33 & 34 Vict. c. 97, s. 17, cited above, is even less ambiguous. " No instrument executed (a) It is to be uoted that according to the preamble, the object of 1 & 2 Geo. IV. c. 55, was to remove doubts in casss where the stamp laws of England and Ireland came into competition. (fc) Ximenes v. Jaquei, 1 Bsp. 311. (c) Wright v. Commissioners of Inland Revenue, 11 Ex. 458; Stonelalce V. Babb, 5 Burr. 2675. 286 FOREIGN AND DOMESTIC LAW. Paet in. Acts. Cap. Vm. Contract— FormaMties. Stamps on BHls of Exchange. in any part of the United Kingdom .... shall except in criminal proceedings be pleaded or given in evidence, or admitted to be good, useful, or available in law or equity, unless it is duly stamped in accordance with the law in force at the time when it was first executed." Until the passing of the Stamp Act, 1870, the stamps on foreign bills of exchange were regulated by 17 & 18 Vict. c. 83, which provided (s. 3) that a stamp should be necessary on all bills drawn out of the United Kingdom, whenever they should be paid, indorsed, transferred, or otherwise negotiated within the United Kingdom. No stamp was required on bills drawn abroad and payable in this country until this enactment ; but the stamp required is not of course made a formality of the original contract by such statutory provisions. It does, however, become a formality of the contract between' the indorser and in- dorsee, if the bill is indorsed in England, and then is governed as such by the lex loei. If, therefore, the in- dorsee sued the indorser in a foreign Court on a foreign bill, the indorsement having taken place in England, and it appeared that the English stamp had not been affixed, the foreign Court should in strictness refuse to recognise the indorser's liability ; though secws, it would appear, if the English statute merely said that the bill and indorse- ment should not be given in evidence without the English stamp (a). The Stamp Act, 1870, repealed the provisions of 17 & 18 Vict.c. 83 on this subject, but re-enacted them in another form. By sect. 51 it is provided that every person into whose hands any bill or note made out of the United Kingdom comes, shall, before he presents for pay- ment, or indorses, transfers, or in any manner negotiates or pays such bill or note, affix thereto a proper adhesive stamp and cancel the same. Sect. 54 imposes a penalty of £10 on every person who issues, indorses, transfers, negotiates, presents for payment, or pays, any bill or note liable to duty and not stamped ; and further enacts that (a) BHstow V. Sequeville, 5 Ex. 275 ; Mves v. Hodgson, 7 T. B. 241, and ante, p. 279. CONTRACTS. 287 the person who takes or receives from any other person Paet in. any such bill or note unstamped shall not be entitled to .' recover on the same, or to make the same available for Cap. VIII. any purpose whatever (a). These provisions appear to go Contract— far beyond any mere regulations of evidence and pro- ■^o™"^'*^^. cedure, so that the principle of the judgment in Bristow V. 8equeville (&) would not apply to them, if under the cir- cumstances just supposed an English indorsee were to sue the indorser in a foreign Court. The question as to what amounted to indorsement, negotiation, or transfer, under the earlier statute, arose in Oriffin v. Weatherley (e). When, however, a foreign bill of exchange which has been transferred or negotiated in England is sued on in an English Court, if the stamp appear to be on it at the time of the trial, it will be presumed, in the absence of evidence to the contrary, to have been there when the bill was transferred to the holder (d). (c.) Legality of Contract. — Wide as the operation neces- niegal sarily is which is given to the intention of the parties to a ''°"*™°'- contract, it is plain that it can have no effect upon the question of the legality or illegality of the thing con- tracted for. No law can permit itself to be evaded, nor can it, consistently with the principles of international jurisprudence, sanction the evasion of a foreign law. Thus, if the thing contracted to be done is illegal by the law of the place of the intended performance, the contract should be held void, wherever it was actually entered into, by all Courts alike. Where, however, it is the con- tract itself, the exchange of a certain consideration either for any or for a certain promise, that one of the competing laws claims to forbid, the question assumes a different form. In such a case it would seem that the legality of the agreement must be decided by the law of the place where it is made. It appears clear, at any rate, that a contract illegal by that law will not be recognised or (o) 33 & 34 Viot. u. 97, ss. 51, 54. (6) 5 Ex. 275. (o) L. B. 3 Q. B. 753. ((i) Bradlmgh v. De Bin, L. E. 3 C. P. 286. 288 FOREIGN AND DOMESTIC LAW. Part ni. Acts. Cap. Vni. Contract — Performance illegal by lex loci celebrationis. adopted by the English Courts ; though the converse case, where a contract was legal where made but is forbidden by English law, may often prove a more complex one. No tribunal can of course be called upon to sanction or enforce any agreement which is contrary to its own notions of justice or morality. First, therefore, with regard to performance, where the thing contracted to be done is illegal by the law of the place where it is intended to do it, the contract is void in all Courts alike. This is only in accordance with the general principle that all questions relating to the mode, time, or conditions of performance are to be determined by the law of the place where the parties have agreed to perform (a) ; and subject to one exception to be presently noticed, the rule is firmly established, though the English authorities on the point are scanty. Thus an agreement, to be carried into effect in this country, which would be void on the ground of champerty if made here, is not the less void because made in a foreign country where such a contract would be legal, and with a domiciled subject of that foreign country (Jb). In Brwnley v. South-Eastern Railway Company (e), the distinction between a case of this kind, and one where the element of illegality does not touch the performance of the agreement, is clearly seen. The question was, whether the railway company, who were directed by English statutes to charge uniform rates for carriage, could impose an increased charge upon " packed parcels " received at Boulogne for conveyance to London ; such an increased charge having been pro- nounced by the Courts illegal when the contract was made in England (d). What the company contracted to do in that case was to carry a packed parcel, part of the journey being in England ; and as there was no illegality in carrying packed parcels in England, it appears to have (a) BranUy v. South-Eastern By. Co., 12. C. B. N.S. at p. 71, per Tindal, C.J., in Trimbey v. Vignier, 4 M. & S. 695, 704, infra. (h) Grell v. Levy, 16 0. B. N.S. 73. (c) 12 0. B. N. S. 63. (d) Parker v. Great Western By. Co., 7 M. & G. 253 ; 11 C. B. 545 ; Crouch V. Great Northern By. Co., 11 Ex. 742. CONTRACTS. 289 been rightly decided that the contract made in Boulogne Paet iir. for an increased rate of payment on such articles could be • recognised by English law. "As a general rule," said Cap. vni. Erie, C.J., " the lex loci contractus governs in deciding Contract— whether there was illegality in the contract ; and according Legality. to the law of France, there was nothing illegal " (a). This dictum must, according to the principle now under con- sideration, be qualified by regarding the " general rule " as applicable to the illegality of the contract itself, and not of its performance merely. It may indeed be supported Performance in another sense, by remembering that when a question of l^^^^^ ^ performance arises, the lex loci contractus is the law, not solutionis, loci celebrationis but solutionis. In Heriz v. Bitra (6), re- ferred to by Westlake, an agreement had been made in Spain between a merchant and an ofiBcer of the Spanish government, which the fiduciary position of the latter rendered void by Spanish law. The plaintiff alleged a renewal and repetition of the contract oat of the Spanish dominions, an allegation which was held to be unsupported by sufficient evidence ; but Westlake suggests that even if such a promise had been sufficiently proved, it would have been void by the law of Spain as the country of per- formance. In Pattison v. Mills (e) a contract of insurance was made in Scotland by the agent of an English insur- ance company for granting a marine policy in London, during the operation of the statute (6 Geo. I. c. 18), which conferred upon certain other companies a monopoly of marine policies of insurance. It was held that the agree- ment, notwithstanding, could be sued upon ; partly upon the ground that the statute was not intended to apply to Scotland, or to a contract to insure Scotch property entered into in Scotland ; partly upon the hypothesis that England was not necessarily the country of performance, and that a policy in accordance with the contract might even have been granted in Scotland. In Robinson v. Bland (d), Lord (a) 12 0. B. N.S. at p. 72. (6) 11 Sim. 318; Westlake, § 193. (c) 1 Dow & CI. 312. (d) 2 BuiT. 1078. But now see Quarrier v. Cohton, 1 Phill. 147. U 290 FOEEIGN AND DOMESTIC LAW. Paet ni. Mansfield went beyond the principle under discussion, and • °™' expressed an opinion that a bill given in Prance for a Pap. Yni. gaming debt, and payable in England, was subject to the Contraet— English law as that of the place of performance, and that LegaMy, ^j^g holder could not recover, " The law of the place of contract," said Lord Mansfield, " 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." It has been already pointed out that the question of illegality in the performance comes within the general rule enunciated by Story, that where the contract is either expressly or tacitly to be performed in another place, the contract, in conformity to the presumed inten- tion of the parties, is to be governed, as to its validity, nature, obligations, and interpretations, by the law of the place of performance (a). And just as any connectioa with an illegal object is held sufficient in municipal law to vitiate a contract (b), so it is not necessary for the appli- lUegal object cation of this principle to private international law, that eoinpiicitvln. ^^^ contract to which exception is taken should be ex- pressly to do some action prohibited by the law of the place of intended performance. Thus the vendor of goods intended to be smuggled into England, who had lent him- self to the unlawful intention by packing them in a par- ticular way, was held unable to recover their price (c) ; though under somewhat similar circumstances, a vendor who had a knowledge onljr of the illegal design, to the furtherance of which he had not himself contributed, was not debarred from suing (d). The decisions in the two last-mentioned cases have been much criticized, and ex- ception can no doubt be taken to the reasoning of Lord Abinger in the latter of the two. " The distinction is, when he takes an actual part in the illegal adventure, as in packing the goods in prohibited parcels or otherwise, (a) Story, § 280 ; 2 Kent, Comm. Lect. 393. (6) See note to Collins v. Blantern. 1 Sm. L. C. 369, and per Tindal, C.J., in l)e Begnis v. Armistead, 10 Bing. 110. (c) Waymell v. Bead, 5 T. E. 599 ; 1 Esp. 91 ; Lightfoot v. Tennant, 1 B. & P. 551 ; Biggs v. Lawrence, 3 T. K. 454. ((?.) Holman v. Johnson, Cowp. 341 ; Fellecat v. Angell, 2 C. M. & E. 311. OONTEAOTS. 291 Paet III. Acts. Cap. Vni. Contract — Legality. there he mnst taTje the consequences of his act. But it has never been said that merely selling to a party who means to violate the laws of his own country is a bad con- tract. . . . The plaintiff sold the goods; the defendant might smuggle them if he liked, or he might change his mind next day ; it does not at all import a contract, of which the smuggling was an essential part" (a). In con- trast with this the language of Eyre, O.J., may well be placed. "Upon the principles of the common law, the consideration of every valid contract must be meritorious. The sale and delivery of goods, nay, the agreement to sell and deliver goods, is prima facie a meritorious considera- tion to support a contract for the price. But the man who sold arsenic to one who he knew intended to poison his wife with it, would not be allowed to maintain an action upon his contract. . . . Other cases where the means of transgressing a law are furnished with knowledge that they are intended to be used for that purpose will differ in shade more or less from this strong case ; but the body of the colour is the same in all. No man ought to furnish another with the means of transgressing the law, knowing that he intends to make that use of them " (b). The tendency which was exhibited, in the cases referred to Revenue laws. above, to extenuate participation not indicated by overt acts in intended smuggling, is no doubt due to another theory, which has established itself with much firmness in English jurisprudence, that the obligations of revenue laws have less claim to respect than any other legal commands. The distinction between mahim prohibitum and malum in se has nowhere taken a more powerful hold upon the legal imagination. Its effect in extenuating passive participa- tion in the breach of our own revenue laws has been already indicated ; but it has had a wider operation still with regard to those of foreign countries; and in more than one case it has been held that an act declared illegal by a foreign revenue law as the law of the intended place (a) 2 C. M. & E. 313. (&) Liijhtfooty. Tennant, 1 B. & P. 551, ,555. u 2 292 FOKEIGN AND DOMESTfC LAW. Illegality of agreement. Part III. of performance is not illegal at all, but can be validly con- °^^" tracted for in England. Thus a contract made in England O af. VI II. tQ defraud the revenue laws of Portugal was supported by Contract— Lord Hardwioke {a) ; and a contract to insure a ship in- tended to engage in trade with a Spanish colony forbidden by the mother country was recognised upon the same principle by Lord Mansfield (&). Modern writers have, however, concurred in condemning these decisions, and though the theory is firmly established in America also, it can hardly be assumed that they will be followed in the event of the question again arising here (c). Secondly, the question of legality may arise with refer- ence to the contracting of the agreement, and not to its performance. The consideration, on one side or the other, may either be an unlawful thing in itself to exchange for any promise, or unlawful with reference to the particular promise for which it is given. There is no authority for saying that the question of legality, in such cases as these, is determined- by any other law than that of the place where the contract is entered into, except the dictum in Bohinson v. Bland (d), which has been already mentioned. In Quarrier v. Colston (e) the plaintiff was held entitled to sue in England for money lost and lent at gaming on the Continent, where there was no law prohibiting such practices ; and though in that case there was no lex loci solutionis to compete with the lex loci celebrationis, the decision is valuable as shewing that Lord Mansfield's expression of opinion in Bohinson v. Bland is practically overruled. Had the gaming transactions taken place in England, the whole consideration for the debt would have been illegal in itself, and one which could not have been lawfully exchanged for any promise. In Bromley v. South- (a) Bouchers. Lawson, cas. temp. Hard. 85, 191. (b) Lever v. Fletcher, Park. Mar. Ins. i. 506. See also Sliarp v. Taylor, 2 Phill. 801 ; Simeon v. Bazeit, 2 M. & S. 94; Bazett v. Meyer, 5 Taunt. 824 - (c) See Story, § 257 : Westlake, § 201, 202 ; 1 Chitty, Comm. 83, 84 ; 3 Kent, Comm. 26ti, 267. (d) 2 Burr. 1078. (e) 1 Phill. 147. See 9 Anno, u. 14, s. 1, and 18 Geo. II. o. 34, s, 3. CONTRACTS. 293 Eastern Railway Company (a), which has just been referred Pakt ill. to, it was conceded that the English statute prohibited ^^ the railway company, in England, from contracting to Cap. VIII. carry " packed parcels " at an increased rate, or from de- Contract-- parting under any circumstances from a uniform rate. I^9^y- This promise to carry was therefore an unlawful con- sideration to exchange, according to English law, for any promise but one, i.e., a promise to pay for the carriage according to the uniform statutory rate. But the per- formance of the promise, the carriage of the goods, was in no sense prohibited by the law of the place of perform- ance, and the lex loci celebrationis was therefore allowed to determine for itself the legality of the interchange of pro- mises ; just as in Quarrier t. Colston (b) the same law was left to pronounce upon the legality of a gaming transaction. If the giving of the consideration for the promise was un- lawful in the first instance by the law of the place where the transaction took place, a renewal of the promise in another country where the contract could lawfully have been made, as by giving new bills in France for a gaming debt previously contracted in England, will not, without fresh consideration, whitewash the original ille- gality (e). It might perhaps have been doubted how far these con- Immoral ' tracts resulting from gaming might have properly come '=°"*'^*'>*^- under the head of those agreements, already referred to, which the law refuses to recognise, wherever they are made and in whatever place they are to be performed, because of their moral turpitude or their injurious effect upon the interests of the State or of society. It can hardly be said that such cases properly, come under the domain of international law at all, inasmuch as the inter- national element in them, if any, is obliterated by the brand of illegality which the law of England, as the lex fori, stamps upon them as soon as their real nature is made apparent. Amongst this class may be enumerated all (a) 12 C. B. N.S. 63, ante, p. 288. (6) 1 Phill. 147. (c) Wynne v. Callander, 1 Euss. 293. 294 FOEEIGN AND DOMESTIC LAW. Paet m, Acts. Cap. Vni. Contracts conoemiDg slaves. contracts the object of which involves a breach of the national neutrality in time of war, or is calculated to lend assistance to insurgents against a friendly State (a) ; all Contract— Contracts for future immorality or illicit connection of the sexes, or based in any other way upon moral turpitude and opposed to the interests of justice (b). Contrary to what might, perhaps, have been expected, a contract for the sale of slaves does not appear to be regarded by the English law as so tainted with turpitude as to be incapable of recognition. That this should have been the view taken when slaves were still held in the British colonies, and regarded there as part of the soil — ascripti glebse — is not, of course, a matter for surprise (c) ; nor that, before the conclusion of a treaty between Great Britain and Spain for the suppression of the slave trade, and the creation of a right of searching Spanish vessels on the high seas with that object {d), it should have been held that a Spaniard, being not prohibited from carrying on the slave trade by the laws of his own country, might recover damages in an English Court in respect of the wrongful seizure by a British subject on the high seas of a cargo of slaves on board his ship (e). The slave trade is not, and has never been, piracy by the law of nations (/), except by conven- tion, and the action therefore was no doubt maintainable. But so recently as 1860 it was held by the Exchequer Chamber that a contract might be made by a British sub- ject for the sale of slaves, lawfully held by him in a foreign country where the possession and sale of slaves is law- ful {g). The defendants in that case were the directors of an association or partnership, consisting of themselves and (o) Be Wiitz V. Hendrioks, 9 Moo. 586 ; S.C. 2 Bing. 314 ; Thompson V. Powles, 2 Sim. 194 ; Jones v. Garcia del Rio, 1 T. & Euss. 297 ; Yrisarri V. GUment, 2 C. & P. N. P. C. 223 ; 3 Bing. 432 ; Eennings v. BothscMld, 9 B. & C. 470 ; 4 Bing. 315, 335 ; Taylor v. Barclay, 2 Sim. 213. (fc) Com. Dig. Assumpsit, F. 7 ; Collins v. Blantern, 1 Sm. L. C. and note ; Madrazo v. Willes, 3 B. & Aid. 353 ; Forbes v. Cochrane, 2 B. & C. 448 (c) Smith V. Broum, 2 Salt. 666. (d) Wheaton, Int. Law (Lawrence), p. 259. (e) Madrazo v. Willes, 3 B. & Aid. 353. (/) Wheaton, Int. Law, p. 256. (g) Santos v. Jllidge, 6 C. B. N.S. 841 ; 8 0. JJ. N.S. 861. OONTEACTS. 295 others, all British domiciled subjects, and were the owners Part in. of certain slaves in the Empire of Brazil, where slavery °™' was lawful. The action was brought for breach of a con- Oaf. Vlll. tract of sale, and the question turned mainly upon the Contract— proper construction of the English statutes forbidding the I'egality. purchase, sale, or barter of slaves (5 Geo. IV. c. 113 ; 6 & 7 Vict. c. 98), the slaves in question having been purchased by the defendants themselves in Brazil after the passing of the former, but before the commencement of the last- mentioned Act. In the Court of Common Pleas it was held that the effect of the two statutes, read together, was to prohibit the trade in slaves by all persons within the control of the legislature, including British subjects all over the world ; and it was added, that the fact of the plaintiff being a foreigner did not authorize him to sue in the Courts of this country for the breach of a contract entered into by an English subject in violation of English laws {a). This judgment was, however, reversed on appeal in the Exchequer Chamber by four judges to two, on the ground that there was nothing in the English statutes to prohibit a contract by a British subject for the sale of slaves, lawfully held by him in a country where the pos- session and sale of slaves is lawful. It will be seen that this decision, as did that of the judges in the Court below, proceeded entirely upon the intention of the English legislature, as gathered from the proper interpretation of the English statutes ; nor was it pretended that a contract for the sale of slaves could be impeached on any other ground. The history of English legislation on this sub- ject gives the real key to the reasons for regarding the subject in a manner so opposed to that which is now sup- posed to be the spirit of English law. If English law had been always that which it is now, such a contract would no doubt be regarded in itself as something iniquitous, and incapable, just as a contract for prostitution, of enforce- ment in an English Court. But inasmuch as the rights of slave-holders were at one time an integral part of our (a) 6 0. B. N.S. 841, 862 ; Esposito v. Bowden, 7 E. & B. 763. 296 FOBEIGN AND DOMESTIC LAW. PaetJU. Acts. Cap. VIU. lutra- territoiial operation of law. own law, just as they are still of the law of some other countries, it is plain that only the limitations which have been placed by English statutes on those rights can be Contract— recognised by English law, and that a contract which was once legal must still be regarded as valid, except so far as its legality has been taken away by positive enactment. It cannot be asserted that such a contract is so iniquitous that it ought not to be recognised in an English Court, no statute having declared it to be so ; and therefore, although such contracts may he forbidden by English, law, its legality must be tested, not by the lex fori, but by the law of the place where the contract was made or where it was to be entered into (a), " In this case," said Bramwell, B., in Santos V. lllidge, " the plaintiff sues on a contract made with him, a Brazilian, in the Brazils, which the defendants can lawfully perform there. The defendants refuse to perform it, and give as a reason one which would not be good there, nor probably in any other country than this, viz., that the performance of their contract there would be an offence against the laws here, and therefore ought not to be enforced here " (i). The decision of the Exchequer Chamber was in effect that the reason was not in fact good even in England, though it no doubt would have been, had the English law said expressly that it should be. " The general run of laws enacted by the superior State are supposed to be calculated for its own internal govern- ment, and do not extend to its distant dependent coun- tries ; which bearing no part in the legislature, are not therefore in its ordinary and daily contemplation " (c). If true of distant dependencies, it is a fortiori so with regard to foreign independent States, that a government, when legislating with regard to acts, does not intend to include acts to be performed within any territorial limits but its own. (a) Ante, p. 292. (6) Santos v. niidge, 8 C. B. N.S. 867. (c) 1 Bl. Oomm. 101 ; Attm-ney-General v. Stewart, 2 Meriv. 143. CONTEAOTS. 297 Pakt III. Acts. SUMMABY. Cap. VIII. FORMALITIES OP CONTRACT, The forms and ceremonies which the law of the place of celebration requires for the constitution of a contract, p- 275. are necessary and sufficient for that purpose. But where the lex fori demands that a contract shall be p. 277. evidenced in a particular manner, these rules of evidence must be complied with, though their indirect effect is to impose a formality of celebration not required by the lex loci celehrationis or solutionis, or to refuse as insufScient formalities by which the lex loci was satisfied. Conversely, the lex fori may admit evidence which the p. 279. lex loci would have rejected; but the contract, though proved as a fact, will in such cases be held void if that evidence shews that the formalities prescribed by the lex loci for the validity of the contract, as distinguished from the manner of proving it, were not fulfilled. The general rule, that formalities are governed by the p. 282. lex loci (locus regit actum) does not, however, apply to con- tracts which concern immovable property, as to which the lex situs prevails. The stamps which the lex fori requires on documents p. 283. executed out of its jurisdiction are rightly prescribed by it, as coming under the head of evidence. Where the lex fori is silent, the stamp requirements of the lex loci actus must be complied with. Legality of the Contract. The legality of a contract depends generally upon the p. 287. law of the place of intended performance. An act which is illegal by the law of the place where it p- 288. is intended to be done cannot be validly contracted for in any place. But the legality of the making of the agreement, i.e., p. 292. 298 FOEEIGN AND DOMESTIC LAW. Paet in. Acts. Cap. VIII. Contract — Essentials. Intention of parties controls essentials. the giving a particular consideration for a particular promise — seems to depend upon the lex loci actus. (d.) Essentials of Contract, — It has been said above (a) that, assuming a contract to be legal, the intention of the parties is material to every question that can arise upon it, except that of their capacity to enter into a legal obliga- tion at all. And the question of the formalities necessary to a contract, which has recently been considered, is not at all an exception to that rule, inasmuch as the parties con- tracting are presumed to have submitted themselves for certain purposes to the law of the place where the contract is entered into, and to have intended that the formalities required by that law should be fulfilled. It is obvious that every man who contracts at all, if he is a member of a civilized community, must be aware that bis contract will be governed, so far as its formalities are concerned, by some system of law or another j and the system of law which will be oftenest in his mind as that which must claim respect, will undoubtedly be the system of law by which all other matters are regulated in the place where he undertakes his legal obligation. To undertake such an obligation something must be done or said there and then, and it is fair to assume that this something will be tested by the same law that regulates all other actions and words in the same locality. Such, accordingly, is presumed by private international law to have been the intention of the contracting parties ; but when the essentials of the contract are the subject of consideration (to adopt the distinction between forms and essentials which is drawn in Brook v. Brook (h) ), it is plain that the intention of the parties cannot be so simply ascertained. The legality, for example, of the act, or any of the acts, for which the contract stipulates, cannot depend in the mind of the parties, or in reason and fact, upon the law of the place where the promise to do it is given. Whether kny act is a lawful one or not must depend entirely, if words (a) Page 260. (6) 9 H, L. 0. 193. CONTRACTS. 299 have any meaning, upon the law of the place where it is Pabt in. to be done. On this point it is hardly correct to say that !" the intention of the parties is at all material ; the law does Oaf, vm. not, strictly speaking, presume them to have intended Contract- anything, except obedience to the proper law, whatever that might be j but it does presume them to have known that the legality of every act depends upon the law of the place of intended performance, as a maxim both of juris- prudence and of common sense. Again, the nature and extent of the obligation which the contracting parties take upon themselves must of course be defined and regulated, whether by construction or implication, by some law ; and undoubtedly, so long as they propose to stipulate for nothing that is in any sense illegal, the intention of the parties, so far as it can be ascertained, is entitled to decide what law must be referred to for the purpose. If the contracting parties were told beforehand the exact law that was to regulate their contract, they could obviously contract for any lawful object they pleased, by the use of proper forms and proper language. It would then be in fulfilment of their intention to apply the law whose pro- visions had been in their minds to the contract when made. Now, whether parties to a contract are told or not, they will always assume some law or other as that which is to govern the obligation. The proper law, there- fore, to be eventually applied by any tribunal for this purpose is that which will most frequently and most naturally be assumed by ignorant parties to a contract as that by which their liabilities are defined. The principle is well demonstrated by Lord Brougham, speaking of the rule which refers solemnities to the lex loci, in Warrendsr V. Warrender (a) : " This is sometimes expressed, and I take leave to say inaccurately expressed, by saying that there is a comiias shewn by the tribunals of one country towards the laws of the other country. Such a thing as comitas or courtesy may be said to exist in certain cases, as where the French Courts inquire how our law would (a) 9 Bligh, 115. 300 FOREIGN AND DOMESTIC LAW. Part III. Acts. Cap. VIII. Contract — ■ Jissenlialg. deal with a Frenchman in similar or parallel circumstances, and upon proof of it, so deal with an Englishman in those circumstances. This is truly a comitas, and can be ex- plained on no other ground ; and I must be permitted to say, with all respect for the usage, it is not easily reconcile- able to any sound reason. But when the Courts of one country consider the laws of another in which any contract has been made, or is alleged to have been made, in con- struing its meaning, or ascertaining its existence, they can hardly be said to be acting from courtesy, ex comitate; for it is of the essence of the subject-matter to ascertain the meaning of the parties, and that they did solemnly bind themselves ; and it is clear that you must presume them to have intended what the law of the country sanctions or supposes, and equally clear that their adopting the forms and solemnities, which that law prescribes, shews their intention to bind themselves; nay more, it is the only safe criterion of their having entertained such an intention. Therefore, the Courts of the country where the question arises resort to the law of the country where the contract was made, not ex comitate, but ex dehito Justitise; and in order to explicate their own jurisdiction by discover- ing that which they are in quest of, and which alone they are in quest of, the meaning and intent of the parties." In deciding, therefore, upon the proper law to be applied to the essentials of a contract, we must be guided by the intention of the contracting parties ; and it will be con- venient first to understand clearly what the essentials are, having treated in the preceding pages of the legality of those acts which are forbidden by one and allowed by another of the competing laws. Under the term essentials may be classed generally every thing that does not come under the description of forms. And taking them in their natural order, these will be : — (1) The construction and interpretation of the actual words, parol or written, by which the obligation is con- stituted. (2) The nature and effect of the obligation which results CONTRACTS. 301 from those words, properly construed and understood, or Pakt III. which is implied by the law from proved or admitted facts, ' without the use of any language at all. Cap. VIII. (3) The performance of the contract. Contract— (4) The defeasance or discharge of the contract other- GonsirueHm. wise than by performance. (1) Construction and Interpretation of Oontraets. — The Construotion construction and interpretation of contracts, being no- governed by thing more than the exact definition of what the parties intention. meant by their words (and, in the case of implied contracts, it might perhaps be said, by their silence), appears to depend more absolutely upon the intention of the parties than any other branch of the subject. Now in those cases where the contract has been executed in a foreign country where the parties to it are domiciled, there can obviously be little or no doubt. The lex domicilii is also that of the loci celebrationis, and it can hardly be supposed that the parties intended that their language should be interpreted by any other law (a). Inasmuch as intention is a question of fact, it is no doubt conceivable that language might be used in such a contract which could be reasonably ex- plained only by the law of the place of performance, but it is difficult to see how such a question of interpretation could arise apart from that of performance, which will require separate consideration. Subject to this reservation, it may be fairly assumed that when a contract is made abroad in the country of the domicil of the parties to it, an English Court will interpret its language by that law (b). But when the place of execution and the domicil of the parties are different, a further and more difficult question arises, nor is it always easy to see which of the competing laws should give way. On this point the language of Story, in- deed, is distinct enough, if the decisions cited by him in support of it warranted its acceptation without reserve. " The general rule, then, is, that in the interpretation of (a) Anstruther v. Adair, 2 My. & K. 513, 51G ; Thurbiirn v. Steward L. R. 3 P. G. 504. (h) De la Vega v. Vianna, 1 B. & Ad. 284 ; Good v. Good, 83 Beav. 314. 302 FOEEIGN AND DOMESTIC LAW, Conflict of lex loci and lex domicilii. Paet III. contracts, the law and custom of the place of contract are _^" to govern in all cases where the language is not directly Cap, vin. expressive of the actual intention of the parties, but is to be Contract— tacitly inferred from the nature and objects and occasion of the contract. The rule has been fully recognised in the Courts of common law ; and it has been directly decided by those Courts that the interpretation of the contract must be governed by the laws of the country where the contract is made. And the rule is founded in wisdom, sound policy, and general convenience " {a). The English cases cited in support of this proposition are Trimhey v. Vignier (b), De la Vega v. Vianna (e), and the British Linen Company V. Drummond (d), but none of them lay down distinctly that, in cases where the domicil of the parties and the place where the contract was made differ, an English Court will interpret the language of the contract by the law of the latter place in preference to all others. In Trimhey V. Vignier it is no doubt said by Tindal, C.J., that the interpretation of the contract must be governed by the laws of the country where the contract was made (lex loci contraetus), while the mode of suing and the time within which the action must be brought must be governed by the law of the country where the action is brought (in ordinandis Judiciis, loci consuetudo, uhi agitw). It is plain, however, first that the conflict of law here referred to was the conflict between the lex loci contractus and the lex fori on a question which it was contended was one of pro- cedure ; and secondly, inasmuch as the point there decided was that the effect of a blank indorsement in France of a note made in that country must be decided by the French law, it is evident that the question was not one of the interpretation of language at all, but of the nature and effect of the obligation which the language created — a matter which belongs properly to the next heading of the subject. In De la Vega v. Vianna the question was also one which was contended to belong to procedure as part (a) Story, Conflict of Laws, § 27. (6) 1 Bing. N. C. l.")!. (o) 1 B. & Ad. 284. (rf) 10 B. & C. 903. OONTEACTS. 303 of the remedy, and was so held ; and in addition to this, Patst ill. both the parties were obviously domiciled in the country .' where the contract was made. The point is put briefly by Cap. YIII. Lord Tenterden, 0. J., who says, " The plaintiff and the Contract— defendant were both foreigners ; the debt was contracted Oo»sitr«ctio». in Portugal, and it appears that by the law of that country, the defendant would not have been liable to arrest. . . . A person suing in this country must take the law as he finds it ; he cannot, by virtue of any regulation in his own country, enjoy greater advantages than other suitors here, and he ought not therefore to be deprived of any superior advantage which the law of this country may confer " (a). It is quite clear that this decision has nothing to do with the principles on which the language of a foreign contract is to be interpreted, and it has been cited as an authority on that point only by reason of a dictum quoted in it of Heath, J., in Melan v. Duke of Fitzjames (h), to the effect that in constrwing contracts the Courts must be governed by the laws of the country where they are made. That too, however, was a case of procedure, in which the lex fori claimed to be heard ; and the same observation may be made as to British Linen Company v. Drummond, the third case on which Story relies for his proposition, which turned on the applicability of the English Statute of Limi- tations to a contract made abroad. The truth appears to be, that the expression " inter- Contracts— pretation of contracts " is an ambiguous term, in the sense p°ey^*™" that it has been used with more than one meaning. Story apparently employs it, as it was in fact employed in one or two of the cases just cited, as comprising the general explanation and definition of the agreement which has been formulated between the parties, the rights arising out of it, and the effect of the relation which it has con- stituted. It will be obvious that the construction or inter- pretation of the language of the contract will be included in the phrase so used; and as the necessity of distin- (a) 1 B. & Ad. 287, 288. (6) 1 B. & P. 188 ; and see Talleyrand v. Boulanger, 3 Ves. Jun. 447. 304 FOEEIGN AND DOMESTIC LAW. Paet ni. guishing the part from the whole did not often arise, ' authorities on one point were accepted as equivalent to Cap, yiii. authorities on another. That Story did not mean to lay Contraot— down as an absolute rule, that the law of the place where Comtmotton. ^ (.Q^tract was made must of necessity decide all questions which may arise on the construction of its language, is plain from what he goes on to add to the language quoted above. " Especially, in interpreting ambiguous contracts, ought the domicil of the parties, the place of execution, the various provisions and expressions of the instrument, or other circumstances implying a local reference, to be taken into consideration " (a). Indicia of It can hardly be supposed, therefore, that Story did intend on this question to advocate any imperative rule in favour of the place where the contract was actually exe- cuted ; and the true principle is no doubt more accu- rately stated by Mr. Westlake (6). The Court must put a meaning upon the language used by the parties to a contract in accordance with their intention, and ambiguous words will be construed by it with reference to the law of one country or another, according as all the circumstances of the execution of the instrument, and all its terms con- sidered as a whole, make that intention plain.. Among the most importaht proofs pointing to that intention will be reckoned the place of the celebration of the contract, the domicil of the parties, and, in certain cases, the place of intended performance. The question was discussed in 1820 in the case of Lansdown v. Lansdown (e), which came before the House of Lords on appeal from the Irish Court of Chancery, the point being whether the words " lawful money of Great Britain " in a marriage settle- ment executed in England by parties domiciled there meant lawful money at the rate of English or Irish cur- rency, the " lawful money " issuing as a rent-charge out of land in Ireland. It was held, on the whole instru- ment, that the intention of the parties was that the money (a) Story, Conflict of Laws, § 27. (fc) Priv. Int. Law, § 188. ), and as in the mode of taking on board the cargo the usage of the port of loading would be regarded (see Hudson V. Clementson (e), and the custom set out in the pleadings in Gattorno v. Adams (d), which custom was proved at the trial at Guildhall sittings after Michaelmas term, 1862, and made an end of the case). And in this point of view it seems impossible to exclude the law of England, or even that of Hayti, from relevancy in respect of the manner of performing that portion of the service contracted for which was to be rendered in their respective territories; because the ship must needs, for the time being, conform to the usages of the port where she is, and for a like reason the adjustment of a general average at the port of discharge, according to the law prevailing there, is binding upon the shipowner and the merchant, who must (a) 5 H. & ST. 728; 29 L. J. Ex. 350. (6) 2 0. B. 412. (e) 18 0. B. 213; 25 L. J. 0. P. 234. id) 12 0. B. N.S. 560. 320 FOREIGN AND DOMESTIC LAW. Pakt III. be taken to have assented to adjustment being made at . ' the usual and proper place, and as a consequence according Cap. VIII. to the law of that place (Simonds v. White (a) ). Contract— " It is Unnecessary, however, to discuss this point further, because we have been anticipated and the question set at rest in an instructive judgment of the Judicial Committee, delivered by the Lord Justice Turner, since the argument of the present case in that of the Peninsular and Oriental Company v. Shand (h), where a passenger in an English vessel from Southampton to Mauritius, where French law prevails, sued the shipowners for the loss of his luggage upon an alleged liability by the French law, from which liability the shipowner was exempt by the English law ; and the passenger obtained judgment in his favour in the Mauritius Court, which judgment was reversed upon appeal by the Judicial Committee, their Lordships holding that the law of England governed the case. " Next, as to the law of Portugal : the only semblance of authority for resorting to that law, as being the law of the place where the bottomry bond was given, is the case already referred to of Cammell v. Sewell (e), and we consider that the judgment in that case, if applicable at all, as to which we say nothing, could only affect the validity of the bottomry, and not the duties imposed upon the shipowner towards the merchant by the fact of the bottomry, which duties must be traced to the contract of affreightment and the bailment founded thereupon. " The law of Hay ti was not mentioned nor relied upon in argument, and there remain only to be considered the laws of Denmark and of France, between which we must choose. " In favour of the law of Denmark there is the cardinal fact that the contract was made within Danish territory, and further that the first act done towards performance was weighing anchor in a Danish port. "For the law of France, on the other hand, many practical (a) 4 B. & C. 805. (6) 3 Moo. P. C. K.S. 272. (c) 5 H. & N. 728 ; 25 L. J. Ex. 350. Ituyidente. CONTRACTS. 321 considerations may be suggested ; and first, the subject- Pakt III. matter of the contract, the employment of a seagoing 1' vessel for a service, the greater and more onerous part of ^^- ^^'^■ which was to be rendered upon the high seas, where for Contract- all purposes of jurisdiction, criminal or civil, with respect to all persons, things, and transactions on board, she was as it were a floating island, over which France had as absolute and, for all purposes of peace, as exclusive a sovereignty as over her dominions by land ; and which, even whilst in a foreign port, according to notions of juris- diction adopted by this country (18 & 19 Vict. c. 91, s. 21 ; 24 & 25 Vict. c. 9 1, s. 9) and carried to a greater length abroad (Ortolan, Bi-plomatie de la Mer, c. xiii., the work of a French naval officer, but of which a jurist might well be proud), was never completely removed from French jurisdiction. " Further, it must be remembered that although bills of lading are ordinarily given at the port of loading, charter- parties are often made elsewhere, and it seems strange and unlikely to have been within the contemplation of the parties, that their rights or liabilities in respect of the identical voyage should vary, first, according as the vessel was taken up at the port of loading or not, and secondly, if she were taken up elsewhere, according to the law of the place where the charterparty was made or even ratified. If a Frenchman had chartered the Olivier upon the same terms as the plaintiff did, it would seem strange if he could appeal to Danish law against his own countrymen, because of the charterparty being made or ratified in a Danish port, though for a service to be rendered else- where, by a transient visitor, for the most part within French jurisdiction. " Moreover, there are many ports which have few or no seagoing vessels of their own, and no fixed maritime juris- prudence, and which yet supply valuable cargoes to the ships of other countries. Take Alexandria, for instance, with her mixed population, and her maritime commerce almost in the hands of strangers. Is every vessel that Incidents. 322 FOREIGN AND DOMESTIC LAW. Part III. leaves Alexandria with grain under a charterpatty or bill, of lading made there, and every passenger vessel leaving Cap. VIII. Alexandria or Suez, be she English, Austrian, or French, Contract— subject to Egyptian law? As to not a few half-savage places in Africa and Asia, with neither seagoing ships nor maritime laws, a similar question arises — what is the law in such cases, or , is there none, except that of the Court within whose jurisdiction the litigation first arises ? " Again, it may be asked, does a ship which visits many ports in one voyage, whilst she undoubtedly retains the criminal law of her own country, put on a new sort of civil liability at each new country she visits in respect of cargo there taken on board? An English steamer, for instance, starts from Southampton for Gibraltar, calling at Vigo, Lisbon, and Cadiz. A Portuguese going in her from Southampton to Vigo would naturally expect to sail sub- ject in all respects to English law, that being the law of the place and the ship. But if the locality of the con- tract is to govern throughout^ an Englishman going from Vigo to Lisbon on the same voyage would be under Eng- lish law as to crimes and all obligations not connected with the contract of carriage, but under Spanish law as to the contract of carriage ; and a Spaniard, going from .Lisbon to Cadiz during the same voyage, would enjoy Portuguese law as to his carriage, and be subject to English law in other respects. The cases which we have thus put are not extreme nor exceptional; on the con- trary, they are such as would ordinarily give rise to the question, which law is to prevail? The inconvenience and even absurdities which would follow from adopting the law of the place of contract in preference to that of the vessel, are strong to prove that the latter ought to be resorted to. "No inconvenience comparable to that which would attend an opposite decision has been suggested. The ignorance of French law on the part of the charterer is no more than many Englishmen contracting in England Incidents. CONTRACTS. 323, with respect to English matters might plead as to their Pabt III. own law, in case of an unforeseen accident. __' " Nor can we allow any weight to the argument that this Cap. Vlll. is an impolitic law, as tending to interfere with, commerce, Cmtratit^ especially in making merchants cautious how they engage foreign vessels. That is a matter for the consideration of foreigners themselves, and nothing short of a violation of natural justice, or of our own laws, could justify us in holding a foreign law void because of being impolitic. No doubt the French law was intended to encourage ship- ping by limiting the liability of shipowners, and in this respect it goes somewhat further than our own ; but whether wisely or not is matter within the competence and for the consideration of the French legislature, and upon which, sitting here, we ought to pronounce no opinion. " Exceptional cases, should they arise, must be dealt with upon their own merits. In laying down a rule of law, regard ought rather to be had to the majority, of cases upon which doubt and litigation are more likely to arise ; and the general rule that, where the contract of affreightment does not provide otherwise, there, as between the parties to such contract, in respect of sea damage and its incidents, the law of the ship should govern, seems to be not only in accordance with the probable intention of the parties, but also most consistent and intelligible, and therefore most convenient to those engaged in commerce, " In order to preclude all misapprehension, it may be well to add that a party who relies upon a right or an exemption by foreign law is bound to bring such law properly before the Court, and to establish it in proof. Otherwise the Court, not being entitled to notice such law without judicial proof, must proceed according to the law of England (see Brown v. Gracey, note to Lacon v. Eiggins " (a) ). The principle on which the judgment in Lloyd v. («) T3. & E. N. P. -il, n. See infra, Chap. X. (v.). Y 2 324 POEEIGN AND DOMESTIC LAW. Pabt III. Gwibert was given, that contracts of affreightment entered '•'^°' into in a foreign port are made with reference to the law Cap. VIII. of the ship's flag, so far as the nature and incidents of the Contracts obligation are concerned, would probably not have met In oiden u. ^jj.jj ^^Q approval of Mr, Westlake. In commenting on Contracts of an American case (Pope v. Niokerson, 3 Story, Kep. 465), a reig en . ^ggjjgj qq fg^^jg almost identical with those in Lloyd v. Guibert, that writer expresses a strong opinion, first, that the case of a master contracting in a foreign port is the same as if the owner himself were present (which is not questioned), and secondly, that the obligation between the charterer and the shipowner must be measured by the law of the place where the charterparty is entered into (a), or, if by any other law, by the law of the port of delivery, as the place of performance. The American case referred to was that of a vessel, owned in Massachusetts, and engaged in a voyage from Spain to a port in Pennsylvania. On the way she was compelled by stress of weather to put into Bermuda, where- the master sold her with the whole cargo ; and the question was, what law governed the right of the shipper against the owner to recover the value of his consignment? — i.e., the nature and incidents of the obligation arising out of the contract of affreightment? Judge Story decided in favour of the Massachusetts law, as the law of the flag. " I do not perceive," says Westlake, " what difference the flag makes, since the contract for carriage was neither made nor to be fully executed on the high seas .... Surely the law to be applied is either that of Spain or Pennsylvania, for the owners must be taken to have contracted in the one country to carry the goods to the other ?" Intention of The light thrown upon the true principle by the sub- crmtracteof sequent decision in Lloyd v. Guibert (b), enables the affreightment, reader to detect the error in Westlake's argument. The assumption is, that the obligation of a contract must be measured by the law of the contract, and that this law can only be the law of the place of celebration, or of the (a) Westlake, §§ 212, 216. (b) L. E. 1 Q. B. 115. CONTBACTS. 325 place of performance. It has been already shewn (a) that Pabt m. this is not the rule. The true rule is, that the obligation ' of a contract must be measured by the law to which the Cap. Yin. parties intended to refer, or must be assumed to have sub- Contractr- mitted themselves (6). And this law, though it may be, ■^™^^**- and most generally is, the law of the place where the contract is entered into, is not so necessarily, or by any pnesumptio juris dejure, which would be incontrovertible. Prima fade it is that law, but evidence is admissible to shew that it is any other. In the words of Willes, J,, which have been already cited, "It is generally agreed that the law of the place, where the contract is made, is •prima fade that which the parties intended, or ought to be presumed to have adopted as the footing upon which they dealt, and that such law ought therefore to prevail in the absence of circumstances indicating a different intention " (c). Now, the essence of the decision in Lloyd v. Owihert is that in every contract of affreightment, there are such circumstances {d). Contracts of affreightment may be made in half-savage or barbarous ports, or even, to take a more familiar instance, in such places as Alex- andria, where it would be absurd to hold that the parties intended their mutual rights to be regulated by the local maritime law of the place of affreightment. It might possibly be convenient to refer in all cases to the law of the port of delivery, as the place of performance ; but the fatal objection at once arises that this is a detail which is frequently left uncertain, to be determined either upon signing bills of lading, or upon calling at some named port for orders; as for example in Lloyd v. Guibert (e) itself, where the vessel was chartered to carry either to Havre, London, or Liverpool, at the charterer's option. The choice of the law of the flag of the vessel, i,e., the law of her owner, appears therefore, as was said in that case, (a) Ante, p. 311. (6) Ante, p. 310. (c) Lloyd V. GuibeH, L. E. 1 Q. B. 115, 122. (d) The Patria, L. E. 3 A. & E. 436, was decided by the express stipu- lations of the contract, and cannot be regarded as an authority for any one competing law. (e) L. K. 1 Q. B. 115. 326 FOKEIGN AND DOMESTIC LAW. Contraet^ Ineidents. Bottomry bonds. Part ni. " not billy in accordance with the probable intention of tile '^^' parties, but also most consistent and intelligible, and there- Oap. VIII. fore most convenient to those engaged in commerce " (a). Nor is the case of a contract of affreightment the only one in which the law of the locus actus or edebraiionis is presumed to have been left out of the intention of the parties. Another instance is that of a bottomry bond,^ given in a foreign port, and sued on in England. The obligation so created, as well as the incidents of the rela- tion arising out of it, was formerly held to be governed by the " general maritime law, as administered in England," and this whether the vessel on which the bottomry bond is given was English or foreign (6). It cannbt be said that this position is even now free from some uncertainty and difficulty. The language employed in Duranty v. Mart, both by the judge of the Admiralty Court and by the Privy Council, is in itself free from ambiguity, except so far as it is doubful whether the expression "general maritime law, as administered in England," means English law simplieiter or not. But in Lloyd v. Guibert (c), on appeal before the Exchequer Chamber, the case was fully discussed, and is there said to be no authority for the law of the place where the contract was made, or for that of the place of performance, but merely an instance of the supremacy of the lex fori in matters of procedure and evidence. This conclusion is arrived at by considering that the validity of the bond in that case depended upon the agency of the master, and that the agency of the master, by English law, depended upon the necessity of his act ; and that therefore the question was one of evi- dence, inasmuch as the English law did not consider the agency shewn unless it was shewn that the master acted of necessity without communicating with his owner. It (a) Ibid, at p. 129. (6) The Karnalt,.L. K. 2 P. 0. 505 ; Tlie Hamburg, B. & L. 253; Du- ranty V. HaH, 2 Moo. P. 0. N.S. 289 ; B. & L. 253, 319 ; The Oratitudine, 3 C. Eob. 240. As to the meaniug of the expreBBion " the general mari- time law as administered in England," see Lloyd v. Guibert, L. E. 1 Q. B. 125 ; and The Segredo, 1 B. & Ad. 45. (c) L. R. 1 Q. B. p. 125. Incidents. CONTBAGTS. 327 is difficult to assent to the view that this is a question of PartHI. evidence or procedure. All the facts were admissible, and ' all were proved; the question was simply as to the Gap. YIII. validity of the bond. To say that the Court will not Contract— recognise its validity, unless some other fact is pi'oved, seems very like demanding to test that validity by its own law, and not by that of the place where the contract was made, or (in Bwranty v. Rart (a) ) by the law of the country to which the ship belonged. It can scarcely be denied, therefore, that the judges of the Privy Council, as well as the judge of the Admiralty Court, considered themselves, in Dwanty v. Hart, to be following an established principle that the validity of a bottomry bond was to be decided by the general maritime law, as administered in England. Whether this be the correct effect of the case, or whether they were in truth deciding a question of evidence and procedure alone, ac- cording to the opinion expressed of their judgment in Lloyd V. GuiieH is of little consequence (6). The simplest and most intelligible view is taken in Maciachlan on Ship- ping (c), that the law actually followed did not govern the case, and that the case must be regarded as overruled by Lloyd v. Guiberi (d). And this was undoubtedly the ground of the later decision in The Karnah (e), where the Privy Council applied the doctrine of Lloyd v. Ouiberi to the very question at issue in Bv/ranty v. Hmi, holding that the validity of a bottomry bond, depending upon the action of the master in the foreign port where it was given, must be tested and ascertained, not by the " gene- ral maritime law, as administered in England," but by the law of the flag. " It was laid down in Lloyd v. Ouibert," said Sir William Erie (/), " that the captain's authority is derived from, and bounded by, the municipal law of the country to which the ship belongs — that is, by the law of (a) 2 Moo. P. 0. N.8. 289 ; S.O. sub nom. The Hamlwg, B. & L. 253 ; 33 L. J. Ad, 116. ' (6) L. K. 1 Q. B. 125. (d) L. E. 1 Q. B. 115. (c> At p. 161. (6) L. B. 2 P. C. 505. (/) Ibid. p. 512. See the judgmeiit oi' Willes, J., cited ante, p. 315. 328 FOBEIGN AND DOMESTIC LAW. Part III. the flag ; and Willes, J,, delivering the judgment of the _!.' Exchequer Chamber, answers an argument, founded on the Cap. VIII. supposition of a general maritime law, contradistinguished Contradr- from the municipal law of this country, by refusing to re- In ciden ts. (.Qgnigg i}xe existence of a maritime law in that sense. In accordance with the principle there laid down, their Lord- Authority of ships consider that the existence of the necessity which by-law offla^ Validates the hypothecation of cargo by bottomry is to be ascertained by evidence in the usual manner ; and that the meaning of the term ' necessity ' in respect of hypo- thecation by the master is analogous to its meaning in other parts of the law." It will thus be seen that both in Bv/ranty v. Hart (a) (The Hamburg) (1863), andinl%e KarnaJc (1869) (6), the validity of a bottomry bond given in a foreign Court was tested by English law, or by what Willes, J., declared to be the same thing, the general maritime law as adminis- tered in England ; but that in the former case that law was followed because it was the lex fori, which, in the case of bottomry bonds sued on in England, was there regarded as supreme ; and in the latter, because it was the law of the flag to which the ship belonged. The principle of Lloyd V. Gmbert, that the master's authority is defined and limited by the law of his flag, is therefore now to be regarded as applying to all contracts made by him, and as extending as well to contracts of hypothecation by means of bottomry bonds as to contracts of affreight- ment. In the words of Blackburn, J,, in Lloyd v. Gui- bert (e), " So far as regards the implied authority of the master of a ship to bind his owners personally, the flag of the ship is notice to all the world that the master's autho- rity is conferred by the law of that flag ; and that his mandate is contained in the law of that country, with which those who deal with him must make themselves acquainted at their peril." An examination of the judg- (o) 2 Moo. P. C. N.S. 289 ; B. & L. 253 ; 32 L. J. Ad. 116. (6) L. E. 2 P. C. 505. (c) 6 B. & S. 117; MaolaoMan on Shipping, p. 161; Kay's Law of Shipmasters, p. 555 ; The Karnak, L. B. 2 P. 0. 505. CONTBACTS. 329 ment of tlie Exchequer Chamber ia this case (a) will PartIII. shew that the operation of the law of the flag is not con- ' fined to the question whether the master had or had not Cap. Vlll. authority to contract at all. It is intended to do more Contract— than this ; and its right is now asserted to regulate the -^"^j^**- liabilities and regulations which arise amongst the parties to the agreement, be it of affreightment or hypothecation, upon this principle — that the shipowner who sends his vessel into a foreign port gives notice by his flag to all who enter into contracts there with the shipmaster, that he intends the law of that flag to regulate those contracts, and that they must either submit to its operation, or not contract with him or his agent at all (6). To this large extent it must therefore be regarded as an exception to the prima facie rule that the nature and incidents of an obligation depend upon the place where the contract is entered into. The comments in Maclachlan on Shipping (pp. 167, Law of the 171) upon the distinction between the law of the ship's ^f^f^^^^^^,^'''' flag and the law of the domicil of the owner, are perhaps domicil in superfluous. It is true that one or two expressions are used by Story in the American case, to which reference has already been made (c), tending to confuse the law of the ship's flag with the law of the owner's domicil ; but it must be remembered that in that case the two were identical, and that Story did not mean to pronounce for the law of the domicil as against the law of the flag is evident from several expressions in the judgment. " If the ship is owned and navigated under the flag of a foreign country, the authority of the master to contract for, and bind, the owners, must be measured by the laws of that country" {d). "The extent of the master's authority (a) Cited ante, p. 315. (6) The Karnak, L. R. 2 P. 0. 505 ; Lloyd v. Guibert, L. E. 1 Q. B. 115 ; S.O. 6 B. & S. 117 ; The Osmanli, 2 Notes of Case, 322 ; The North Star, 29 L. J. Ad. 73, 76. Iq the two last eases, however, the facts under consideration were such that the law of the flag was English, i.e., identical with the " general maritime law, as administered in England," advocated by the older decisions. (e) Ante, p. 324 ; Pope v. Nickerson, 3 Story, Rep. 465. (d) Ibid. p. 475. Incidents. 330 FOBEIGN AND' DOMESTIC LAW. Paet in. must be limited to the express instructions of the owners, °'^^' or the law of the country where the ship belongs and iheif .Cap. YIU. reside ... If by the law of the domicil of the ship and of Ctintraot— the owne/rs the authority of the master is limited to the ship and freight, and does not, in the absence of express instructions, bind the owners personally, it seems difficult to understand how resort can be had to the law of a foreign country, unknown and unsuspected (it may be) by the owners, to expand that authority." In the English case which has been so often referred to (a) there is cer- tainly not even as much leaning as this towards the law of the owner's domicil, which is ignored altogether, al- though it was there also the law of the ship's flag. The fact that any British subject, wherever domiciled, may sail his ship under the British flag, and have her regis- tered accordingly, as well as the further consideration that most British ships are divided amongst a plurality of owners, are illustrations of the impossibility of accepting the decision of the law of the owner's domicil in place of that of the ship's flag ; and in face of the recent decisions it is most improbable that such a misapprehension will ever find an advocate for the future. Bill of lading. In JBlonchet V. PoweU's Llantivit Collieries Company (h), the plaintiff sued for freight on a bill of lading made in France, and in answer to a plea that he did not carry all the goods mentioned in the bill of lading, pleaded (inter alia) that according to the law of France, the whole freight was payable;, although part only of the goods were )Carried and delivered. The replication was held good, Bramwell, B., saying that as the contract was made in France, the rights and obligations of the parties must be governed by French law. In this case it was suggested in argument that the law of France could not apply to a contract which was to be performed in England ; but except so far as the mode and incidents of the delivery, as part of the performance, is concerned, it is clear that no authority is to be found for applying the lex loci solutionis (a) Lloyd v. Guibert, L. K. 1 Q. B. U5. Qj) Ir. E. 9 Ex. 74, 77. CONTKAOTS, 331 without a special stipulation to that effect. It was not Part hi. necessary to decide that the contract of affreightment was °'^^' governed by French law, inasmuch as the plaintiff was Cap. vill. held to be entitled to the lump freight by the law of Contract— England also. The reason, however, given for accepting ■^»»««^'s- the French law, viz., that the contract was made in prance, does not seem to be consistent with the doctrine of Lloyd V. Guibert (a), which lays down that the law of the ship should govern as between the parties to a con- tract of affreightment, in respect of sea damage and its incidents. It is difficult to see why this rule should not equally be applied to the whole obligation of the contract, except so far as the law of the place of performance may properly claim to be heard; but the rule itself was not brought to the notice of the Court in Blanehet v. PoweU's Llantivit Collieries Company, nor did the nationality of the ship in fact appear to be other than French. The dictum is therefore of little importance, except as shewing the general tendency to assume that the law of the place of contract is prima facie that intended to govern its obligations and incidents. The effect and operation of the contract of sale of a Sale in foreign ship or cargo in a foreign port is generally considered in ^™ ' connection with the last branch of the subject, and the cases on the point may be here again briefly recapitulated, though they have already been treated of while consider- ing the transfer of personal property generally. The only question which can well arise as to the contract of sale in such a case must be as to its validity, which is not, strictly speaking, part of the nature and incidents of an obligation at all. If a chattel is once duly sold, the property in it is passed once for all, and the obligation momentarily created, being completely fulfilled, ceases to exist. Con- sequently there can be no opportunity of questioning what law is to govern its future incidents and. develop- ment. A sale, in fact, partakes more of the nature of an act than of a, contract. It is an act preceded — some- (a) L. E. 1 Q. B. 115. 332 FOREIGN AND DOMESTIC LAW. Past III. Acts. Cap. VIII. Contraot — Incidents. English mari- time law- its authority. times only instantaneously preceded — by a contract, with which it is often confounded. There may, of course, be a contract for sale, the fulfilment of which is postponed or delayed ; but the ordinary sale is intended to operate at once, and is in fact, a mere transfer. As such, there would seem to be but little excuse for testing its yalidity, in an English Court, either by English law as the lex fori, or the maritime general law, if that can be regarded as at all distinguishable from the law administered in all cases in the English Court of Admiralty (a). Nor does it appear much more reasonable to refer the question to the law of the ship's flag, which the sale itself in most cases is intended to change. In cases of hypothecation or affreightment, the ship remains under the same flag during the whole existence of the obligation, and the intention of the parties' may reasonably be presumed to have included submission to the law of which that flag gave notice. No such intention can be assumed, it is plain, in the case of a foreign purchaser in a foreign port. The ship is a mere chattel, the ownership of which is changed by sale, according to the law of every nation, and directly the ownership is changed, the vessel's nation- ality is changed with it. It is scarcely probable that the purchaser would expect the validity of the change to be afterwards tested by the law which the transaction pur- ported definitely to abandon. It is, however, only recently that the principle indicated by the foregoing considerations has been recognised, and formerly the obviously incorrect course of preferring the lex fori was adopted. In the case of The Segredo or Eliza Cornish (b), the lex loci actus was definitely rejected by Dr. Lushington, and English maritime law, regarded as coincident in its application as to those particular facts with maritime law generally, followed in preference. It may be observed that the learned judge, in deciding this case, clearly intimated that he intended to follow, and (a) See per Willes, J., in Lloyd v. Guibert, L. E. 1 Q. B. 115, 125. (6) 1 Eccl. & Ad. 36. CONTEAOTS. 333 conceived himself to be following, the general maritime PabtIII. law ; and that he would not have deviated from it by in- °^^' troducing English municipal law, had a conflict arisen Cap. VIII. between them ; but this distinction has been rendered of Contract— less importance by the dictum in Lloyd v. Qmhert (a) as to J»o»^'8- the non-recognition of any general maritime law differing from " maritime law as administered in England." It is, perhaps, after all merely a distinction of words. Those who advocate the existence and authority of a "general maritime law," mean in most cases a maritime law which is administered in English as well as in foreign Courts of Admiralty (6). It appears obvious that so much of this general maritime law, as is administered in English Courts, is, by virtue of that very fact, English law ; and it is not the less English because it is common to other foreign Courts of Admiralty as well as that of England. If it is suggested, as Sir E. Phillimore seems to imply, that the sources of its authority differ from those ordi- narily cited in English Courts, and that it prevails by virtue of the comity of nations rather than by the binding force of English precedents, the argument appears scarcely warranted by facts. It would be difficult to cite an in- stance where a foreign decision on an analogous point has been allowed in the English Court of Admiralty to over- rule English precedents of earlier date. Eeference, it is true, has been constantly made to general European customs, and to regulations such as those contained in the Codes of Wisby and Oleron, but only for the purpose of enlarging the unwritten law of the Admiralty Court of England by analogy and example, and of supplying the deficiencies of its voice, when that was silent. The ordi- nary common law of the realm has similarly drawn nourish- ment from the jurisprudence of Eome, but it would be a misnomer to say that the dicta of Gains, or the rescripts of Hadrian, ever spoke with a semblance of authority in English Courts. Authority is given to principles of (a) L. B. 1 Q. B. 125. (6) See per Sir R. Phillimore in The Fatria, L. E. 3 A. & E. 461. 334 FOREIGN AND DOMESTIC LAW. Paet III. foreign law or mercantile usage only by their adoption in' ^^ an English Court. Cap. VIII. The decision of Dr. Lushington in The Eliza Cornish (a), Contract— howeTcr, was distinctly overruled by 'the Exchequer Inoidmu. Chamber in Oammell v. Sewell (h) in 1860. There the Transfer good master of a Prussian vessel, chartered in Russia by y ex 00%. jjjjgiigji abippers for Hull, and wrecked on the coast of Norway, sold, the cargo without authority by English law, but under such circumstances that by the Norwegian law an innocent purchaser would have acquired a good title. It was argued that by the law maritime, general as well as English, the master had exceeded his authority, and that the sale was therefore invalid, but it was held (Byles, J., disseniiente) that the transaction, being a transfer of personal property, was governed by the lex hoi; and that the title of the purchaser, being valid by that law, must stand. With regard to the case of The Eliza Cornish or Segredo, which was relied upon by the owners of the cargo, Crompton, J., delivering the judg- ment of the Court, said, " If this case be an authority for the proposition that a law of a foreign country of the nature of the law of Norway, as proved in the present case, is not to be regarded by the Courts of this country, and that its effect as to passing property in the foreign country is to be disregarded, we cannot agree with the decision. . . . We think that the law on this subject was correctly stated by Pollock, C.B., in the course of the argument in the court below, where he ■ says that if personal property is disposed of in a manner binding according to the law of the country where it is, that disposition is binding every- where. And we do not think that it makes any difference that the goods were wrecked, and were not intended to be sent to the country where they were sold " (c). Transfer It has already been said that the decision in Cammell ^^'^^"^"isliea y^ Sewell is entirely in accordance with the generally executory ,^,t-i ii> .10/. onnlraot («) ^ ^'^°^- * ^^- 36- (6) 5 H. & N. 728; 29 L. J. Ex. 350; S.C. in Cburt below, 3 H. & N. G17 ; 27 L. J. Ex. 447. (c) ,') H. & N. 744, 745. CONTEAOTS 335 accepted theories which refer the validity of a transfer of Part hi. movables inter vi/vos to the law of the place of transfer (a) ; °™' nor is the principle of that case in reality at all incon- Cap. viil. sistent with the ground of the judgment in Lhyd v. Cmitraet — Guibert (h), which has been so often referred to. The incidents. contract to which, in the latter case, the law of the ship's flag, and in the former, the law of the place of contract, was applied, was in truth not the same in any sense. The judgment in Lloyd v. Ouihert applied the law of the ship's flag to the contract of affreightment made between the master, as agent of the owner in a foreign port, and the shipper ; and as lehveen these parties, the law of the flag was held to goyern the incidents of the obligation throughout, though its results were varied by circum- stances whicb had been unforeseen. In Cammell v, Sewell the relation between the shipowner and the freighters was not in question, and in an action by the owners of the cargo against the master or owner of the ship, the law of the flag might, quite consistently with the decision actually given, have been applied. Tbe contract which was there referred to the local law, and held to be valid in accordance with its provisions, was not the contract between freighter and master, but the contract of sale between the master and the purchaser of the wrecked cargo in Norway. It was this contract, and no other, which the Court declared to be binding, because sanctioned and confirmed by the local law, not only upon the parties to it, but upon third persons — strangers, in the strict sense of the term, to its provisions. The proper result of apply- ing the principle of the decision in Lloyd v. Guibert to the facts of Cammell v. Sewell would be, that the right of the owner of the cargo to sue the shipowner or master for the sale of the goods in Norway would be tested by Prussian law, as the law of the flag alone ; and that it would be no answer to such an action to shew that by Norwegian Jaw the act of the master was justified, or regarded as binding upon shippers and consignees. (a) Ante, p. 174. (6) L. E. 1 Q. B. 10.^. 336 FOREIGN AND DOMESTIC LAW. Paut III. If this view be adopted, the strictures in Maclachlan on °™ " Shipping upon Gammell v. Sewell cannot be supported ; Cap. VIII. and it is noticeable that the Court of Exchequer Chamber, Contract— referring to the case in the judgment in Lloyd v. Guibert, In cnden ta. gxpressly abstained from expressing any opinion for or against the correctness of the decision. It is suggested by Mr. Maclachlan, that if the Prussian flag was notice to the freighter that the master's authority to bind his em- ployers was limited by Prussian law, it was notice to the Norwegian purchaser of the same limitation. The dis- tinction between an executory contract in which it is necessary that the master should bind those whom he represents and an executed contract of sale, which is in truth completely discharged by the transfer itself, seems to have been overlooked. In the former case the parties must necessarily have contemplated the subsistence of the obligation of the contract, and the performance of its provisions, during a considerable time ; and they must therefore be regarded as having intended that some law should regulate the development of the obligation itself, and control the incidents which might arise, but for which it was difficult if not impossible to provide expressly. This law, it has been determined in Lloyd v. Guibert (a), is the law of the ship's flag ; i.e., the parties must be taken to have assumed that the law of the ship's flag would govern the future incidents of the obligation, the master having no authority to undertake that the owners of ship or cargo will do anything, except as defined by that law. But in an absolute and immediate sale, such as that in Gammell v. Sewell, the master is not required to pledge his owners to anything. No future relations between the parties are contemplated, and therefore they cannot be taken to have referred to any law to govern the future incidents of the obligation. The master simply contracts to sell the ship or cargo according to the law of the place where they are lying, and he does actually so sell them, while they are there. By the comity of nations — or, to speak more (o) L. E. 1 Q. B. 115. CONTBACTS. 337 correctly, by those principles of international jurisprudence Pabt III. which the law of England, in common with the law of ' most civilized nations, adopts — a title to property which Cap. vril. has once validly accrued according to the law of the Contract^ situation is good as against all the world (a) ; and the purchaser is not to be put in a worse position because the master of the ship has carelessly or improperly mistaken and exceeded his instructions (&).. Nor is the doctrine of Cammell v. Sewell in itself new Discretion of or opposed to the general weight of authority. It has ^exerdsfof already been said that the decision practically overruled the opinion of Dr. Lushington in The Eliza Cornish (c), but it is opposed to no other authority of any weight, and is in entire accordance with the views expressed by Lord Stowell in the case of The Gratitudine (d) in 1801. "Suppose the case," said Lord Stowell in giving judg- ment, " of a ship driven into port with a perishable cargo, when the master could hold no correspondence with the proprietor ; suppose the vessel unable to proceed, or to stand in need of repairs to enable her to proceed in time. In such emergencies the authority of agent is necessarily devolved upon him, unless it could be supposed to be the policy of the law, that the cargo should be left to perish without care. What is to be done ? He musi in such case exercise his judgment, whether it would be better to tranship the cargo, if he has the means, or to sell it. It is admitted in argument that he is not abso- lutely bound to tranship ; he may not have the means of transhipment ; but even if he has, he may act for the best, in deciding to sell ; if he acts imwisely in that deci- sion, still the foreign fv/rehaser will he safe under his aets.'' In Freeman v. East India Comjaany (e), where the master (a) Ante, p. 176. (6) The contention in Cammell v. Sewdl that the judicial proceedings in Norway, under which the cargo was sold, amounted to a judgment in rem, was rejected by all the judges in the Exchequer Chamber, and has not therefore been here referred to. See infra. Chap. XI. (c) 1 Eccl. & Ad. 36. Id) 3 Bob. Ad. 240, at p. 259. (e) 5 B. & Aid. 617 (1822). 338 POEEIGN AND DOMESTIC LAW. Part HI. did act unwisely in deciding to sell the cargo, the title of _^' the foreign purchaser was not accepted as good for another Cap. vin. reason. The sale took place at the Cape of Good Hope, Contracts and it was not shewn that the Dutch law then in force Iruiidents. ^j^gj-g regarded the sale in at all a more favourable light than the English law would have done, or that there was any conflict between them as to its validity (a). It appeared, besides, that the purchaser was fully aware of the circumstances under which the master sold, and as he was necessarily taken to have been also cognizant of the law, he purchased with his eyes open, so as even to have precluded himself from finding protection under a sale in market overt (6), had the facts amounted to that. Ship's master Before passing from the consideration of maritime con- — the agent of jp^gts made with a shipmaster in a foreign port, it may be remarked that in one point of view, the question is not of the authority given to the master at all, that is, as some- thing distinguished from the intimation afforded by the flag, when the owner is present in propria persona. Whether the owner is himself in the foreign port to contract himself, or whether he has sent his shipmaster there to contract for him, the parties to the contract must be equally regarded as contemplating the opera- tion of the law of the flag upon their future relations under the obligation. " The present and like questions," says Willes, J., in Lloyd v. Guibert (c), affect not only contracts entered into by masters of ships, the law of whose country distinguishes between the obligations of a contract by the master as such, and that of the owner himself, or his broker, or of the master acting with a plenary authority, lut touch all contracts of affreightment entered into in respect of any vessel in a port foreign as to her, whether the master happen to be an owner or not." This principle is obviously a consequence of the natural (o) See per Best, J., p. 624. (6) Coke, 2 Inst. 713. (o) L. E. 1 Q. B. 115, 122. CONTRACTS. 339 idea of agency, inasmuch as a man who acts by an agent Pam III. in a foreign country, acts there himself. In the Albion ' Company v. Mills (a), a Scotch appeal to the House of Cap. Vlil. Lords, the Lord Chancellor said, " If I send an agent to Contract— reside in Scotland, and he, in my name, enters into a con- " *" ^" ^^" tract ia Scotland, the contract is to be considered mine where it is actually made. It is not an English contract, because I actually reside in England. If my agent exe- cutes it in Scotland, it is the same as if I were myself on the spot, and executed it in Scotland." If, therefore, a contract by the master for a ship, as agent for his owner, in a foreign port, is governed by the same rules as if the owner had himself been present ; it is plain that when the owner himself is so present, and actually makes the contract in his own name, the law of the flag is to be applied to its future incidents, according to the rule laid down in Lloyd t. Guibert (b), just as much as if he had stayed at home. It need hardly be said that, since the law which is to Express govern future incidents of a contract must in all cases be ^nttageMtes a matter of intention, the parties may proviide by express —General stipulation for certain probable contingencies, and declare *^®'''^''" beforehand to what law their legal consequences are to be referred. Thus, in contracts of marine insurance, it is common to insert a clause that the underwriters are to be liable for general average "as per foreign statement"; and this has been construed to mean, not only that the calculations of the foreign average-stater are to be ac- cepted as correct, but that what is and what is not general ayerage is to be decided by the law of the foreign port where the adjustment is made (c). So, where the under- writers agreed " to pay general average as per foreign statement, if so made up " ; which was construed as an agreement to be bound by the opinion and decision of the (a) Per Lord Lyndliurst ; 3 Wils. & 8. 218, 333 ; 1 Daw & CI. 342 • Story. § 285. (6) L. K. 1 Q. B. 115. (c) Mavro v. Ocean Marine Insurance Co., L. E. 10 C- P. Hi. z 2 840 FOREIGN AND DOMESTIC LAW. Part ni. AOTB. Cap. VIII. Contract — Incidents. Foreign statement of average. foreign average-stater, both as to facts and law (a). And in another modern case, where the underwriters agreed " to pay all claims and losses on Dutch terms, and accord- ing to statement made up by official dispacheur in Hol- land," the voyage being from Java to Holland, it was held that the words expressing the risks insured against were to be construed by Datch law, and that the average state- ment by the Dutch adjuster was binding on the under- writers (b). It can scarcely be said that the foreign law in any of these cases can be regarded as the place of performance, as the average loss, and consequently the adjustment, was a contingency which might never have arisen. The above expressions seem sufficiently clear to shew that the parties effecting the policies of insurance as well as the underwriters, intended their obligation quoad the contingencies referred to, to be regulated by the foreign law ; but strong evidence is no doubt necessary to shevr that the parties to an insurance, effected in England with an English company, have in their minds anything but the English law (c). It is however sufficient to shew a usage to pay losses according to the foreign statement, that being equivalent, when such that the parties are bound by it, to a special agreement (d). And it would seem that this usage, for underwriters to settle according to foreign adjustment, is sulKciently established in English law for it to be binding without an express provision to that effect, according to the authority of Phillips on Insurance (e) ; but even then, according to the same writer, the foreign law is only entitled to regulate the adjustment, and not to make that an average loss which is not so according to the law of the country where the policy was effected. In Mavro v. Ocean Marine Insurance («) Harris v. Scaramanga, L. E. 7 0. P. 481. (b) Hendricks v. Australasian Insurance Co., L. E. 9 0. P. 460. (c) Power V. Whitmore, 4 M. & S. 141 ; Peninsular and Oriental Go. v. Shand, 3 Moo. P. C. N.S. 272 ; Don v. Lippman, 5 CI. & F. 1. (d) Newman v. Camlet, Park, Ins. 900, 8th ed. (e) § 1413, 1414. CONTEACTS. 341 'Company {a), Blackburn, J., said it was a question that PartIU. had never been distinctly settled, whether under an ordi- ' nary English policy the English underwriter could be _Cap^jviii^ compelled to bear what was held to be a general average Contractr— loss by the law of the foreign country where the adjust- ^'^^f^- ment was made, and that express clauses to pay " as per foreign statement " were frequently inserted in policies to avoid that very difficulty. Power v. Whitmore (h), which is said by Westlake to have decided the question in favour of the underwriter, is explained by Cockburn, C.J., in Dent V. Smith (c) to have been generally misapprehended, there being no proof in that case that the loss in question was a general average loss even by the law of Portugal, where the adjustment was made. In Dent v. Smith the underwriters were held liable to repay moneys to the shippers of gold on board an English ship for Constanti- nople, which they had been compelled to pay in order to get the gold out of the hands of the Russian authorities at Gallipoli, where the ship had become stranded. After the insurance was effected, and before she sailed, the ship had been transferred to Eussian owners, and had duly changed her nationality, a fact of which neither the plain- tiffs nor defendants were aware; and this change alone had given the Eussian authorities atG-allipoli jurisdiction. It was held that the underwriters were liable, on the ground that the plaintiffs had been compelled to pay the sum claimed as salvage, and were entitled to recover it as a loss by perils of the sea ; so that although the case was argued in some respects as one of general average, no light was thrown upon that question. The diversities in the law of general average adopted General by different nations are so great (d), and the advantages c^^nflforof promised by uniformity so apparent, that the subject has law. more than once engaged the attention of reformers. (a) li. K. 10 0. P. 414, 418. Walpoley. Ewer, Park, Ins. 898, 8th ed., is often cited as an authority for the affirmative, but may probably be regarded as overruled by Power v. Whitmore, and the other cases cited above. (6) 4 M. & S. 141 ; Westlake, § 209. (c) L. E. 4 Q. B. 414, 450. (cQ See the comparative table in Lowndes on Average, p. xxviii. 342 FOEEIGN AND DOMESTIC LAW. Part III. Aers. Cap. Vin. Contract — Itwidents. General average — York and Antwerp Bules. International Congresses for this purpose have repeat- edly been held, at several of which a code of rules has been prepared and recommended for adoption (Glasgow, " I860 ; London, 1862 ; York, 1864). A Bill was prepared in 1860-62, which was intended to incorporate the code of rules adopted at Glasgow, but proved ill-adapted for its purpose, and was abandoned. The rules which were drawn up at York were pressed upon the attention of the English Government by the Associated Chambers of Com- merce, and repeated attempts made to obtain adoption of them from the Legislature (a) ; but these attempts were unsuccessful ; and in 1877 a revised form of these rules was adopted by the Association for the Eeform and Codi- fication of the Law of Nations, at its fifth annual confer- ence at Antwerp, under the name of " The York and Antwerp Rules." It may be useful to give these m extenso. The York and Antwerp Bules. 1. Jettison of Deck Cargo. — No jettison of deck cargo shall be made good as general average. Every structure not built in with the frame of the vessel shall be considered to be a part of the deck of the vessel. 2. Damage hy Jettison. — Damage done to goods or mer- chandise by water which unavoidably goes down a ship's hatches opened, or other opening made, for the purpose of making a jettison, shall be made good as general average, in case the loss by jettison is so made good. Damage done by breaking and chafing, or otherwise from derangement of stowage, consequent upon a jettison, shall be made good as general average, in case the loss by jettison is so made good. 3. Extinguishing Fire on Shipboard. — Damage done to a ship or cargo, or either of them, by water or otherwise. (a) Eeport of the Annual Conference (1877) at Antwerp, of the Agsoci- alion for the Eeform and Opdifleatiofl of the Law of Nations. Incidents. CONTRACTS. 343 in extinguishing a fire on board the ship, shall be general Part ni. average ; except that no compensation be made for damage .' done by water to packages which have been on fire. Cap. VIII. 4. Cutting away Wreck. — Loss or damage caused by Contract— cutting away the wreck or . remains of spars, or of other things which have previously been carried away by sea- peril, shall not be made good as general average. 5. Voluntary Stranding. — When a ship is intentionally run on shore because she is sinking or driving on shore or rooks, no damage caused to the ship, the cargo and freight, or any or either of them, by such intentional running on shore shall be made good as general average. 6. Carrying Press of Sail. — Damage occasioned to a ship or cargo by carrying a press of sail shall not be made good as general average. 7. Port of Befuge Expenses.— When a ship shall have entered a port of refuge under such circumstances that the expenses of entering the port are admissible as general average, and when she shall have sailed thence with her original cargo or a part of it, the corresponding expenses of leaving such port shall likewise be admitted as general average ; and, whenever the cost of discharging cargo at such port is admissible as general average, the cost of re- loading and stowing such cargo on board the said ship, together with all storage charges on such cargo, shall likewise be so admitted. 8. Wages and Maintenance of Crew in Port of Befuge. — When a ship shall have entered a port of refuge under the circumstances defined in Eule 7, the wages and cost of maintenance of the master and mariners, from the time of entering such port until the ship shall have been made ready to proceed upon her voyage, shall be made good as general aTerage. 9. Damage to Cargo in Discharging. — Damage done to cargo by discharging it at a port of refuge shall not be admissible as general average, in case such cargo shall hare been discharged at the place and in the manner customary at that port with ships not in distress. 344 FOREIGN AND DOMESTIC LAW. .Part m. 10, Contributory Values. — The contribution to a general .' average shall be made upon the actual values of the pro- Oap. VIII. perty at the termination of the adventure, to which shall Contract— be added the amount made good as general average for property sacrificed ; deduction being made from the ship- ■owner's freight and passage-money at risk of such port charges and crew's wages as would not have been incurred, had the ship and cargo been totally lost at the date of the general average act or sacrifice; deduction being also made from the value of the property of all charges in- curred in respect thereof subsequently to the arising of the claim to general average. 11. Loss of Freight. — In every case in which a sacrifice of cargo is made good as general average, the loss of freight, if any, which is caused by such loss of cargo, shall likewise be so made good. 12. Amount to he made good for Cargo. — The value to be allowed for goods sacrificed shall be that value which the owner would have received, if such goods had not been sacrificed. The York and Antwerp rules, however, have not re- ceived the approval of British underwriters. A joint committee was appointed to consider them, composed of twenty-two members, four representing the committee of Lloyd's, eight the London companies, three the Liverpool underwriters, two the Glasgow underwriters, and one the Australian and New Zealand Underwriters' Association, under a resolution passed at Lloyd's on the 26th June, 1878. In their report this joint committee say that the proposed extension of general average involves a transfer of liabilities belonging to the shipowners to the owners of cargo, and that they do not see on what grounds, either of justice or expediency, such a transfer is in itself de- sirable. They deprecate on principle the extension of the system of contribution to general average. They acknow- ledge the immense importance of uniformity, if uniformity could be secured ; but they consider that it is premature to hopr" even for such uniformity till more is known of ' CONTKACTS. 345 the results of the action of the local committees of the Pakt hi. association which met at Antwerp ; and the report con- '^^' eludes with a request to the committee of Lloyd's to Cap. VIII. adhere at present to their determination not to give their Contract- sanction as a corporation to the York and Antwerp rules ^"<'^^*«- as at present framed and put forward (a). With regard to contracts for carriage or transit by land Contracts for and sea, it is obvious that it may be often left very doubt- land and sea. ful what law was intended by the parties to govern the incidents of the carriage and the contingent liabilities of the carriers. The question arose in Cohen v. South-Eastern Railway Company {h), in respect of a contract entered into with an English railway company, at their office at Boulogne, for carriage of a passenger and his luggage from Boulogne, via Folkestone, to London. The luggage fell into the sea by the negligence of the defendants' servants, and was so lost ; and the question arose whether the liability of the defendants, who had endeavoured to limit it by a notice on the back of the passenger's ticket, was governed by English or French law. It was ulti- mately held that they were liable by English law, and as the defendants did not deny that they were so by the law of France, it was unnecessary to decide the question of conflict. Mellish, L. J., however, in the Court of Appeal said, " I confess for my own part that, the contract being made by an English passenger with an English railway company regulated by English law, I should have sup- posed that it ought to be governed by the law of England, and be taken as made with regard to the law of England. And the more so for this reason, that Parliament having passed Acts to regulate the traffic by both railways and steamboats, when the steamboats belong to the railway company, and there being certain clauses in these Acts for the protection of passengers, I should not be willing to think that the railway company could escape from the stringency of those Acts by having a booking ofBce in a {a) Vid. Law Times, July 13, 1878, p. 202. (6) L. E. 1 Ex. D. 217 ; S.C. on appeal, L. B. 2 Ex. D. 253. 346 FOREIGN AND DOMESTIC LAW. Part III. foreign country; the object being to carry a variety of _^' traffic which was intended to be regulated by Parliament Cap. VIII. i^y. gea and by land " (a). It is plain that the real force Contraeih- of this argument lies in the consideration that the pas- Inaidmts. genger would be the more likely to have contracted with Cohen Y. an eye to the English law, because he knew that the Smith-Eastern ttiti u-i n„i« By. Co. company was an English company, subject generally to English law, and that the English Legislature had passed certain Acts which purported to regulate the object for which he was contracting. The judges of the Court of Appeal, however, were by no means agreed upon this inference of intention. Baggallay, L.J., whilst guarding himself against being supposed to be expressing any de- cided opinion, intimated that it appeared to him that there was much to be said in favour of the law of France (h) ; whilst Brett, L.J., the third member of the Court, whilst apparently agreeing with Mellish, L.J., that the English law was applicable to the facts of the par- ticular case, where the journey only commenced at Bou- logne, thought it probable that if the starting-place had been Paris instead, the first part of the journey at any rate would have been governed by the law of France (e). It has been already pointed out that, in such a case, the law of the place where the contract was made could have no right, as such, to assert its supremacy. The real question would be, looking at all the circumstances of the case, the thing to be done, the situation of the starting- point, the destination, the, intermediate distance, the nationality and domicil of the parties contracting, and the terms of the contract, by what law did the parties intend that the unforeseen incidents of their contract should be governed? It may be remarked that in the particular case under discussion, the passenger had accepted a ticket, the conditions on the back of which referred to the com- pany's bye-laws ; and inasmuch as these bye-laws derived their force and authority from the English legislature, (a) L. K. 2 Ex. D. 259, 260. (6) Ibid. p. 261. (c) Ibid. p. 262. CONTEAOTS. 347 this would seem a strong argument to shew that the PabtIII. parties ought to have intended that the law of England ' should govern the whole transaction (a). There is, how- C^r. VIII. ever, another principle applicable to the case which has Contraot— not yet been considered. It will be shewn presently that -^»^*s- the manner and extent of the performance of a contract are referred almost universally to the law of the place where the contract is to be performed. The contract of a carrier is performed in the place where he carries, Carrier's not in the place whence he starts, or to which he is ^^ ^ ^' destined. It may reasonably be contended that he eon- tracts to carry in the manner authorized by, and with the liabilities for negligent carriage imposed by, the law of the country through which the transit is made ; and that in such a journey as that supposed, from Paris to London, the French law would apply during the first portion, by railway from Paris to Boulogne ; and the English law during the remainder, when the passenger and his lug- gage was on English soil, or on board an English ship. " Whether that part of the contract which has to be per- formed in France," said Brett, L.J., in Cohen v. South- Eastern Railway Goyrvpa/n/y (b), " must in strictness be said to be performed according to French law, I know not." It would certainly not be inconsistent with principle, and it is doubtful if it would even be inconvenient in practice, to consider that the parties intended the liability of the carrier to vary according to the law of the country through which the transit was made, having regard to the fact that the ordinary and established means of conveyance in both countries were made use of. The inference of intention would of course be quite different if the contract was one to carry by private and special means through several jurisdictions, and it cannot be too frequently re- peated that the question of the law applicable is one of intention alone. And this is the ground upon which the (a) See Peninsular and Oriental Co. v. Shand, 3 Moo. P. C, N.S. 272, 291 (6) L. E. 2 Ex. D. 253, 263. 348 FOEBIGN AND DOMESTIC LAW. Paet hi. decision of the Privy Council in The Peninsular and "^^' Oriental Company r. Shand (a) must be taken to have Cap. VIII. proceeded, vphere it was held that the carrier's liability, Contract— the agreed carriage being from Southam pton to Mauritius, Incidents. ^^^ Alexandria and Suez, was governed by English law and not by the law of France, which was in force at the place of destination. The carriers in that case were an Cairier's English company, the passenger being also English by ■what law nationality and (apparently) domicil, and almost the whole governed. ^^ ^j^g transit was to be performed in one of their ships, with the exception of the railway journey across the isthmus of Suez. The effect of the Egyptian law, however, was not alluded to, and nothing in fact turned upon that part of the journey. The Court, in giving judgment, after alluding to the difficulty of saying by what law the nature and obligation of a contract was to be governed, and the conflict of decisions on the question, stated the prima facie rule, that the law of the country where a contract was made must generally be taken to govern as to its nature, obligation, and interpretation, and that the parties must be understood as having agreed to submit them- selves to it, and proceeded to shew how the intention was directly to be inferred from the facts before them, as follows : " This is a contract made between British sub- jects in England, substantially for safe carriage from Southampton to Mauritius. The performance is to com- mence in an English vessel in an English port; to be continued in vessels which for this purpose 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 pro- tection a stipulation, professing in its terms to limit the liability which, according to the English law, the contract would otherwise have cast upon them. "When they ten- dered this contract to the respondent, and required his j J mere reiusal ot a remedy. Oaf, viii. ^ contract may also be discharged by a novation or a p. 384. release, forming a new agreement between the parties, and executed according to the requirements of the lex loci TOKTS. 389 CHAPTEE IX. Pabt III. Acts. TOETS. OaTIx. The question of the proper law applicable to an action ^p^f— based upon a tort committed abroad, and of tlie proper "'■*^_^*°"- forum in which that law should be applied, has not arisen so frequently as the corresponding doubt with respect to contracts, but has nevertheless been the subject of late years of careful judicial consideration. It may be con- veniently considered under three heads : (i.) jurisdiction with respect to torts, (ii,) the measure of the wrong done, (iii.) the ifleasure of the remedy. (i.) Jwisdiction with respect to Torts. — The formal dis- tinction between local and transitory actions, arising from the old rules as to venue, has been already sufficiently considered («) ; and it need only be remarked that it operated upon actions based on tort in exactly the same way as upon actions based on contracts. Thus an action Torts to for a trespass or other tort to foreign land was formerly °^^^^ excluded from the English Courts, not on any principle of private international law, but on the technical ground that it was absolutely necessary, for purposes of procedure, that the locality of the alleged grievance should be a country within English jurisdiction, where the action in question could be tried according to English law. This was first definitely held in Skinner v. East India Com- pany (I), so long ago as 1665 ; but the soundness of the rule was subsequently questioned by Lord Mansfield (e), who took a distinction between actions which concerned (a) Ante, p. 249. (6) Cited in Cowp. 167. (c) Mostyn v. Fdbrigas, Cowp. 180. •390 FOREIGN AND DOMESTIC LAW. Part in. Acts. Cap. IX. Torts- Jurisdiction. Abolition of rules of venue. the title to or possession of foreign immoTables, and actions for personal damages for torts to those immovables. The full effect of the existing rules as to venue was not recog- nised in this expression of opinion, which was distinctly overruled in Doulson v. Matthews (a). The strictness of the rule, that no action which was local in the contempla- tion of English law could be brought in an English Court, was thus again established, but on the technical ground of the rules as to venue alone. Now that these have been abolished by the Judicature Acts (6), the question again appears open for discussion. In a case which was decided after this alteration in the law (e), the litigants had by agreement waived any objection to the jurisdiction of the Court that might otherwise have been taken, or the point would have directly arisen. The action was brought by an English company, who owned a pier in Spain, against an English shipowner for damage done to the pier by the vessel coming into collision with it. The pier was of course an integral portion of Spanish soil ; and after laying down the general rule, that no action can be maintained in England for a wrongful act, unless it is wrongful both by English law and by the law of the place where it was committed, Mellish, L. J., proceeded as follows : " Whether the rule as to wrongful acts to immovable property in a foreign country does not go still further, and prevent an action from being brought at all, is a question which it is not necessary to determine in this case ; because, having regard to the consent of the parties and the agreement that has been come to, no objection to the jurisdiction could be taken." So it was said by James, L.J., in the same case, that had it not been for the agreement of the parties, very grave difficulties might have arisen as to the jurisdiction of the Court to entertain any action or pro- ceedings whatever with respect to injuries done to foreign soil. That difficulties would arise there can be no doubt, as the abolition of the rules of venue has cut away the (a) 4.T. E. 503. (6) 38 & 89 Vict. c. 77; Ord. xxxvi. r. 1. (c) 274C M. Moxham, L. E. 1 P. D. 107. TOETS. 891 main ground upon which the earlier decisions on the Pabt III. point were founded ; but it is submitted that the result of "^f^' the change has been to make the reasoning of Lord Cap. IX. Mansfield in Mosiyn v. Fabrigas (a) apph'cable to its full Torts— extent, and to remove all reasons that existed previously Jurisdiction. from excluding actions for, damages in respect of injuries done to foreign immovables from English Courts. So long as the rules as to vemie remained in force, there was, as Lord Mansfield said, a formal and a substantial distinc- tion between certain actions. The distinction between Local and local and transitory actions was formal — based on the ^^"ong™^ necessities and technicalities of English law, and capable of being modified as it had been created. The substantial distinction was that between actions the object of which could not be attained by an English judgment, and those to which an English writ could give full satisfaction — the former category comprising only those actions which were brought for the title to or possession of immovable property abroad. Actions for personal chattels actually situate within foreign jurisdiction could of course be satisfied if the defendant owner was within the control of an English Court, and were not excluded by any principle of inter- national law like that which hedges the soil of a foreign State with an inviolable sanctity. The formal distinction has now been abolished, and the substantial distinction alone remains ; but the substantial distinction never did affect such actions as those, now under consideration — actions, that is, not for the title to or possession of foreign immovables, but for compensation in pecuniary damages for injuries done to them, brought against the person of the owner, and to be satisfied out of his movable personal estate. It would therefore seem that no reason now exists on principle why the latter class of actions should not be maintained in an English Court, subject to those rules and restrictions by which all actions for torts committed abroad are governed, and which will be presently stated (&). The dicta, however, of the judges in the case of The M. (a) Cited Cowp. 167. (P) Infra, p. 393. 392 FOEEIGN AND DOMESTIC LAW. Part III. Moxham (a), which have just been quoted, shew that the ' question ' can from no point of view be regarded as free Cap. IX. froj^ douijt. Torts— The question of the jurisdiction of English Courts to Jurisdiction. ^^ actions based on torts to foreign immovables has thus been shewn to depend chiefly, if not entirely, upon the history of the law of vemie, and its recent abolition. Personal torts, which were transitory and not local in their nature, were of course not affected by the old restriction. There was at one time, however, another cause which might be regarded as limiting the jurisdiction with respect The King's to certain personal trespasses, as assault. In the form of declaration for assault which was in use before the Common Law Procedure Act, 1852, the assault required to be laid and proved contra paeem regis; a condition which of course could not be strictly complied with if it had taken place without the jurisdiction ; and Lord Mans- field expressed a doubt whether this would not exclude the competency of the English Courts to try such cases at all (b). So far as this doubt was a technical one, based on the necessities of English procedure, it has of course been removed ; nor does it in fact seem to have had any foundation in international principles. " The right of all persons," said Selwyn, L.J., " whether British subjects or aliens, to sue in the English Courts for damages in respect of torts committed in foreign countries, has long since been established, and .... there seems to be no reason why aliens should not sue in England for personal in- juries done to them by other aliens abroad, when such injuries are actionable both by the law of England and also by that of the country where they are committed ; and the impression which had prevailed to the contrary seems to be erroneous " (c). Deferring for the present the subject of the measure of the wrong done, or of the remedy available, the question of jurisdiction seems to be put (a) L. E. 1 p. D. 107. (6) Mostyn v. Fabrigas, 1 Sm. L. C. 658, 600 ; S.C. Oowp. 161 (c) The Halley, L. B. 2 P. 0. 193, 202 ; Tlie Amalia, 1 Moo. P. C. N.S. 484. TOETS. 393 beyond all reasonable doubt ; and it may tLerefore be Pabt hi. assumed that an English Court has a right to entertain '''^^" all actions for personal wrongs, wherever and by whom- Cap. ix. soever committed (a), without any breach either of the Torts- comity of nations or the technical requirements of English ^"^- < law. (ii.) Measwe of the wrong done. — The English Court, hav- ing jurisdiction to entertain in the first instance any claim in respect of an alleged foreign tort, has next to ascertain whether the act complained of was in fact unlawful. By what law is it to be guided in so doing ? the law of the country where the act was committed ? or that of England, where the remedy is sought? The answer to this has already indirectly been given. The action complained of Tort must be must have been a legal wrong both by the law of the ^^^^^j-^nd'*^ place where it was done, and by the law of England, where ^^ 'o"*- the action for damages is brought. " As a general rule," said Willes, J., delivering the judgment of the Court of Exchequer Chamber in Phillips v. Eyre (5), " in order to found a suit in England for a wrong alleged to have been committed abroad, two conditions must be fulfilled. First, the wrong must be of such a character that it would have been actionable if committed in England ; therefore, in The Salley (e), the Judicial Committee pronounced against a suit in the Admiralty founded upon a liability by the law of Belgium for collision caused by the act of a pilot whom the shipowner was compelled by that law to employ, and for whom therefore, as not being his agent, he was not ■ responsible by English law. Secondly, the act must not have been justifiable by the law of the place where it was done." So it is said by Mellish, L.J., in the case of The M. Moxham {d) : " The law respecting personal injuries and respecting wrongs to personal property appears to me to be perfectly settled that no action can be maintained in the Courts of this country on account of a wrongful act (a) Except, of course, torts done, authorized, or sanctioned by a sovereign Power ; Buron v. Denman, 2 Ex. 167 ; ante, p. 104. (6) L. K. 6 Q. B. 1, 28. (c) L. E. 2 P. 0. 193. (d) L. K. 1 P. D. 107, at p. 111. 894 , FOREIGN AND DOMESTIC LAW. Part HI. Acts. Cap. IX. Torts- Nature. Tort — wlien excused by lex loci. either to a person or to personal property, committed within the jurisdiction of a foreign country, unless the act is wrongful by the law of the country where it is com- mitted, and also wrongful by the law of this country." The first part of this condition, that no action can be maintained for an act wrongful by the law of England but legal or legalized by ex post facto legislation in the country where it was committed, is the proposition which has most frequently been the subject of debate. In Blad's Case (a), Lord Nottingham held that a seizure in Iceland, authorized by the Danish Government and valid by the law of the place, could not be questioned by civil action in England ; although the plaintiff, an Englishman, in- sisted that the seizure was in violation of a treaty between this country and Denmark — a matter for remonstrance between the governments, not for litigation between the subjects. In Dobree v, Najpier (6), Admiral Napier having, when in the service of the Queen of Portugal, captured in Portuguese waters an English ship breaking blockade, was held to be civilly justified, by the law of Portugal and the law of nations, though his serving a foreign prince was contrary to English law, and subjected him to penalties under the Foreign Enlistment Act. So it was held that the master of an English vessel, indicted for an assault and false imprisonment, who had contracted with the Chilian Government to carry certain banished prisoners from Chili to Liverpool, and had in fact done so, after receiving and imprisoning the prisoners at Chili, could justify his acts under the authority of the Chilian Govern- ment in respect of all that had taken place within the local jurisdiction of Chili, but not in respect of the con- tinued imprisonment when the ship had passed out of Chilian waters (c). This was a case of criminal indict- ment, but the reasons of the decision would of course have been equally applicable to a civil action for false imprison- (a) 3 Swan, 603 ; Blad v. Bamfield, ib. 604. (fc) 2 Bing. N. 0. 781. (c) M. V. LesUy, 29 L. J. M. 0. 97 ; Bell, C. 0. 220. TOETB. 395 ment or trespass to the person. "We assume," said Erie, G. J., " that the Chilian Government could justify all that it did within its own territory, and we think it follows that the defendant can justify all that he did there as agent for the government and under its authority." In Phillips V. Eyre (a), the last decision of importance on the subject, the defendant pleaded, to an action for false im- prisonment and assault in the island of Jamaica, that since the grievances complained of a retrospective Act of indemnity had been passed by the legislature of Jamaica, and it was held that this was a sufScient answer to the action; although the defendant was at the time the governor of Jamaica, and had assented to the passing of the Act, which could not have become law without his sanction. This case was decided upon demurrer ; but in the leading case of Mostyn v. Fahrigas Q>), where an action was brought against the Governor of Minorca for a similar trespass, the justification pleaded by the defendant, that he had acted under the law of the island and solely in his ofiScial capacity, was negatived by the jury, and the question of the extra-territorial operation of the local law did not therefore arise. It was, however, accorded an implied recognition by the Privy Council in Hart v. (Jumpaeh (e). In that case an action was brought, in the British Supreme Court for China and Japan, for false and fraudulent representations made by the defendant, occupy- ing an official post in the service of the Emperor of China, to the principal of the Foreign Board at Pekin, respecting the conduct of the plaintiff as a professor in the college established there, which led to his dismissal by that Board. In ordering a new trial on the ground of misdirection, it was said that if it were shewn, that by the law and customs of China officers in the service of the government were absolutely protected in making reports concerning their subordinates, and that it was against the policy of that (a) L. E. 6 Q. B. 1 ;S.O. L. K. 4 Q. B. 226; see Tlie EalUy, L. E. 2 P. 0. 193, referred to by Willes, J., in his judgment cited above. ' (b) Cowp. 161 ; 1 Sm. L. C. 658. (c) L. E. 4 P. 0. 439, 463. Pakt hi. AOTS. Cap. IX. Torts- Nature. 396 1F0EEIGN AND DOMESTIC LAW. ^a'ct™" ^"^P^'^s *o allow them to be questioned by any Court, it might be proper to hold that it would be contrary to the comity of nations, and therefore contrary to public policy Cap. IX. Torts— in the eyes of an English Court, to allow a British subject who had voluntarily entered into *the service of the Chinese Government, to maintain any action for the representations in question. \ These authorities seem, therefore, to shew conclusively that if an alleged wrong is not actionable in the country where it is committed, no damage can be recovered for it Crimmal in England ; but a doubt has been raised as to the effect lexhci tut ^^ ^^^ foreign law in those cases where the act is one for notactiouable, which criminal proceedings might have been taken in the actionable Courts of the country where it was committed, though no elsewhere. damages could have been there recovered. Wightman, J., intimated an opinion that if a trespass was not lawful or justifiable by the law of the country where it was com- mitted, the mere fact that no remedy by recovery of damages was given by that law would not deprive the person aggrieved of his right to damages given by the English law, at any rate when the parties were British subjects (a). No opinion on this point was, however, necessary for the decision of the case, as the pleadings were held not to contain any averment that damages might not be recovered by the foreign law for the alleged tres- passes, and the rest of the Court guarded themselves from being supposed to assent to the dictum referred to. The later decisions which have been cited appear virtually to overrule it. The law of the place where an act is done defines its character altogether, and pronounces once for all whether it is wrongful and actionable, or legal and innocent. It may of course stamp it as wrongful but not actionable, as in Scott v. Seymour. In that case the act is not a wrong to the individual, but only to the State. Consequently, the individual who considers himself ag- grieved cannot claim damages for that which is no wrong to him, either in the country where the act is (a) Scott V. Seymour, 1 H. & 0. 219. Jfatwe. TOETS. 397 committed or in any other. To say that such a foreign Part III. law gives the person injured a criminal remedy but not a °''^' civil one, and that the question is therefore one of proce- ^^^- ^^■ dure for the lex fori, is a mistake. The individual is Torts- given no remedy at all, since a criminal prosecution is not for the benefit of the individual, but of the State. He is given no remedy by the law of the place where the act is done, because that law regards him as having suf- fered no wrong, and the law of any tribunal in which he may afterwards sue should accept the decision of that which has natural and primary jurisdiction. In the words of Willes, J., the obligation is the principal to which the right of action in any Court whatever is only accessory, and such accessory, according to the maxim of law, follows the principal, and must stand or fall there- with. Bes, quse accessor ium locum obtinent, extingimntur cum res principales perempiie sunt. A right of action, whether it arise from contract governed by the law of the place, or from a wrong, is equally the creature of the law of the place, and subordinate thereto. The terms of the con- tract or the character of the subject-matter may shew that the parties intended their bargain to be governed by some other law ; but prima facie it falls under the law of the place where it was made. And in like manner the civil liability arising out of a wrong derives its birth from the law of the place, and its character is determined by that law. Therefore, an act committed abroad, if valid and unquestionable by the law of the place, cannot, so far as civil liability is concerned, be drawn in question else- where, unless by force of some distinct exceptional legisla- tion, superadding a liability other than and beside that incident to the act itself {a). It cannot, however, be said that these dicta are necessarily to be understood as giving a sufficient answer to the opinion expressed by Wight- man, J., in Scoft V. Seymour (b), with respect to the case of an act illegal and criminal, but not actionable, by the (a) Per Willes, J., in FMlUps v. Eyre, L. E. 6 Q. B. 1, 28. (6) 1 H. & C. 219. 398: FOREIGN AND DOMESTIC LAW. Pabt in. Acts. Cap. IX. TorU— Nature. Tort within no municipal jurisdiction. law of the place where it was committed ; and the law on this branch of the subject can scarcely be regarded as free from doubt. When the act complained of takes place in a locality over which no municipal law extends, so as to be compe- tent to decide its wrongful or innocent nature, it would seem (a) that the lex fori must necessarily be followed, in the absence of any other with authority to speak. Thus, in an action by a submarine telegraph company against the foreign owners of a ship, for negligence and want of proper care in navigating their ship, whereby the cable of the plaintiffs, stretching from Dover to Calais, was damaged by the defendants' anchor, it was apparently assumed that the law of England was the proper measure of the negligence complained of, and of its actionable character, whether the injury was done to the fcable within or without the limit of three miles from the Eng- lish shore (&). It could not, of course, be contended that the English Court had not jurisdiction to try an action for personal damages, whatever the locality of ihefactv/m, on the principles already explained ; and it did not appear that any law could be invoked to measure a tort com- mitted on the high seas, or (in this case) on the soil at the bottom of the high seas, but the law of the forum in which the action was brought. Torts in the nature of collisions between vessels on the high seas are within the original jurisdiction of the High Court of Admi- ralty, whatever the nationality of the parties, though it may be that the Court has a discretion whether or not it will interfere between litigants who are both the domiciled subjects of a foreign State (e) j and by modern statutes, (a) Story suggests (§ 423) that with respect to such torts as these, each nation would either apply its own law (i.e., the lex fori), or would apply the same law that the nation to which the tort feasor belonged would apply if the circumstances were reversed, following the rule of reciprocity. See The Girolamo, 3 Hagg. Ad. 169. (6) The Submarine Telegraph Co. v. Dickson, 15 0. B. N.S. 759. As to the three-mile zone, see B. v, Keyn, L. E. 2 Ex. D. 63, and The Territorial Waters Jurisdiction Act, 1878. In the case cited in the text, it was alleged that the cable was lying in the high seas within the three-mile zone by virtue of a charter from the Crown. (c) Per Sir E. Phillimore in The Mali Ivo, L. E. 2 A. & E. 35G. TOETS. 399 Pakt III. Acts. Cap. IX. Torts— Bem'edy. the same Court has been given jurisdiction over any claim for damage done by any vessel, whether to another vessel or to person or property in some other form (a). These latter torts also were originally within the jurisdiction of the Admiralty Court, according to Sir R. Phillimore in The Sylph (h), in which case the statutory jurisdiction just referred to was held to include the case of damage in- flicted by a steamer on the Eiver Mersey upon a diver during his employment at the bottom. The same juris- diction had been already applied to a cause of damage against a ship for injury to a breakwater (c). It is perhaps superfluous to repeat that in such a case if the breakwater injured were an integral part of the soil of a foreign State, the question of jurisdiction will arise in a more serious form (d). (iii.) Measure of the remedy. — The general rule will be stated in its proper place (e), that all questions of remedy or procedure belong to the lex fori; and the theory of the remedy available in case of tort is of course no exception to the general rule. " As to foreign laws," says Willes, J., Eemediea " which affect the liability of parties in respect of bygone f^^™; ^ transactions, the law is clear that if the foreign law touches only the remedy or procedure for enforcing the obligation, as in the case of an ordinary statute of limitations, such law is no bar to an action in this country; but if the foreign law extinguishes the right, it is a bar in this country equally as if the extinguishment had been by a release of the party, or an act of our own legislature " (/). The question, in fact, is always whether the foreign law goes to the nature of the right, the essence of the obliga- tion, or whether it only affects the manner in which the right is to be enforced, or the obligation dissolved. If the latter is its true construction, it has no operation except in its own tribunals ; if the former, its decision (o) 24 Yiot. c. 10, s. 7 ; 3 & 4 Vict. u. 65. (6) L. B. 2 A. & E. 24. The law on this branch of the subject is ex- haustively collected by Story iu Be Lovio v. Boit, 2 Gallison, 398. (c) The Wila, cited in note, L. E. 2 A. & E. 29. (d) The M. Moxham, i. K. 1 P. D. 107. (e) Infra, Chap. X. (/) In FMlUps V. Eyre, L. E. 6 Q. B. 29. 400 , FOREIGN AND DOMESTIC LAW. Part III. must be respected by all Courts alike. In the words of Willes, J., which have been already cited, " the civil ^^^- ^^- liability arising out of a wrong derives its birth from the Torts— law of the place, and its character is determined by that Bemedy. ^^^ Therefore, an act committed abroad, if valid and unquestionable by the law of the place, cannot, so far as civil liability is concerned, be drawn in question else- where, unless by force of some distinct exceptional legis- lation, superadding a liability other than and beside that Lex fori incident to the act itself" (a). But if the law of the caunot create , i , i , . , • , ■ i i . , ■ liability. place make the act in question an actionable wrong, it is actionable in English Courts according to the English law and method of procedure. It can scarcely be said that the distinction between civil and criminal proceedings is one of remedy or procedure. An act which the law of thfe place forbids, and imposes a penalty on, is not neces- sarily an act for which the same law would give the aggrieved person an action for damages; and therefore, though it may be a wrong by the law of the place where it was done, it may not be an actionable wrong. The question whether, under such circumstances, it would be an actionable wrong in an English Court, arose in Scoit v. Seymour (h) ; but it was ultimately held to be unnecessary to decide it, inasmuch as the plea in dispute was construed not to amount to an averment that the wrong was not actionable at all in the Civil Courts of the country where it was committed. Wightman, J., expressed an opinion that, at any rate between British subjects, the fact that the local law gave no civil remedy for a wrong, which it nevertheless made criminal, would not prevent an action for damages from being maintained in England. " I find no authority for holding, even if the Neapolitan law gives no remedy for an assault and battery, however violent and unprovoked, by recovery of damages, that therefore a British subject is deprived of his right to damages given by the English law against another British subject " (c). (a) PUllips V. Eyre, L. E. 6 Q. B. 28. (6) 1 H. & C. 219. (c) 1 H. & C. p. 235. TORTS. 401 The other judges, however, carefully guarded themselves Paet III. against being supposed to concur in this view, and the _^" distinction between British subjects and foreigners, at any Cap. IX. rate, seems arbitrary and unfounded (a) . The reasonable ToHs— construction of the recent authorities seems to point to ^^^^v- an opposite conclusion, and it will probably be safer to say that the tortious or illegal nature of an act is to be decided once for all by the law of the place where it was committed. The remedy alone is a matter for the lex fori to regulate ; i.e., assuming that an act is a tort, and therefore an actionable wrong, the lex fori must prescribe the mode in which the action is to be brought. There is at any rate no direct authority for allowing the lex fori any further effect, or permitting it to say, in any case, that an action shall be maintained which could not have been brought at all in the Courts of the place where the act was done. Nor ought the Jem fori to be allowed to determine the person on whom the liability to an action Liability not attaches, by whatever other law that may eventually be J," uxf^ decided. In the General Steam Navigation Company v. Guillou (h), the action was brought against the defendant as alleged owner of a certain vessel, for so negligently navigating her by his servants on the high seas as to come into collision with and sink a ship of the plaintiffs ; and the defendant pleaded that the vessel was the property of a society or company established by French law, of which he was a shareholder and the acting director, and that by French law he the defendant was not responsible for or liable to be sued or impleaded individually, or in his own name or person, in respect of the causes of action in the declaration mentioned, but the said company alone, by their said style or title, or the master or person in com- mand of the ship for the time being, was responsible for and liable to be sued and impleaded for the said causes of action. The Court of Exchequer were divided as to the true construction to be put on this plea, but they were agreed in expressing a strong opinion that if the plea was (a) Per Blackburn, J., ib. 237. (6) 11 M. & W. 877. 2 D 402 FOREIGN AND DOMESTIC LAW. Pabt III. to be taken as averring that, by the law of France, the •_!^ defendant was not liable for the acts of the naaster of the OAf.lx. yeggel^ but that a body established by French law, and Tmts— analogous to an English corporation, were the proprietors of the vessel, and alone liable for the acts of the master, who was their servant and not the servant of the in- dividuals composing that body, then there was a good defence to the action. On the other hand, it was said that if the plea merely meant that the proper course of proceeding in a French Court would be to sue the defen- dant jointly with the other shareholders of the company under the name of their association, it would undoubtedly be bad; for it was well established, "that the forms of remedies and modes of proceeding were regulated solely by the law of the place where the action was instituted — the lex fori ; and it was no objection to a suit instituted in proper form in England, that it would have been instituted in a different form in the Court of the country where the cause of action arose, or to which the defendant belonged " (a). It appears quite clear, if the former of the two suggested constructions is adopted, that the lex fori could have had no title to interfere. The rule of maritime law adopted in England is no doubt that the owner is liable for the negligent navigation of the master, but the vessel in question was sailing under the flag of France, and owned wholly in that country. The question, therefore, involved in the plea, adopting the construction indicated, was simply of the ownership according to the law of France. If the defendant was not owner, the master was not his servant ; but the servant of the French corporation, who alone were liable for his acts ; and the law of the ship's flag was obviously the only one competent to determine the question. Measure of The lex loci actus is clearly the proper law to measure the amount of damages properly flowing from a tortious act. Thus it was decided in an old case that where there had been a tortious conversion of a ship abroad, interest (a) 11 M. & W. p. 895. damage.-i. TOETS. 403 was to be calculated, in assessing the damages, on the PaetIU. value of the ship at the rate of interest fixed by the °^^' foreign law (a). The calculation of interest, on a breach Cap. IX. of contract, is almost invariably determined, on a similar ToHs— principle, by the law of the place where payment ought to Remedy. have been made ; the theory being that the plaintiff has a right to be put in the saifle position, as to all questions of interest and currency, as if payment had been made at the place and time stipulated for (Z>). Thus where the action is against the acceptor of a bill, the law of the place where he agrees to pay prevails ; and on the same principle it was held that where the claim was in fact against the drawers, who had drawn the bill in Canada, the Canadian law determined the interest (e). In pronouncing upon torts committed upon the high Torta on high seas, the Court of Admiralty must of course be guided by ^'^'^^' maritime law without reference to the municipal law of either of the litigant parties ; except where English statutes have laid down different principles for its guid- ance. The maritime law as administered in English Courts is in fact, according to the latest expressions of judicial opinion, English law {d) ; and in applying it to actions founded upon torts committed on the high seas, the law of the forvm is, in a sense, adopted in the place of any with a better claim to be regarded as the lets loci. The true conception of this law is, more probably, that Maritime law. law which the English Court considers to be regarded by all maritime civilized nations — and itself — as the lex loci — the law operating upon the high seas, and bearing the same relation to that part of the surface of the earth that the municipal law of any independent State bears to the territory of that state. It is undoubtedly founded upon and has originated in the principles of law which have been adopted as common by the majority of maritime (a) Ekim v. East India Co., 1 P. Wms. 395. (fc) Suse V. Fomp, 8 0. B. N.S. 538 ; Cash v. Kennon, 11 Ves. 314 ; Scott V. Sevan, 2 B. & Ad. 78 ; Coekerell v. Barber, 16 Ves. 461. (c) Slate Fire Insurance Co., In re, 32 L. J. Ch. 300. (d) See per Willea, J., in Llmjd v. GuibeH, L. E. Q. B. 125 ; The Ham- burg, 2 Moo. P. C. N.S. 289 ; ante, p. 368. 2 D 2 404 FOREIGN AND DOMESTIC LAW. Part III. Acts. Gap. IX. ToHs— British Mer- chant Ship- ping Actd — limitation of liability by. nations, and is therefore, in one sense, international. Iq a:nother sense it is municipal ; that is, it is the law which the English Court of Admiralty applies to certain trans- actions happening out of British dominions, to which the ordinary statute law of the realm does not, in the absence of an expressed intention to that effect, apply. It is laid down by Blackstone (a), that " affairs of commerce are regulated by a law of their own, called the law merchant, or lex meroatoria, which all nations agree in and take notice of." With respect to the liability of the owners of a vessel for damage done by her by collision on the high seas, it is clear that by this law, apart from the effect of English statutes, the liability went to the full extent of the tort, nor was any limit imposed on the duty of making compensation (6) ; and this is, of course, also the rule of the English common law. By the statute 53 G-eo. III. c. 159, s. 1, it was however enacted that shipowners should not be liable for any damage occasioned by the ship beyond the value of the ship and freight (c). The Merchant Shipping Act, 1862 (25 & 26 Yict. c. 63), s. 64, adopted this principle by limiting the liability of the owners to an aggregate amount calculated in proportion to the ship's tonnage, and extended it in terms to the owners of foreign as well as British ships. Under the previous statute it had been held that the limitation of liability applied only where both litigants were British, and that the English law could neither be invoked for or against either plaintiff or defendant in the English Court where a foreign ship was concerned (d). It must there- fore be taken as having been decided that this municipal law limiting the liability of shipowners was not and is not a law regulating the remedy merely, with which the lex fori has alone to do. " Clearly," said Vice-Chancellor Page Wood in Cope v. Boherty, " an act which limits the (a) 1 Bl. Com. o. 7, 273 ; 4 Bl. Com. u. 5, p. 67. (6) Per Sir J. NichoU in The Girolamo, 3 Hagg. Adm. 186 ; see also The Carl Johann, cited 1 Hagg. Adm. 109. (c) Ee-enacted by 17 & IS Vict. c. 104, s. 504. Id) Cope V. DoheHy, 4 K. & J. 367 ; The Wild Ranger, 1 Lush. 553. TORTS. 405 damages to which the shipowner is to be liable under cir- Paet iii. cumstances like the present deals with the substance and °™ ' not the form of the procedure. It in effect forms a con- Cap. IX. tract that, whereas by the natural law the owner of the Torts— ship or property that has been injured would be entitled to damages to the full extent of the loss that he has sus- tained, all those persons upon whom the legislature can impose such a contract, that is to say, all its own subjects, shall forego that which the natural law — the common law, as we should call it in England — would give them, and shall be entitled only to the amount of the value of the ship by which the injury has been inflicted, and of the freight due or to grow due in respect of such ship during the voyage " (a). It had been contended in argument in this case that whether such a limitation of liability was a matter of remedy and procedure ior the lex fori or not, the English rule could not be applied because the proper construction of the statute (17 & 18 Vict. c. 104, s. 504) was that it did not intend to limit the liability of foreigners. So far, however, as the liability of a foreign shipowner is concerned, it is now unnecessary to discuss the former point, or to attempt any criticism of the " con- tract" which the statute was said by Lord Hatherley to impose upon British subjects, inasmuch as the later statutory provisions (b) expressly include the owners of foreign as well as British ships. (a) Cope V. DoUrty, 4 K. & J. 367, 381 (6) Sect. 5i of the Merchant Shipping Acts Amendment Act, 1862 (25 & 26 Vict. c. 63), commences as follows : " The owners of any ship, whether British or foreign, shall not, in cases where all or any of the following events occur without their actual fault or privity, that is to say, " (3) Where any loss of life or personal injury ia by reason of the im- proper navigation of such ship as aforesaid caused to any person carried in any other ship or boat ; " (4) Where any loss or damage is by reason of the improper navigation of such ship as aforesaid caused to any other ship or boat, or to any goods, merchandise, or other things whatsoever on board any other ship or boat ; " Be answerable in damages in respect of loss of life or personal injury, either alone or together with loss or damage to ship's boats, goods, mer- chandise, or other things, to an aggregate amount exceeding £15 for each ton of their ship's tonnage; nor in respect of loss or damage to ship's goods, merchandise, or ol£er things, whether there be ia addition loss of life or personal injury or not, to an aggregate amoimt exceeding £8 for each ton of the ship's tonnage." 406 FOEEIGN AND DOMESTIC LAW- PabtIB. The state of the law then, when this enactment was _^' passed, was as follows : No limitation of liability for torts Cap. IX. ^as imposed upon ship-owners by the general law mari- Toris— time, and the English statutes which did impose such a Bmiedy. limitation had been held only to apply to cases where both the plaintiff and defendant were British subjects ; i.e.. Torts on high in the case of a collision, where both the ships sailed under tionTf ™' *" the British flag ; on the ground that the full liability of liabUityfor. foreign ship-owners was not cut down by the English Merchant Shipping Acts, and that these Acts were not to be construed as depriving such foreign ship-owners of their full natural rights against British or other ship-owners without express words to that feffect (a). Then came the statute (25 & 26 A''ict. c. 63, s. 104) which in terms limited the liability of foreign ship-owners. The previous cases having been decided on the ground, amongst others, that the English statutes were not to be construed as limiting the rights of foreign ship-owners against British subjects, because they had not limited their liahility when the position was reversed; the question arose whether, now that the liability of foreign owners was limited in express terms, the rights of foreign owners — i.e., the liabilities of Britisb owners when sued by foreigners — were not to be limited in the same way. It was held in The Amalia (h), by the Privy Council, confirming the judgment of Dr. Lushington, that they were to be so limited, the statute having now enabled an English Court to do reciprocal justice when it was sought to impose unlimited liability on a foreign ship. " If the statute in question," says Dr. Lushington, " gives the right of limited liability to the British ship-owner and the foreign ship-owner alike, if there be perfect reciprocity, then complete justice is done, and I have no longer to struggle against an interpretation producing injustice. In construing this section, therefore, I must look to see whether it purports to affect the owners (a) Cope V. Dolierty, 2 K. & J. 367 ; The Wild Banger, 1 Lush. 553 ; 32 L. J. Adm. 49. (6) 1 Moo. P. C. N.S. 471. TOETS. 407 of British ships and the owners of foreign ships ; and if I Part UL find, from the words of the section and from the whole ^^ context and subject-matter, that it was the intention of ^-^p- ^^■ the statute to make limited liability for both British and ToHs- foreign ships, then I consider there is no serious objection to the British Parliament legislating for foreigners " (a). The last clause from the above quotation from Dr. Lushington's judgment indicates the real nature of the controversy. It had been decided in the previous cases that a law which limited the liability of a tort-feasor was not a law relating to procedure (though it did undoubtedly directly affect the remedy available), and that it was not therefore applicable, in the character of the lex fori, to foreigners. It was, however, indisputable that it was competent to the English legislature to direct its Courts to apply it to any or all of the causes that came before them, and thus to legislate for foreigners, so far as they were litigants before English tribunals. The only ques- tion was, how far the English legislature had done so; and it had been held that the previous enactment (17 & 18 Vict. c. 104, s. 504) had in fact legislated for foreigners as well as British subjects in respect of collisions that took place within a distance of three miles from the British shores (b) — the limit to which the jurisdiction of an independent State claims by the law of nations to extend (c). The construction put by the Privy Council in the case of The Amalia (d) upon the last statute (25 & 26 Vict. c. 63), is in effect that the English legislature has now legislated for foreigners who are concerned in colli- sions on any part of the high seas, whenever the rights or liabilities of those foreigners come in question in an English Court, so far as to limit their right to recover and their liability to pay damages by one and the same rule. (a) 1 Moo. P. 0. N.S. p. 475. (b) General Iron Screw Colliery Co. v. Schurmans, 1 J. & H. 180 ; 29 L. J. Cli. 877 ; but see this case questioned in The Baxonia, 1 Lush. 412, 419, 421. (c) See B. v. Keyn, L. B. 2 Ex. D. 63 ; The Territorial Waters Jurisdic- tion Act, 1878. W 1 Moo. P. C. N.S. 471. 408 POEBIGN AND DOMESTIC LAW. • Part HI. It may here be added that the section (s. 503) in the ^™' Merchant Shipping Act, 1854, which immediately pre- Oap.IX. ceded the provision limiting the liability of ship-owneis Torts— in case of collision, and conferred an absolute protection Memedy. ^^ ship-owners in the case of damage done to cargo by fire, or of loss of precious metals and stones by theft, where the nature and value of such articles had not been inserted in the bill of lading, was uniformly construed as applying only to British ships (a) ; and has not been extended, like s. 504, to foreign ship-owners by any later enactment. Merchant The provisions of the Merchant Shipping Acts which — mFe"f^°*^ have just been considered relate strictly to the measure of navigation, the remedy, though, as has been already pointed out, it has been decided that they are not regulations of remedy or procedure in such a sense as to be applicable to foreigners simply in the character of the lem fori. Certain other cases, however, which were decided on the applica- bility to foreigners of the English statutory regulations concerning sailing and navigation, have in reality nothing to do with the remedy at all, though they are generally cited in connection with the questions considered above. Those regulations are, in fact, municipal laws intended to follow British subjects over any part of the high seas, and to govern their conduct inter se, so as to determine the tortious or innocent nature of the navigation of a British ship which results in collision. Accordingly, it seems to have been rightly decided that they are inapplicable when- ever either of the parties to the collision was foreign (h) ; and this although s. 298 of the Merchant Shipping Act, 1854, provides that if it appears to the Court that the collision was occasioned by the breach of any of the statu- tory rules, the owner of the ship by which such a rule has been infringed shall not be entitled to recover any recom- (o) Maolaohlan on Shipping, p. 113 ; The General Serew Colliery Co. v. Schurmans, IJ. & H. 180 ; Cope v. Doherty, 4 K. & J. 367 ; The Girolamo. 3 Hagg. Adm. 187 ; The Carl Johann, cited 1 Hagg. Adm. 113. (6) The Dumfries, Swab. 63 ; The Zollverein, Swab. 96 ; The Saxonia, 1 Lush. 412 ;, 17 & 18 Vict. c. 104, ss. 295-298. TORTS. 409 pense whatever for any damage' sustained by such ship in Paet ill. such collision, unless it is shewn to the satisfaction of the ' Court that the circumstances of the case made a departure ^^*'- 1^' from the rule necessary. In The ZoUverein it was alleged Torts- that the British vessel, which had been in collision with a Prussian brig, had violated s. 296 of the Merchant Shipping Act, 1854, which imposed upon her a statutory duty of porting her helm in circumstances under which the general maritime law would not require it. It was held that the owners of the Prussian ship could not set up against the English vessel this breach of an English statute. Dr. Lush- ington, after quoting Story's dictum (a) that with regard to the rights and merits involved in actions, the law of the place where they originated was to be followed, but the forms of remedies and the order of jiidicial proceedings were to be according to the lex fori, proceeded as follows : " Now does s. 296 relate to the merits and rights of the case, or to the remedy and order of judicial proceeding ? ... I am of opinion that in its true meaning, s. 296 is wholly applicable to the merits of the case ; it determines how vessels shall conduct themselves at the time of col- lision on the high seasj the legislature of this country has no power to bind foreign vessels in such a condition. It is true that s. 298 relates to remedy, but the application of the section is entirely founded on and emanates from s. 296. Then comes the question, whether, in a trial of the merits of a collision, a foreigner may urge in his defence that the British vessel, though free by the law maritime, has violated her own municipal law, and so, being plaintiff, cannot recover ? Eeverse the position : suppose the foreigner plaintiff, and to have done his duty by the law maritime. I am clear that he must recover for the damage done; if so, it is contrary to esquity to say that the British ship-owner, in eddem conditione, shall not recover against the foreigner. What right can the foreigner have to put forward British statute law, to which he is not amenable so far as the merits are concerned ?'^ In (a) Story, Conflict of Laws, § 558. 410 FOREIGN AND DOMESTIC LAW. Pakt III. The Saxonia (a) the collision in question took place in the °'^ ' Solent, within three miles of the British shore, and it was Cap. IX. nevertheless held that the statute was inapplicable to Torts— foreign vessels even in those territorial waters, though little attention was paid in the judgment to the contention that the law of nations gave jurisdiction to every State within three miles from its coasts. It appears more than doubtful whether these provisions of the Merchant Ship- ping Act are applicable to foreign vessels on the Thames or othei- English tidal river, though a custom of naviga- tion which has grown up there in consequence of the statute is no doubt binding upon them (b). SUMMARY. TORTS. p. 389. (i.) Jurisdiction as to Torts. — An English Court has juris- diction to try actions based on torts to the person, or to movable personal property, wherever those torts were committed. p. 390. Torts to immovable property, situate abroad were for- merly excluded from English Courts by the technical rules of venue. Whether they were also excluded by any principle of international law, and whether, therefore, an English Court is still without jurisdiction to try actions based on such torts, has not been decided, and appears very doubtful. p. 393. (ii.) Measure of the wrong done. — When an action is brought in an English Court on a tort committed abroad, the act complained of must be wrongful both by English law and by the law of the country where it was committed. (Query, whether it must not only be wrongful, but also actionable, by the latter law ?) p. 394. Legislation in the country where the act was committed, (a) 1 Lush. 412. The caae of The OeneraZ Iron Screw Colliery Co. v. Sehwmana, 1 J. & H. 180, must be regarded as questioned, if not overruled by this decision. (6) The Fyenoord, Swab. 377; and see The Milford, ib. 367 ; The Anna- polis, 1 Lush. 295, and cases cited in Maclaohlan on Shipping, p. 268, u. 4. TOETS. 411 purging the tort, though ex post facto and retrospective in Paet III. its operation, will be a good answer to an action in an ' English Court. Ca p. IX. If the place where the act complained of was committed p. 398. is not under the domain of any special municipal law, the lex fori will be applied to test the tortious nature of the act. The lex fori in English Courts, with respect to wrongful collision on the high seas, is the general law maritime as administered in England. But where both the parties to the collision are British p. 408. subjects, the general law maritime is modified by the Merchant Shipping Acts. (iii.) Measure of the remedy. — The remedy in general p. 399. depends, like other questions of procedure, upon the lex fori, the question whether the act is one which is entitled to a remedy at all being decided by the law of the place where it was committed. (Query, how far an act criminal but not actionable by the law of the place where it was committed is actionable in England ?) The provisions of the English Merchant Shipping Act p. 404. which limit the liability of the ship-owners for damage done by the ship are not rules of remedy or procedure which apply universally in the right of the lex fori, but are applicable by express enactment to foreign ships, when their rights and liabilities with respect to collision on the high seas come in question in an English Court. The provisions of the English Merchant Shipping Acts p. 408. which direct that redress shall not be given in cases of collision, where the rules of the same Acts as to navigation have not been complied with, are not rules of remedy or procedure, but tend to determine the tortious nature of the acts resulting in collision. They are not therefore appli- cable to collisions on the high seas, except between British vessels, or even to such collisions in British territorial waters. 412 FOEEIGN AND DOMESTIC LAW. Part IV. Part IV.— PROCEDURE. PUOOEDURE. cl^. CHAPTER X. PKOCEDtfKE GENEEALLT, AND EVIDENCE. No principle of private international law is more certain in itself, than the rule that the forms of remedies and modes of proceeding are regulated solely by the law of the place where the action is brought (a). The Only difficulty in the application of the general rule is to decide where formalities end and essentials begin. A law which will allow a remedy to be obtained only in a particular manner, or which imposes an impossible formal condition upon the only mode of procedure applicable to the case, does in effect, though indirectly, govern the right of action itself. A striking illustration of this is seen in the application of the Statute of Frauds to all contracts sued on in an English Court. It is a general principle that all questions relating to the admissibility and effect of evidence depend upon tbe lex fori, as matters of procedure (b) ; and the Statute of Frauds, which requires that certain contracts shall be evidenced by writing to support an action upon them, has been held to come within this rule (e). The result is, of course, to render a contract which may have been perfectly good according to the law of the place where it was made or was to be performed, practically invalid in an English Court. The vexed question of the (a) Don V. jLippman, 5 CI. & F. 1, 13; British Linen Oo. v. Drummond, 10 B. & 0. 903 ; De la Vega v. Vianna, 1 B. & Ad. 284 ; Ruber v. Steiner, 2 Scott, 304 ; Ferguson v. Fyffe, 8 01. & F. 121 ; General Steam Navigation Co. V. Guillou, 11 M. & "W. 277. (6) Bain v. Whiteliaven, &c.. By. Go., 3 H. L. 0. 1. (c) Leroux v. Broum, 12 0. B. 801 ; Acehal v. Levy, 10 Bing. 376 ; ante, p. 277. PEOCEDUEE GENEEALLY, AND EVIDENCE. '^'-^ applicability of the English Statute of Limitations to an Babt IV. action brought on a foreign contract, affords another 1 example of the difSculty referred to. The right of action, ^^'^- ^ so far as an English Court is concerned, is practically ^Parties. extinguished by an enactnient which after a certain time prevents its enforcement ; but this incidental effect of a law which professes merely to prescribe the terms and mode of the remedy does not prevent the lex fori from exerting its full operation. The shortest way of stating the general rule is, that the Eemedies remedy is to be enforced according to the lex fori (a). It i°Jfori. ^ is perhaps scarcely correct to say that the parties must be taken to have contemplated the possibility of enforcing the obligation existing between them in any country, a fiction which would obviously be altogether incapable of application to actions based on torts ; but it is at any rate clear that the parties who have recourse to a tribunal to enforce any obligation, whether arising from tort or con- tract, must take the law which regulates the remedy they are seeking as they find it. The subject of procedure, understanding by procedure the process by which a remedy is to be obtained, includes the determination of the follow- ing elements : (i.) the name in which and against which the action is to be brought ; (ii.) the time within which it must be brought j (iii.) mode of suing and enforcing pro- cess ; (iv.) the evidence admissible and necessary to sup- • port an action ; (v.) the recognition and enforcement of foreign judgments. It will be convenient to consider how far the lex fori is supreme with respect to each of these subdivisions. (i.) Parties to the Action. — (a.) Name in which it must Title to sue. le Irought.— It is said by Story, that it has been held that the inquiry, in whose name the action is to be brought, belongs not so much to the right and merit of the claim, as to the form of the remedy (6). So far as it belongs to the form of the remedy alone, and does not alter the (a) Fer Lord Brougham in Don v. Lippman, 5 CI. & F. 1, 13. (6) Story, Couflict of Laws, § 565. 414 POEEIGN AND DOMESTIC LAW. Pabt IV. Pkooedubb. Cap. X. Farties. ultimate direction in which the benefit of the remedy is to flow, the lex fori has been held entitled to control it. Thus, before the adoption by the Judicature Acts of the equitable rule as to the assignment of a chose in action, it was held that the assignee of a chose in action could not sue in England on it in his own name, although the assignment might have been made in a country where its validity was recognised by the law (a). The point did not exactly arise in Trirrihey v. Vignier (b), and the cognate cases, in which the question has been as to the law which was to govern the sufficiency of the assignment, the assignee, if the assignment was valid by the proper law, being admittedly entitled to sue in his own name by the lex fori and the lex contractus alike. There are neverthe- less expressions in the judgment in Trimhey v. Vignier which throw some doubt on the theory that the name in which the action is to be brought is a matter for the lex fori to determine at all. There is no doubt considerable difficulty in distinguishing the name in which the action is to be brought from the title on which it depends (e) ; the latter belonging to the province, not of the lex fori, but of the law which created it. Thus it has been pointed out with regard to bills of exchange and promissory notes, that their assignability, upon which the right of the holder to sue in his own name depends, must be measured by the law which governs the nature and extent of the obligation of the contract (d), and every promise or undertaking must be regarded as having the same inherent force. Consequently, if a chose in action is in its inception assign- able, and has been rightly assigned, the assignee's title will be acknowledged as complete without reference to the lex fori in all courts (e). It has been similarly shewn that (o) Wolff y. Oxholme, 6 M. & S. 92, 99 ; Jc/ery v. M'TaggaH, ib. 126; Innes v. Dunlop, 8 T. K. 595 ; FolUott v. Ogden, 1 H. Bl. 135. (b) 1 Bing. N. C. 151 ; Bradlaugh v. Be Min, L. K. 5 C. P. 473 ; Lebd V. Tucker, L. E. 3 Q. B. 77 ; ante, p. 355. (c) WesOake, § 409. (d) Ante, pp. 355, 360. (e) Bradlaugh v. De Bin, L. K. 5 C. P. 473 ; Lebel v. Tucher, L. E. 3 Q. B. 77: Trimhey v. Vignier, 1 Bing. N. C. 151; 0' Callaghan v. Thomond, 3 Taunt. 81 ; Innes v. Dunlop, 8 T. E. 595 ; De la Chaumette v. BanJc of England, 2 B. & Ad. 385. PEOCEDUKE GENERALLY, AND EVIDENCE. 415 the title conferred on the assignees by a foreign bankruptcy Part IV. assignment is accorded a like recognition in an English 1 Court (a). And where two out of three syndics of a ^^'^- ^- French bankrupt sued in England on a chose in action of Parties. the bankrupt without joining the third, it was held that they were justified in doing so by proof that the French law would have allowed the same to be done. " The pro- FoieigA perty in the effects of the bankrupt," said Parke, B., " does assignees. not appear to be absolutely transferred to these syndics in the way that those of a bankrupt are in this country ; but that the syndics act as mandatories or agents for the creditors, the whole three, or any two or one of them having the power to sue for and recover the debts in their own names. This is a peculiar right of action created by the law of that country, and we think it may be by the comity of nations enforced in this, as much as the right of foreign assignees or curators, or foreign corporations, ap- pointed or created in a different way from that which the law of this country requires " (6). There can be no doubt that this is a strong authority against regarding the deter- mination of the name in which an action is to be brought as one of procedure at all, and that it is difficult in the face of such a decision to distinguish any such question from the general one of title, on which the lex fori has no title to make itself heard. The title of an administrator or executor under a foreign Foreign grant to enforce the choses in ' action of the deceased in torT"^^*"^^" England is not recognised, as has been already said (c), until administration is taken out here. This is, however, for a different reason. A foreign administration is not regarded as transferring or assigning any movable property except those actually situate within the jurisdiction of the law which grants it, and a foreign administrator who has not obtained an English grant has consequently no title at all to the choses in action of the deceased here. An assignment inter vivos, on the contrary, is intended to (a) Ante, pp. 234, 415. (6) Alivm V. Furnival, I 0. M. & K. 277, 296 ; 4 Tyrwhitt, 751. (c) Ante, p. 198. 416 FOEEIGN AND DOMESTIC LAW. Pabt IV. Pbooedube. Cap. X. Parties. Married woman. operate all the world over, and claims universal recog- nition on that footing ; while an assignment by law or bankruptcy is acknowledged by international comity, as has been already pointed out, as having a similar effect. The right of a husband to sue in his wife's name with respect to the movables acquired by him through her is referred, upon the same principle, to the law of the matri- monial domicil ; to which the intention of the parties must also be presumed to have been directed {a). So when a husband and wife are domiciled in a country where the wife has no equity to a settlement, an English Court will order payment of the wife's legacy to an assignee of the husband (h) — a case not strictly pertinent to the present subject, but which shews the inability of the lex fori to interfere with any question of title in a strong light. So it appears that 2: feme covert, who carries on business in a country where the law permits her to do so as a sole trader, may sue here in respect of transactions entered into" in that character; but that husband and wife cannot sue here as partners in trade, though that trade was carried on under a law which recognised such partner- ship (c). The distinction is perhaps a shadowy one, but seems to be founded on the view that the right of a /erne covert to acquire property and sue for it in any court must be decided by the law under which she lives, but that her right to sue jointly with her husband as his partner, involves a question of the misjoinder of parties, which is properly a matter of procedure for the lex fori. It may be remarked, with reference to this case, that the custom of the city of London which allows a feme covert to carry on business as a sole trader in the city, does not authorize her to sue as such trader in any but the City of London Courts (c^) ; so that it does not really purport to give her a title for general purposes at all. (a) Dues v. Smifh, Jacob, 544 ; Sawyer v. Shufe, I Anst. 63 : Campbell V. French, 3 Ves. 321. (h) McCormiok v. Qarnett, 5 De G. M. & G. 278. (c) Gosio V. De Bernales, 1 C. & P. 266 ; Ey. & Moo. 102. (d) Beard v. Webb, 2 B. & P. 98 ; 1 C. & P. 267, n. PBOCEDUEE GENEEALLT, AND EVIDENCE. 417 (b.) Name against which the action is to he hrought. — It is Part iv. quite clear that no person can be made liable by the lex "ooedure. fori, as an incident of procedure, who would not have been Cap. X. exposed to liability by the proper law to govern the act or Parties. contract in respect of which he is sued, and his connection with it. Thus in the General Steam Navigation Company v. Guillou (a), the defendant, who was sued for injury done to the plaintiff's ship on the high seas by a vessel of which LiaMity to be he was alleged to be the owner, pleaded that the real ° owners of the vessel which caused the collision were a French society or company, of which he was a shareholder and acting director, and that by the law of France, the defendant was not responsible for or liable to be sued or impleaded individually, or in his own name or person, in respect of the causes of action alleged, but that the said company alone, by their said style or title, were responsible for and liable to be sued and impleaded for the said causes of action. It is not easy to see how this plea could have been construed as anything but a denial that the defendant was personally or individually liable at all by French law, although the Court of Exchequer were equally divided on this question ; but the true prin- ciple by which suck cases are to be determined is no doubt correctly indicated in the judgment. " If the de- fendant," said Parke, B., " was not liable for the acts of the master by that law which is to govern the case, he has a good defence to the action. For the defendant, it is contended that the plea means to aver that by the law of France, he was not liable for those acts, but that a body established by the French law, and analogous to an English, corporation, were the proprietors of the vessel, and alone liable for the acts of the master. ... If such be the true construction of the plea, we are aU strongly inclined to think that there is a good defence to the action. On the other hand, the plaintiff contends, that the plea only means that in the French Court the mode of proceeding would be to sue the defendant jointly with the other shareholders of (a) 11 M. & W. 877. 2 E 418 POEEIGN AND DOMESTIC LAW. Paet IV. Proobdueb. Cap. X. Forties. the company under the name of their association : and if this be the true construction of the plea, we all concur in the opinion that the plea is bad 5 for it is well established that the forms of remedies and modes of proceeding are regulated solely by the law of the place where the action is instituted — the lex fori ; and it is no objection to a suit instituted in proper form here, that it would have been instituted in a different form in the court of the country where the cause of action arose, or to which the defendant belongs" (a). The distinction intended appears to be, that the defendant, if not personally liable at all by the French law, could not be made so by the lex fori ; but that if in France he was under a joint personal liability with the other members of the association, the fact that they were not joined as defendants would be immaterial, as relating to a question of procedure ; and this was the principle afterwards adopted in Bvllooh v. Caird (h), by. the Court of Queen's Bench. In that case the action was brought against a single defendant, for a breach of an agreement entered into between the plaintiffs and 0. & Co.; and the defendant pleaded that there was a trading partnership or firm domiciled and carrying on business in Scotland by the name of C. & Co., of which he was a member ; that by the Scotch law, the firm was a distinct person from any or the whole of the individual members, and was capable of maintaining the relation of debtor and creditor separate and distinct from the obligations of- the partners as individuals, and of holding property, and of suing and being sued as a separate person by the name of C. & Co. ; that by the law of Scotland, the defendant, as a partner in the firm, was liable to the plaintiffs for the satisfaction of any judgment which might be obtained against the firm or the whole of the individual members jointly for any breaches of the agreement ; and that it was a condition precedent to any individual liability attaching to the defendant as an individual member of (o) General Steam Navigation Co. v. Guillou, 11 M. & W. 877, 895. (6) L. R. 10 Q. B. 276. PKOCEDUEE GENERALLY, AND EVIDENCE. 419 the firm in respect of the agreement, that the firm, as PabtIV. such person, or the whole individual partners jointly, should first have been sued, and that judgment should ^^- X- have been recovered against the firm or the whole of the Parties. partners jointly; and that the plaintiffs had not sued the """ firm or the whole of the partners jointly, or recovered judgment against it or them. It was held, on demurrer, that all the matters stated in the plea were mere matters of procedure, and that the plea was bad, Blackburn, J., saying that the non-joinder of the other members of the firm might be a bar to an action in Scotland, but could only amount in England to a plea in abatement (a). So where a colonial statute gave a mode of proceeding against a colonial banking company by suing their chairman as nominal defendant, and enforcing the judgment against Local provi- the property of the members, and judgment had in fact ^^J^^'i"<=<'*°'"y been recovered against the chairman under this provision, procedure. it was held that a member of the banking company might nevertheless be sued individually in England (6). It ia true that it was said in the judgment that the colonial statute was merely cumulative, and left all the previous rights and liabilities of the parties untouched ; but it is submitted that the decision would have been the same even if the colonial statute had made the recovery of judgment against the chairman a necessary preliminary to fixing any liability on the individual members, such a provision relating merely to procedure, and only indicating the proper mode of bringing home the liability, instead of taking it away altogether. As Lord Campbell expressed it, such an act imposed no new liability, but only regulated the mode in which the existing liability should be judicially constituted (e). Such provisions clearly do not affect the right of the creditor to pursue his remedy here in the manner provided by the law of this country ; nor will any further special enactment, regulating the manner and (o) Bullock V. Caird, L. E. 10 Q. B. 278. (6) Bank of Australasia v. Harding, 9 C. B. 661 ; 19 L. J. C. P. 345. (c) Bank of Australasia v. Nias, 16 Q. B. 717, 734. 2 E 2 420 FOEEIGN AND DOMESTIC LA.W. Pakt IV. conditions of executing a judgment, so obtained against ■ such a nominal defendant, upon the property of the mem- ^■^'^■^ bers of the company, have any wider operation beyond Limitations, the tribunals to which it is immediately addressed (a). (ii.) Time within which the Action must he Irought. — Statutes of limitation may be regarded from a double point of view; either as extinguishing and discharging the right of action altogether, or as merely suspending and denying a remedy. Nor has any branch of private international law given rise to greater discussion than the attempt to decide which is in truth their proper charac- ter; whether they are, in short, laws which govern the inherent liability of the obligation, or rules of procedure dictated by the lex fori, and binding in the fortim alone. They may, in fact, be either. It is competent to any legislature to enact that rights of action, not put in force within a certain time, shall be absolutely extinguished ; and such an enactment will have a right to claim recog- nition in any tribunal, whenever a contract made with reference to it as the dominant law (h), shall come in question. "1 should be much inclined to hold," says Cockburn, O.J., "that when by the law of the place of contract an action on the contract must be brought within a limited time, the contract ought to be interpreted to mean ' I will pay on a given day, or within such time as the law of the place of contract can force me to pay ' " (c). That this dictum does not express the English law, accord- ing to the current of authority, is admitted by the learned judge whose opinion is quoted in the same judgment, but if for the last phrase were substituted the words " within such time as the law of the place of contract provides that any obligation shall remain valid and unextinguished," its authority would be incontrovertible. It has been re- Statute of peatedly decided that the English law of limitations with regard to obligations and movables generally, does not go to this extent, but merely fixes a limit within which, in (o) Kelsall v. Marshall, 16 Q. B. 241. (ft) Ante, p. 309. (c) Barrie v. Quine, L. E. 4 Q. B. 653. Limitations. PEOCEDUKE GENEBALLY, AND EVIDENCE. 421 Paet IV, Pboceduee. Cap. X. an English CovH, the action must be brought ; and that foreign statutes of limitation, framed in similar terms, have no larger effect {a). The English statute with re- gard to real property (3 & 4 Will. IV. c. 27), on the other Umitatimi. hand, does not merely bar the remedy, but extinguishes the right. The lex situs, in fact, as to prescription with regard to immovables, exacts universal recognition (&). It cannot be denied that this interpretation of the English statutes of limitation has met with severe and pertinacious criticism; and Westlake, in particular, at- tacks the cases which had been decided when he wrote, and the unhesitating expression of the opinion of Story on the subject, with considerable energy. He states that " the opinion which refers the question to the lex fori, as one of procedure, rests upon two fallacies." The first of these alleged fallacies is the contention that the breach of the contract cannot have been in the mind of the con- tracting parties, and that the limitation, therefore, is not of the nature of the contract ; a fallacy, which in his opinion is due to a confusion between the interpretation of the contract and the operation on it of the lex loci contractus. It is, however, now settled that the operation of the lex loei on the contract, no less than the interpre- tation of the contract itself, is entirely dependent upon the intentioii of the parties (c). The lex loei cannot, therefore, operate upon the contract at all except so far as it was intended to do so by the parties when they entered into the contract ; and the argument that what they did not contemplate or intend ought not to be governed by that law, is certainly entitled to some consideration. The second alleged fallacy is the distinction, drawn by Lord Brougham in Bon v. Lvpfman (d), by which most of the (a) Earris v. Quine, L. E. 4 Q. B. 653 ; 38 L. J. Q. B. 831 ; Fordo v. 'Bingham, L. E. 4 Oh. 735 ; 39 L. J. Oh. 170 ; Buckmaboye v. Mottichund, 8 Moo. P. 0. 36 ; Lopez v. Burslem, i Moo. P. C. 300 ; British Linen Co. v. Drummond, 10 B. & 0. 903 ; Huher v. Steiner, 2 Bing. N. 0. 202 ; 2 0. B. 304 ; Chitty on Contracts, ed. 10, p. 741. (6) Per Lush, J., L. E. 4 Q. B. 658; Pitt v. Dacre, L. E. 3 Ch. D. 295. (c) LU/i/d V. Quihert, L. E. 1 Q. B. 115, wate, p. 315; and oases there cited. (d) 5 01. & F. 1, 16. 422 FOBBIGN AND DOMESTIG LAW. Part IV. subsequent decisions have been swayed, that the debt ■ may be left subsisting and owing, though the remedy is Cap. X. denied. In Westlake's opinion, there is little or no Limitations, meaning in saying that a debt subsists which cannot be recovered. The statutes of limitation referred to, of the same class as the English statute with regard to personal obligations, do not however say this. They simply say that the debt shall not be recovered in the Courts over which they claim authority. The creditor may recover his debt in any other Court, if the procedure of that other Court allows him. There are, indeed, other ways in which a debt may be said to subsist, though it cannot be put in suit. It may, for example, so subsist as to preserve a lien on the goods of the debtor until it is satisfied (a), or so as to cause the right of action to revive by a subse- quent promise. It is unnecessary, however, to have recourse to such considerations, inasmuch as the distinct ground, upon which the English and certain other statutes of limitation have been held to refer to procedure, has been that they do not intend or purport to forbid the cause of action from being put in force, after the specified term, in any Courts except their own. They are commands addressed to their own tribunals. Did they purport to be more than this, they would cease to be rules of procedure at all, and would absolutely extinguish such rights of action as properly came within their jurisdiction (h). The cases (e), therefore, which appeared to Westla-ke in 1858 insuEScient to do more than leave " the whole sub- ject still open for the higher English tribunals," have since received repeated sanction; and it is now estab- lished beyond doubt that a law which simply prescribes the time within which, a chose in action must be put in force relates to procedure alone, and has no validity except in the tribunals to which it belongs and is ad- (a) Spears v. Sartley, 3 Esp. 81, 82 ; Biggins v. Seott, 2 B. & Ad. 413. (6) See Westlake, Priv. Int. Law, §§ 250-253 ; Story, Conflict of Laws, § 576, sq. (c) British lAnen Co. v. Dnjromond, 10 B. & C. 903 ; Suber v. Steiner, 2 Bing. N. C. 202 ; Don v. Idppman, 5 CI. & F. 1. PEOCEDUEE GENEEALLT, AND EVIDENCE. 423 dressed (a). And in those tribunals, it applies to all Part iv. contracts, wherever madej and to all parties, whatever °° °™^ '"'' their nationality or domicil. Thus, in Pardo v. Bingham, Cap. x. the English Statute of Limitations was held to apply, Limitations. though the debt was contracted in Venezuela, where the j, . " debtor and creditor were both resident at the time and controlled by afterwards. " A certain period is fixed by the statute," UmUatioM. said Lord Hatherley, " which binds everybody who comes to sue before this foni/m" (b). And where a statute (5 G-eo. lY. c. 113, s. 29) provided that no appeal should be allowed from any sentence of any Court of Admiralty unless certain preliminary steps were taken within a given time, it was held that the enactment applied to foreigners as well as to British subjects. It was said in the judg- ment, that although the British Parliament had no genC' ral power to legislate for foreigners out of the dominions and beyond the jurisdiction of the Crown, yet it could by statute fix a time within which application must be made for redress to the tribunals over which it had authority ; and that this was matter of procedure, which was a law of the fomm, and bound in that fonim all mankind, whether foreigners or subjects, plaintiffs or defendants, appellants or respondents (e). So exclusively is such a law matter of procedure, that a foreign judgment declaring that a claim is barred by a local statute of limitations is no bar to an action in the tribunals of another State, the laws of which fix a longer term of limitation of suit, on the original cause of action (d). In such a case, the maxim nemo bis debet vexari pro eddem causa does not apply, the plea upon which the foreign judgment has been given not going to the merits of the cause of action. It will be shewn subse- quently that this condition must be complied with, in order that a foreign judgment should be set up as a conclusive bar here (e). (a) Sarris v. Quine. L. E. 4 Q. B. 653 ; 38 L. J. Q. B. 331 ; Pardo v. Bingham, L. E. 4 Oh. 735 ; 39 L. J. Ch. 170 ; Fitt v. Bacre, L. E. 3 Oh. D. 295. (6) Pwrdo V. Bingham, L. E. 4 Oh. 735. (c) Lopez T. Bmslem, 4 Moo. P. 0. 300. Id) Sarris v. Quine, L. E. 4 Q. B. 653; 38 L. J. Q. B. 331; Don v. lAppman, 5 CI. & ¥. 1. (e) Garcias v. Mica/rdo, 14 Sim. 265 ; 14 L. J. Ch. 339 ; infra, Chap. XI. 424 FOEEIGN AND DOMESTIC LAW. Pabt IV. Pbooedubb. Cap. X. I/imitations. It only remains, while on this subject, to advert to a distinction cited with approval from Story in Huber v. Sterner (a), between cases where a foreign law of limita- tion is merely the lex loei contractus, and those in which the parties have resided within the jurisdiction of the law during the whole period, so that it has had full operation upon the case. Westlake omits to notice that Story adds the further condition that the law should be one which declares that the claim at the expiration of the statutory period shall become a nullity, and not merely that the remedy shall be barred. Unless such was its nature, it is clear that it would still remain a law of procedure only, and that the additional fact of the parties having resided within its jurisdiction would not give it greater strength or wider operation. No doubt this fact would'be an addi- tional reason for admitting the universal validity of the law, if it was a law like the English statute which limits suits relating to immovables (3 & 4 Will. IV. c. 27), which extinguished the right ; but it has been already said that such a law is not one of procedure at all, and claims universal recognition without the aid of any additional considerations, such as that the parties have resided for the full period within its jurisdiction. (iii.) Mode of suing and enforcing Process. — No part of the subject is less involved with considerations of the proper respect to be paid to the law which created the right than this ; and, accordingly, no part of it is to be referred with less hesitation to the lex fori for an authori- tative decision. It is, indeed, almost unnecessary to multiply authorities for the proposition that the " forms of remedies and modes of proceeding" are regulated solely by the law of the place where the action is insti- tuted (6) ; but it may be more useful to illustrate it by citing a few examples of its application. How far it (o> 2 Bing. N. 0. 202. (6) Ferguson v. Fyffe, 8 01. & F. 121 ; THnibey v. Vignier, 1 Bing. N C 151 ; General Steam Navigation Co. v. Guillou, 11 M. & W. 877 • Be la Veaa V. Vianna, 1 B. & Ad. 284 ; Pardo v. Binqham, L. E. 6 Ea 485 • Ex nartp Melbourn, L. K. 6 Oh. 64 ; 40 L. J. Bank! 65. ■'^ PEOCEDUEE GESEEALLY, AND EVIDENCE. 425 applies to the question of the reception of evidence, or of Pabt IV. the sufficiency of evidence when received to support an " °°™^ °^- action, will be considered subsequently (a) ; and it has Cap. X. already been shewn that the prescription of the time SuU. within which an action must be brought is properly re- garded as coming under the same general rule. That all questions of priorities between creditors depend upon the lex fori was decided as far as cases of bankruptcy are con- cerned by Mb parte Melbowrn, just cited ; and the same rule has more than once been held to be applicable to administrations (6). Not only the priority of a creditor, but in some cases his right to prove his debt at all, may in some instances be decided by the lex fori. The former rules of English bankruptcy law, for example, which exclude in certain cases a right of double proof against two firms to which the same individual or individuals be- long (e), have been held to apply to a creditor attempting to prove under an English bankruptcy, after proof under what was tantamount to a bankruptcy in the Brazils {d) ; and the fact that in the case cited the bills which were the subject of the proof had been accepted in England, though mentioned by Twner, L.J., seems immaterial. So an execution creditor who attempts in a foreign court to attach and sell property of a bankrupt firm actually situate in the foreign jurisdiction, may be justified by the lex fori in doing so, although the English law would not have permitted it j and the assignees of one of the members of the firm, who has become bankrupt in Engr land, cannot compel him by suit in England to refund what he has recovered (e). It seems difficult, indeed, to suggest any true principle upon which such an inter- ference with the operation of the lex fori and situs could (a) Infra, p. 431. (6) Fardo v. Bingliam, L. K. 6 Bq. 485 ; Cooh v. Gregion, 2 Drew. 286 ; Preston v. Melville, 8 01. & F. 1. (c) But now see the Bautruptoy Act, 1869 (32 & 33 Vict. c. 71), s. 87, : extending the provisions of 24 & 25 Vict. c. 134, s. 152. (d) Ex parte Goldsmid, 1 De G. & J. 257, 285 ; Goldsmid v. Cazemve, 7 H. L. 785. (e) SricJcwood v. Miller, 3 Mer. 279 ; and see Stein's Case, 1 Eose, 4G2. 426 FOREIGN AND DOMESTIC LAW. Part IV. be warranted, even if the partnership were domiciled and ^°^ "'^" resident in England, and the attached property alone Cap. X. situate within the foreign jurisdiction ; though any Court Suit: which can give the creditor his full distributive share of the whole partnership property, or withhold it from him, can no doubt practically obtain full recognition for itg rules (a). Thus, when a company has in this country been ordered to be wound up, judgment creditors who are in this country and have proved under the winding-up, will not be allowed to attach, or retain when attached, property in India belonging to the company (6). The subject has already received some consideration (e). Set-off. The rule that set-off, on the other hand, is a mere matter of procedure, not of the substance of the contract between the parties, and that it is consequently dependent on the lex fori, is not so clearly established. It is, how- ever, difficult to see in what sense it can be said to be part of the original obligation, that the defendant in an action of contract should be able to defeat part of the claim against him by setting up a perfectly distinct claim of his own against the plaintiff. In such a case, each litigant, plaintiff and defendant, has, strictly speaking, a chose in action of his own; and a,' chose in action can of its own nature be enforced only by action. The law of some particular /ontm may and does allow the defendant to make a different use of his claim, by striking a balance between it and the claim of the- plaintiff; but that appears to be a privilege conferred by the lex fori, and in no sense part of the contract. The express contract between the parties may, of course, provide that the claim of the plaintiff, when it arises, should be set against a specified demand of the defendant ; but in such a case the defendant's plea is not really one of set-off, but of an express term of the original contract. The point was raised, though not directly decided, in Macfarlane v. (a) Barker v. Goodair, 11 Ves. 78; DutUm v. Morison, 17 Ves. 201; ' 1 Kose, 213 ; Sill v. Wunvnck, 1 H. Bl. 665 ; Bvmter v. FotU, 4 T. E. 182. (6) In re Oriental Steam Co., Ex parte Scinde Ry. Co., L. E. 9 Ch. 557. (c) Ante, p. 233. PROCED0EE GENERALLY, AND EVIDENCE. 427 Norris(a), where Cockburn, C. J., intimated that he was PabtIV. inclined to take the view indicated above, and this °° ™°^ "°' dictum has been since followed (fc). The most recent Cap. X. American authorities are to the same effect (e). 'In Allen Suit. V. Kemlle (d), which has been cited on the other side in support of the proposition that the right of set-off is really part of the original obligation, there was no conflict between the lex fori and the lex loci contractus at all; and the only question was whether the contract of the drawer of a bill of exchange was governed by the law of the place where the bill was drawn, or where it was payable. It is plain, however, that the lex fori can never confer Liability— not a right of action which had no existence by the law which il^f^i ^ was properly competent to create the obligation. Thus it has been already said that a tort, to be actionable, must be actionable by the law of the place where it was com- mitted, as well as by the law of the tribunal (e). Con- sequently, the better opinion would seem to be that an act which is a criminal offence, but not a personal tort, by the lex loci, cannot be the ground of an action here, though by the lex fori it might be both. It is true that Wight- man, J., in Scott V. Seymowr (/), intimated an opinion that if a trespass was not lawful or justifiable by the law of the country where it was committed, the mere fact that no personal right to recover damages for it was given by that law would not deprive the person aggrieved of the right of action given to him by English law, at any rate when both the parties were British subjects. This dictum, however, was not assented to by the other members of the Court ; and the fallacy involved in it has been already pointed out {g). In strict accordance with the principle here advocated, it was said in an older case that no rule •of procedure could avail to give a personal right of action against a contractor, where the lex loci actus recognised no right to enforce the obligation at all against the person of (a) 2 B. & S. 783. (6) M&yer v. Dresser, 33 L. J. 0. P. 289. (c) See Story, Conflict of Laws, § 575, and American oases there cited. (7th ed.) id) 6 Moo. P. 0. 314. (/) 1 H. & 0. 219. (e) Ante, p. 396. (gf) Ante, p. 397. 428 FOEEIGN AND DOMESTIC LAW. Pabt IV. Pbocedbbb. Cap. X. Process. Execution — governed by fori. the party sued (a) ; and though this case has been dis- approved by later authorities (6), the principle that the personal or real nature of the right must be determined once for all by the lex loci remains unassailed. The nature and extent of this principle will be better understood whan the cases relating to process and execution .have been considered. Process, or the mode and proceedings by which the judgment and decrees of any tribunal are enforced, simi- larly depends upon the law of that tribunal alone (e). There may, however, be sometimes a difficulty in distin- guishing the nature of the original liability on which the judgment is founded from the operation upon it of the law of a foreign Court as to execution, A man, for example, who contracts a debt in a country where imprisonment for debt is unknown, may argue with some plausibility that his contract never contemplated the alternative of personal confinement, by the threat of which the law of the country in which he is sued attempts to hold him to his bargain. From such a point of view, it would appear inequitable that he should be compelled to submit to the provisions of any law which he had not contemplated; but there is a fallacy involved in this aspect of the subject altogether. The natural incidents of the contract, fore- seen or unforeseen, are properly the subjects of the inten- tion of the parties ; and in adjudicating upon them, it is of the highest importance to determine what the con- tracting parties contemplated, or to what law they in- tended to refer. Breach, however, is not a natural incident of the contract, but its dissolution. An obligation, it is true, remains ; but it is an obligation which arises, not out of the intention of the parties, but out of the refusal of one of them to carry that intention into effect (d). Con- sequently, with the incidents of breach, and the remedies (a) Melan v. Fitzjames, 1 B. & P. ] 38. (6) Imlay v. Mlesfen, 2 Bast, 453. (c) De la Vega v. Viamm, 1 A. & Ad. 284 ; Don v. Lippman, 5 CI. & F. 1 ; Imlay v. Mlesfen, 2 East, 453 ; Brettilot v. Sandos, 4 Scott, 201. (d) Don V. lAppman, 5 CI. & F. 1, 14. PEOCEDUEE GENERALLY, AND EVIDENCE. 429 applicable to it, the intention of the parties can have Part iv. nothing to do. The fallacy of supposing that those who ^ contract undertake an alternative liability, to discharge Cap. X. their promise or to be compelled to do so by some par- Proeees. ticular law, within some particular time, or in some par- ticular way, has already been shewn in treating of Statutes of Limitation (a). Persons who contract engage simply to perform their promise; and if they fail to carry out their undertaking, they must submit to the control of any law within the reach of which they happen to be when a remedy is sought. To break a contract is, in truth, an offence ; or if not a public offence, is at any rate a per- sonal tort. There is no greater reason why a man who fails to fulfil a promise should be heard to object to any law which properly asserts jurisdiction over him, than why a man who injures another by defamation or actual assault should do the same. The sole question, therefore, which must in such cases Enforcement be decided, is whether the contractor assumed, by his liaMUy!"^ agreement, a personal liability or not. If he intended to bind his person for the fulfilment of his promise — and all personal undertakings must necessarily be taken, in the absence of anything to the contrary, to have that effect — then every tribunal under whose jurisdiction he may come will enforce that personal liability in its own way. If, on the contrary, his person, according to his intention and the competent lex contractus, was never bound at all, then no foreign law can impose a personal liability for the breach or non-fulfilment of what was never a personal undertaking (b). Thus in Melan v. Fitzj'ames the defend- ant was held to bail in England on an instrument entered into in France, by which his property only, and not his person, was according to the law of France made liable, and the Court of Common Pleas ordered the bail-bond to be delivered up and cancelled on the defendant entering (a) Ante, p. 421. (6) Melan v. Fiizjames, 1 B. & P. 138 ; Talleyrand v. Boulanger, 3 Ves. 447 ; Dela Vega v. Vianna, 1 B. & Ad. 284. 430 FOREIGN AND DOMESTIC LAW. Paet IV. Peooedube. Cap. X. Process. a common appearance. " The defendant is held to bail," said Eyre, C. J., " on a contract made in France, the nature of which we must learn, not from the face of the instru- ment, but from evidence. If it appears that this contract creates no personal obligation, and that it could not be sued as such by the laws of France, there seems to be fair ground on which the Court may interpose to prevent a proceeding so oppressive as a personal arrest in a foreign country, at the conimencement of a suit, in a case which, as far as we can judge at present, authorizes no proceeding against the person in the country in which the transaction passed. If there could be none in France, in my opinion there can be none here. I cannot conceive that what is no personal obligation in the country in which it arises can ever be raised into a personal obligation by the laws of another. If it be a personal obligation there, it must be enforced here in the mode pointed out by the law of this country; but what the nature of the obligation is must be determined by the law of the country where it was entered into, and then this country will apply its own law to enforce it" (a). It should be remarked that Heath, J., dissented from the above view, but only on the ground that the contract sued on was in his opinion a personal one, and that the question of arrest was therefore merely one of remedy. On the assumption that the con- tract was not a personal promise by French law, but a mere hypothecation of property, the decision was no doubt right; but that the view taken by Heath, J., was in reality more consonant to the facts of the case, appears from the opinion which Lord Ellenborough intimated in Imlay v. Ellesfen (b), and from the later decision in De la Yega v. Yianna (c), which may be regarded as having settled the law on the subject. In Dcm v. Lippman (d), the general principles applicable to such cases were stated with much clearness by Lord Brougham. " The contract being silent as to the law by which it is to be governed, (a) Melon v. Fitzjames, 1 B. & P. 138, 141 ; and see Talleyrand v Bou- langer, 3 Ves. 447. (c) 1 B. & Ad. 284. (5) 2 East, 453. (d) 5 01. & P. 1, 13, PROCEDURE GENERALLY, AND EVIDENCE. 431 nothing is more likely than that the lex loci contractus Paet IV. should be considered at the time the rule (sc. of the ''ooeduee. remedy), for the parties could not suppose that the con- Cap. X. tract might afterwards come before the tribunals of a Proof. foreign country. But it is otherwise when the remedy actually comes to be enforced. The parties do not neces- sarily look to the remedy when they make the contract. They bind themselves to do what the law they live under requires ; but as they bind themselves generally, it may be taken as if they had contemplated the possibility of enforcing it in another country. . . . Not only the prin- ciples of the law, but the known course of the Courts renders it necessary that the rules of precedent should be adopted; and that the parties should take the law as they find it, when they come to enforce their contract. . . . The distinction which exists as to the principle of applying the remedy, exists with even greater force as to the practice of the Courts when the remedy is "to be enforced. No one can say, that because the contract has been made abroad, the form of action known in the foreign court must be pursued in the courts where the contract is to be enforced, or the other preliminary proceedings of those courts must be adopted, or that the rules of pleading, or the curial practice of the foreign country, must necessarily be fol- lowed. ... No one will contend in terms that foreign rules of evidence should guide us in such cases ; and yet it is not so easy to avoid that principle in practice if you once admit, that though the remedy is to be enforced in one country, it is to be enforced according to the laws which govern another country " (a). (iv.) Evidence necessary and admissible to support an Evidence action. — This branch of the subject has been already con- i°^j^,^ ^ sidered when treating of formalities, and it is unnecessary to do more here than recapitulate the conclusions arrived at. The lex fori decides all questions relating to the ad- missibility of evidence ; but if the evidence, when admitted, goes to shew that no obligation was ever validly created (o) Fer Lord Brougham, in Don v. lAppwan, 5 CI. & F. 1, 13, 14. 432 FOREIGN AND DOMESTIC LAW. Paet IV. by the lex loci, and not merely that the obligation, though ■ duly created, could not have been proved in the foreign ^^^- ^- tribunal, the rules of the forum as to procedure will not, Proof. of course, be allowed to create an obligation where none existed before (a). Similarly, when the lex fori demands a particular kind of evidence to support a particular kind of contract, no obligation arising from such a contract can be recognised, although it may in the first instance have been validly created by the lex loci actus, and could be put in suit in a foreign court. The English Statute of Frauds has accordingly been held to apply to contracts made abroad, and sued upon here (6). The necessity of distin- guishing between the formalities preliminary to the vali- dity of the contract, and those preliminary to the enforce- ment of the remedy in the country where it was made, will be seen from the case of JSse parie Melbowm (e), which has been already cited ; and it is plain that it will be necessary to prove the former in every tribunal, while the latter will be dispensed with everywhere but in the courts of the locu$ celebrationis. The law on this subject has been briefly expressed by Lord Brougham in Bain v. Whitehaven and Fulness Bail- way OomipaMy (d). Whether a witness is competent or not; whether a certain matter requires to be proved by writing or not ; whether certain evidence proves a certain fact or not : that is to be determined by the law of the country where the question arises, where the remedy is sought to be enforced, and where the Court sits to enforce it. Foreign facts (v.) Proof of facts peculiarly foreign. — The amount of — ow prove . gyj^g^gg necessary to support a right of action in any particular tribunal, and the admissibility of the evidence offered for that purpose, being thus determined by the lex fori, it remains to consider what kind of evidence is required by the Court when investigating certain pecu- liarly foreign facts. It is unnecessary to say that the (a) Bnstow v. Sequeville, 5 Ex. 275, 279 ; Alves v. Sodgson, 7 T. E. 241 ; legg v. Levy, 2 Camp. 160. (b) Leroux v. Brown, 12 C. B. 801 ; Acebal v. Levy, 10 Bine 376 (c) L. E. 6 Oh. 64. (d) 3 H. L. 0. 1, 19. ' PEOCBDUEE GENBEALLT, AND EVIDENCE. 483 ordinary rules of evidence apply indiscriminately to the Pabt IV. proof of res gestas and other incidents relevant to the cause kooedurk of action, wherever they may have taken place ; but it is Cap. X. not equally apparent what rules apply to the proof of Fnof. foreign documents, or of foreign law. First, with regard ~ to foreign documents, it is clear that the Court must have the evidence of a translator ; a translator being, in the Proof of words of Lord Chelmsford, a witness as to the meaning ^°^^^sb- ° doouments. and also the grammatical construction of the words (a). Next, it must have evidence, adduced by foreign experts if necessary, of the meaning of any words which are of a technical description, or which have a peculiar meaning, different from that which, if literally translated into our language, they would bear. If the instrument is not only written in a foreign language, but to be controlled by a foreign law (6), according to any of the principles already laid down, then if there is any principle of construction applicable to that document by such foreign law, the Proof of foreign law on this point must be proved in the manner ^°^^^^^ ^^■ which will be shewn below. The judge " has not organs to know and to deal with the text of the foreign law, and therefore requires the assistance of a lawyer who knows how to interpret it " {e). The witnesses having supplied the judge with these facts, they must retire and leave his sufficiently informed mind to his own proper office — that of ascertaining for himself the intention of the parties ; or, in other words, of construing the instrument in ques- tion (cZ). So, if there is a foreign custom which affects the construction of a foreign document, witnesses must be heard to explain what the custom is, as evidence is received of customs in respect of trade matters, before the judge can pronounce upon the proper effect to be given to it (e). But the foreign document, though con- (a) Di 8ora v. FhOlips, 10 H. L. C. 624, 639. (6) As to the proper law to govern the construction of foreign contracts, vid. ante, p. 301. (6) Per Lord Brougham in the Sussex Peerage Case, 11 CI. & F. 115. (d) m Bora V. PhiUips^ 10 H. L. C. 624, 639. (e) Per Lord Mansfield, in Moslyn v. Fabrigas, Oowp. 174 ; 1 Sm. L. O. 677. 2 F 434 FOREIGN AND DOMESTIC LAW. Paet IV. Procbdtjee. Cap. X. Froof. Proof of foreign doeumenta. strued according to the foreign law to which it is gene- rally subject, and explained by reference to foreign facts, is only admissible in evidence, as has been said, according to the rules of the lex fori, and no foreign law will avail to make that primary evidence in a foreign court which is secondary evidence according to the law of procedure which is there followed {a). Where, however, a parti- cular value is given by the foreign law to a foreign docu- ment as proof of a fact within the jurisdiction of that law, the same weight will be given to it in any other tribunal, when the foreign law is proved to its satisfaction. Thus, where it was desired to prove a marriage in France which was celebrated before the Revolution, and it was proved by French advocates that registers of marriage were kept at Lille by official authority, and that those registers were authentic documents both before and since the Revolution, properly authenticated copies of these were admitted to prove the marriage (fc). And in a more modern case, a document was tendered to prove a marriage in Chili, which purported to be an extract from a register of marriages, signed by the curate-rector of the Chilian church where it was solemnized. The signature was duly verified by a public notary, and certified under the hand and seal of the British Consul. On proof being adduced that a regis- ter was kept by the curate-rector of every church in Chili of the marriages solemnized in it, and that certificates of marriages such as that tendered were received in the Chilian Courts as evidence of the marriage which they purported to certify, the document was received to prove the marriage in question (e). But a copy of a foreign judgment, certified in a similar manner, will not be entitled to reception here, every tribunal being of course entitled to lay down for itself the manner in which it will take cognizance of the decrees of a foreign Court {d). It is now provided by statute that all judgments, decrees, orders, or (a) Bravm v. Tliornton, 6 A. & E. 185. (I)) Siddulph V. Lord Camoys, cited by Keating, J., 29 L. J. P. & M. 58. (o) Abbott V. Abbott, 29 L. J. P. & M. 57. Id) Appleton v. Lord Braybroolee, 6 M. & S. 3-t ; and see 9 Mod. 66. PKOCEDUKB GENEBALLY, AND EVIDENCE. 435 other judicial proceedings of any court of justice in any Pabt IV. foreign state or in any British colony, and all other ''° °™° "''' affidavits, pleadings, and other legal documents filed or Cap. X. deposited in any such court, may be proved in any court troof. of justice, or before any person having by law or by consent of parties authority to hear, receive, and examine evidence, either by examined copies, or by authenticated copies purporting to be sealed with the seal of the court to which the original belongs, or, in the event of such court having no seal, to be signed by the judge or one of the judges of the said court ; and that it shall not be necessary to prove the seal or signature with which such authenticated copy purports to be sealed or signed {a). Similar provisions are contained in the same statute for the proof of proclamations, treaties, and other foreign acts of State, The proof of foreign law is mainly controlled by the Proof of principle that the law of a foreign State is a fact which ^°^'''Si» law. must be established by evidence like any other, and of which no tribunal or judge has a right to take judicial notice. No judicial knowledge or discernment is attributed to a judge in such a matter; and if proper proof of a foreign law is not adduced, the Court must proceed according to the law of England (6). All that can be required of a tribunal adjudicating on a question of foreign law is to receive and consider all the evidence as to it which is available, and hona fide to determine on that, as well as it can, what the foreign law is. If from the imper- fect evidence produced before it, or its misapprehension of the effect of that evidence, a mistake is made, it is much to be lamented, but the tribunal is free from blame (e). The judge "has not organs to know and to deal with the text of the foreign law, and therefore requires the assist- ance of a lawyer who knows how to interpret it " {d). How (a) 14 & 15 Vict. c. 99, s. 7. (6) Lloyd V. Guibert, L. E. 1 Q. B. 115, 129 ; Brown v. Oraeey, D. & E. N. P. 41, n. (c) Castrique v. Imrie, L. E. 4 H. L. 414, 427. Id) Sussex Peerage Case, 11 CI. & F. 115, per Lord Brougham. 2 F 2 436 FOEEIGN AND DOMESTIC LAW. Par* IV. far the function of the judge is limited to the reception of EooETOBE. ^j^jg evidence and this assistance, is perhaps not wholly Cap. X. free from doubt. It was said by Lord Langdale, that Proof. though a knowledge of foreign law is not to be imputed to the judge, there may be imputed to him a knowledge of the general art of reasoning ; and that there may there- fore be cases in which the judge may, without impropriety, take upon himself to construe the words of a foreign law, and determine their application to the case before him, especially if there should be a variance or want of clearness in the testimony (a). The same view had been apparently adopted by Lord Stowell in earlier cases (6), limiting the exercise of this function to the consideration 'of those authorities which were directly referred to by the wit- nesses ; but, as Lord Langdale remarked in the case cited, a judge endowed as Lord Stowell was might perhaps safely do some things which other judges might find it very hazardous to imitate. Nor is there any other direct authority for the proposition that a judge may of his own mere motion look even at the written or printed laws of a Foreign law— foreign State. In a recent case in the Exchequer Chamber, examinable by the provisions of the French Code de Commerce were, no Couit. doubt, examined critically by the Court, but it is especially remarked in the judgments that the whole Code was, It/ agreement of the parties, considered to be in evidence (c). The doctrine that it is necessary to prove foreign law as a fact by oral testimony was not therefore impugned, nor is the case even an authority for the admissibility in evi- dence of the statute law or codes of a foreign country, where the objection is not waived. The objection, though not waived, does not appear to have been taken in Trimhey V. Vignier {d), in which the same articles of the Code de Commerce came in question, and were no doubt looked at by the Court. "Upon this point of French law," says (a) Nelson v. Bridport, 8 Beav. 537. (6) Lindo v. JBelisario, 1 Hagg. Cons. 216 ; Dalrymple v. Dalrymph 2 Hagg. Cons. 54. » i- > (e) Bradlauqh v. De Bin, L. E. 5 0. P. 473. (d) 1 Bing. N. C. 151, 158. PEOCEDUEB GENERALLY, AND EVIDENCE. 437 Tindal, C.J., " the opinions of the foreign advocates which: Part iv. have been taken by consent since the trial of the cause, kooedube. appear to be contradictory ; but as each of them founds Cap. X. his opinion on the Code de Commerce, Arts. 137, 138, we Fmof. feel ourselves at liberty to refer to the text of that Code, in order to form our own judgment on the point." It will be observed that in that case the opinions of the foreign advocates was taken by consent after the trial, and the disputed articles of the Code were in fact quoted in those opinions; so that both litigants appear to have waived their right to object to anything beyond the testimony of an expert. It is obvious that there is considerable danger in permitting any judge to attempt the construction and application of a foreign code or statute for himself. The opinion of a continental judge, for example, upon the fourth section of the Statute of Frauds, given in ignorance that it had ever been the subject of judicial decision, would certainly be more likely to be wrong than right j and the stricter view would seem to be that a litigant has a right to demand, if he chooses, that the opinion of the witnesses as to the foreign law shall be accepted as conclusive, . without any attempt being made by the judge to supple- ment it by an examination of the foreign law for himself. It is the office of the judge in such a case to decide upon the testimony submitted to him, not upon the comparative validity of the reasons given by the witnesses in support of their opposite opinions (a) ; and the distinction between the task of construing a foreign document or contract after the law affecting it has been proved, and the task of ascertaining that law as a preparatory step towards doing so, will be well seen from the case just cited. The autho- rities, however, for the proposition that foreign written law may be looked at by the judge, are entitled to con- siderable respect, and in the Sussex Peerage case (&) Lord Campbell gave his opinion in favour of that view in oppo- (a) m Sora v. Phillips, 10 H. L. 0. 624, 638. (6) 11 01. & P. 85, 114 ; see Ba/roti, de Bode's Case, 8 Q. B. 208; Millar V. Eeinrich, i Camp. 155; Lacon v. Eiggins, 3 Stark. N. P. C. 178; Ficton's Case, 30 How. St. Tr. 491 ; Middlelon v. Janverin, 2 Hagg. Oons. 437. 438 POEEIGN AND DOMESTIC LAW. Part IV. sition to that taken by Lord Brougham. The Supreme ■ Court ef the United States, in a judgment cited at length G^^-'^ by Story (a), recently expressed their opinion that the Proof. true rule was, that a foreign writtea law may be received when it is found in a statute book, with proof that the book ha^ been ofScially published by the Government which made the law. It has already been said that the more recent English cases are, on the whole, unfavourable to this view ; and that there is great and obvious danger of error in any attempt to construe the written code of a foreign law, without the aid of foreign lawyers to explain it (h). Foreign law Whatever may be the true rule, however, as to the exTOrts "^ ^^ right of the Court to look at the written or printed laws of a foreign country, it is certain that all foreign law may, and all unwritten foreign law must, be proved by parol evi- dence. The only witness competent to give such evidence is some person who is conversant with the foreign law, either as a legal practitioner in the foreign State, or as holding some other office there the duties of which would . entail such knowledge. It does not appear necessary that he should be a legal practitioner or professor, at any rate if the law (e) to be proved is a mercantile custom ; but it is clearly not sufficient that his knowledge of the law of the foreign State should be derived from his having studied it in another country (d). If this were enough, as Alderson, B., observed in Bristow v. Sequeville, why should not a Frenchman, who had read books relating to Chinese law, be called to prove what the law of China really is ? And in a case, at present unreported, before Sir James Hannen in the Probate Division of the High Court, in June, 1878 {Ccurtwright v. Cartwright (e)), it was held that the Canadian marriage law could not be proved (a) Story, Conflict of Laws, § 641, a (n.) (b) Per Blackburn, J., in Castrique v. Imrie, 39 L. J. C. P. 350, 355. (c) Vanderdonokt v. Thellusson, 8 C. B. 812. (d) Bristow v. Sequeville, 5 Ex. 275 ; 19 L. J. Ex. 289 ; In the Goods of Bonelli, L. R. 1 P. D. 69. (e) Now reported (June 22), 26 W. E. ti84. PEOCEDUEE GENEEALLT, AND EVIDENCE. 439 by the testimony of an English barrister, who had enjoyed Pabt iv. a large practice in Canadian appeals before the Judicial ^" o™™ ""^- Committee of the Privy Council ; such a practitioner not Cap. x. being an expert, in the contemplation of law, qualified to pmof. give evidence concerning the law of those countries for which the Privy Council is the ultimate Court of Appeal. Such a witness must be a person jperitus virtute officii, according to Lord Lyndhurst (a), from whose language it appears further that where the witness has no officium, he can have no peritia; and therefore that a mere resident in a foreign country is not a competent witness to prove its law (6). It must be doubted whether the decision of Lord Tenterden, that a French vice-consul in England is jaeritus virtute officii, so as to be a competent witness to prove French law, would be followed at the present day. In addition to this ordinary and common law method of Foreign law proving foreign law, it was enacted by the Legislature in Z^^^^f"^ 1861 (24 Vict. c. 11) that in any action in one of the English superior courts, and now therefore in any action in any of the divisions of the High Court of Justice, it shall be competent for the Court to state and remit a special case to a superior court of any foreign country with which a convention to that effect shall have been made, in order to ascertain the law of that foreign country ; and that a certified copy of the opinion of the foreign Court upon the case submitted to it shall be admitted to prove the foreign law. The opinion of the foreign Court, however, is not to be conclusive evidence, as the second section of the same Act authorizes the English Court to apply the opinion to the facts, in the same way as if it had been pronounced by itself upon a case reserved or upon a special verdict, " if it shall think fit." The third section of the Act authorizes the English Courts to pro- nounce opinions upon cases similarly remitted to them by foreign States ; but it must of course be noted, that these (a) Sussex Peerage Case, 11 CI. & P. 85, 134, where B. v. Dent, 1 C. & K. 97, is said to be not law ; see also B. v. Picton, 40 How. St. Tr. 509 ; Ward V. Dey, 7 Notes of Oases, 96. (6) Ibid. 440 POEEIGN AND DOMESTIC LAW. Part IV. provisions only apply to those foreign countries or Statesj ■ with the governments of which a convention has been Cap. X. entered into by the British Government for the purpose Proof. of mutually ascertaining British and foreign law in the respective cases. The convention will, of course, deter- mine in each instance to what court or courts in the foreign country the application is to be made ; but it is not likely that the Act itself will ever be made extensively avail- able. A similar enactment was passed in 1859 for the ascertainment of the law administered in one part of Her Majesty's dominions when pleaded in the courts of another part (a). SVMMABY. PEOOBDUEE. p. 412. The remedy is to be enforced according to the mode of the lex fori, though the right of action be sometimes indi- rectly affected by the application of the rule. Thus, p. 413. (i.) (a.) The lex fori controls the question of the name in which the action is to be brought, but not the title to a right of action, when that affects the ultimate direction in which its benefits are to flow. Title validly conferred creates a foundation for procedure. p. 417. (b.) So liability is determined by the proper law which imposes it, but when a personal liability is once imposed, the mode in which it is enforced, as, for example, by joint or several procedure, depends upon the lex fori. p. 420. (ii.) The lex fori determines the time within which an action may be brought ; that is, the time within which an obligation may be eu forced depends upon the law of the tribunal which is asked to enforce it. But when the com- petent law has declared that an obligation, after a given time, shall be extinguished, and not merely rendered in- capable of being enforced in a particular tribunal, the law of another tribunal cannot, by fixing a longer term of pre- (a) 22 & 23 Viot. u. 63. PKOOEDURE GENEEALLY, AND EVIDENCE. 441 scription, revive it. This qualification would seem to Part IV. apply, whether the party against whom it is sought to ' revive the defunct obligation has resided during the whole Cap. X. term of prescription under the dominion of the lex con- tractus or actus, or not. (iii.) The lex fori determines the form and nature of the p- 124. action by which a personal liability is sought to be enforced, and the process or execution which the tribunal uses to enforce it. But the lex fori can never convert into a personal liability that which is not so by the law which created the obligation. (iv.) The lex fori determines the evidence by which an p. 431. obligation must or may be proved. It cannot, however, create an obligation where none existed before, though it may refuse to recognise one that already exists. (v.) All foreign facts, including the meaning of language p. 432. and the existence of laws, are objective facts to be proved, of which the Court will not take judicial notice. 442 FOEEIGN AND DOMESTIC LAW. Paet rv. Peooedtibb. Cap. XI. CHAPTER XL FOREIGN JUDGMENTS. (i.) Generally, and more particula/rly, Foreign Judgments in personam. The judgments or decrees of any tribunal have obviously no right to claim recognition beyond the jurisdiction of that tribunal on any principle akin to that which renders Foreign them binding within it. They are in fact the judicial judgments— orders of the sovereign power in the State, pronounced by now entoroed. i i the mouth of one of its tribunals ; and can only claim to be carried into effect by the executive ofScers of that State within its limits (a). The comity of nations does, however, accord them a certain recognition, and it has been said by a celebrated American judge (6) that the Courts of England give as full effect to foreign sentences as is given to them in any part of the civilized world. Eecognition may be accorded in three ways. The foreign judgment may either be adopted by the domestic Court as its own, and admitted to execution within its jurisdic- tion ; or it may be received as evidence of the creation of an obligation ; or lastly, it may be received as evidence of the original obligation, in a suit brought on the primary cause of action. The first of these methods, according to Westlake (c), is that generally followed on the Continent of Europe; though several of the continental nations, including France, enforce the judgments of other countries (a) As to the proof of foreign judgments, see 14 & 15 Vict. c. 99, s. 7, and ants, p. 434. (b) Marshall, C.J., in 4 Cranoh, 270 ; Storv, Conflict of Laws, § 590. (o) Westlake, Priv. Int. Law, § 374. FOREIGN JUDGMENTS. 443 only where there are reciprocal treaties to that effect ; the Part IV. second is the mode adopted in England and America, and "°°™y™- in countries which possess a cognate system of juris- Cap. XI. prudence; while in some few States, such as Sweden, judgments. Spain, and Norway, the plaintiff is relegated to his original cause of action. In England, then, a foreign judgment is ordinarily enforced by bringing an action Enforcement upon it ; and it is to be remarked that though it has been ^^ '''=*"'°- said that this practice does not strictly rest upon " what is loosely called international comity" (a), it does rest strictly upon international comity, properly understood. According to Parke, B., "Where a Court of competent jurisdiction has adjudicated a certain sum to be due from one person to another, a legal obligation arises to pay that sum on which an action of debt to enforce the judgment may be maintained. It is in this way that the judgments of foreign and colonial Courts are supported and en- forced " (b). This statement of principle was cited and adopted by Blackburn, J., in Oodard v. Gray (e) and 8ohibsby v. Westenholz, just referred to, and is in reality only a variation of the general rule that obligations which have once been duly created by a competent and appro- priate law will be recognised in all tribunals alike. The phrase comity of nations does emphatically mean this, or it means nothing (d). But though the most usual mode of enforcing a foreign judgment in England is by bringing an action upon it, the plaintiff is not obliged to take this course. A foreign judgment involves no merger of the original cause of action ; and it is therefore open to the plaintiff to sue upon that if he chooses (e). " This, being only a foreign judgment," said Bayley, J., in Hall v. Odher, (a) Per Blackburn, J., in SeMbsby v. Westenholz, L. E. 6 Q. B. 159. (6) Williams v. Jams, 13 M. & W. 633 ; Bussel v. Smyth, 9 M. & W. 819. (c) L. K. 6 Q. B. 139. ( j ' authority, must be impeachable from without; although Qap.xl h jg jjQt permitted to shew that the Court was mistaken, Judgmmte. it may be shewn that it was misled. Fraud is an ex- ' trinsic collateral act which vitiates the most solemn proceedings of Courts of Justice. In the words of Lord Coke, it avoids all judicial acts, ecclesiastical or tem- poral (a). These authorities are so clear upon the point, that it is hardly necessary to recapitulate other decisions to the same effect, but it m&y be remarked that though Blackburn, J., speaks in far less positive language on the question in Godard v. Oray (h), no doubt is thereby thrown upon it, as the point was not argued or contested in that case, and there is abundance of authority to suggest the principles laid down above (e). The fraud alleged must not, however, be something which was vir- tually before the foreign Court, and decided by it (d). Foreign judg- Lastly, it is necessary to consider how far a foreign Saminablefor j^idgment is examinable on the merits. The foreign Court error in law. may have been mistaken in law, or in fact j and if mis- taken in law, either in their interpretation of their own law, of English law, or of the law of some other country. It has been stated that a foreign judgment will be reviewed here, if based upon an erroneous interpretation either of private international law (e), or of English law {/) ; but the later decisions clearly shew that this is a misapprehension. There can be no difference, in the words of Blackburn, J., between a mistake made by a foreign Court as to English law, and any other mistake, (a) Per De Grey, C. J., in Dttchess of Kingston's Case, 2 Sm. L. C. 7th ed. 760. (b) L. R. 6 Q. B. 139, 149. (c) See, in addition to the cases already cited, Price v. Dewhurst, 8 Sim. 279, 302, 304 ; Bank of Australasia v. Nias, 16 Q. B. 717, 735 ; Cammell v. Sewell, 3 H. & N. 617, 646 ; Castrique v. Imrie, L. E. 4 H. L. 414, 433 ; BuUer's N. P. 244, a ; Story, Conflict of Laws, §§ 603, 607, 608. (d) Castrique v. Behrens, 30 L. J. Q. B. 163 ; Westlake, Priv. Int. Law, § 389, infra, p. 465. (e) Westlake, Priv. Int. Law, § 388, citing Meiniers v. Druce, 23 Beav. 145, 156 ; Arnott v. Bedfem, 2 C. & P. 88 ; Felix, 327, n. (/) Sm. L. 0. 7th ed. ii. 448; Westlake Priv. Int. Law, § 388, citing NovelU V. Eossi, 2 B. & Ad. 757. FOREIGN JUDGMENTS. 451 unless it is to be said that a defence which is easily proved Part iv. is to be admitted, but that one which would give the Court ^"0°™^"'°- much trouble to investigate is to be rejected ; and accord- Cap. XI. ingly, no foreign judgment can be impeached by shewing judgments. that it was wrongly arrived at. Nor does it make any ' difference that the error alleged appears on the face of the proceedings (a). The previous authorities, which had been construed by some writers as deciding that a foreign judg- ment will be invalidated by shewing that it was founded upon a mistaken view of English law, are collected and explained in the valuable judgment of Blackburn, J., in Castrique v. Imrie (h), delivering the opinion of five of the judges. After stating that fraud would vitiate any obliga- tion, even the obligation imposed by a foreign contract, that there was nothing equivalent to fraud in the case before the Court, and that all that was required of a tribunal that had to decide on a question of foreign law was that it receive and consider the evidence as to the foreign law, and lona fide determine on that as well as it can, the learned judge proceeded as follows : — " Various Castrique v. cases were cited as authorities that where a foreign Court J"»"«7-j"er sulsequens matrimonium is allowed, the children of A. who have been legitimated in that manner are not entitled to take. Legitimacy for purposes of succession to movable pro- p. 43. perty db intestato is similarly tested by the law of the domicil of the intestate. (Direct authority wanting, but established by dieta.) Legitimacy for the purpose of estimating legacy and succession duty on movable property is decided by the same rules. [By the Scotch law, legitimacy for purposes of succes- p. 45. sion generally, other than succession to real estate, is referred to the law of the domicil — i.e., the domicil of the father at the time of the birth. In cases of legitimation per sulsequens matrimonium, a change in the domicil of the father after the birth and before the marriage is im- material. The law of the domicil at the time of the birth decides once for all whether the child's bastardy is in- delible or provisional only. Such legitimation, accord- ing to the law of domicil, will not however render a child born abroad, of a Scotchman by domicil and nationality, a natural-born British subject eiititled, under 4 Geo. II. c. 21, to hold British land.] Legitimacy for purposes other than succession under a will or db intestato has not hitherto come in question, but the dicta point to the acceptance of the law of the domicil of the person on the point. The domicil of the person for p. 41. such purposes is the domicil of the father at the time of the hirth, as distinguished from the domicil of the place of birth, or of the father at the time of the subsequent marriage. But legitimacy by the law of the domicil will not in p. 44. any case be accepted, either by Scotch or English law, if its acceptance involves the recognition by that law of 2 I 2 484 CONTINUOUS SUMMARY. the validity of a marriage which it regards as incestuous or criminal. Marriage. Marriage is governed, as to its essentials, by the law of p. 48-54. the domicil of the parties ; as to its forms, by the law of the place of celebration. The law of the domicil of the parties is the proper law to decide whether the marriage can, by the use of any forms, ceremonies, or preliminaries, be effected. The law of the place of celebration is the proper law to decide what forms, ceremonies, or preliminaries, shall be employed. If the law of the matrimonial domicil is such that the marriage cannot be effected by obeying its directions, but can be effected by obtaining a dispensation from its pro- hibitions, the marriage cannot, in the absence of such dispensation, be legalized by the law of the place of celebration. The law of any country may, and the English Koyal Marriage Act does, not only prohibit certain persons from p. 57. contracting marriage in England except on certain pre- scribed conditions, but refuse to recognise any marriage contracted by such persons elsewhere when these condi- tions have not been complied with. Marriage, to be recognised by an English Court, must p. 53. be that which is recognised as marriage by Christendom, and not a mere disguise for illicit intercourse or criminal incest. Dissolution of Marriage. Where a marriage has been celebrated iu England, and pp. 59, 60. the domicil of the parties is British, a foreign divorce purporting to dissolve it will in no case be recognised. When the parties to such a marriage were domiciled abroad at the time of its celebration, and the law of the same continuing domicil purports to divorce them, the CONTINUOUS SUMMAEY. 485 better opinion seems to be that an English Court would p. 61. recognise and act upon such, a divorce, if granted for a cause of divorce recognised in this country. (But see contra, M'Oarthy v. Becaix, 2 Russ. & My, 614.) The same principle would accord the same recognition to a foreign divorce granted by the law of the domicil, where the domicil of the parties had been English at the pp- 61, 62. time of the marriage, and had been subsequently changed. (But see the same case, contra^ Where a marriage has been celebrated abroad, an English Court will assume jurisdiction to dissolve it if it PP- 63-66. can be shewn that the matrimonial domicil is English at the time of the application. But it appears to be now settled, that nothing less than a domicil in England will found this jurisdiction, although in one case {Brodie v. Brodie, 2 Sw. & Tr. 259) it was .implied that residence not amounting to domicil would do ; and in another, even more questionable, where pp. 67-69. the matrimonial domicil was originally English, but had become American, the Court dissolved the marriage on the ground of the original English domicil and continuing British allegiance {Beck v. Beck, 2 Sw. & Tr. 90). So, it would seem, the Court may exercise its jurisdiction, not- withstanding the want of an English domicil, if the respondent submit by appearance, and taking practical steps in the cause, though a former submission in another cause is not sufficient. Foreign Corporations, States, Sovereigns, and Ambassadors. (i.) Foreign Corporations. — The artificial personalities or corporate bodies which are created by the municipal laws pp. 71, 72. of foreign States are recognised in English courts, when their character is substantially the same as that of a cor- poration created by English law. A foreign corporate body may therefore sue and be sued in England under its corporate name ; and the provisions pp. 72-74, in the Rules under the Judicature Acts, for service of a 74-79. 486 CONTINUOUS SUMMARY. writ of summons or notice thereof abroad, apply to these artificial as well as to natural persons. Where a foreign corporation carries on business at a p. 76. branch office in England, with a clerk or officer in the nature of a head officer there, whose knowledge would be the knowledge of the corporation, seryice of a writ may be effected on such officer. If there is no such officer in England, notice of the writ should be serTsd on the head office of the corporation abroad. The recognition accorded by English Courts to foreign corporations does not, except as above stated, expose them pp. 77, 78. to the operation of the English enactments regulating English corporations ; unless, it seems, their creation pro- ceeded from the laws of a jurisdiction subordinate to the British Crown. A foreign corporation, though incapable of domicil in pp. 78-86. the strict sense, may reside beyond the limits of the State which created it. Except perhaps for the purposes of jurisdiction and service of process, a foreign corporation resides only in the principal seat of its business. Such residence is a question of fact, in which the locality of its incorporation and registration, the seat of its governing body, and the place where its profits are made, realised, or pp. 86, 87. remitted, are all elements to be considered. Foreign cor- porations, when litigant in an English court, occupy the same position with regard to the conduct of the action as natural persons, and may be compelled to make discovery and answer interrogatories by a proper representative. pp. 87, 88. (ii-) Foreign States and Sovereigns. — Foreign States, or bodies politic created by international law, occupy a posi- tion analogous to that of foreign corporations. In the case of monarchical governments, the Sovereign may be regarded as a corporation sole, representing the State ; in the case of democratic or republican governments, the State itself, under its international name or style, as a body politic, may be regarded as a corporation aggregate. pp. 88-92. The sovereign power of a State, in either of these two cases, may sue in an English court under its (juasi-corpo- CONTINUOUS SUMMAEY. 487 rate or politic name in respect of the public property and chases in action of the nation which it represents. The Sovereign, in the case of a monarchical government, may also sue in respect of his private rights and property as a private individual ; but the practice has been hitherto not to give a Sovereign litigant, though successful, his costs. Neither a personal Sovereign nor a body politic (or pp. 92-97. State) may be sued in an English court, unless the privi- lege of sovereignty has been waived, expressly or impliedly, by voluntary submission to the jurisdiction or otherwise. But when a foreign Sovereign is also, in another capacity, pp. 94, 101. the subject of another sovereign State, he may be sued in the courts of that other State, if not in the courts of all States except his own, in respect of acts done by him in that subject and private capacity ; though the prima facie presumption, with respect to all his acts, is that they were done by him in his character of Sovereign. A foreign Sovereign or State, when litigant in an English court, occupies the same position, with respect to dis- p. 103. covery and the other incidents of the suit, as a private individual. The sovereignty and independence of an alleged Sove- pp. 101-103. reign or body politic are matters which an Euglish Court should know or ascertain judicially ; and evidence to prove these facts need not, it appears, be offered by the parties to the action. Acts of State, authorized or ratified by a sovereign power, create no civil rights or liabilities. pp- 103-105. (iii.) Foreign Ambassadors. — Foreign ambassadors or ministers, with their families, officials, suites, servants and pp- 105-108. attendants, are, by the fiction of exterritorialite, regarded as continuously resident in the State of which they are the representatives. Foreign ambassadors or ministers are, by international law, exempt from being sued or im- pleaded for any cause whatever in the courts of the State to which they are accredited. There is no English autho- rity expressly extending this immunity to the inferior 488 CONTINUOUS SUMMAKY. members of the legation, or to their families, suites, and servants ; but it is so extended by writers on international law. p. 115. A foreign ambassador or minister does not lose this immunity, or waive his privilege, by engaging in trade ; though the statutory protection given to the servants of ambassadors or ministers, and therefore by implication their common law immunity, is forfeited by such a course p. 107. of action. The immunity may, however, be waived by iippearing and pleading; and a privileged person, by taking such a course, places himself in the position of an ordinary litigant. The extent of this immunity, though p. 106. Jiot clearly defined by English precedents, is by writers on international law treated as including all writs and pro- cesses of court, and all judicial restraints upon the time, movements, or person of those entitled to the privilege. The rules of international law on this subject, adopted p. 108. ^y the common law of England, have been amplified by statute (7 Anne c. 12) ; which declares all writs and pro- cesses, sued out against the person or goods of any foreign minister or ambassador, or of any domestic servant of such ambassador or minister, to be null and void. This statu- tory protection may be forfeited, in the case of the servant of an ambassador or minister, by engaging in trade. To be entitled to this statutory protection as the do- mestic servant of an ambassador or minister, the claimant must be actually and bond fide in such service, and no pp. 110-112.' colourable or collusive employment will do. The nature of the employment or service is in each case a question of fact; and proof that the claimant's name has been registered as such servant at the office of the Secretary of State, and thence transmitted to the office of the Sheriff, is insufficient evidence of that fact. CONTINUOUS SUMMARY. 489 Part II.— PEOPEETY. IMMOVABLES. (i.) Jv/risdietion as to Heal Property {ineludiTig chattels real) situate Abroad. The jurisdiction over real or immovable property, p. 121. abstracted from the acts and contracts of the persons who deal with it, belongs to the forwm situs alone, which will administer the lex situs in exercising it. And this general principle will preyent an action from being maintained in England for the possession of or pro- perty in foreign land, independently of any rule of proce- dure, such as those which formerly prevailed with respect to venue. But where a personal equity, resulting either from a pp. 122-I3i. trust or a contract over which an English Court has juris- diction attaches to an individual who is before the English Court or can be brought before it, the English Court will indirectly affect foreign land by acting in personam, ie., upon the conscience of its own justiciable. Thus, by the enforcement of such an equity, the title to the property in or the right to the possession of foreign land may be indirectly transferred. The mere fact that a contract relates to foreign land, or p. 130. to the rights that are incident to its possession, will not exclude the jurisdiction of the English Court, if the con- tract is one with which it is otherwise competent to deal ; at any rate, unless it is shewn that the Courts of the situs have already and properly assumed jurisdiction over the claim. Where such an equity as that defined exists, the English pp. 131, 132. 490 CONTINUOUS SUMMAET. Court will at its discretion restrain by injunction proceed- ings abroad with respect to the foreign land to which it relates. p. 133. But it seems that where the equity is absolutely repug- nant to the lex sitvs, the English Court will not enforce it, though it would have done so had the equity in question been merely non-existent by that law. pp. 134-137. There is no direct authority to shew that the jurisdiction over torts to foreign land, which the English Courts were formerly prevented from assuming by the rules relating to venue, is extended by the abolition of those rules ; but an action founded on such a tort, being for personal damages only, might on general principles be maintained here. (ii.) Nature and incidents of Beat or Immovahle Property. p. 139. The lex rei sitae is entitled to determine what is, and what is not, real or immovable property. The lex rei sitm may accordingly impress the character of personalty upon the res sita for its own purposes (as for pp. 140, 141. the payment of legacy duty), without abandoning its claim to regard the same res sita as realty or immovable property for the purposes of international law. The lex rei sitm, in calling the res sita personalty, does not thereby convert it into movable personalty. Movables and per- sonalty are not equivalent terms. The lex rei sites will generally prevail as to questions of limitation and prescription in their application to real or ^ immovable property, inasmuch as these naturally arise pp. 142-145. only in the fomm rei sitm. There is some authority for saying that the lex rei sitm will also prevail when such questions arise in a foreign court ; but among jurists there is some conflict of opinion on the point, the lex fori assert- ing its claim to deal with the matter as pertaining to the remedy. The lex rei sitm will determine the liability of real or immovable property for the debts of its deceased owner, pp. 146-151. testate or intestate, and the obligation of the heir in re- CONTINUOUS SUMMARY. 491 spect of those debts. But this principle may be modified, (i.) by the rule that the construction of a will depends upon the law of the domicil of the deceased ; (ii.) by a personal equity affecting the heir. (iii.) Transfer of Immovable Property inter vivos. The lex situs determines all questions relating to the p. 152. transfer of real estate. Thus (inter alia), it determines the capacity of the parties to the transfer. [There is, however, little direct authority on this point, and jurists shew a tendency to decide capacity on this, as on all other matters, by the lex domicilii.^ The formalities of the transfer, and the restrictions on pp. 153, 154. the freedom of alienation, are similarly decided by the same law. (iv.) Succession to Immovable Property by Will. The lex situs decides the capacity of the testator to p. 155. devise immovable estate (see, however, the qualification • of the rule just stated as to the capacity to transfer inter vivos), the formalities of the testamentary instru- ment, and its operation upon the land which it affects to devise. But where a testator intends and attempts to devise pp- 155= 156. immovable estate by a will not effectual to do so by the lex situs, the heir of the immovable estate will not be per- mitted to- take a bequest of movable personal estate under the will, and to defeat the same will as to the land. In such a case, he will be put to his election whether he will accept the will for all purposes or for none. The liability of his foreign immovable estate to the p. 156. personal debts of the testator depends upon the lex situs alone, where no intention on the part of the testator to interfere with that law appears; and the law of his domicil cannot impose any burden upon such foreign immovable estate from which by its own law it is exempt. 492 CONTINUOUS SUMMAEY. The intention of the testator to devise or burden foreign p. 156. land by a will insufficient by the lex situs to do so, must, in order to impose a personal equity on the heir, be un- equivocally expressed. General words, which might be satisfied by a different interpretation, will not be construed as evidence of such an intention, p. 158. The construction of wills, even when foreign land may be indirectly affected by it, is for the law of the testator's domicil alone. Alienation of Immovdhle Property by Act of Law. (v.) Succession on Intestacy. — The lex situs determines the heir ; and the English law, speaking as the lex situs, p. 159. requires that he should be legitimate not only according to its own rules, but by the law of his domicil also. p. 160. The burdens, liabilities, and claims, of immovable pro- perty in the hands of the heir, in the absence of any equity arising from trust or contract, depend upon the lex situs. pp. 161-163. But the conditions under which the heir of foreign land may share in the (movable) personalty of the intestate, depend upon the law of the intestate's domicil, and not upon the lex situs of the foreign land, p. 164. These rules, in cases of intestacy, are invariable, because there can be no demonstration of the intention of the owner that the foreign land should either bear or be exonerated from any particular debts, as there may be when a testamentary disposition has been made. p. 165. (vi.) Transfer on Banhru^ptcy. — Under an English bank- ruptcy, the English bankruptcy law affects to vest in the trustee all the movable and immovable property of the bankrupt, wherever situate ; and the Irish bankruptcy law is the same. The Scotch Bankruptcy Act is confined in terms to real estate within the British dominions ; and on principles of international law, the English statute cannot be given a wider interpretation. pp. 166, 167. A bankrupt is therefore not compellable, apparently, to CONTINUOUS SUMMAKY. 493 assign foreign land to his trustee or assignee in bank- ruptcy, unless there is some personal equity attaching to him by which the forurti of the bankruptcy can indirectly compel him to do so by acting in personam. It is not clear how far such an assignment can properly be made a con- dition of his discharge. (vii.) Transfer on Marriage. — The rights of husband p- 167. and wife in and to the English immovables of either are decided by English law, as the Vex situs. Semhle, the lex situs has an equal claim to prevail when the situation of the immovables is foreign, whatever the matrimonial domicil. MOVABLES. (i.) Jurisdiction as to Personal Property. Personal property, according to the English law, is not p.' 170. coincident with the class of movables contemplated by the . law of nations, but includes certain immovables as well. The terms are consequently not equivalent. The maxim " mobilia sequv/ntwr personam " applies to movables only; i.e., to such personal property as falls under that class. Such personal property as is immovable comes under the rules which relate to the jurisdiction over immovables generally. Movables are regarded as situate in the country of the p. 171. domicil of the owner, wherever they may be in fact ; and the law of his domicil alone has consequently jurisdiction to deal with them for the purpose of distributing them among his creditors or successors. The situation in fact of movables within a particular jurisdiction will, never- p. 172. theless, warrant the local Courts in assuming to deal with them for certain purposes, at any rate so far as to entertain actions based on contracts which concern them, or the right to their possession. 494 CONTINUOUS SUMMARY. (ii.) Alienation of Movable Personal Properly hy Transfer inter vivos. pp. 175 180. When alienation of movable personal property is effected by transfer inter vivos, the law regards not so much the person and domicil of the owner, as the act or transfer by which the transfer is effected, and the situation, in fact, of the property transferred. P- 176. If the property transferred, and the parties to the transfer, are all within the same jurisdiction, the transfer, according to the law of that jurisdiction, will confer a good title valid everywhere, under the dominion of what- ever law the property afterwards passes. But such a title will not be conferred if the property, at the moment of the transfer, be within another jurisdiction, by the law of which the attempted transfer is invalid or imperfect. pp. 177-181. ^^ t^® transfer be valid according to the law of the place where the property is in fact situate, the title con- ferred by it should be recognised as good everywhere, though imperfect by the law of the former owner's domicil, and though the property be afterwards brought within the dominion of that law. p 181. The creation of a lien upon movable personal property is similarly referred to the law of the place where the property was in fact situate at the time when the lien was created. (iii.) Succession to Movable Personal Proj^erty. (a.) Disj^osiHon of Movable Personal Property by Will. p 183. The Court of the domicil of the deceased at the time of his death has supreme jurisdiction, and the law of the domicil supreme authority, in all matters connected with the capacity of the testator, the formalities, execution, in- terpretation, construction, and effect, of a will of movable personal property, CONTINUOUS SUMMAEY. 495 But, under Lord Kingsdown's Act (24 & 25 Vict. c. 114), p. 184. the wijls of British subjects, whether the domicil at the time of the death or of making, if made out of the United Kingdom, are also valid if the forms required either by the law of the place of making, the law of the domicil at the time of making, or the law of the domicil of origin have been complied with ; and if made within the United Kingdom, are also valid if the forms required by the law of the place of making at the time of the making have been complied with. And by the same statute, no will, at least of a British subject, is revoked or becomes invalid by a change of domicil between the times of making and of the death. But a power of appointment by will to movable per- p. 188. sonalty, given under English law, will be validly exercised by a will made in conformity with English law, though not with the law of the domicil of the deceased at the time of his death. Such a will will be admitted to probate accordingly; though it seems that a will executed in compliance with the law of the domicil would be equally p. 191. entitled to recognition. To entitle a will or other testamentary paper to English p- 193. probate, it must dispose of some personal property situate in England, or else be incorporated by express or implied reference in another will or testamentary paper entitled to probate on its own account. In granting probate of the will of a testator not domi- pp- 193, 199, ' 200 ciled in England, the English Court will, as a rule, follow the grant of the Court of the domicil, and grant probate or administration with the will annexed to the person who has been duly clothed by the Court of the domicil with the power and duty of administering the estate. (b.) Suceessimt to Movable Personal Property hy operation of Law. The Court of the domicil of an intestate at the time of p. I9i. his death has supreme jurisdiction, and the law of the 496 CONTINUOUS SUMMAKY. domicil supreme authority, in all matters connected with the succession to his movable personal estate. p. 195. The law of the domicil of the intestate will thus deter- mine the persons entitled to administration, and those entitled to share in the distribution. The same law will decide their legitimacy, kinship, and mutual rights and liabilities touching exoneration, election, and all similar questions. (c.) Bight and Title of the Personal Representative. p. 198. A grant of probate or letters of administration has no extra-territorial operation ; and the personal representative under it acquires only a title to the personal chattels of the deceased within the jurisdiction of the Court which — made the grant. To take possession of personalty in England, or sue for debts in an English Court, a personal representative must therefore prove the will or take out letters of administra- tion here as well as in the country of the domicil of the pp. 198-200. deceased. But this rule does not operate to prevent a personal representative clothed with authority by the English Court from suing in England in respect of mov- ables actually situate abroad. p. 200. In granting probate or letters of administration, the English Court will generally follow the grant (if any) made by the competent Court of the domicil ; but it appears doubtful if the mere fact, that a person has ob- tained a grant as executor in the foreign court, will entitle him as of right to recognition of that character here. If the English Court does not consider him entitled as executor, it will, it seems, grant him letters of administra- tion evm testamento annem. p. 203. , The personal representative, when once clothed with authority by the English Court, is bound to administer the personal assets of the deceased in England. The title of a personal representative to the personal assets within the jurisdiction of the Court from which he CONTINUOUS SUMMAKY. 497 derives his authority, is not divested by the removal of the assets to another jurisdiction, unless they are removed under such circumstances as to remain still unappropriated assets, belonging to the general estate. The effect of Scotch and Irish probates in England is p. 204. regulated by the statutory provisions of 21 & 22 Vict. c. 56, s. 12, and 20 & 21 Vict. c. 95, respectively. A foreign personal representative, who has not obtained authority from an English Court, nor received English assets, cannot be sued in his representative character in England. (d.) Probate and Administration Duty. "When probate or administration is granted by an Eng- p. 208. lish Court, probate or administration duty is payable to the English government on the value of the assets locally situate in England at the time of the death of the deceased, without reference to the law of his domicil, or the value of the assets situate there. The local situation of transferable securities, which pass p. 209. from hand to hand, is that in which they are actually found. The local situation of stocks and shares, transferable only in one place, is the place where they are so trans- ferable. If the law of the country where assets are locally situate p. 211. requires double administration to be taken out in order to reduce them into possession, double duty is payable to the local government. The law of the domicil of any or all of the parties is in such a case immaterial. (e.) Succession and Legacy Duty. Succession and legacy duty is payable to the English p. 212. government in respect of the personal estate of every testator who dies domiciled in England ; and is assessed not only on his personal estate in England, but upon all his personal movable estate, wherever situate in fact. 2 K 498 CONTINUOUS SUMMARY. p. 213. The duty does not attach upon annuities or legacies charged on foreign land, nor upon chattels real abroad. Succession duty is payable upon chattels real situate in England, though the domioil of the testator be foreign. The personal character of such estate, and its liability to English succession duty, is determined by the English law as the lex situs, claiming in that right to govern immovables. p. 214. Succession duty is payable on personal estate appointed by the will of a testator domiciled abroad, under a power of appointment created by an English will or settlement. [And see the Succession Duty Act, 1853 (16 & 17 Vict, c, 51), s. 4.] So also, on successions to a settled fund vested in English trustees, consisting of English stocks and shares, though the instrument creating the settlement was the will of a testator domiciled abroad. But not, it seems, by the trustees who take immediately under such a will. p. 217. So, where the instrument creating the trusts of the settlement is a deed inter vivos. So, it seems in such a case to be sufficient that the funds should be vested in English trustees, though they have not actually been brought into England. p. 220. When succession duty is calculated according to the degree of relationship between the successor and the person from whom the succession is derived upon his death, that relationship is determined by the law of the domicil of the deceased. (f.) BistriMition of Movable Personcd Estate by Eosecutors and Administrators. p. 220. The distribution of movable personal estate in the hands of executors or administrators is regulated gene- rally by the law of the domicil of the deceased. p. 221. But when the deceased was domiciled abroad, and ancillary administration is taken out here, it is doubtful whether the priorities of creditors will not be regulated by CONTINUOUS SUMMARY. 499' the English law, as that from which the local administrator derives his authority. The English law will clearly pre- vail, as the lex fori, whenever a matter of procedure is involved. Assignment of Movable Personal Estate on Banhruptcy or Insolvency. To found the jurisdiction of the Bankruptcy Court, it is p- 230. not necessary that the alleged bankrupt should be domiciled in England. It is sufficient if the debt in respect of which bankruptcy proceedings are taken was contracted, and the act of bankruptcy took place, in England, the debtor him- self being commorant or even transiently present there. And it seems to be enough that the last two conditions should be complied with, though the debt was contracted abroad. Assignment under an English bankruptcy includes all movable personal estate of tlfe bankrupt, wherever situate, and whatever his domicil. The title of the trustee is therefore complete to all pp- 231, 232. movable chattels of the bankrupt abroad, including choses in action. But if a foreign creditor of the bankrupt has obtained possession of any such movables by a competent judgment of a local Court, the title of the trustee will not prevail against him even in England ; though there is some authority for contending that if a domiciled English- man has used like diligence, an English Court will not allow him to hold the proceeds as against the trustee. Nothing less, however, than a judgment of a competent foreign Court will in any case defeat the trustee's title. Assignment under a foreign bankruptcy to foreign p. 234. assignees extends to all the movable personal estate of the bankrupt in England, including choses in action. It is not, however, clear that if the bankrupt's domicil be English the title of his foreign assignees will prevail against that of his personal representative on his death. The right of the foreign assignees to sue in England p. 235, 2 K 2 500 CONTINDOtrS SUMMAEY. for a debt due to the bankrupt will be the same as that which would be conferred by an ordinary English assign- ment of the debt, p. 237. Priorities of creditors and all other questions of proof and distribution under a bankruptcy will be governed by the lex fori ; which will deal with creditors who have sub- mitted to the jurisdiction by coming before the Court without regard to their domicil. Assignment of Personal Proj^erty on Marriage. p. 239. Where no marriage contract or settlement is entered into, the rights of the parties in and to each other's goods are absolutely regulated by the law of the domicil of the husband at the time the marriage takes place. pp. 241, 243. When there is such a marriage contract or settlement, the law of the domicil is prima facie that which regulates its validity and interpretation ; but if the place where the contract is executed is not that of the matrimonial domi- cil, the governing law appears to be that of the place which must be taken to have been in the contemplation of the parties, either as their intended future residence, or as the locus of the subject-matter of the settlement. p. 240. Even where there is no dispute as to the proper govern- ing law, in consequence of the marriage having been celebrated, and the contract entered into, in the country of the domicil ; yet the rights created by it will not prevail against a subsequent bankruptcy of the husband in a competent foreign court, inasmuch as the distribution of assets in a concwsus of creditors is governed by the lex fori alone. CONTINUOUS SUMMAEY. 501 Part III.— ACTS. CONTRACTS. (i.) Jwrisdidion on Contracts. The jurisdiction of English Courts to deal with con- p. 248. tracts in which a foreign element existed was originally based on rules of practice alone; and the distinctions made by Roman law between the forum aetoris, the forwn rei and the forum rei sitm, rei gestse, or rei sohendas, were ignored. The test of venue, provided that personal service could be effected on the defendant within the realm, was the only one applied in the Common Law Courts j whilst the Court of Chancery, which was unrestricted by the rules of venue, had a discretionary power of ordering service p. 249. without the realm in any suit. Actions for the possession of foreign immovables were excluded from all Courts ; from the Common Law Courts by the rules of venue, and from p. 252. the Court of Chancery on principle. The Common Law Procedure Act, 1852, gave a similar p. 250. power of ordering foreign service to the Common Law Courts, where the cause of action arose within the juris- diction, or in respect of a breach of a contract made within the jurisdiction; a provision which was, after a judicial conflict, construed to include the case of a contract made abroad, but broken within the realm. The proyisions of the Judicature Acts, 1873 and 1875, p. 251. give a similar discretionary power of ordering foreign service (a.) where the subject-matter of the action is land stock or property situate within the jurisdiction, (b.) in all actions on contracts made within the jurisdiction, or (o.) of which there has been a breach within the jurisdiction, wherever they were made, (d.) in actions touching any act 502 CONTINUOUS SUMMARY. or thing done, to be done, or situate, within the jurisdic- tion. If the action does not fall under one of these heads, the mere English domicil or nationality of the contracting parties will not enable foreign service to be ordered. The restrictions arising from the rules of venue are abolished altogether. Notwithstanding the abolition of venue, actions for the possession of or property in foreign immovables will not, it would seem, be now entertained, any more than they p. 256. could have been in the Court of Chancery under the old practice. The mere fact, however, that a contract relates to foreign immovables will not restrain an English Court from dealing with it ; and the Court of Chancery will of course indirectly affect foreign immovables by acting in personam, as heretofore. (ii). Capaciitf to contract. p. 262. The capacity to contract in the ordinary sense of the word, and the so-called capacity to enter into a contract of marriage, are decided by different considerations, and governed by different rules. pp. 260, 261. The law of the place where the contract is entered into, the lex loci celebrationis, is, in common cases of contract, the law which must decide the capacity of the contractors. [Except so far as the obiter dicta in Sottomayor v. De Barros on appeal may be considered as establishing the supremacy of the lex domicilii.^ pp. 265-273. In the contract of marriage, the question strictly speak- ing is generally not one of the capacity or incapacity of the parties, but of the legality or illegality of the marriage. The law of the matrimonial domicil is the proper law to decide whether the marriage can, by the use of any forms, ceremonies, or preliminaries, be effected. The law of the place of celebration is the proper law to decide what forms, ceremonies, or preliminaries, shall be employed. CONTINUOUS SUMMABY. 503 If the law of the matrimonial domicil is such that the marriage cannot be effected by obeying its directions, but can be effected by obtaining a dispensation from its pro- hibitions, the marriage cannot, in the absence of such dispensation, be legalized by the law of the place of celebration. The law of any country may, and the English Eoyal p. 273. Marriage Act does, not only prohibit certain persons from contracting marriage in England except on prescribed conditions, but refuse to recognise any marriage contracted by such persons elsewhere when those conditions have not been complied with. (iii.) Formalities of Contract. The forms and ceremonies which the law of the place p. 275. of celebration requires for the constitution of a contract, are necessary and sufficient for that purpose. But where the lex fori demands that a contract shall be p. 277. evidenced in a particular manner, these rules of evidence must be complied with, though their indirect effect is to impose a formality of celebration not required by the lex loci celebrationis or solutionis, or to refuse as insufficient formalities by which the lex loci was satisfied. Conversely, the lex fori may admit evidence which the p- 279. lex loci would have rejected; but the contract, though proved as a fact, will in such cases be held void if that evidence shews that the formalities prescribed by the lex loci for the validity of the contract, as distinguished from the manner of proving it, were not fulfilled. The general rule, that formalities are governed by the p. 282. lex loci (locus regit actum) does not, however, apply to con- tracts which concern immovable property, as to which the lex situs prevails. The stamps which the lex fori requires on documents p. 283. executed out of its jurisdiction are rightly prescribed by it, as coming under the head of evidence. 504 CONTINUOUS SUMMARY. Where the lex fori is silent, the stamp requirements of the lex loci actus must be complied with. (iv.) Legality of the Contract. p. 287. The legality of a contract depends generally upon the law of the place of intended performance. p. 288. ^jj g^gt which is illegal by the law of the place where it is intended to be done cannot be validly contracted for in any place. p. 292. But the legality of the making of the agreement, i.e., the giving a particular consideration for a particular promise — seems to depend upon the lex loci actus. (v.) Essentials of the Contract. p. 298. Generally, the essentials of a CDutract are governed by that law which the parties intended by their agreement to adopt, p. sn. This law, prima facie, is the law of the place where the contract was made {lex loci celebrationis) ; but may be any other which the parties have sufficiently indicated their intention of adopting. pp. 301-309. (!•) The construction and interpretation of contracts is prima facie a matter for the lex loci celebrationis, but the object and subject-matter of the contract, the domicil of the parties, and the place of intended performance, may each and all indicate that the parties intended to refer the interpretation of their language to a different law. pp. 309-369. (2.) The nature and incidents of the obligation are also prima facie governed by the lex loci celebrationis, as the law which the parties are presumed to have intended to apply to the unforeseen incidents of the vineulum or legal tie. pp. 313, 326. But in contracts of affreightment and bottomry bonds the parties are presumed to have contracted with reference to the law of the ship's flag, that ilag being a notice to CONTINUOUS SUMMAKY. 505 all the world of the extent of the master's authority to bind his owners. The validity, however, of a sale by the master of the ship or cargo, in a foreign port, depends upon the lex loei actus, which governs the transfer, without reference to the law of the flag. And where it is expressly or impliedly agreed that any p. 339. future incidents of the contract shall be governed by the law of the place where they arise, that law will, of course, so far prevail. Thus all incidents of performance will be governed by pp. 339, 369. the law of the place of performance. With regard to bills of exchange, the contract of the p- 349. acceptor must be measured, so far as the original liability is concerned, by the law of the place where he enters into it ; so far as the mode, time, and conditions of payment are concerned, by the law of the place where the bill is payable. The liability of the drawer and indorser, being conditional on default by the acceptor, will depend so far as that condition is concerned, upon the law of the place where the acceptor's contract ought to have been fulfilled. And it seems that the contract of the acceptor,, as well as of his surety the drawer, is to pay to an indorsee under an'indorsement valid by the law of the place of acceptance, though this is still doubtful. The nature and incidents of a contract entered into by p. 365. an agent in a foreign place, and the extent of the agent's authority, would also seem to depend, jprima fade, upon the law of the place where the agent contracts. But in contracts of aflreightment and hypothecation entered into by a master of a ship, the contract between the owners and freighters is referred to the law of the ship's flag; and qussre, whether this principle does not extend to all contracts entered into by the master on behalf of the owners ? (3.) Performance of the Contract. — Performance or non- p. 369. performance of a contract, and the consequent dissolution of the obligation, is tested by the law of the place where the contract was intended to be performed. 506 CONTINUOUS SUMMARY. Qumre, whether the unforeseen incidents of the obliga- tion, which arise in the course of performance, are governed by the lese loci celebrationis or solutionis P Semble, the former, at any rate if any external facts, such as the domicil of the parties, tend to indicate an intention to adopt that law. p. 373. The illegality, by the law of the place of performance, of the perfQrmance contracted for, invalidates the contract ah initio. p. 376. (4.) Diseharge of the Contract otherwise than hy f&rfovm^ anee. — The discharge of a contract, when not the natural result of the agreement, nor the indirect consequence of the rules of the lex fori as to the time within which a remedy must be sought, may be effected by the law of the place where the contract was made. p. 378. A discharge by the laws or tribunals of a paramount legislature, such as that of the United Kingdom, will bind trib\inals of the subordinate jurisdictions, wherever the contract was made, if the paramount legislature intended it to have that effect. p. 382. But a discharge, to claim recognition in a foreign Court, must be an absolute discharge of the obligation, and not a mere refusal of a remedy, p. 384. A contract may also be discharged by a novation or a release, forming a new agreement between the parties, and executed according to the requirements of the lex loci TOETS. p. 389. (i.) Jurisdiction as to Torts. — An English Court has jurisdiction to try actions based on torts to the person, or to movable personal property, wherever those torts were . committed. p. 390. Torts to immovable property situate abroad were for- merly excluded from English Courts by the technical rules of venue. Whether they were also excluded by any principle of CONTINUOUS SUMMAEY. 507 international law, and whether, therefore, an English Court is still without jurisdiction to try actions based on such torts, has not been decided, and appears very doubtful. (ii.) Measure of the wrong done. — When an action is P- 393. brought in an English Court on a tort committed abroad, the act complained of must be wrongful both by English law and by the law of the country where it was committed. (Query, whether it must not only be wrongful, but also actionable, by the latter law ?) Legislation in the country where the act was committed, p. 394. purging the tort, though ex jpost facto and retrospective in its operation, will be a good answer to an action in an English Court. If the place where the act complained of was committed P- 398. is not under the domain of any special municipal law, the lex fori will be applied to test the tortious nature of the act. The lex fori in English Courts, with respect to wrongful collision on the high seas, is the general law maritime as administered in England. But where both the parties to the collision are British p. 408. subjects, the general law maritime is modified by the Merchant Shipping Acts. (iii.) Measwe of the remedy. — The remedy in general p- 399. depends, like other questions of procedure, upon the lex fori, the question whether the act is one which is entitled to a remedy at all being decided by the law of the place where it was committed. (Query, how far an act criminal but not actionable by the law of the place where it was committed is actionable in England ?) The provisions of the English Merchant Shipping Act P- 404. which limit the liability of the ship-owners for damage done by the ship are not rules of remedy or procedure which apply universally in the right of the hx fori, but are applicable by express enactment to foreign ships, when their rights and liabilities with respect to collision on the high seas come in question in an English Court. 508 CONTINUOUS SUMMAKY. p. 408. The provisions of the English Merchant Shipping Acts which direct that redress shall not be given in cases of collision, where the rules of the same Acts as to navigation have not been complied with, are not rules of remedy or procedure, but tend to determine the tortious nature of the acts resulting in collision. They are not therefore appli- cable to collisions on the high seas, except between British vessels, -or even to such collisions in British territorial waters. CONTINUOUS SUMMARY. 509 Pakt IV.— PKOCEDURE. (i.) Procedure and Evidence. The remedy is to be enforced according to the mode of p. 412. the lex fori, though the right of action be sometimes indi- rectly affected by the application of the rule. Thus, (i.) (a.) The lex fori controls the question of the name in p. 413. which the action is to be brought, but not the title to a right of action, when that affects the ultimate direction in which its benefits are to flow. Title validly conferred creates a foundation for procedure. (b.) So liability is determined by the proper law which p- 417. imposes it, but when a personal liability is once imposed, the mode in which it is enforced, as, for example, by joint or several procedure, depends upon the lex fori. (ii.) The lex fori determines the time within which an p. 420. action may be brought ; that is, the time within which an obligation may be enforced depends upon the law of the tribunal which is asked to enforce it. But when the com- petent law has declared that an obligation, after a given time, shall be extinguished, and not merely rendered in- capable of being enforced in a particular tribunal, the law of another tribunal cannot, by fixing a longer term of pre- scription, revive it. This qualification would seem to apply, whether the party against whom it is sought to revive the defunct obligation has resided during the whole term of prescription under the dominion of the lex con- tractus or actus, or not. (ill.) The fe/oW determines the form and nature of the p- 124. action by which a personal liability is sought to be enforced, and the process or execution which the tribunal uses to enforce it. But the lex fori can never convert into a 510 CONTINUOUS SUMMARY. personal liability that which is not so by the law which created the obligation. p- 431. (iv.) The lex fori determines the evidence by which an obligation must or may be proved. It cannot, however, create an obligation where none existed before, though it may refuse to recognise one that already exists. p. 432. (v.) All foreign facts, including the meaning of language and the existence of laws, are objective facts to be proved, of which the Court will not take judicial notice. (ii.) Foreign Judgments, p. 443. A foreign judgment, though not a merger of the original cause of actipn, gives rise to a legal obligation to obey its decree. pp. 445, 449. Foreign judgments may be impeached in an English Court for a defect in the jurisdiction of the Court which pronounced them, or for the fraud of the litigant relying pp. 450, 460- on them ; but not for error of law or of fact (except an 468. error in the law of the Court which pronounced it, admitted by the parties ) ; nor on the merits. p. 457. The sufficiency of the notice given to the defendant by the foreign tribunal is included under the head of juris- diction. p. 467. If no fraud or defect in the jurisdiction is alleged, a foreign judgment in personam, final in the court which pronounced it, is conclusive in every other court between the same parties or privies, whether relied on by a plain- tiff or defendant. p- 468. Subject to the same qualifications, a foreign judgment in rem is conclusive not only between the same parties or privies, but as against all the world, though not pleadable as an estoppel even between parties to the original action. p. 471. No presumption will be allowed as to the grounds on which it proceeded, but where those grounds are ex- pressed, it will be conclusive as to them, as well as with respect to the facts directly adjudicated upon. p- 473. A foreign judgment on status stands in the same position CONTINUOUS SUMMARY. 511 as a foreign judgment in rem, the question of the jurisdic- tion of the Court which pronounced it beiag decided by the ordinary rules applicable to the status of persons. The rule that a foreign judgment, to be relied on, must p. 475. be conclusive, operates to exclude the plea of lis alihi pendens, when the prior suit is pending in a foreign court ; as well as the plea of res judicata, when the prior suit was pending in the foreign court when the action in which it is pleaded commenced; but the fact that an appeal is pending against the judgment relied on, does . not affect its validity in a foreign court. INDEX. ABANDONMENT OP DOMICIL, 10, 11 divests domicil if acquired, 11 implies animus relingu&ndi, 10 (See "Domicil.") ACCEPTOB OF BILL OP EXCHANGE, liability of, 351 agreement by, to accept, 362 (See " Bills of Exchange.") ACQUISITION OP DOMICIL, 10 (See " Domicil.") ACTS OP STATE, found no civil liability, 103, 394 ADJUSTMENT, by foreign average-stater, 339 ADMINISTEATION, 194, 197, 220 {See " Property " (movable).) ADMINISTRATION DUTY, 208 governed by local situation of assets, 209, 210 ADMINISTBATOR, right and title of, 197 distribution by, 220 under foreign grant, 415 ADMISSIBILITY OP EVIDENCE, 277, 431 APPEEIGHTMENT, contracts of, governed by law of ship's flag, 313-330 AGENCY, incident of contract, 365 AGENT, in foreign country, 366 AGENT IN ENGLAND OP FOREIGN MERCHANT, does not pledge credit of bis principal, 368 ALIENS, naturalization and privileges of, 2-7 (See " Nationality," " Natdralization.") 2 L 514 INDEX. ALLEGIANCE, 1-3 transfer of, on cession of territory, 6 distinguished from tie of domicil, 8 (See " Nationality.") AMBASSADOES, diplomatic immunity of, 105-115 extra-territoriality of, 106 may waive immunity, 107 but not by trading, 115 statutory privilege of, 108 summary, 118 AMBASSADOES' SBEVANTS, immunity of, by statute, 108 service of, must be bona fide. 111 may waive immunity by trading, 109 list of, furnished to Secretary of State, 113 ANIMUS MANENDI, 13 ANIMUS EELINQUENDI, or non revertendi, 12 ANNUITIES ON POEBIGN LAND, not liable to succession duty, 213 APPOINTMENTS, TESTAMENTAEY, forms of, 188 liability of, to Succession Duty, 214 APPEOPEIATION OF ASSETS, 204 AEEEST, of person, given by the lex fori, 430 ASSETS, distribution of, by lex fori, 240 local situation of, 209 ASSIGNABILITY OF CHOSES IN ACTION, 235-237 ASSIGNEES, of bankrupt, title of, 235 ASSIGNMENT ON BANKEUPTCY, 165, 228 (See " Property.") ASSIGNMENT ON MAEEIAGE, 167, 239 (See " Property.") ATTACHMENT, foreign, of bankrupt's property, 233 ATTAINDEE, no extra-territorial effect, 57, 58 AVERAGE, foreign statement of, 339 general, 339 York and Antwerp Eules of, 342 INDEX, 515 BANKEUPTCY, effect of, on immovables, 165 (See " Property " (immovable).) effect of, on movables, 228 (See " Pkopbktt " (movable).) effect of, on contracts, 378, 381 title of assignees under foreign, 234, 415 BILLS OP EXCHANGE, Stamps on, 286 contract of drawer, 349 contract of acceptor, 351 contract of indorser, 350 indorsement of, 355 presentment and dishonour of, 351 notice of dishonour, 353 payment of, 370 interest on, 351 assignability of, 360 proposed Code of Eules for, 363 BILLS OF LADING, by what law governed, 330 BONA NOTABILIA, local probate duty attaches on, 208 BOTTOMRY BONDS, by what law governed, 326 BUSINESS OP TRAD1NG«C0MPANY, principal seat of, 85, 86 (See " CORPOEATIOK.") CAPACITY, 28-39 defined and explained, 28-30 how far dependent on the lex loci domicilii, 31, 33-35 to act or contract, how far dependent on lex loci actus, 31 to marry, 32, 49, 262 of a married woman to contract, 33 of legatees, where their domicil differs from the testator's, 34 summary, 37 CARGO, delivery of, by lex loci, 375 CARRIAGE by sea and land, contract for, 345-349 performance of, 371 CARRIER, liability of, 345 CHARTER-PARTY, governed by law of ship's flag, 313-330, 373 CHATTELS (See "Property " (movable;.) CHATTELS REAL, not movable personalty, 140, 170 2 L 2 516 INDEX. CHILDEEN, legitimacy of, 39-46 (See " Lboitimact.") meaning of word in will, 191 COLLISIONS ON HIGH SEAS, 407 COMITY, international, what is, 299, 443 COMPANIES ACT, 1862, includes corporate companies created by a jurisdiction subordinate to British Crown, and having branch office in England, 77 but not a mere foreign association, 78 COMPANY, foreign, liability of individual members of, 419 (See " COKPOEATION.") CONFIRMATION OF THE EXECUTOR, by Scotch law, effect of, 204 CONSULS, retain their domicil, 18 CONTRACTS, 247 Jurisdiction as to, 248 common law rules, 249 effect of Common Law Procedure Act, 250 Chancery Rules, 252 ' effect of Judicature Acts, 251 venue, origin of, 249 venue, abolition of, 255 mode of objecting to jurisdiction, 257 Summary, 258 Law of the Contract, 260 Capacity to contract, 260 effect of lex loci, 261 effect of lex domicilii, 262 capacity to contract marriage, 263-273 Royal Marriage Act, 273 Summary, 274 Formalities of Contract, 275 governed by lex loci, 276 effect of lex fori, 277-282 contracts for transfer of immovables, 282 stamps, 283 Summary, 297 Legality of Contract, 287 legality of performance, 288 legality of agreement, 292 Summary, 297 INDEX. 517 C0NTB.A01S— continued. Essentials of Contract, 298 Construction and interpretation, 300 in accordance with intention of parties, 304 generally by lex loci celebrationis, 301 Nature and Incidents of Obligation, 309 governed by law contemplated by parties, 310 in contracts of affreightment, by law of flag, 313-330 in bottomry bonds, 326 sales in foreign port, 331 average statements, 339 contracts for carriage, 345 Bills of Exchange, 349 Bills of Exchange, indorsement of, 355 Bills of Exchange, assignability of, 360 Bills of Exchange, proposed code of rules for, 363 interest for breach, 403 agency, 365 English agent of foreign merchant, 368 Performance, 369 ' payment of bills, 370 contract of carriage, 371 delivery of cargo, 373, 375 illegality of performance, 374 adjustment of average, 375 Discharge, 376 by lex loot, 377 , bankruptcy discharge by paramount Jurisdiction, 378 English bankruptcy, 381 ' discharge of surety, 383 discharge by novation, 384 Summary, essentials, 385 COEPORATIONS, FOREIGN, 71-87 artificial personalty of, 72 how far recognised, ib. may sue as plaintiffs, ib. are liable to be sued as defendants, 74 service of writ upon, 76 when created by subordinate jurisdiction, 77 where domiciled, 78 where resident, 80, 83 double domicil of, for purposes of jurisdiction, 80 but not for general purposes, 81-85 liability of, to income tax, 81 COUNTER-CLAIM, right to, governed by lex fori, 376 CRIMINAL OFFENCE by lex loci, not necessarily actionable, 396 518 INDEX. CURATORS, foreign, how far recognised in England, 35 CURRENCY, rate of, in portions and legacies, 304 CURTESY, estates by the, created by lex situs, 167 CUSTOM, local, incorporated into contract, 307 of City of London as to feme covert trading, 416 local, proved by parol evidence, 433 DAMAGES, measure of, by lex fori, 399 DEFENDANT, must be justiciable, 254 joinder of, governed by lex fori, 417 but not liability of, 417 DELIVERY OP CARGO, by lex loci, 254 DISCHARGE, of contract, 376 of surety, 383 by novation, 384 (See " Contract.") DISCOVERT, by litigant corporations, 86 by litigant States, 91 DISHONOUR OP BILL, notice of, 351-354 (See " Bills of Exchange.") DISSOLUTION OP MARRIAGE, 59-70. (See "Divorce.") DISTRIBUTION OP ASSETS, by executors and administrators, 220 under bankruptcy, governed by lex fori, 237 DIVORCE, 59-69 of English marriage by foreign court, not recognised, 59, 60 unless, perhaps, where the parties are domiciled within the juri, diction of such court, 61 for cause insufficient by English law, 62 by vows of chastity, 62 jurisdiction of English Court to decree, 63 requires English domicil, 65-69 Summary, 69 DOCUMENTS, foreign, how proved, 433 (See " Pbocbdtjre.") DOMICIL, 8-28 defined, 8 distinguished from nationality, 5, 6, 21 is a question of fact, 9 INDEX. 519 DOMIOIL— cojiiiMMed!. of origin, 9 follows that of the father, 9 except in certain cases, 9 adheres until an independent domicil is acquired, 10 reverts in transitu, 10, 11 by acquisition, 10 manner of acquiring, hjfacttm, and animus, 10-15 indicia of, 13-16, 18-21 presumption of law as to, 16-19 mercantile, 24, 25 of infant, 9 of orphan, 10 of married woman, 16-18 for testamentary purposes, 22 election of, by French shareholder, 447 statutory or municipal, 22, 23 of consuls and ambassadors, 18, 19 effect on personal status, 31 effect on marriage, 48, 240 effect on movable successions, 189-224 (ySee " Pkopebtv.") effect on contracts, 255 Summary, 25 DOUBLE DOMIOIL, impossibility of, 24 DOWRY, estates in, created by lex situs, 167 DBA WEE, of Bill of Exchange, liability of, 349 {See " Bills of Exchange.") ELECTION, foreign heir when put to, 146, 155, 163 EMINENT DOMAIN, meaning of, 120 ESSENTIALS, of contract, 298-384 {See " COKTBACT.") of marriage, depend on lex domicilii, 48-52 {See " Mabeiage.") EVIDENCE, admissibility and sufficiency of, depend on lex fori, 211 , 431 of foreign documents, 433 of foreign law, 435 EXECUTION, of process, generally for lex fori, 428 (See " Peoobdube.") EXECUTOES {See " Pkopeetv," movable, succession to). 520 INDEX. EXBCUTOE DB SON TORT, 206 EXONERATION, of real estate situated abroad, 147, 162 EXPERT, to prove foreign law, who is sufficient, 438 EXTRA-TEERITORIALITY, 105 FORMALITIES, of contract, 275 governed by lex lod celebrationis, 276 (See " CONTKAOTS.") FORMALITIES OF MARRIAGE, governed by lex loci celebrationis, 48-52 (See " Mabkiage.") FRAUDS, STATUTE OF, matter of procedure for lex f on, 277, 432 FUNDS, settled in England, liable to succession duty, 216 in stocks transferable abroad, not liable to probate duty, 209 GRECIAN JURISPRUDENCE, no trace of private international law in, XXV GUARDIANS, foreign, how far recognised in England, 35 HERITABLE BONDS, SCOTCH, are real estate, 147, 160 descend to Scotch heir, 147 when defeated by collateral security, 148 exoneration of, 161 HIGH SEAS, torts committed on, 403 HOSTILE CHARACTER OF PRIVATE PROPERTY IN TIME OP WAR, 24, 25 HOTCHPOT, Scotch heir of English intestate not compelled to bring land into, 161 HUBER, comments on the absence of private international law from the jurisprudence of Rome, xxv HYPOTHECATION, of ship or cargo, 332 by bottomry bond,. 326 ILLEGALITY, of contract, 292 of performance, 288 INDEX. 521 IMMOVABLES (See " Peopbbty.") INCAPACITY, 28-39 theories as to, 28, 29 distinguished from prohibition, 30 to act or contract, 31 to marry, 32, 263-273 INCIDENTS OF CONTRACT, 309 INCOME TAX, foreign company when liable to, 81 INDEPENDENCE OP SOVEREIGN STATE, for the judicial cog- nizance of the Court, 101 INDIAN CORPORATION, within Companies Act, 77 INDORSEE OP BILL, title of, 360 INDORSEMENT OP BILL, what sufadent, 355 INDORSER OP BILL, liability of, 350 See (" Bill or Exchange.") INFANT, domicil of, 9, 10 incapacity of, tested by the lex lod actus, 31, 32 where no act or contract involved, by lex domicilii, 33 guardianship of, 35-37 jurisdiction of lex loci over, 35, 36 INTENTION, necessary to a change of domicil, 15 (See " Animus Relinqubndl") "Domicil." of parties to contract, 804, 310-329 INTEREST, rate of, deterinined by lex contractus, 370 INTESTACY, as to immovables, 159-163 as, to movables, 194:-223 (See " Peopeett.") IRISH PROBATES, effect of, in England, 205 JUDGMENTS, foreign, how proved, 434 in personam,, 442 mode of enforcing, 443 no merger of original cause of action, 44.3 mode of pleading, 444 examinable for excess of jurisdiction, 445 or want of notice to defendant, 457 522 INDEX. JUDGMENTS— coMiirawed or fraud, 449 but not for mistake of law, 450 or fact, 461, 467 founded on local Statute of Limitations, no bar, 423 in rem, 468 conclusive against all the world, 469 as to matter decided and grounds of decision, 471 but examinable for excess of jurisdiction, 470 or fraud, 449, 472 on status of persons, 473 Summary, 477 JUDICATURE ACTS, effect of, on assignability of choses in action, 236 abolition of venue by, 129, 256 JUEISDICTION, as to immovables, 120-138, 389 (See " PfiOPEBTY " (immovable).) as to movables, 170 {See " Pbopbett " (movable).) as to contracts, 128, 248 as to torts, 389 (See " Contracts," " Toets.") essential to validity of foreign judgment, 445 KING'S PEACE, assaults committed beyond the, 392 LAW, foreign, bow proved, 435 (See " Pkoceditkb.") LEGACIES (See " Wills," « Pkopertt.") LEGACY DUTY, estimated according to the lex domicilii of the testator, 43 payable to government of domicil without regard to actual situation of estate, 212 LEGATEE, capacity of, depends on the lex domicilii, 34 LEGITIMACY, 39-46 in connection with succession to land, by lex situs and lex domi- cilii, 39, 40 of Scotch heirs, 39, 45 for purposes of succession to movables, depends on the lex domi- cilii of the testator, 41 or of the intestate, 43 for purposes of estimating Legacy and Succession Duty, 43 when decided by the lex domicilii, 47, 55 INDEX. 523 hEGmiMAGY— continued. must not involve recognition of incest, 44 statutory declaration of, 45 Summary, 46 LEGITIMATION per subsequens matrimonium, 41, 43 depends on the lex domicilii of the father at the time of birth, 40,41 LEX CONTEACTUS, 260-385 celebrationis, 261, 276, 301 solutionis, 369 {See " CONTEACTS.") LEX DOMICILII, how far it determines capacity or incapacity of the person, 31-35 legitimacy of legatee, 43 governs essentials and legality of marriage, 48 no effect on transfer of movables, 177 governs movable successions, 189-224 governs assignments of movables on marriage, 240 subject to intention and agreement of parties, 241, 243 LEX POM, governs procedure, 413 governs priorities, 221, 240, 425 governs evidence, 277, 431 governs prescriptions and limitations, 420 except where opposed by lex situs with respect to immovables, 144, 421 LEX LOCI ACTUS, decides capacity, 31 how far controlled by lex domicilii, 32 LEX LOCI CELEBRATIONIS, decides capacity, 31, 261 governs forms and non-essentials of marriage, 48 operation on marriage contracts, 243 operation on contracts generally, 276, 301 LEX LOCI SOLUTIONIS, 369 (See " CONTBACTS.") LEX SITUS, governs as to immovables, 39, 40, 121, 139, 142, 146, 152, 155, 159 (See " Peopeety " (immovable).) effect of, on movables, 173 effect of, on transfer of movables, 176, 179 (See " Pbopeety " (movable).) 524 INDEX. LIABILITY, of defendant, not created by lexjori, 417, 429 LIEN, on movables, how created, 181 LIMITATION, Statutes of, affecting immovables, 142 generally governed by lex fori, 420 except as to immovables, 142, 421 LIS ALIBI PENDENS, when a good plea, 475 no bar when prior action in foreign Court, 476 LUNACY, by lex dondcilii, 35 LUNATIC, foreign committee of, 37 MABITIME LAW, general, 316 its nature, 333, 367, 403 MARBIAG-E, capacity for, 30, 32, 262 {See " Capacity.") dissolution of (./See " Divorce.") essentials of, depend on the lex domicilii, 48-52 forms of, depend on the lex loci celebrationis, 48-52 incestuous, not recognised, 53 validity of, 47-58 with deceased wife's sister, 30, 54 of first-cousins, 32, 51 of Mormons, 53 of Parsees, 53 prohibition of, by lex domicilii, 48, 51, 54 effect of, on immovables, 167 effect of, on movables, 239 (/See " Property.") contract, 223, 241, 243 Summary, 58 MAEEIAGE ACT, ROYAL, 57 MARRIED WOMAN, her right to sue, 416 her domicil, when distinct, 17 her personal property, 239 legacy to, paid to husband where no equity to settlement by hx domicilii, 416 MARSHALLING, doctrine of, applied to heirs of immovable^ only by lex loci, 126 INDEX. 525 MEASURE, of tortious act, 393 of remedy and damages, 399, 402 MERCANTILE DOMICIL, 24, 25 MERCHANT SHIPPING ACTS, limitation of liability by, 404, 408 MINORS, contracts by, 31, 260 marriage of, 52, 272 MISJOINDER, of party to action, 413, 415, 419 MISTAKE, of law or fact, no ground for impeaching foreign judgment, 450-457 MOVABLES (/See "Property.") MUNICIPAL LAW, particular application of, xxvii NATIONALITY, definition of, 1 distinct from domicil, 5, 8 how determined by the common law, 1 how modified by statute, 2-7 of children, 2, 4 of wives, 4 on cession or abandonment of territory, 6 possibility of changing, 3-5 Summary, 6 NATURALIZATION OP ALIENS, former legislation on, 3 statutes regulating, 3-5 privileges conferred by, 3, 4 colonial, 4 (See Nationality.) NATURALIZATION ACT (33 & 34 Vict. c. 14), 3 NATURE OF IMMOVABLE PROPERTY, 139 (See " Propebty.") NATURE OF MOVABLE PROPEBTY, 140, 170 (See " Property.") NAVIGATION RULES OF MERCHANT SHIPPING ACTS, effect of, 408 NEXT OF KIN, determined by lex domicilii, 195 NON-JOINDER OF PARTY TO ACTION, 413, 415, 419 526 INDEX. NOTICE OF DISHONOUR, what sufficient, 352 (See " Bills of Exchange.") NOTICE TO DEFENDANT, essential to validity of foreign judg- ment, 457 NOVATION, discharge of contract hy, 384 PACKED PARCELS, contract by railway for carriage of, 374 PARTIES, to action, 413 (See Pbocedueb.") PERFORMANCE, of contract, 369 illegality of, 288, 374 (See " Contracts.") PERSONS (See "Nationality," "Domicil," "Capacity," "Status.") PERSONAL EQUITY, enables Court to affect foreign land, 121-127 PERSONAL LAW, dependent on domicil, not on nationality, xxviii PERSONAL PROPERTY (See " Movables.") PERSONAL STATUS (See " Status.") PLAINTIFF, right of, to sue, 414 POWERS OF APPOINTMENT BY WILL, how to be executed; 188 PRESCRIPTION as to immovables, 142-145 generally, 420 PRESENTMENT OF BILL OF EXCHANGE, sufficiency of, 351-353 PRIORITIES, generally matter of procedure for the lex fori, 221 PRIVILEGIA, 57 PROBATE, 183, 197 (See " Peopbety " (movable).) PROBATE AND ADMINISTRATION DUTY, 208 (See " Pbopeety " (movable).) PROCEDURE, generally governed by lex fori, 412 Parties to the action, 413 title of plaintiff, 4l4 liability of defendant, 417 liability not created by les&fori, 418 Time within which action must be brought, 420 English Statutes of Limitations, 423 INDEX. 527 PROCEDURE— coMimwea. Suit and Process, 424 governed by lex fori, 425 set-off, 426 execution. 428 Evidence, 431 Proof of foreign facts, 432 foreign documents, 433 foreign custom, 433 foreign judgments, 434 foreign law, 435 Summary, 440 PROCESS, 424 (See " Proceduke.") PROFITS OP FOREIGN COMPANY, not liable to iacome tax, 81-83 PROHIBITION, distinguished from capacity, 30 PROMISSORY NOTE, assignability of, 360 {See " Bills op Exchange.") PROPERTY, 120-246 (A.) Immovable Jurisdiction as to, 120-138 belongs to forum situs, 121 indirectly assumed by English Courts, 121 where there is an equity to be enforced, 121, 128 arising out of trust or contract, 127 not repugnant to hx situs, 133 and the defendant is justiciable, 128 jurisdiction with respect to torts to, 134^137 how far affected by abolition of venue, 137 summary, 138 Nature of, 139 depends on lex situs, 139 distinguished from movables or personalty, 140-142. Prescription and limitation of, 142-145 depend upon the lex situs, 142 even when that law in conflict with the lex fori, 144 Liabilities of, 145-151 governed by lex situs, 146 even against the lex domicilii of a testator, 146-148 subject to equities arising out of testator's intention, 146-151 Summary of incidents relating to, 151 Transfer of, inter vivos, 152-155 governed by lex situs, 152 formalities of, 153 restraints upon, 154 528 INDEX. PROPERTY— comfenMCfi. ' Immovable — continued. Succession to, by will, 155 governed by lex situs, 155 subject to equities affecting devisee, 155 arising out of testator's intention, 156 issue not directed to try validity of will of foreign lands, 157 foreign lands not within 20 & 21 Vict. c. 77 .. 157 Succession to ah intestato, 159 requires legitimacy by lex situs and lex domicilii, 39, 40, 159 governed generally by lex situs, 160 liabilities depend on lex situs, 160, 161 rigbt to exoneration, 161 obligation of foreign heir to elect, 146, 155, 163 Assignment of, on bankruptcy, 165 effect of English Bankruptcy Acts, 165, 166 obligation of bankrupt to assign foreign land, 167 Assignment of, on marriage, 167 lex situs prevails against lex domicilii, 168 Alienation of, by operation of law, summary, 168 (B.) Movable, Jurisdiction as to, 170 chattels, real and personal, 171 movables and personalty distinguished, 140, 170 jurisdiction from actual situation, 173 Summary, 173 Transfer of, inter vivos, 174 by lex loci rei sitse, 175, 179, 331-339 effect of law requiring actual delivery, 175, 176 prohibition of, by lex loci rei sitse, 176 unsupported by lex domicilii, 177 creation of possessory lien, 181 Summary, 182 Succession to, 183-224 by will, 183 ah intestato, 194 right and title of personal representative, 197 probate and administration duty, 208 succession and legacy duty, 212 distribution by executors and administrators, 220 Summary, 224 Assignment on bankruptcy, 228 effect of English bankruptcy, 229 essentials of jurisdiction, 280 competing with foreign process, 231 INDEX, 529 'PRO?'EIiTY— continued. Movable — continued. Assignment on bankruptcy — continued. effect of foreign bankruptcy, 234 title of assignees, 235 distribution of assets, 237 Summary, 238 Assignment on marriage, 239 governed by lex domicilii, 240 subject to subsequent operation of lex fori, 240 agreement and intention of parties, 241, 243 Summary, 245 /^«^^^^XiSi®!i?^^ govern^ journey on, 288, 34^^^^^ RBGISTRMTON>6fC0NTEACT, effect of necessity for, by foreign ]aw, 382 RELEASE, by executor or administrator, 206 executed according to lex loci, 385 of surety, 383 REMEDY, governed by lex fori, 412 (See " Pkocedube.") measure of, witb respect to torts, 399 EENT-CHAEGB, on foreign land, where recoverable, 129 RESIDENCE, to affect domicil, must be permanent, 8, 15 indicia of, 13-21 involuntary, 15, 29 (See " DoMicu,.") hand fide, insufScient to found jurisdiction for divorce, 64, 65 ROMAN EMPIRE, not suited to development of international law, xxiii SALE OP IMMOVABLES, 152 SALE OP MOVABLES, 174 (See " Pkopeett.") SALE OP SHIP OR CARGO IN POREIGN PORT, 177, 331-339 SCOTCH PROBATES, effect of, in England, 204 SERVICE OP WRIT, out of the jurisdiction, 251 on foreign corporation, 77 on bead officer of. company, 76 SET-OPP, question of procedure for lex fori, 350, 426 2 M 530 INDEX. SETTLEMENT, of English property, governed by English law, 173 English, governed by English law, 243 marriage, generally governed by law of matrimonial domicil, 240 SHIPMASTER, authority of, 328, 336, 339 discretion of, 337 contract by, 314, 336 SHIPOWNER, liability of, for master's contracts, 314, 317, 338 SLAVES, contract for sale of, 294 SLAVE TRADE, not piracy by law of nations, 294 SMUGGLING, contract in aid of, 290 SOVEREIGNS, FOREIGN, may sue in English Courts, 88-91 represent their States, 88 not usually given costs, 89 not liable to be sued, 92 unless privilege waived, 93 by submission to the jurisdiction, 94 or by trading as private person, 96 or in a private capacity, 94 or in respect of English land, 97 agent or trustee of, 98, 99 property of, not liable to procedure in rem, 100 independence and sovereignty of, is for the Court's judicial cogni- zance, 102 obligations of, when litigant, 103 Summary, 117 SOVEREIGN STATES, {See « States.") SOVEREIGNTY, ACTS OP, create no civil rights, 103, 394 stamps; on contracts and other instruments, 277, 279, 283 on bills of exchange, 286 STATES, are bodies politic, 89 and persons within Judicature Acts, ib. may sue in English Courts, 90 but compelled to give discovery, 91 not liable to be sued, 92, 93 unless privilege waived by trading as private person, 95 or by acquisition of English land, 97 or by acquiescence in the jurisdiction, 92, 103 agent or trustee of, 98, 99, 114 (and see " Sovbkbigns.") INDEX. 531 STATUS, elements of, xxviii, xxix, 1, 8 civil and political, 8 distinguished, 23 of foreign guardians and curators, 35, 36 judgment on, effect of, 473 STATUTE OF DISTRIBUTIONS, legitimacy under, tested by Itx domicilii, 43, 195 STATUTE OF FRAUDS, matter of procedure for the Ux fori. 111, 432 STATUTORY DOMICIL, objections to, 22-24 SUCCESSION to immovables by will, 155 to immovables ah intestato, 159 to movables by will, 183 to movables ab intestato, 194 duty, 212 rate of, depends on legitimacy by lex domicilii, 43, 196 imposed without reference to local situation of estate, 212 by the government of the domioil, 212 (See " Peopeety.") SURETY, release of, 383 SYNDICS OF FOREIGN BANKRUPT, their right to sue, 235, 415 TITLE TO SUE, not generally affected by lex fori, 413 of administrator, 197 of assignee of chose in action, 235, 360 of syndics of foreign bankrupt, 235, 415 TORTS, 389, 411 jurisdiction over, 389 to foreign land, 388 measure of the wrong done, 393 tested by lex fori and lex loci, 393 wrong criminal, but not actionable by lex loci, 396, 427 measure of the remedy, 399 by lex fori, 400 if actionable by lex fori, 401 measure of damages, 402 torts on high seas, 403 Summary, 410 TRANSFER, of immovables, 152 of movables, 174 (/See " Peopeety.") 532 INDEX. TRANSIT, complete, necessary to a change of domioil, 10, 12 if incomplete, causes domicil of origin to revert, 10, 11 (See " Domicil," " Abandonment.") by sea and land, contract for, 345 TRANSITORY ACTIONS, nature of, 249 TRANSLATION, of foreign documents, 433 of wills, 201 TRESPASS, ix> foreign land, 134, 389 to person, 392, 394 TRUSTEES, must be within the control of the Court, 130 TRUSTS, ENGLISH, successions under, liable to duty, 215 TRUSTS, of foreign land, not enforceable, 130 except where trustees within the control of the Court, 128, 130 TUTORS, foreign, how far recognised in England, 35 VENUE, origin of, 249 abolition of, 255 "WILLS, OP IMMOVABLES, governed by lex situs, 155 subject to equities affecting devisee, 156 validity of, not directed to be tried, when lands without the juris- diction, 12S (See " Propbbtt " (immovable).) WILLS, OF MOVABLES, 183 probate of, 193 interpretation of, 191 execution of, 197 duty on, 208 validity of, 183-190 (See " Property " (movable).) YORK AND ANTWERP RULES OF GENERAL AVERAGE, 342 not generally adopted by British underwriters, 344 LONDOH ; PKIKTED BY WILLIAM ClOWES AND SONS, STAUFOBD STREET AND CHARING CROSS. w